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JOHN B. CASSODAY.

Justice. These eighteen intervening years were among the most momentous in American history. It was during this period that it was determined whether we should ever have a national government, or continue as a confederation of independent states, represented in continental congress, conspicuous for its wisdom to advise and its impotency to execute. In the work of devising and constructing a national government, Marshall's tongue and pen were efficient aids. In 1787, he was re-elected to the council of state, and in 1788 he was made a member of the convention of Virginia, which was charged with the important duty of ratifying or rejecting the then proposed federal constitution. Fortunately it was, for the honor of Virginia and the good of the nation, that James Madison, as the father and special champion of that instrument in that body, had the support of so able a colleague as John Marshall in warding off the arguments and eloquent appeals of Patrick Henry and others, who were bitterly opposed to such ratification. Although Marshall was at the time less than thirty-three years of age, yet he made three masterly arguments in support of the clauses of the constitution which were most severely assailed, authorizing federal taxation and the collection of revenue, the ordaining and establishing of a federal judiciary, and the powers therein given to congress and the president over the militia. Without those arguments the instrument might have been rejected by Virginia, since, as it was, it was only ratified by a vote of 89 to 79. During the next three years he was a member of the Virginia legislature, and during the next four years he devoted himself exclusively to his law practice, except as he spoke and wrote in favor of the administration of Washington and the federal view of the constitution, as against the State Rights Party. In 1795, he was again a member of the house of delegates at Richmond, and made a powerful speech in defense of Jay's Treaty, socalled. In the same year, Washington offered to make him Attorney General of the United States, but he declined by

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reason of his law practice, and the next year Washington offered to make him Minister to France, but he again declined for the same reason. He was then forty-one years of age, and in the same year he argued the case of Ware vs. Hylton (3 Dall., 199), in the Supreme Court of the United States, involving the question whether an American citizen of Virginia, indebted to a British subject, could, under the treaty of peace, successfully defend, on the ground that the debt had been sequestered by the state; and although he was defeated, yet he appears to have impressed all who heard him, including the court, with his "great abilities, ingenuity and skill." At that time he had come to be regarded as at the head of the Virginia bar; and upon questions of public and international law, as having no superior, if an equal, in the whole country.

In 1797, President Adams sent him as one of a commission of three to treat with France, and he accepted, but an enormous sum of money, as a condition precedent, was demanded by secret agents of the French government, and Marshall, in behalf of the commission, sent a paper to the French minister, Talleyrand, indignantly repelling the sug gestion; whereupon he and Pinckney, as Federalists, were ordered out of the country, while the French consented that Gerry, as a Republican, only might remain. On his return to this country, Marshall received many demonstrations of approval, and at a public dinner given in his honor at Philadelphia, one of the toasts was this: "Millions for defense; not a cent for tribute;" and this sentiment was echoed and reechoed throughout the Republic. His old political opponent, Patrick Henry, wrote about the same time: "Tell Marshall I love him, because he felt and acted as a Republican, as an American." In August, 1798, President Adams tendered to him the office of Associate Justice of the Supreme Court of the United States, made vacant by the death of the distinguished Justice Wilson, but he declined.

At Washington's urgent request, he consented to run as

JOHN B. CASSODAY.

a representative in Congress, and was elected and took his seat in 1799. He was conceded to be the ablest and most learned constitutional lawyer and debater in that body, and earnestly supported the administration of Adams, except as might be inferred from his votes to repeal the alien and sedition laws. The most noted event of his congressional career was his defense of President Adams' surrender of Robbins, who had murdered a man on board a British ship, and then fled to the United States. This defense was based upon a clause in Jay's treaty, making the act of surrender an exercise of political power which belonged to the executive, and so powerful was his argument as to practically silence all opposition. May 7, 1800, he was nominated by the President as Secretary of War, but before confirmation, and on May 12, 1800, he was nominated as Secretary of State, and was thereupon confirmed and accepted. In November, 1800, by reason of sickness, Chief Justice Oliver Ellsworth resigned, and upon Marshall's suggestion, Adams re-appointed John Jay in his place, but he declined to accept. Marshall, thereupon, recommended to the President for the office, Mr. Justice William Patterson, of New Jersey, who had for seven years been a member of the court, but Adams disregarded the recommendation, and told Marshall he need not trouble himself about the matter, as he had concluded to nominate "a Virginia lawyer, a plain man by the name of John Marshall;" and accordingly January 20, 1801, his name was sent to the Senate by the President, and he was thereupon unanimously confirmed as Chief Justice of the Supreme Court of the United States, January 31, 1801, and four days afterwards he took the oath of office.

It will be observed that he was never an office seeker, in any sense, and that this most exalted position was conferred upon him without any effort, or even suggestion, on his part, but solely because his great abilities as a constitutional lawyer, and his solid worth as a man, commended

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him to the President, the bar and the country. In this, there was a striking contrast between him and John Scott, who manifestly made the Great Seal an object of his ambition, from the time he passed over from the King's Bench to the Court of Chancery, twenty-two years before he was made Lord High Chancellor in April, 1801. Upon Scott's graduation, he had devoted two years in preparing for the ministry, and he may have remembered that from the time of Augmendus, down to the appointment of Cardinal Wolsey, by Henry VIII., a period of more than 900 years, the Lord Chancellors had been selected almost exclusively from the clergy; that, although appointments since that time had been confined almost wholly to the bar, yet that equity as a system had made exceedingly slow progress, and hence, might, with well directed efforts, be greatly improved, notwithstanding there appeared upon the roll the great names of the two Bacons, Clarendon, Nottingham, Somers, Cowper, Harcourt, Macclesfield, Talbot, Hardwicke, Northington and Camden. Besides, there was

a living witness then upon the woolsack, in the person of Lord Bathurst, who had demonstrated that it was possible to secure that great office by luck, skillful intrigue or personal influence, even in the absence of the requisite learning or ability. Certainly, Scott appears to have supported the party in power, or soon to become in power, with great regularity. Whenever the King gave signs of mental aberration, he boldly advocated the cause of the Prince Regent. William Pitt was eight years his junior, but Scott had heard the Earl of Chatham, and knew the history of his power and influence, which was so largely inherited by his distinguished son, and so he almost uniformly supported Pitt, whose ministry gave promise of holding the Great Seal with some security. When Pitt was out of power, and Scott was holding office under another, he se cretly plotted for Pitt's restoration. He is said to have exercised greater influence in the cabinet than any previous Lord Chancellor for a vast number of years. He even procured the

JOHN B. CASSODAY.

King's signature to bills when he was conceded to be mentally incompetent for the transaction of business-an act of manifest usurpation, if not forgery, and this he sought to justify on the extremely subtle distinction that he was competent as King, though not as an individual. The death of Pitt forced Scott to resign the Chancellorship, February 3, 1806, and Thomas Erskine succeeded him, but he only remained in office a little more than a year, when the ministry, including Erskine, were dismissed for insubordination, and Scott applauded, and so he was thereupon re-appointed Lord High Chancellor, April 1, 1807. He continued to hold that office until the death of George III. necessitated his resignation, January 30, 1820, but he was immediately re-appointed by George IV., whose friendship he had secured on his renunciation of the Whigs eight years before, by then referring to him. as his "dear young master." In the meantime he had protested against the presence in the cabinet meetings of his old. rival, Lord Chief Justice Ellenborough, as inexpedient and without precedent, except in the case of Mansfield; and upon the resignation of Ellenborough in 1818, he secured in his place the appointment, without title, of Abbott, several years afterwards known as Lord Chief Justice Tenterden.

The accession of the new King in January, 1820, brought unexpected troubles. A conspiracy was formed to assassinate the new cabinet, including Scott, but was discovered and frustrated, and the result was, that the would-be assassins, instead of getting into power, got into prison. The new King, as prince Regent, after one year of married life, had twentyfour years before separated from his wife, Princess Caroline, and from that time had continued an "unbroken course of barefaced and notorious profligacy." Such profligacy naturally led to indiscretions on the part of Caroline, and accordingly a commission was appointed in 1806, including Erskine and Ellenborough, to inquire into her fidelity as a wife. She couLselled with Scott, who was then out of office. August 11, 1806, Erskine reported in behalf of the commission, simply admon

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