But the Republican repeal of the act gave the disgusted Chief Justice "duties to perform," as John Randolph expressed it. Marshall was forthwith sent upon his circuit riding, and his fondly anticipated relief from official labors vanished. Although he had engaged to write the biography during the winter following Washington's death, not one line of it had he penned at the time the contract for publication was made in the autumn of 1802. He had, of course, done some reading of the various histories of the period; but he had not even begun the examination of Washington's papers, the subsequent study of which proved so irksome to him.
After almost two years of bartering, a contract was made with Wayne to print and sell the biography. This agreement, executed September 22, 1802, gave to the publisher the copyright in the United States and all rights of the authors "in any part of North and South America and in the West India Islands." The probable extent of the work was to be "four or five volumes in Octavo, from four to five hundred pages" each; and it was "supposed" that these would "be compleated in less than two years"--Marshall's original estimate of time having now been doubled.
Wayne engaged to pay "one dollar for every volume of the aforesaid work which may be subscribed for or which may be sold and paid for." It was further covenanted that the publisher should "not demand" of the public "a higher price than three dollars per volume in boards."[604] This disappointed Marshall, who had insisted that the volumes must be sold for four dollars each, a price which Wayne declared the people would not pay.[605]
It would seem that for a long time Marshall tried to conceal the fact that he was to be the author; and, when the first volume was about to be issued, strenuously objected to the use of his name on the title-page. However, Jefferson soon got wind of the project. The alert politician took swift alarm and promptly suggested measures to counteract the political poison with which he was sure Marshall's pen would infect public opinion. He consulted Madison, and the two picked out the brilliant and versatile Joel Barlow, then living in Paris, as the best man to offset the evil labor in which Marshall was engaged.