John Marshall to Charles Cotesworth Pinckney on Jefferson’s inauguration: at least he’s not a terrorist

On March 4, 1801, Chief Justice John Marshall administered the oath of office to Thomas Jefferson, the third President of the United States. This marked the first transfer of power to a new political power base in the early Republic.

That day, Marshall wrote a letter to a friend, Charles Cotesworth Pinckney. He started the letter before swearing in Jefferson and ended it after. Here’s what he wrote:

Washington March 4th. 1801

Dear Sir

I had the pleasure of receiving a few days past your letter of the 11th. Feb.

For your friendly expressions on my late appointment I am infinitely obligd to you. Of the importance of the judiciary at all times, but more especially the present I am very fully impressd & I shall endeavor in the new office to which I am calld not to disappoint my friends.

Before I receivd your letter Judge Bay had left us with the intention of visiting the Mississipi territory. It was not in my power to be otherwise useful to him than by giving him letters to the governor & secretary of that country who will I hope facilitate his enquiries concerning his property.

To day the new political year commences—The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposd to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country—if he does not they will soon become his enemies & calumniators.

4 OClock

I have administerd the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judgd & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.

With great & sincere esteem, I am dear Sir your Obedt

J Marshall

John Marshall on James Madison, Patrick Henry, and the distinction between convincing and persuading

Patrick Henry has often been depicted as a stirring orator who operated primarily on the emotions or passions. He certainly did know how to move men’s souls and stir them to action. But overemphasis on his “jury appeal” risks under-appreciation of his skills of logical argument and rational persuasion. This excerpt from William Wirt Henry’s life of Patrick Henry shows how John Marshall appreciated Henry as an accurate thinker and profound reasoner as well as a great orator. In comparing Madison to Henry, Marshall draws a distinction between convincing and persuading. Perhaps the distinction is worth trying to understand:

The poorly reported speeches of Mr. Henry attest the powers of reasoning he displayed [during the Virginia ratification convention], but in addition we have the testimony of one of his ablest opponents, one who certainly was a judge of logic, and had ample opportunity of seeing him in deliberative bodies and at the bar.

John Marshall, after he had achieved his great reputation as Chief Justice of the United States, upon a visit to Warrenton, Va., was asked his opinion of Wirt’s “Life of Henry.” He replied that “he did not think it did full justice to its subject. That while the popular idea of Mr. Henry, gathered from Mr. Wirt’s book, was that of a great orator, he was that and much more, a learned lawyer, a most accurate thinker, and a profound reasoner.” And proceeding to compare him with Madison: “If I were called upon,” said he, “to say who of all men I have known had the greatest power to convince, I should perhaps say Mr. Madison, while Mr. Henry had without doubt the greatest power to persuade.”

William Wirt Henry, 2 Patrick Henry: Life, correspondence, speeches 376 (relying on Judge James Keith of Warrenton, Va., for this statement of Marshall’s, which he obtained from a memorandum of the conversation made by Judge John Scott).

Lincoln’s Magnanimity

In Lincoln’s Virtues, William Lee Miller uses a line in Abraham Lincoln’s eulogy of Zachary Taylor to reveal Lincoln’s magnanimity. Here’s Miller on Lincoln on Taylor on Lincoln:

One way or another, it is significant what we select to praise in others. Lincoln said of Taylor: “[H]e pursued no man with revenge.” Then he dramatized an incident involving “the gallant and now lamented Gen. Worth,” who, when a colonel, had been so offended by a decision against him by his superior General Taylor as to leave the army in Mexico and to tender his resignation to army authorities in Washington. “It is said, that in his passionate feeling,” reported Lincoln, “he hesitated not to speak harshly and disparagingly of Gen. Taylor,” and that as a respected officer his word carried weight. An unexpected turn in the war then brought the prospect of what would be the Battle of Monterey, and Worth was now “deeply mortified” at being absent and seeing his laurels wither away. The government “both wisely and generously,” Lincoln said, declined Worth’s resignation and returned him to General Taylor’s command.

“Then came Gen. Taylor’s opportunity for revenge.” But of course he did not take it. Instead of placing Worth so that “his name would scarcely be noted in the report,” Taylor, feeling that it was generous to allow him, then and there, to retrieve his secret loss,” assigned him “what was, par excellence, the post of honor,” and Worth went on to glory. The selecting of that story tells as much about the eulogist as about the eulogee–magnanimity would, in time, be one of Lincoln’s prime virtues.

William Lee Miller, Lincoln’s Virtues, p. 227.

John Marshall, Constitutionalist, A Drama in Five Acts (Edward J. White, 1921)

An unusually interesting item swept up in the first phase of the John Marshall Hero Project was a five-act play: John Marshall, Constitutionalist, A Drama in Five Acts. The author is Edward J. White, who published the work in 1921. White was a railroad lawyer, judge, Shakespeare scholar, and author (of legal treatises as well as of some other five-act dramas on George Washington and Daniel Boone, among others). Check it out!

Abraham Lincoln’s “Prudence”

It’s unfortunate that “prudence” must be in quotation marks when used these days to describe what prudence really is. But the meaning of the term has changed somewhat from its meaning when used to denote the first of the cardinal virtues. In any event, here’s a perceptive student of Abraham Lincoln describing Lincoln’s prudence:

The mature Abraham Lincoln would exhibit, in an admirable way, a combination of the moral clarity and elevation of–what shall we say?–the prophet, with the “prudence,” the “responsibility” of a worthy politician. The latter characteristics he had already acquired in his early forties. The moral clarity was to come.

I use the two words above in quotation marks instead of some variant of the overworked American word “pragmatism,” because they imply a combination of practical wisdom with moral purpose, as “pragmatism” may not.

“Prudence” was once the name not only for a cardinal virtue but for the first of the cardinal virtues. Prudence as a virtue did not then exclude, as pragmatism tends to do, general moral ideals and larger moral patterns beyond the immediate situation. The term did not then mean, as it has shriveled to become in our modern vocabulary, a calculating, cautious self-regard: a prudent cat that does not step on a hot stove, a prudent driver who looks both ways before barreling out of the driveway, a prudent young person who puts away some money in a prudential life insurance company. The classical virtue did share with this modern shrunken usage, and with the ubiquitous modern language of pragmatism, this quality: a careful attention to the particular situation in which one acts. And it shares with utilitarianism in all its varieties a careful weighing of probable consequences of one’s actions in that real world, as Lincoln told Durley he should have done. One does not act simply out of one’s hopes, dreams, fantasies, or imaginings; one must look, and examine, and intelligently understand, the world out there, outside oneself, as it is in all its present particulars. A person imbued with the virtue of prudence must say to himself, or herself–to borrow from a source not available to Aristotle, Thomas Aquinas, and other interpreters of classical prudence, Jimmy Durante–“Dem’s da conditions dat exist.”

But the term did not originally imply that one should pay this scrupulous attention primarily or only because of the potential consequences for ourself, as our diminished usage now tends to do; nor did it disdain or ignore larger moral purposes and effects, as at least the popular use of the language of pragmatism tends to do, or reduce moral judgment to one future-oriented measurement, as utilitarianisms do.I am resuscitating this concept temporarily for my purpose here, just to indicate that there once was such a way of slicing moral understanding–and that it then could be applied to Lincoln. In the older usage–the one I suggest would have fit the maturing Lincoln–prudence was a virtue. That means it was a pattern or habit that should become ingrained. Prudence as a moral virtue made a bridge to the intellectual virtues, as they were called in the old schemes. That means it entailed a central role for cognition, for learning and knowing, in praiseworthy conduct. A prudent person in this older sense used his powers of observation and reasoning to take careful account of the real and concrete situation, the particular situation, not simply in order to protect his own skin, and not with the assumption that whatever “works” in that situation is what one ought to do, but in order continually to adapt the appropriate moral claims and purposes, also carefully considered, to the real world.

William Lee Miller, Lincoln’s Virtues: An Ethical Biography, 222-23 (2002).

Patrick Henry’s endorsement of John Marshall for Congress

One of the more unusual alliances in American politics came together in the congressional election of 1798. John Marshall was on the ballot for Congress in his first election for federal office. (He had previously been offered, but turned down, appointment as United States Attorney and Attorney General. During the course of the election, he would be offered, but turn down, appointment to the Supreme Court of the United States.)

It was a tough race against a talented incumbent, John Clopton. Marshall had not wished to run but had been recruited by George Washington. Friends of the incumbent spread rumors that the influential Patrick Henry favored Clopton. Hearing of this, Marshall’s friend Archibald Blair wrote to Henry, who replied to Blair with a long letter warmly endorsing Marshall.

An extended excerpt:

Can it be thought that … I should utter anything tending to prejudice General Marshall’s election? Very far from it indeed. Independently of the gratification I felt from his public ministry [as envoy to France], he ever stood high in my esteem as a private citizen. His temper and disposition were always pleasant, his talents and integrity unquestioned. These things are sufficient to place that gentleman far above any competitor in the district for congress. But when you add the particular information and insight which he has gained, and is able to communicate to our public councils, it is really astonishing, that even blindness itself should hesitate in the choice. But it is to be observed, that the efforts of France are to loosen the confidence of the people everywhere in the public functionaries, and to blacken the characters most eminently distinguished for virtue, talents, and public confidence; thus smoothing the way to conquest, or those claims of superiority as abhorrent to my mind as conquest from whatever quarter they may come.
Tell Marshall I love him, because he felt and acted as a republican, as an American.

Meet Rutherford B. Hayes, student of the law

One interesting source of anecdotes about Chief Justice Marshall were colleagues on the bench like Justice Joseph Story. When Story taught constitutional law at Harvard Law School, he occasionally related stories about his friend, the Great Chief.

One of Story’s students was future President Rutherford B. Hayes. His diary entries as a law student, as collected and edited by a biographer, contain a combination of time-bound and timeless observations. Here are three:

  1. Praise by Joseph Story of Marshall as one raised up by Providence:

    Chief Justice Marshall was the growth of a century. Providence grants such men to the human family only on great occasions to accomplish its own great ends. Such men are found only when our need is the greatest.
    (p. 32)

  2. An anecdote from Story about Jefferson’s refusal to concede anything when discussing with Marshall. The anecdote itself is probably untrue as related, but points to a truth about Marshall’s powerful skills of reasoning and argument.

    Thomas Jefferson said: “When conversing with Marshall I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me it if were daylight or not, I’d reply ‘Sir, I don’t know, I can’t tell.'”
    (p. 33)

  3. Rules Hayes imposed on himself as a student of the law while studying at home.

    My rules for the month are:–
    First, Read no newspapers.
    Second, Rise at seven and retire at ten.
    Third, Study law six hours, German two, and Chillingworth two.
    Fourth, In reading Blackstone’s “Commentaries,” to record my difficulties.
    ( p.30)