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

"I do not perceive how the members of Congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.)

30

Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see Annals, 8th Cong. 1st Sess. 282-88. The debate is instructive. The bill was lost by 9 yeas to 19 nays.

31

Hildreth: History of the United States, v, 516-17.

32

Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.

33

Channing: History of the United States, iv, 245.

34

Bryan, i, 438.

35

Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.

"The workmen are the refuse of that class and, nevertheless very high in their demands." (La Rochefoucauld-Liancourt: Travels Through the United States of North America, iii, 650.)

36

"To Thomas Hume, Esq., M.D.," Moore: Poetical Works, ii, 83.

37

See Jefferson to Short, Sept. 6, 1790, Works of Thomas Jefferson: Ford, vi, 146; same to Mrs. Adams, July 7, 1785, ib. iv, 432-33; same to Peters, June 30,1791, ib. vi, 276; same to Short, April 24, 1792, ib. 483; same to Monroe, May 26, 1795, ib. viii, 179; same to Jay, Oct. 8, 1787, Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson: Randolph, ii, 249; also see Chastellux: Travels in North America in the Years 1780-81-82, 299.

38

See Singleton: Story of the White House, i, 42-43.

39

Plumer to his wife, Dec. 25, 1802, Plumer, 246.

40

"Mr. Granger [Jefferson's Postmaster-General] … after a few bottles of champagne were emptied, on the observation of Mr. Madison that it was the most delightful wine when drank in moderation, but that more than a few glasses always produced a headache the next day, remarked with point that this was the very time to try the experiment, as the next day being Sunday would allow time for a recovery from its effects. The point was not lost upon the host and bottle after bottle came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)

41

At that time it was called "The Executive Mansion" or "The President's Palace."

42

Bryan, i, 44; also see La Rochefoucauld-Liancourt, iii, 642-51.

43

See vol. i, chaps. vi and vii, of this work.

44

Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S. Thayer of Baltimore.

45

Cabot to Wolcott, Aug. 3, 1801, Lodge: Life and Letters of George Cabot, 322.

George Cabot was the ablest, most moderate and far-seeing of the New England Federalists. He feared and detested what he called "excessive democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. Cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like Madison, Gallatin, Hamilton, and Marshall.

46

Hale to King, Dec. 19, 1801, King, iv, 39.

47

Sedgwick to King, Dec. 14, 1801, ib. 34-35.

48

Dwight's oration as quoted in Adams: U.S. i, 225.

49

J. Q. Adams to King, Oct. 8,1802, Writings of John Quincy Adams: Ford, iii, 8-9. Within six years Adams abandoned a party which offered such feeble hope to aspiring ambition. (See infra, chap, ix.)

50

J. Russell's Gazette-Commercial and Political, January 28, 1799.

51

History of the Last Session of Congress Which Commenced 7th Dec. 1801 (taken from the National Intelligencer). Yet at that time in America manhood suffrage did not exist excepting in three States, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. Hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned.

52

Wirt: Letters of the British Spy, 10-11.

These brilliant articles, written by Wirt when he was about thirty years old, were published in the Richmond Argus during 1803. So well did they deceive the people that many in Gloucester and Norfolk declared that they had seen the British Spy. (Kennedy: Memoirs of the Life of William Wirt, i, 111, 113.)

53

Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.

54

Jefferson to Rush, Oct. 4, 1803, Works: Ford, x, 32.

Immediately after his inauguration, Jefferson restated the American foreign policy announced by Washington. It was the only doctrine on which he agreed with Marshall.

"It ought to be the very first object of our pursuits to have nothing to do with European interests and politics. Let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form… To take part in their conflicts would be to divert our energies from creation to destruction." (Jefferson to Logan, March 21, 1801, Works: Ford, ix, 219-20.)

55

Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, Works: Ford, ix, 249.

The democratic revolution that overthrew Federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. But in the first years of Republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of France.

56

See infra, chaps. iii and vi; also vol. iv, chap. i.

57

1 Cranch, 1 et seq.

58

Wilson vs. Mason, 1 Cranch, 45-101.

59

1 Cranch, 102-10.

60

Turner vs. Fendall, 1 Cranch, 115-30.

61

See vol. ii, 531-47, of this work.

62

See Adams: U.S. i, chaps. ix and x, for account of the revolutionary measures which the Republicans proposed to take.

63

Marshall to Pinckney, March 4, 1801, "four o'clock," MS.

64

"It is the sole object of the Administration to acquire popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: Cabot, 325.)

"The President has … the itch for popularity." (J. Q. Adams to his father, November, 1804, Writings, J. Q. A.: Ford, iii, 81.)

"The mischiefs of which his immoderate thirst for … popularity are laying the foundation, are not immediately perceived." (Adams to Quincy, Dec. 4, 1804, Quincy, 64.)

"It seems to be a great primary object with him never to pursue a measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer MSS. Lib. Cong.)

"In dress, conversation, and demeanor he studiously sought and displayed the arts of a low demagogue seeking the gratification of the democracy on whose voices and votes he laid the foundation of his power." (Quincy's Diary, Jan. 1806, Quincy, 93.)

65

Ames to Gore, Dec. 13, 1802, Works of Fisher Ames: Ames, i, 309.

66

Dodd in American Historical Review, xii, 776; and see next chapter.

67

Jefferson to Dickinson, Dec. 19, 1801, Writings of Thomas Jefferson: Washington, iv, 424.

68

"The only shield for our Republican citizens against the federalism of the courts is to have the attorneys & Marshals republicans." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 248.)

69

"The judge of course stands until the law [Judiciary Act of 1801] shall be repealed which we trust will be at the next Congress." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 247.) For two weeks Jefferson appears to have been confused as to the possibility of repealing the Judiciary Act of 1801. A fortnight before he informed Stuart that this course would be taken, he wrote Giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in American Political Science Review, ix, 522.)

But the repeal had been determined upon within six weeks after Jefferson's inauguration as his letter to Stuart shows.

70

Giles to Jefferson, March 16, 1801, Anderson: William Branch Giles – A Study in the Politics of Virginia 1790-1830, 77.

71

Same to same, June 1, 1801, ib. 80.

72

Sedgwick to King, Dec. 14, 1801, King, iv, 36.

73

Hale to King, Dec. 19, 1801, King, iv, 39.

74

It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. i, 297-99, of this work.)

Braintree, Mass., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws … as may crush or, at least, put a proper check of restraint" upon them.

Dedham, Mass., instructed its members of the Legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abolished." (Warren: History of the American Bar, 215.) All this, of course, was the result of the bitter hardships of debtors.

75

For an able defense of the adoption by the National courts of the British common law, see Works of the Honourable James Wilson: Wilson, iii, 384.

76

Columbian Centinel, July 11, 1801, as quoted in Warren, 225-27.

77

Correspondence and Public Papers of John Jay: Johnston, iii, 478-85.

78

Wharton: State Trials of the U.S. during the Administrations of Washington and Adams, 60 et seq.; and see Wilson's law lecture on the subject, Wilson, iii, 384.

79

2 Dallas, 297-99.

80

Ib. Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: State Trials, 90-92.)

81

For the documents preceding the arrest and prosecution of Henfield, see Wharton: State Trials, footnotes to 49-52.

82

See Wilson's charge, Wharton: State Trials, 59-66.

83

See Wharton's summary of Wilson's second charge, ib. footnote to 85.

84

Ib. 88.

85

Marshall: Life of George Washington, 2d ed. ii, 273-74. After the Henfield and Ravara cases, Congress passed a law applicable to such offenses. (See Wharton: State Trials, 93-101.)

86

Wharton: State Trials, 653-54.

87

This was the British defense for impressment of seamen on American ships. It was one of the chief points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of the many causes of the overthrow of that once great party. (See infra, vol. iv, chap. i, of this work.)

88

Wharton: State Trials, 654. Upon another indictment for having captured a British ship and crew, Williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (Ib.; see also vol. ii, 495, of this work.)

89

U.S. vs. Hudson, 7 Cranch, 32-34. "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion… The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (Justice William Johnson delivering the opinion of the majority of the court, ib.)

Joseph Story was frantic because the National judges could not apply the common law during the War of 1812. (See his passionate letters on the subject, vol. iv, chap. i, of this work; and see his argument for the common law, Story, i, 297-300; see also Peters to Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)

90

The opinion of Justice Chase, of the Supreme Court of Philadelphia, sitting with Peters, District Judge, in the case of the United States vs. Robert Worral, indicted under the common law for attempting to bribe a United States officer. Justice Chase held that English common law was not a part of the jurisprudence of the United States as a Nation. (Wharton: State Trials, 189-99.)

91

This was notably true of Justice James Wilson, of the Supreme Court, and Alexander Addison, President Judge of the Fifth Pennsylvania (State) Circuit, both of whom were born and educated in the United Kingdom. They were two of the ablest and most learned men on the bench at that period.

92

Message of Governor John Tyler, Dec. 3, 1810, Tyler: Letters and Times of the Tylers, i, 261; and see Tyler to Monroe, Dec. 4, 1809, ib. 232.

93

Jefferson to Randolph, Aug. 18, 1799, Works: Ford, ix, 73.

94

See vol. ii, chaps. x and xi, of this work.

95

The National judges, in their charges to grand juries, lectured and preached on religion, on morality, on partisan politics.

"On Monday last the Circuit Court of the United States was opened in this town. The Hon. Judge Patterson … delivered a most elegant and appropriate charge.

"The Law was laid down in a masterly manner: Politics were set in their true light by holding up the Jacobins [Republicans] as the disorganizers of our happy country, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. Religion & Morality were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws; for 'when the righteous [Federalists] are in authority, the people rejoice.'…

"After the charge was delivered the Rev. Mr. Alden addressed the Throne of Grace in an excellent and well adapted prayer." (United States Oracle of the Day, May 24, 1800, as quoted by Hackett, in Green Bag, ii, 264.)

96

Adams's War Speech of 1798; see vol. ii, 351, of this work.

97

Wharton: State Trials, 333-34.

98

Ib. 339.

99

Ib. 337. Paterson sat with District Judge Hitchcock and delivered the charge in this case. Luther Martin in the trial of Justice Chase (see infra, chap. iv) said that Paterson was "mild and amiable," and noted for his "suavity of manners." (Trial of the Hon. Samuel Chase: Evans, stenographer, 187-88.)

100

See Lyon to Mason, Oct. 14, 1798, Wharton: State Trials, 339-41.

101

Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong.

102

Wharton: State Trials, 684.

103

Ib. 685.

104

Ib. 685-86.

105

Wharton: State Trials, 661-62. Cooper was referring to the case of Jonathan Robins. (See vol. ii, 458-75, of this work.)

106

Cooper afterward became a State judge.

107

See infra, chap. viii.

108

Wharton: State Trials, 679. Stephen Girard paid Cooper's fine. (McMaster: Life and Times of Stephen Girard, i, 397-98.)

109

Wharton: State Trials, 466-69.

110

See vol. ii, 429 et seq. of this work.

111

Wharton: State Trials, 598-609.

112

For sketch of Lewis see Wharton: State Trials, 32-33.

113

Independent Chronicle, Boston, May 12, 1800.

114

Wharton: State Trials, 641 et seq.

115

See vol. ii, 429 et seq. of this work.

116

Jefferson to Mason, Oct. 11, 1798, Works: Ford, viii, 449-50; same to Callender, Sept. 6, 1799, ib. ix, 81-82; same to same, Oct. 6, 1799, ib. 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS. Mass. Hist. Soc.

117

War speech of Adams to Congress in 1798, see vol. ii, 351, of this work.

118

Testimony of James Winchester (Annals, 8th Cong. 2d Sess. 246-47); of Luther Martin (ib. 245-46); and of John T. Mason (ib. 216); see also Chase Trial, 63.

119

Testimony of James Triplett, Chase Trial, 44-45, and see Annals, 8th Cong. 2d Sess. 217-19.

120

Jefferson to Monroe, May 26, 1800, Works: Ford, ix, 136. By "public interference" Jefferson meant an appropriation by the Virginia Legislature. (Ib. 137.)

121

The trial of Aaron Burr, see infra, chaps. vi, vii, viii, and ix.

122

See testimony of George Hay, Annals, 8th Cong. 2d Sess. 203; and see especially Luther Martin's comments thereon, infra, chap. iv.

123

The public mind was well prepared for just such appeals as those that Hay and Wirt planned to make. For instance, the citizens of Caroline County subscribed more than one hundred dollars for Callender's use.

The subscription paper, probably drawn by Colonel John Taylor, in whose hands the money was placed, declared that Callender "has a cause closely allied to the preservation of the Constitution, and to the freedom of public opinion; and that he ought to be comforted in his bonds."

Callender was "a sufferer for those principles." Therefore, and "because also he is poor and has three infant children who live by his daily labor" the contributors freely gave the money "to be applied to the use of James T. Callender, and if he should die in prison, to the use of his children." (Independent Chronicle, Boston, July 10, 1800.)

124

See infra, chap. iv.

125

Wharton: State Trials, 692.

126

Ib. 696-98; and see testimony of Taylor, Chase Trial, 38-39.

127

Wharton: State Trials, 717-18. Chase's charge to the jury was an argument that the constitutionality of a law could not be determined by a jury, but belonged exclusively to the Judicial Department. For a brief précis of this opinion see chap. iii of this volume. Chase advanced most of the arguments used by Marshall in Marbury vs. Madison.

128

Ib. 718. When Jefferson became President he immediately pardoned Callender. (See next chapter.)

129

Wharton: State Trials, footnote to 718.

130

See testimonies of Gunning Bedford, Nicholas Vandyke, Archibald Hamilton, John Hall, and Samuel P. Moore, Chase Trial, 98-101.

131

For example, one Charles Holt, publisher of a newspaper, The Bee, of New London, Connecticut, had commented on the uselessness of enlisting in the army, and reflected upon the wisdom of the Administration's policy; for this he was indicted, convicted, and sentenced to three months' imprisonment, and the payment of a fine of two hundred dollars. (Randall: Life of Thomas Jefferson, ii, 418.)

When President Adams passed through Newark, New Jersey, the local artillery company fired a salute. One of the observers, a man named Baldwin, idly remarked that "he wished the wadding from the cannon had been lodged in the President's backside." For this seditious remark Baldwin was fined one hundred dollars. (Hammond: History of Political Parties in the State of New York, i, 130-31.)

One Jedediah Peck, Assemblyman from Otsego County, N.Y., circulated among his neighbors a petition to Congress to repeal the Alien and Sedition Laws. This shocking act of sedition was taken up by the United States District Attorney for New York, who procured the indictment of Peck; and upon bench warrant, the offender was arrested and taken to New York for trial. It seems that such were the demonstrations of the people, wherever Peck appeared in custody of the officer, that the case was dropped. (Randall, ii, 420.)

132

They were supposed to select juries according to the laws of the States where the courts were held. As a matter of fact they called the men they wished to serve.

133

McMaster: History of the People of the United States, ii, 473; and see speech of Charles Pinckney in the Senate, March 5, 1800, Annals, 6th Cong. 1st and 2d Sess. 97.

134

See speech of Bacon in the Independent Chronicle, Feb. 11-14, 1799; and of Hill, ib. Feb. 25, 1799.

135

Columbian Centinel, Feb. 16, 1799; also see issue of Jan. 23, 1799. For condensed account of this incident see Anderson in Am. Hist. Rev. v, 60-62, quoting the Centinel as cited. A Federalist mob stoned the house of Dr. Hill the night after he made this speech. (Ib.) See also infra, chap. iii.

136

Independent Chronicle, Feb. 18, 1799.

137

Columbian Centinel, March 30, 1799. The attorneys for Adams also advanced the doctrines of the Kentucky and Virginia Resolutions, so far, at least, as to assert that any State ought to protest against and resist any act of Congress that the Commonwealth believed to be in violation of the National Constitution. (Anderson, in Am. Hist. Rev. v, 226-27.)

138

Columbian Centinel, March 27, 1799.

Another instance of intolerant and partisan prosecutions in State courts was the case of Duane and others, indicted and tried for getting signatures to a petition in Congress against the Alien and Sedition Laws. They were acquitted, however. (Wharton: State Trials, 345-89.)

139

These charges of Judge Addison were, in reality, political pamphlets. They had not the least reference to any business before the court, and were no more appropriate than sermons. They were, however, written with uncommon ability. It is doubtful whether any arguments more weighty have since been produced against what George Cabot called "excessive democracy." These grand jury charges of Addison were entitled: "Causes and Error of Complaints and Jealousy of the Administration of the Government"; "Charges to the Grand Juries of the County Court of the Fifth Circuit of the State of Pennsylvania, at December Session, 1798"; "The Liberty of Speech and of the Press"; "Charge to Grand Juries, 1798"; "Rise and Progress of Revolution," and "A Charge to the Grand Juries of the State of Pennsylvania, at December Session, 1800."