CHAPTER IX

THE SUPREME CONSERVATIVE If a judge becomes odious to the people, let him be removed. (William Branch Giles.) Our wisest friends look with gloom to the future. (Joseph Story.) I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. (Marshall.) "I was in a very great crowd the other evening at M^{rs} Adams' drawing room, but I see very few persons there whom I know & fewer still in whom I take any interest. A person as old as I am feels that his home is his place of most comfort, and his old wife the companion in the world in whose society he is most happy. "I dined yesterday with Mr. Randolph. He is absorbed in the party politics of the day & seems as much engaged in them as he was twenty five years past. It is very different with me. I long to leave this busy bustling scene & to return to the tranquility of my family & farm. Farewell my dearest Polly. That Heaven may bless you is the unceasing prayer of your ever affectionate "J. MARSHALL."[1269] This letter to his ageing and afflicted wife, written in his seventy-second year, reveals Marshall's state of mind as he entered the final decade of his life. While the last of his history-making and nation-building opinions had been delivered, the years still before him were to be crowded with labor as arduous and scenes as picturesque as any during his career on the Bench. It was to be a period of disappointment and grief, but also of that supreme reward for sound and enduring work which comes from recognition of the general and lasting benefit of that work and of the greatness of mind and nobility of character of him who performed it. For twenty years the Chief Justice had not voted. The last ballot he had cast was against the reëlection of Jefferson in 1804. From that time forward until 1828, he had kept away from the polls. In the latter year he probably voted for John Quincy Adams, or rather against Andrew Jackson, who, as Marshall thought, typified the recrudescence of that unbridled democratic spirit which he so increasingly feared and distrusted.[1270] [Illustration: JOHN MARSHALL] Yet, even in so grave a crisis as Marshall believed the Presidential election of 1828 to be, he shrank from the appearance of partisanship. The _Marylander_, a Baltimore Democratic paper, published an item quoting Marshall as having said: "I have not voted for twenty years; but I shall consider it a solemn duty I owe my country to go to the polls and vote at the next presidential election--for should Jackson be elected, I shall look upon the government as virtually dissolved."[1271] This item was widely published in the Administration newspapers, including the Richmond _Whig and Advertiser_. To this paper Marshall wrote, denying the statement of the Baltimore publication: "Holding the situation I do ... I have thought it right to abstain from any public declarations on the election; ... I admit having said in private that though I had not voted since the establishment of the general ticket system, and had believed that I never should vote during its continuance, I might probably depart from my resolution in this instance, from the strong sense I felt of the injustice of the charge of corruption against the President & Secretary of State: I never did use the other expressions ascribed to me."[1272] This "card" the _Enquirer_ reproduced, together with the item from the _Marylander_, commenting scathingly upon the methods of Adams's supporters. Clay, deeply touched, wrote the Chief Justice of his appreciation and gratitude; but he is sorry that Marshall paid any attention to the matter "because it will subject you to a part of that abuse which is so indiscriminately applied to ... everything standing in the way of the election of a certain individual."[1273] Marshall was sorely worried. He writes Story that the incident "provoked" him, "not because I have any objection to its being known that my private judgement is in favor of the re-election of M^r Adams, but because I have great objections to being represented in the character of a furious partisan. Intemperate language does not become my age or office, and is foreign from my disposition and habits. I was therefore not a little vexed at a publication which represented me as using language which could be uttered only by an angry party man." He explains that the item got into the _Marylander_ through a remark of one of his nephews "who was on the Adams convention" at Baltimore, to the effect that he had heard Marshall say that, although he had "not voted for upwards of twenty years" he "should probably vote at the ensuing election." His nephew wrote a denial, but it was not published. So, concludes Marshall, "I must bear the newspaper scurrility which I had hoped to escape, and which is generally reserved for more important personages than myself. It is some consolation that it does not wound me very deeply."[1274] It would seem that Marshall had early resolved to go to any length to deprive the enemies of the National Judiciary of any pretext for attacking him or the Supreme Court because of any trace of partisan activity on his part. One of the largest tasks he had set for himself was to create public confidence in that tribunal, and to raise it above the suspicion that party considerations swayed its decisions. He had seen how nearly the arrogance and political activity of the first Federalist judges had wrecked the Supreme Court and the whole Judicial establishment, and had resolved, therefore, to lessen popular hostility to courts, as far as his neutral attitude to party controversies could accomplish that purpose. It thus came about that Marshall refrained even from exercising his right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his life, since it is not certain that he voted even at the election of