Justice, Mercy, and Treason: John Marshall’s and Mercy Otis Warren’s Treatments of Benedict Arnold

Critical Thinking

October 28, 2021
by Rand Mirante Also by this Author


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In the early years of the nineteenth century, the founders of the new American Republic were lurching forward from the shockingly successful outcome of their increasingly remote Revolution, and finding themselves immersed in the uncharted waters of nation-building. The political landscape was inflamed by passionate partisanship and varying, often vituperatively expressed visions of what course to follow, what form the Republic ought to assume, and what guidance the past could offer for the discordant present and an uncertain future.

Squaring off contemporaneously at opposite poles of the political spectrum were two of the country’s most prominent historians who were participants in the years of the Revolution: the Chief Justice of the United States Supreme Court, former staunch Federalist John Marshall, a Virginia veteran of Washington’s army and subsequent survivor of Thomas Jefferson’s assault on the federal judiciary; and Mercy Otis Warren, a fervent Jeffersonian Republican, iconoclastic dramatist and chronicler who found and placed herself at the Massachusetts epicenter of pivotal Revolutionary history. Marshall’s platform was his multi-volume, periodically released, and unevenly focused biography of his consummate hero, under whom he served at Brandywine, Germantown, Valley Forge, and Monmouth: The Life of George Washington. Warren’s pulpit was her comparably monumental History of the Rise, Progress and Termination of the American Revolution Interspersed with Biographical, Political and Moral Observations. Both works can be seen as polemical exercises that were intended to shape the future by transfiguring the past via the authors’ respective ideological prisms.

To illustrate this great debate, I’ve chosen to largely focus the glass upon the tenor and tone of the two dueling historians’ respective treatments of that iconic traitor, Benedict Arnold, and the interpretations that could be derived therefrom. It’s entirely possible that Marshall briefly encountered American General Arnold at the end of the Valley Forge encampment when oaths of allegiance were administered, and Marshall’s militia unit (he had been demobilized from the Continental Army in 1779) was witness to British General Arnold’s 1781 onslaught in the James River area.[1] It’s unlikely but not inconceivable that Warren observed the patriotic version of Arnold in Boston in 1775 just prior to his epic march on Quebec. Regardless of the at-best highly tangential nature of any first-hand meetings the authors might have had with him, Arnold’s betrayal played an important role in each of their narratives.

Warren commenced Rise, Progress and Termination—a three-volume work with the final installment coming out in 1807—with a striking commentary on the nature of mankind, right after an attention-getting initial sentence which rather caustically described “History [as] the deposite of crimes, and the record of every thing disgraceful or honorary to mankind.”[2] On the opening page, she outlined the “secret springs” which, in addition to the benign hand of providence, precipitate human events:

The study of the human character opens at once a beautiful and a deformed picture of the soul. We there find a noble principle implanted in the nature of man, that pants for distinction. This principle operates in every bosom, and when kept under the control of reason, and the influence of humanity, it produces the most benevolent effects. But when the checks of conscience are thrown aside, or the moral sense weakened by the sudden acquisition of wealth or power, humanity is obscured, and if a favorable coincidence of circumstances permits, this love of distinction often exhibits the most mortifying instances of profligacy, tyranny, and the wanton exercise of arbitrary sway.[3]

Here then we have Warren’s central thesis, to be hammered home with myriad examples, put boldly and up front: as seen by her, the infatuation of many founders and their Federalist followers with rank and privilege, and with financial aggrandizement and predatory, speculative commercialism, was endangering the very survival of the hard-won liberties and freedoms bequeathed by the Revolution. Corruption was knocking at the door—or rather, it was already inside the edifice—and it was threatening to spread depredation and ruin, as it had “from Cesar to an arbitrary prince of the House of Brunswick.” Warren plainly laid out what she believed to be at stake:

The progress of the American Revolution has been so rapid, such the alteration of manners, the blending of characters, and the new train of ideas that almost universally prevail, that the principles which animated to the noblest exertions have been nearly annihilated. Many who first stepped forth in vindication of the rights of human nature are forgotten, and the causes which involved the thirteen colonies in confusion and blood are scarcely known, amidst the rage of accumulation and the taste for expensive pleasures that have since prevailed.[4]

Unusually for her day, Warren, whose father, brother, and husband were all prominent Massachusetts patriot leaders, had been home-schooled to a high standard; echoes of Decline and Falland classical and Biblical references abound in her History.[5] Her polemical writing initially had taken the form of poems and plays; in the latter category, her acerbic satirical dramas, including The Adulateur and The Defeat, deriding Gov. Thomas Hutchinson (represented by her character the corrupt and treacherous “Rapatio”), achieved popularity and notoriety, although the author’s identity was understandably kept secret.[6] Thus, as her Revolutionary chronicle reached the momentous year of 1780 and the spirit of patriotism was showing signs of waning, she propelled Benedict Arnold onto her stage, as though he were a stock villain in one of her dramas. General Arnold, Warren wrote, “was a man without principle from the beginning, and before his defection was discovered, he had sunk a character raised by impetuous valor, and some occasional strokes of bravery, attended with success, without being the possessor of any intrinsic merit.”[7] The worship of military prowess was not for Warren, which to her was completely meaningless if not exercised for virtuous reasons, no matter how worthy the cause—for without virtuous actors, the cause itself would inevitably be corrupted, and divine providence would therefore not lend it assistance. Referring to Arnold’s alleged plundering of Montreal and his “rapacity” in Philadelphia, echoing the Governor Hutchinson character, she continued:

He had accumulated a fortune by great crimes, and squandered it without reputation, long before he formed the plan to betray his country, and sacrifice a cause disgraced by the appointment of a man like himself, to such important trusts.[8]

Warren castigated not just Arnold but the very act of his appointment. Leaving no room for any ameliorating traits or mitigating circumstances, she stated that Arnold was “proud of the trappings, and ambitious of an ostentatious display of wealth and greatness (the certain mark of a narrow mind).”[9] Here we have at center stage the exemplar for speculative, status-seeking, fortune-hunting post-war American leaders and their followers who were jeopardizing the moral achievements of the Revolution. Arnold verged onto the path of treason after making “exorbitant demands on congress” for reimbursements and determining upon “revenge for public ignominy, at the expense of his country . . . after the perpetration of so many crimes” (another reference to his avaricious conduct and maladministration as military governor of Philadelphia).[10]

Warren thereupon turned her attention to British go-between Maj. John André, whom she described as “elegant in person,” “amiable,” “polite,” “sensible,” and “brave” before decrying that, due to “mistake in himself” and Arnold’s “baseness” he “descended to an assumed and disgraceful character”—that is, the character of a spy.[11]

To Mercy Otis Warren, the practice of espionage was to be roundly condemned, and her condemnation wasn’t limited in this instance to André’s superior officer. In a passage striking for the breadth of the net of opprobrium thrown, she observed:

Doubtless, the generals Clinton and Washington were equally culpable, in selecting an Andre and a Hale to hazard all the hopes of youth and talents, on the precarious die of executing with success, a business to which so much baseness and deception is attached.[12]

In addition, while Warren contrasted the brutally abrupt execution of Nathan Hale by the British with the “politeness and generosity” shown André by his captors (including their commander in chief), she nevertheless noted:

Many persons, from the impulse of humanity, thought that general Washington might consistently with his character as a soldier and a patriot, have meliorated the sentence of death so far, as to have saved, at his own earnest request, this amiable young man from the ignominy of a gallows.[13]

Thus, early on, Warren did not exempt the paragon George Washington from criticism, and while he never came close to being a primary target, we will again see her upbraid the Father of his Country for falling short, in the postwar aftermath, of the requisite standards of republican virtue and morality.

Warren provided dramatic foils to the villainous Arnold and the corrupted André by introducing from the wings the trio of militiamen-captors, “John Paulding, David Williams, and Isaac Vanvert” (actually Van Wart). These three homespun Americans refused the British major’s offered bribe, and Warren stated that their names “ought never to be forgotten” (not allowing for having herself gotten one of them wrong).[14] Their importance to her nevertheless was that they epitomized her patriotic ideal: citizen soldiers, interested only in the good of their country, impervious to subornation and showing “contempt for private interest.” She favorably observed that Congress awarded the heroic trio silver medals and pensions.[15] She also noted that Arnold’s “insolent and overbearing” subsequent proclamation for others to join him in switching sides “cast many indecent reflections on congress,” an important point to be kept in mind when we consider Marshall’s treatment of the same episode.[16]

After the American patriots’ cause, aided by the intervention of the three militiamen, and abetted by divine providence thanks to their righteousness, dodged Arnold’s treasonous bullet and triumphed a year later at Yorktown, Warren’s worries about the future really began to set in. She compared the new nation to a “young heir . . . incapable of weighing the intrinsic value of his estate.” She bemoaned that hard-won liberty was being “bartered away for the gratification of vanity, or the aggrandizement of a few individuals.”[17] She saw—ubiquitously cropping up like the yield from maliciously sown dragon’s teeth—Federalists enamored with centralized control, with the accumulation of wealth, and with fostering the corruption of speculative finance (“though the spirit for freedom was not worn down, a party arose, actuated by different principles, new designs were discovered”).[18] Glimmerings of the worst traits of Arnold could be detected everywhere, and Warren warned “it is necessary to guard at every point, against the intrigues of ambitious men, who may subvert the system which the inhabitants of the United States judged to be most conducive to the general happiness.”[19]

Here, then, is a sampling of the gallery of prominent patriots whose conduct and ambitions were subjected to scrutiny and criticism in Rise, Progress and Termination:

Benjamin Franklin—Referring to his succumbing to flattery and “unbounded applauses” that placed him under the sway of the duplicitous Charles Gravier, comte de Vergennes: “it is painful even for the impartial historian, who contemplates the superiority of his genius, to record the foibles of the man . . . yet this distinguished sage became susceptible of a court influence.”[20]

John Jay—As delegate to negotiate a treaty with Great Britain, he “fell from the dignified, manly, independent spirit which should have marked an American negociator.”[21]

Gouverneur Morris—“A character eccentric from youth to declining age; a man of pleasure, pride, and extravagance, fond of the trappings of monarchy, implicated by a considerable portion of the citizens of America, as deficient in principle, was not a suitable person for a resident minister in France.”[22]

Alexander Hamilton—Unsurprisingly, excoriated by Warren for his creation of the national debt, “which was probably never intended to be paid,” she described him as a “young officer of foreign extraction, an adventurer of bold genius, active talents, and fortunate combinations, from his birth to the exalted station to which he was listed by the spirit of favoritism.” Warren saw Hamilton as having ignited a powder train of “restless passions” and “a rage for project, speculation, and artifices . . . which finally ruined multitudes of unsuspecting citizens.”[23] (It should again be noted that to Warren, bravery, genius, military prowess, fortitude, and success unaccompanied by virtue and morality were in and of themselves meaningless, as she had already made clear in her indictment of Arnold.) As a staunch opponent of standing armies, she also pointed her accusatory finger at Hamilton as “the prime mover and conductor of [the] extraordinary business” of assembling what she deemed the “dangerous engine” of the excessive force mobilized to suppress the Whiskey Rebellion in 1794.[24]

George Washington—Warren’s approach here is to praise—which she does frequently—with fairly faint damnations. In becoming the president of the aristocratic and hereditary order of the Society of the Cincinnati, which she believed he should have forcefully declined, Washington should have acted upon a sense of “the impropriety of an assumption so incompatible with the principles of a young republic,” instead of heading “a self-created peerage of military origin.”[25]And after reviewing Washington’s farewell address admonitions, she noted that by the time he delivered them at the end of his second term, it was at a juncture when the citizenry were split into factions; after an exotic taste had been introduced into America, which had a tendency to enhance their public and to accumulate their private debts; and after the poison of foreign influence had crept into their councils, and created a passion to assimilate the politics and the government of the United States nearer to the model of European monarchies[26]

Certainly not a ringing approbation of the initial presidential administration.

John Adams—Here, toward the end of her chronicle, Warren’s criticism reached an absolute crescendo directed at her former close friend, the one-term Federalist chief executive whose peremptory actions had propelled in large part Thomas Jefferson’s ascension to the highest office. In her own defense, she morosely noted that “the heart of the annalist may sometimes be hurt by political deviations which the pen of the historian is obliged to record.” Those deviations included “prejudices and passions . . . sometimes too strong for his sagacity and judgment,” and “a partiality for monarchy”; Adams had turned into a betrayer who had “relinquished the republican system, and forgotten the principles of the American revolution, which he had advocated for near twenty years.”[27] (The reaction by the prickly Adams to this harsh verdict was predictably one of wounded outrage and an outpouring of protesting correspondence.)[28]

None of these (to Warren) clay-footed icons were compared overtly to Benedict Arnold, but the lesson of Warren’s morality play is clear: the American republic, established on a foundation of revolutionary virtue and dedicated to popular representation and the protection of individual freedoms (Warren was a staunch proponent of the Bill of Rights), was being betrayed and subverted again, consciously by some, inadvertently by others through their acquired weaknesses.

*  *  *

We now turn to Chief Justice John Marshall, Warren’s contemporary counterpoint and end-of-term Adams appointee to head the Supreme Court. While on the Court, Marshall undertook the rather unorthodox and extremely demanding project of writing his hagiographic Life of George Washington at the urging of Washington’s nephew—and Marshall’s fellow justice on the Court—Bushrod Washington; his well-placed friend and colleague provided Marshall with extraordinary access to his uncle’s trove of papers. The first two volumes came out in 1803 and, to Marshall’s deep disappointment and chagrin, they were neither a commercial nor a critical success. (George Washington was barely mentioned in the first tome, which went badly off the rails by confining itself to an exhaustive history of the colonial period.) But they and the volumes which followed (especially the final one which covered the postwar years, just as Warren’s last volume had done) did spark an immensely heated political controversy, with President Thomas Jefferson referring to the completed work as a “five-volumed libel.”[29]

Marshall was a distant cousin of Jefferson, and likely going as far back as the Revolution the relationship was not a cordial one; perhaps this was traceable to Marshall’s perceptions of Jefferson’s failure to provide frontline leadership when Arnold raided Virginia in 1781. This lack of cordiality was exacerbated by litigations involving the two “cousins” as attorneys (on opposite or even when on the same sides). It festered further when Marshall, as one of President Adams’ three envoys to France, was the exasperated and offended target of Directory Minister Charles-Maurice de Talleyrand-Périgord’s attempted shakedown of the United States during the “X Y Z Affair” in 1797-98, which turned into a partisan flashpoint between anti-French Federalists and pro-French Democratic-Republicans.[30] The rocky relationship completely deteriorated when Marshall was appointed to the Supreme Court in the eleventh hour of the Adams administration, and incoming President Jefferson launched his vehement but ultimately unsuccessful vendetta against a judiciary stocked with Federalists. So the two men were outright, publicly bitter enemies by the time publication of volume five of The Life of George Washington coincided with the momentous 1807 treason trial of Jefferson’s nemesis, his former vice president Aaron Burr, a trial presided over by Marshall sitting quite ironically as a circuit judge, since having to ride circuit in addition to sitting on the Supreme Court was seen as a punitive measure concocted by Democratic-Republican leaders and directed at the justices.[31] President Jefferson’s unsuccessful attempts to influence the outcome of the Burr trial (actually two trials and two acquittals), including in a speech to Congress, are well-known; underscoring the level of partisan distrust was the fact that suspicions were voiced by Bushrod Washington (who was Marshall’s financial partner in the proceeds of The Life of George Washington) that the chief executive was using the postmaster general of the United States and his postal agents to interfere with the books’ subscription sales.[32]

I wish to make it completely clear that in his biography’s treatment (in the fourth volume) of the 1780 treason plot, Marshall in no way exculpated Benedict Arnold, nor did he diminish the severity of the turncoat’s crime or the potentially disastrous impact of his betrayal (yielding up what Marshall refers to as “the Gibraltar of America”), had it been successful. There was no process of acquittal at work here, nothing comparable to that of Aaron Burr (where the prosecution was procedurally flawed and the evidence available at the time of the Burr trial was in any event quite convoluted and controversial). Arnold was strongly denounced by Marshall as “a traitor, a sordid traitor, first the slave of his rage, then purchased with gold.”[33]

However—and especially when read in juxtaposition to Warren—I believe a difference in tone can be detected. Marshall did not castigate Arnold as rotten to the core from the outset (recall Warren’s condemnatory “devoid of principle from the beginning”). Rather, Marshall cited Arnold’s “great services and military talents,” “his courage in battle,” his “patient fortitude with which he bore the most excessive hardships,” and “the firmness which he had displayed in the field . . . in the most adverse circumstances.”[34] These character traits were not at all irrelevant to the combat-veteran Marshall. But, relieved from field command due to his wounds, in Philadelphia Arnold failed to display “that strength of principle and correctness of judgment to which his high station exposed him” (unlike in Warren, no mention was made of the much more ambiguous circumstances involving the disputation of Arnold’s military accounts in Montreal).[35] Marshall almost matter-of-factly took note of Arnold’s “speculations which were unfortunate,” and then proceeded to recount how “his claims against the United States were great” and how Arnold became entangled in challenging reviews by the assigned commissioners and appealing to congress, where a committee was said to have reduced even what the commissioners had allowed. “Not the less soured and disgusted by these multiple causes of irritation in consequence of their being attributable to his own follies and vices, he gave full scope to his resentments . . . and gave great offence to congress.”[36] Marshall opined that Benedict Arnold was now out for vengeance.

Marshall recounted the treason plot and its undoing, but attributed the capture of André to his “want of self-possession” that “would almost seem providential.”[37] The three (unnamed) militiamen-captors were praised for “invaluable service” but not glorified to anywhere near the extent as did populist-proponent Warren. Neither was there any denunciation from the pragmatic Marshall of the practice of espionage as immoral. The Chief Justice closed his treatment of the treason episode by commenting on the turncoat’s post-defection proclamation (from which he extensively quoted), in which Arnold attempted to incite others to follow his lead:

He was profuse in his invectives against congress and their leaders generally, whom he criminated with sinister views in protracting the war at the public expense, and with general tyranny and usurpation. With these charges he artfully mingled assertions of their sovereign contempt for the people, particularly manifested in refusing to take their collective sentiments on the proposals for peace which Great Britain had made.[38]

Up to this point, the conclusion of the coverage in Life of George Washington of the Arnold plot, for the most part the distinctions between Marshall’s treatment and that of Warren in Rise, Progress and Termination are nuanced and not glaringly obvious. But I believe that what immediately follows—on the very next page of the same chapter, without break or interval—is consequential in distinguishing the two works. Turning immediately and seamlessly to the state of the Continental Army in late 1780, Marshall wrote:

Notwithstanding the embarrassments with which congress was surrounded, and the miserable system of government to which the affairs of America were then committed, it is not easy to find adequate reasons for the neglect . . . It would seem, from private letters, as if two parties still agitated congress. The one entered fully into the views of the commander in chief; the other, jealous of the army, and apprehensive of its hostility to liberty when peace should be restored, remained unwilling to give stability.”[39](Emphasis added.)

Placed in extremely close proximity to Arnold’s descent into treason, I submit that it is not too much of a leap for a reader to infer from Marshall that Arnold’s “rage,” while not justifying his unconscionable course of action, could nevertheless have been to some degree provoked by “the miserable system.” In other words, it’s something of a wonder that Arnold was, according to Marshall, the only influential American officer who took the drastic step of re-adhering to the Crown. And whether or not the reader makes this same interpretive leap as well, the passage does provide the sharp, stark juxtaposition of contrasting fears for the nation’s future held by the Federalist justice and by the Jeffersonian Republican woman of letters. For him, the threats were anarchy, the tyranny of the masses, unchecked and unbalanced populism, the spread of Jacobinism. For her, it was the restoration of the evils of monarchic privilege in republican guise, aided and abetted by the corruption of civic virtue. As Mercy Otis Warren remarked in Rise, Progress and Termination, the reader may draw his or her own conclusions.


[1]John Marshall to Joseph Story, July 25, 1827, The Papers of John Marshall Digital Edition, Charles Hobson, ed. (Charlottesville: University of Virginia Press, Rotunda, 2014), rotunda.upress.virginia.edu/founders/default.xqy?keys=JNML-print-01-11-02-0017.

[2]Mercy Otis Warren, History of the Rise, Progress and Termination of the American Revolution Interspersed with Biographical, Political and Moral Observations, 2nd ed., ed. Lester H. Cohen (Indianapolis: Liberty Fund; 1994), 3. The work was completed by the end of 1804, with all three volumes published by 1807.

[3]Ibid., 3.

[4]Ibid., 4.

[5]On the second page of Rise, Progress and Termination, the author spoke of “turbulent passions” that have turned the “lower creation” into an “aceldama.” Plaudits go to the reader who, unlike this writer, is not thereby compelled to reach for the dictionary!

[6]For a discussion of Warren’s plays, including whether or not she was the author of The Blockheads, lampooning the British stranglehold on Boston, see Nancy Rubin Stuart, The Muse of the Revolution (Boston: Beacon Press, 2008), 48-49, 51-52, 103-04. Stuart points out that the plays were meant to be read but not performed, as there was no live theater in Boston at the time, thanks to its “Puritan tradition.”

[7]Warren first introduced Arnold in connection with the Quebec expedition, where he is described as “a young soldier of fortune, who held in equal contempt both danger and principle.” Warren, Rise, Progress and Termination, 143.

[8]Ibid., 400.

[9]Ibid., 400.

[10]Ibid., 401.

[11]Ibid., 404.

[12]Ibid., 404.

[13]Ibid., 406-07.

[14]Ibid., 403.

[15]Ibid., 408. Interestingly, after the war the trio became enmeshed in pension claims and was also the focus of some controversy as to whether or not they had pocketed the major’s proffered bribe, with American admirers of André besmirching their characters and populist champions rising to their defense. See Robert E. Cray, “Major John Andre and the Three Captors: Class Dynamics and Revolutionary Memory Wars in the Early Republic, 1780-1831,” Journal of the Early Republic, vol. 17, no. 3 (Autumn 1997).

[16]Warren, Rise, Progress and Termination, 407.

[17]Ibid., 645-46.

[18]Ibid., 698.

[19]Ibid., 692.

[20]Ibid., 290.

[21]Ibid., 668.

[22]Ibid., 671. Like her hero Jefferson (and unlike Gouverneur Morris), Warren expressed sympathy towards the French Revolution, while decrying its undeniable excesses.

[23]Ibid., 668.

[24]Ibid., 665, 672.

[25]Ibid., 618-19.

[26]Ibid., 673.

[27]Ibid., 675.

[28]See Martha J. King, ‟‛The Pen of the Historian’,” Princeton University Library Chronicle, vol. LXXII, no. 2 (Winter 2011): 524-29, which includes Adams’ acid assertion to Warren that “after the termination of the Revolutionary War, your subject was completed”—hardly the way she saw it.

[29]Thomas Jefferson to William Johnson, March 4, 1823, founders.archives.gov/documents/Jefferson/98-01-02-3373.

[30]David Robarge, A Chief Justice’s Progress: John Marshall from Revolutionary Virginia to the Supreme Court (Westport, CT: Greenwood Press, 2000), 160-62, for the genesis of the Marshall-Jefferson enmity, and 183-95 for an engrossing look at Marshall in Paris.

[31]Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt, 1996), 305, 308.

[32]See ibid., 330, who dismisses the veracity of the suspicion.

[33]John Marshall, The Life of George Washington (Philadelphia: C. P. Wayne, 1805), iv: 287.

[34]Ibid., iv: 271-72.

[35]Ibid., iv: 272.

[36]Ibid., iv: 272-73.

[37]Ibid., iv: 280.

[38]Ibid., iv: 288.

[39]Ibid., iv: 292. In his advocacy for a professional, standing army, one readily discerns yet another deep divide between Marshall and Warren.

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