The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

Counsel for Chase had spoken with "the fascinating voice of eloquence and the deluding tongue of ingenuity"; but Rodney would avoid "everything like declamation" and speak "in the temperate language of reason."558 He was sure that "the weeping voice of history will be heard to deplore the oppressive acts and criminal excesses [of Samuel Chase]… In the dark catalogue of criminal enormities, perhaps few are to be found of deeper dye" than those named in the articles of impeachment. "The independence of the Judiciary, the political tocsin of the day, and the alarm bell of the night, has been rung through every change in our ears… The poor hobby has been literally rode to death." Rodney was for a "rational independence of the Judiciary," but not for the "inviolability of judges more than of Kings.559 In this country I am afraid the doctrine has been carried to such an extravagant length, that the Judiciary may be considered like a spoiled child."

An independent Judiciary, indeed! "We all know that an associate justice may sigh for promotion, and may be created a Chief Justice,560 while … more than one Chief Justice has been appointed a Minister Plenipotentiary."561 With what result? Had judges stood aloof from politics – or had they "united in the Io triumphe which the votaries and idolators of power have sung to those who were seated in the car of Government? Have they made no offerings at the shrine of party; have they not preached political sermons from the bench, in which they have joined chorus with the anonymous scribblers of the day and the infuriate instruments of faction?"562

In this fashion Rodney began a song of praise of Jefferson, for the beneficence of whose Administration "the lamentable annals of mankind afford no example." After passing through many "citadels" and "Scean gates," and other forms of rhetorical architecture, he finally discovered Chase "seated in a curricle of passion" which the Justice had "driven on, Phæton-like, … with destruction, persecution, and oppression" following.

At last the orator attempted to discuss the law of the impeachment, taking the double ground that an officer could be removed for any act that two thirds of the Senate believed to be not "good behavior," and that the Chase impeachment was "a criminal prosecution." For parts of two days563 Rodney examined every phase of the charges in a distracting mixture of high-flown language, scattered learning, extravagant metaphor, and jumbled logic.564 His speech was a wretched performance, so cluttered with tawdry rhetoric and disjointed argument that it would have been poor even as a stump speech.

In an address that enraged the New England Federalists, Randolph closed for the House managers.565 He was late in arriving at the Senate Chamber. He had been so ill the day before that Nicholson, because of Randolph's "habitual indisposition," had asked the Senate to meet two hours later than the usual time.566 Sick as he was, without his notes (which he had lost), Randolph nevertheless made the best argument for the prosecution. Wasting no time, he took up the theory of impeachment upon which, he said, "the wildest opinions have been advanced" – for instance, "that an offense, to be impeachable, must be indictable." Why, then, had the article on impeachment been placed in the Constitution at all? Why "not have said, at once, that any … officer … convicted on indictment should (ipso facto) be removed from office? This would be coming at the thing by a short and obvious way."567

Suppose a President should veto every act of Congress "indiscriminately"; it was his Constitutional right to do so; he could not be indicted, but would anybody say he could not be impeached? Or if, at a short session, the President should keep back until the last moment all bills passed within the previous ten days, as the Constitution authorized him to do, so that it would be a physical impossibility for the two Houses to pass the rejected measures over the President's veto, he could not be indicted for this abuse of power; but surely "he could be impeached, removed and disqualified."568

Randolph's Virginia soul was deeply stirred by what he considered Chase's alternate effrontery and cowardice. Is such a character "fit to preside in a court of justice?.. Today, haughty, violent, imperious; tomorrow, humble, penitent and submissive… Is this a character to dispense law and justice to this nation? No, Sir!" Randolph then drew an admirable picture of the ideal judge: "firm, indeed, but temperate, mild though unyielding, neither a blustering bravo, nor a timid poltroon."569

As far as he could go without naming him, Randolph described John Marshall. Not without result had the politically experienced Chief Justice conciliated the House managers in the manner that had so exasperated the Federalist Senators. He would not thereafter be impeached if John Randolph could prevent.

With keen pleasure at the annoyance he knew his words would give to Jefferson,570 Randolph continued to praise Marshall. The rejection of Colonel Taylor's testimony at the Callender trial was contrary to "the universal practice of our courts." On this point "what said the Chief Justice of the United States," on whose evidence Randolph said he specially relied? "He never knew such a case [to] occur before. He never heard a similar objection advanced by any court, until that instance. And this is the cautious and guarded language of a man placed in the delicate situation of being compelled to give testimony against a brother judge."

With an air of triumph Randolph asked: "Can anyone doubt Mr. Marshall's thorough acquaintance with our laws? Can it be pretended that any man is better versed in their theory and practice? And yet in all his extensive reading, his long and extensive practice, in the many trials of which he has been spectator, and the yet greater number at which he has assisted, he had never witnessed such a case." Chase alone had discovered "this fatal novelty, this new and horrible doctrine that threatens at one blow all that is valuable in our criminal jurisprudence."

Had Martin shown that Chase was right in requiring questions to be reduced to writing? "Here again," declared Randolph, "I bottom myself upon the testimony of the same great man, yet more illustrious for his abilities than for the high station that he fills, eminent as it is." And he recited the substance of Marshall's testimony on this point. Consider his description of the bearing of Chase toward counsel! "I again ask you, what said the Chief Justice?.. And what did he look?571 He felt all the delicacy of his situation, and, as he could not approve, he declined giving any opinion on the demeanor of his associate."572 In such manner Randolph extolled Marshall.

Again he apostrophized the Chief Justice. If Fries and Callender "had had fair trials, our lips would have been closed in eternal silence. Look at the case of Logwood: The able and excellent judge whose worth was never fully known until he was raised to the bench … uttered not one syllable that could prejudice the defense of the prisoner." Once more he contrasted the judicial manners and rulings of Marshall with those of Chase: "The Chief Justice knew that, sooner or later, the law was an over-match for the dishonest, and … he disdained to descend from his great elevation to the low level of a public prosecutor."

The sick man spoke for two hours and a half, his face often distorted and his body writhing with pain. Finally his tense nerves gave way. Only public duty had kept him to his task, he said. "In a little time and I will dismiss you to the suggestions of your own consciences. My weakness and want of ability prevent me from urging my cause as I could wish, but" – here the overwrought and exhausted man broke into tears – "it is the last day of my sufferings and of yours."

Mastering his indisposition, however, Randolph closed in a passage of genuine power: "We adjure you, on behalf of the House of Representatives and of all the people of the United States, to exorcise from our Courts the baleful spirit of party, to give an awful memento to our judges. In the name of the nation, I demand at your hands the award of justice and of law."573

So ended this unequal forensic contest in one of the most fateful trials in American history. The whole country eagerly awaited tidings of the judgment to be rendered by the Senatorial tribunal. The fate of the Supreme Court, the character of the National Judiciary, the career of John Marshall, depended upon it. Even union or disunion was involved; for if Chase should be convicted, another and perhaps final impulse would be given to the secessionist movement in New England, which had been growing since the Republican attack on the National Judiciary in 1802.574

When the Senate convened at half-past twelve on March 1, 1805, a dense mass of auditors filled every inch of space in the Senate Chamber.575 Down the narrow passageway men were seen bearing a couch on which lay Senator Uriah Tracy of Connecticut, pale and sunken from sickness. Feebly he rose and took one of the red-covered seats of the Senatorial judges.576

"The Sergeants-at-Arms will face the spectators and seize and commit to prison the first person who makes the smallest noise or disturbance," sternly ordered Aaron Burr.

"The secretary will read the first article of impeachment," he directed.

"Senator Adams of Massachusetts! How say you? Is Samuel Chase, the respondent, guilty of high crimes and misdemeanors as charged in the article just read?"

"Not guilty!" responded John Quincy Adams.

When the name of Stephen R. Bradley, Republican Senator from Vermont, was reached, he rose in his place and voted against conviction. The auditors were breathless, the Chamber filled with the atmosphere of suspense. It was the first open break in the Republican ranks. Two more such votes and the carefully planned battle would be lost to Jefferson and his party.

"Not guilty!" answered John Gaillard, Republican Senator from South Carolina.

Another Republican defection and all would be over. It came from the very next Senator whose name Aaron Burr pronounced, and from one whose answer will forever remain an enigma.

"Senator Giles of Virginia! How say you? Is Samuel Chase guilty of the high crimes and misdemeanors as charged in the articles just read?"

"Not guilty!"

Only sixteen Senators voted to impeach on the first article, nine Republicans aligning themselves with the nine Federalists.

The vote on the other articles showed varying results; on the fourth, fourteen Senators responded "Guilty!"; on the fifth, the Senate was unanimous for Chase.

Upon the eighth article – Chase's political charge to the Baltimore grand jury – the desperate Republicans tried to recover, Giles now leading them. Indeed, it may be for this that he cast his first vote with his party brethren from the North – he may have thought thus to influence them on the one really strong charge against the accused Justice. If so, his stratagem was futile. The five Northern Republicans (Bradley and Smith of Vermont, Mitchell and Smith of New York, and John Smith of Ohio) stood firm for acquittal as did the obstinate John Gaillard of South Carolina.577

The punctilious Burr ordered the names of Senators and their recorded answers to be read for verification.578 He then announced the result: "It appears that there is not a constitutional majority of votes finding Samuel Chase, Esq. guilty of any one article. It therefore becomes my duty to declare that Samuel Chase, Esq. stands acquitted of all the articles exhibited by the House of Representatives against him."579

The fight was over. There were thirty-four Senators, nine of them Federalists, twenty-five Republicans. Twenty-two votes were necessary to convict. At their strongest the Republicans had been able to muster less than four fifths of their entire strength. Six of their number – the New York and Vermont Senators, together with John Gaillard of South Carolina and John Smith of Ohio – had answered "not guilty" on every article.

For the first time since his appointment, John Marshall was secure as the head of the Supreme Bench.580 For the first time since Jefferson's election, the National Judiciary was, for a period, rendered independent. For the first time in five years, the Federalist members of the Nation's highest tribunal could go about their duties without fear that upon them would fall the avenging blade of impeachment which had for half a decade hung over them. One of the few really great crises in American history had passed.581

"The greatest and most important trial ever held in this nation has terminated justly," wrote Senator Plumer to his son. "The venerable judge whose head bears the frost of seventy winters,582 is honorably acquitted. I never witnessed, in any place, such a display of learning as the counsel for the accused exhibited."583

Chagrin, anger, humiliation, raged in Randolph's heart. His long legs could not stride as fast as his frenzy, when, rushing from the scene of defeat, he flew to the floor of the House. There he offered an amendment to the Constitution providing that the President might remove National judges on the joint address of both Houses of Congress.584 "Tempest in the House," records Cutler.585

Nicholson was almost as frantic with wrath, and quickly followed with a proposal so to amend the Constitution that State Legislatures might, at will, recall Senators.586

Republicans now began to complain to their party foes of one another. Over a "rubber of whist" with John Quincy Adams, Senator Jackson of Georgia, even before the trial, had spoken "slightingly both of Mr. John Randolph and of Mr. Nicholson";587 and this criticism of Republicans inter se now increased.

Jefferson's feelings were balanced between grief and glee; his mourning over the untoward result of his cherished programme of judicial reform was ameliorated by his pleasure at the overthrow of the unruly Randolph,588 who had presumed to dissent from the President's Georgia land policy.589 The great politician's cup of disappointment, which the acquittal of Chase had filled, was also sweetened by the knowledge that Republican restlessness in the Northern States would be quieted; the Federalists who were ready, on other grounds, to come to his standard would be encouraged to do so; and the New England secession propaganda would be deprived of a strong argument. He confided to the gossipy William Plumer, the Federalist New Hampshire Senator, that "impeachment is a farce which will not be tried again."590

The Chief Justice of the United States, his peril over, was silent and again serene, his wonted composure returned, his courage restored. He calmly awaited the hour when the wisdom of events should call upon him to render another and immortal service to the American Nation. That hour was not to be long delayed.

CHAPTER V

BIOGRAPHER

Marshall has written libels on one side. (Jefferson.)

What seemed to him to pass for dignity, will, by his reader, be pronounced dullness. (Edinburgh Review.)

That work was hurried into the world with too much precipitation. It is one of the most desirable objects I have in this life to publish a corrected edition. (Marshall.)

Although the collapse of the Chase impeachment made it certain that Marshall would not be removed from office, and he was thus relieved from one source of sharp anxiety, two other causes of worry served to make this period of his life harried and laborious. His heavy indebtedness to Denny Fairfax591 continuously troubled him; and, worse still for his peace of mind, he was experiencing the agonies of the literary composer temperamentally unfitted for the task, wholly unskilled in the art, and dealing with a subject sure to arouse the resentment of Jefferson and all his followers. Marshall was writing the "Life of Washington."

In a sense it is fortunate for us that he did so, since his long and tiresome letters to his publishers afford us an intimate view of the great Chief Justice and reveal him as very human. But the biography itself was to prove the least satisfactory of all the labors of Marshall's life.

Not long after the death of Washington, his nephew, Bushrod Washington, had induced Marshall to become the biographer of "the Father of his Country." Washington's public and private papers were in the possession of his nephew. Although it was advertised that these priceless original materials were to be used in this work exclusively, many of Washington's writings had already been used by other authors.

Marshall needed little urging to undertake this monumental labor. Totally unfamiliar with the exhausting toil required of the historian, he deemed it no great matter to write the achievements of his idolized leader. Moreover, he was in pressing need of money with which to pay the remaining $31,500592 which his brother and he still owed on the Fairfax purchase, as well as the smaller but yet annoying sum due their brother-in-law, Rawleigh Colston, for his share of the estate which the Marshall brothers had bought of him.593 To discharge these obligations, Marshall had nothing but his salary and the income from his lands, which were wholly insufficient to meet the demands upon him. Some of his plantations, in fact, were "productive only of expense & vexation."594

Marshall and Bushrod Washington made extravagant estimates of the prospective sales of the biography and of the money they would receive. Everybody, they thought, would be eager to buy the true story of the life of America's "hero and sage." Perhaps the multitude could not afford volumes so expensive as those Marshall was to write, but there would be tens of thousands of prosperous Federalists who could be depended upon to purchase at a generous price a definitive biography of George Washington.595

Nor was the color taken from these rosy expectations by the enthusiasm of those who wished to publish the biography. When it became known that the book was to be produced, many printers applied to Bushrod Washington "to purchase the copyright,"596 among them C. P. Wayne, a successful publisher of Philadelphia, who made two propositions to bring out the work. After a consultation with Marshall, Bushrod Washington wrote Wayne: "Being ignorant of such matters … we shall therefore decline any negotiation upon the subject for the present."597

After nearly two years of negotiation, Marshall and his associate decided that the biography would require four or five volumes, and arrived at the modest opinion that there would be "30,000 subscribers in America… Less than a dollar a volume cannot be thought of," and this price should yield to the author and his partner "$150,000, supposing there to be five volumes. This … would content us, whilst it would leave a very large profit" to the publisher. But, since the number of subscribers could not be foretold with exactness, Marshall and Bushrod Washington decided to "consent to receive $100,000 for the copyright in the United States"; and they sternly announced that, "less than this sum we will not take."598

Wayne sought to reduce the optimism of Marshall and Washington by informing them that "the greatest number of subscribers ever obtained for any one publication in this country was … 2000 and the highest sum ever paid in for the copyright of any one work … was 30,000 Dollars." Wayne thinks that Marshall's work may sell better, but is sure that more than ten thousand sets cannot be disposed of for many years. He gives warning that, if the biography should contain anything objectionable to the British Government, the sale of it would be prevented in England, as was the case with David Ramsay's "History of the Revolution."599

Marshall and Washington also "recd propositions for the purchase of the right to sell in Gt. Britain," and so informed Wayne, calling upon him to "say so" if he wished to acquire British, as well as American rights, "knowing the grounds upon which we calculate the value in the United States."600

So we find Marshall counting on fifty thousand dollars601 at the very least from his adventure in the field of letters. His financial reckoning was expansive; but his idea of the time within which he could write so important a history was grotesque. At first he counted on producing "4 or 5 volumes in octavos of from 4 to 500 pages each" in less than one year, provided "the present order of the Courts be not disturbed or very materially changed."602

It thus appears that Marshall expected the Federalist Judiciary Act of 1801 to stand; that he would not be called upon to ride the long, tiresome, time-consuming Southern circuit; and that, with no great number of cases to be disposed of by the Supreme Court, he would have plenty of leisure to write several large volumes of history in a single year.

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."603 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.604

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.

"Mr. Madison and myself have cut out a piece of work for you," Jefferson wrote Barlow, "which is to write the history of the United States, from the close of the War downwards. We are rich ourselves in materials, and can open all the public archives to you; but your residence here is essential, because a great deal of the knowledge of things is not on paper, but only within ourselves for verbal communication."

Then Jefferson states the reason for the "piece of work" which he and Madison had "cut out" for Barlow: "John Marshall is writing the life of Gen. Washington from his papers. It is intended to come out just in time to influence the next presidential election." The imagination of the party manager pictured Marshall's work as nothing but a political pamphlet. "It is written therefore," Jefferson continues, "principally with a view to electioneering purposes; but it will consequently be out in time to aid you with information as well as to point out the perversions of truth necessary to be rectified."605

Thus Marshall's book was condemned before a word of it had been written, and many months before the contract with Wayne was signed – a circumstance that was seriously to interfere with subscriptions to the biography. Jefferson's abnormal sensitiveness to even moderate criticism finally led him to the preparation of the most interesting and untrustworthy of all his voluminous papers, as a reply to Marshall's "Washington."606