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

140

Coulter vs. Moore, for defamation. Coulter, a justice of the peace, sued Moore for having declared, in effect, that Coulter "kept a house of ill fame." (Trial of Alexander Addison, Esq.: Lloyd, stenographer, 38; also Wharton: State Trials, 32 et seq.)

141

This judge was John C. B. Lucas. He was a Frenchman speaking broken English, and, judging from the record, was a person of very inferior ability. There seems to be no doubt that he was the mere tool of another judge, Hugh H. Brackenridge, who hated Addison virulently. From a study of the case, one cannot be surprised that the able and erudite Addison held in greatest contempt the fussy and ignorant Lucas.

142

Wharton: State Trials, 45; Carson: Supreme Court of the United States, Its History, i, 193.

143

The uprising against the Judiciary naturally began in Pennsylvania where the extravagance of the judges had been carried to the most picturesque as well as obnoxious extremes. For a faithful narrative of these see McMaster: U.S. iii, 153-55.

On the other hand, wherever Republicans occupied judicial positions, the voice from the bench, while contrary to that of the Federalist judges, was no less harsh and absolute.

For instance, the judges of the Supreme Court of New Hampshire refused to listen to the reading of British law reports, because they were from "musty, old, worm-eaten books." One of the judges declared that "not Common Law – not the quirks of Coke and Blackstone – but common sense" controlled American judges. (Warren, 227.)

144

See next chapter.

145

See infra, chap. iii, for a résumé of the conditions that forced Marshall to pronounce his famous opinion in the case of Marbury vs. Madison, as well as for a full discussion of that controversy.

146

The Senate then met in the chamber now occupied by the Supreme Court.

147

See infra, chap. iii.

148

Jefferson to Congress, Dec. 8, 1801, Works: Ford, ix, 321 et seq.; also Messages and Papers of the Presidents: Richardson, i, 331.

149

Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: Economic Origins of Jeffersonian Democracy, 454-55.

150

For full text of this exposition of Constitutional law by Jefferson see Appendix A.

151

Ames to King, Dec. 20, 1801, King, iv, 40.

Like most eminent Federalists, except Marshall, Hamilton, and Cabot, Fisher Ames was soon to abandon his Nationalism and become one of the leaders of the secession movement in New England. (See vol. iv, chap. i, of this work.)

152

See vol. ii, 531, 547-48, 550-52, of this work.

153

Journal of Samuel Maclay: Meginness, 90.

154

Annals, 1st Cong. 1st Sess. 862.

155

Ib. 852.

156

Ib. 833-34.

157

Ib. 864-65.

158

Maclay's Journal, 98.

159

Grayson to Henry, Sept. 29, 1789, Tyler, i, 170-71.

160

Davie to Iredell, Aug. 2, 1791, Life and Correspondence of James Iredell: McRee, ii, 335.

161

Vol. ii, 552-53, of this work.

162

Jay to Adams, Jan. 2, 1801, Jay: Johnston, iv, 285.

163

Annals, 1st Cong. 2d and 3d Sess. 2239.

164

See vol. i, chap. vi, of this work. The conditions of travel are well illustrated by the experiences of six members of Congress, when journeying to Philadelphia in 1790. "Burke was shipwrecked off the Capes; Jackson and Mathews with great difficulty landed at Cape May and traveled one hundred and sixty miles in a wagon to the city; Burke got here in the same way. Gerry and Partridge were overset in the stage; the first had his head broke, … the other had his ribs sadly bruised… Tucker had a dreadful passage of sixteen days with perpetual storms." (Letter of William Smith, as quoted by Johnson: Union and Democracy, 105-06.)

On his way to Washington from Amelia County in 1805, Senator Giles was thrown from a carriage, his leg fractured and his knee badly injured. (Anderson, 101.)

165

This arrangement proved to be so difficult and vexatious that in 1792 Congress corrected it to the extent of requiring only one Justice of the Supreme Court to hold circuit court with the District Judge; but this slight relief did not reach the serious shortcomings of the law. (Annals, 2d Cong. 1st and 2d Sess. 1447.)

See Adams: U.S. i, 274 et seq., for good summary of the defects of the original Judiciary Act, and of the improvements made by the Federalist Law of 1801.

166

See statement of Ogden, Annals, 7th Cong. 1st Sess. 172; of Chipman, ib. 123; of Tracy, ib. 52; of Griswold, ib. 768; of Huger, ib. 672.

167

Of course, to some extent this evil still continued in the appeals to the Circuit Bench; but the ultimate appeal was before judges who had taken no part in the cause.

The soundness of the Federalist Judiciary Act of 1801 was demonstrated almost a century later, in 1891-95, when Congress reënacted every essential feature of it. (See "Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," March 3, 1891, chap. 517, amended Feb. 18, 1895, chap. 96.)

168

For example, Senator Cocke of Tennessee asserted the expense to be $137,000. (Annals, 7th Cong. 1st. Sess. 30.) See especially Prof. Farrand's conclusive article in Am. Hist. Rev. v, 682-86.

169

It was to Breckenridge that Jefferson had entrusted the introduction of the Kentucky Resolutions of 1798 into the Legislature of that State. It was Breckenridge who had led the fight for them. At the time of the judiciary debate he was Jefferson's spokesman in the Senate; and later, at the President's earnest request, resigned as Senator to become Attorney-General.

170

Breckenridge's constituents insisted that the law be repealed, because they feared that the newly established National courts would conflict with the system of State courts which the Legislature of Kentucky had just established. (See Carpenter, Am. Pol. Sci. Rev. ix, 523.)

Although the repeal had been determined upon by Jefferson almost immediately after his inauguration (see Jefferson to Stuart, April 8, 1801; Works: Ford, ix, 247), Breckenridge relied upon that most fruitful of Republican intellects, John Taylor "of Caroline," the originator of the Kentucky Resolutions (see vol. ii, 397, of this work) for his arguments. See Taylor to Breckenridge, Dec. 22, 1801, infra, Appendix B.

171

Annals, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530.

172

Annals, 7th Cong. 1st Sess. 26.

173

Ib. 25.

174

Ib. 28.

175

Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib. Cong.

176

See infra, chaps. iii and iv.

177

Annals, 7th Cong. 1st Sess. 31-32.

178

Annals, 7th Cong. 1st Sess. 38.

179

This unfortunate declaration of Morris gave the Republicans an opportunity of unlimited demagogic appeal. See infra. (Italics the author's.)

180

Annals, 7th Cong. 1st Sess. 40-41.

Morris spoke for an hour. There was a "large audience, which is not common for that House." He prepared his speech for the press. (Diary and Letters of Gouverneur Morris: Morris, ii, 417.)

181

Annals, 7th Cong. 1st Sess. 49.

182

Ib. 47-48. Senator Jackson here refers to the case of Marbury vs. Madison, then pending before the Supreme Court. (See infra, chap. iii.) This case was mentioned several times during the debate. It is plain that the Republicans expected Marshall to award the mandamus, and if he did, to charge this as another act of judicial aggression for which, if the plans already decided upon did not miscarry, they would make the new Chief Justice suffer removal from his office by impeachment. (See infra, chap. iv.)

183

Annals, 7th Cong. 1st Sess. 58. Tracy's speech performed the miracle of making one convert. After he closed he was standing before the glowing fireplace, "half dead with his exertions." Senator Colhoun of South Carolina came to Tracy, and giving him his hand, said: "You are a stranger to me, sir, but by – you have made me your friend." Colhoun said that he "had been told a thousand lies" about the Federalist Judiciary Act, particularly the manner of passing it, and he had, therefore, been in favor of repealing it. But Tracy had convinced him, and Colhoun declared: "I shall be with you on the question." "May we depend upon you?" asked Tracy, wringing the South Carolina Senator's hand. "By – you may," was the response. (Morison: Life of the Hon. Jeremiah Smith, footnote to 147.) Colhoun kept his word and voted with the Federalists against his party's pet measure. (Annals, 7th Cong. 1st Sess. 185.)

The correct spelling of this South Carolina Senator's name is Colhoun, and not Calhoun, as given in so many biographical sketches of him. (See South Carolina Magazine for July, 1906.)

184

See Grigsby: Virginia Convention of 1788, ii, 260-262.

This was the same Senator who, in violation of the rules of the Senate, gave to the press a copy of the Jay Treaty which the Senate was then considering. The publication of the treaty raised a storm of public wrath against that compact. (See vol. ii, 115, of this work.) Senator Mason's action was the first occurrence in our history of a treaty thus divulged.

185

Annals, 7th Cong. 1st Sess. 59.

186

In that case Marshall had issued a rule to the Secretary of State to show cause why a writ of mandamus should not be issued by the court ordering him to deliver to Marbury and his associates commissions as justices of the peace, to which offices President Adams had appointed them. (See infra, chap. iii.)

187

Annals, 7th Cong. 1st Sess. 61.

188

Annals, 7th Cong. 1st Sess. 63.

189

Annals, 7th Cong. 1st Sess. 66. The eloquence of the Virginia Senator elicited the admiration of even the rabidly Federalist Columbian Centinel of Boston. See issue of February 6, 1802.

190

Ib. 77.

191

Ib. 83.

192

Annals, 7th Cong. 1st Sess. 89.

193

Ib. 91-92.

194

Annals, 7th Cong. 1st Sess. 99.

195

Morris notes in his diary that, on the same day, the Senate resolved "to admit a short-hand writer to their floor. This is the beginning of mischief." (Morris, ii, 416-17.)

196

January 27, 1802.

197

Annals, 7th Cong. 1st Sess. 149.

198

Annals, 7th Cong. 1st Sess. 150.

Burr's action was perfectly correct. As an impartial presiding officer, he could not well have done anything else. Alexander J. Dallas, Republican Attorney-General of Pennsylvania, wrote the Vice-President a letter approving his action. (Dallas to Burr, Feb. 3, 1802, Davis: Memoirs of Aaron Burr, ii, 82.) Nathaniel Niles, a rampant Republican, sent Burr a letter thanking him for his vote. As a Republican, he wanted his party to be fair, he said. (Niles to Burr, Feb. 17, 1802, ib. 83-84.) Nevertheless, Burr's vote was seized upon by his enemies as the occasion for beginning those attacks upon him which led to his overthrow and disgrace. (See chaps. vi, vii, viii, and ix of this volume.)

199

Annals, 7th Cong. 1st Sess. 178-79.

200

See Appendix A to this volume.

201

Annals, 7th Cong. 1st Sess. 179.

202

Ib. 180.

203

It was five o'clock (ib. 178) when Senator Breckenridge began to speak; it must have been well after six when Senator Morris rose to answer him.

204

Ib. 180.

205

Ib. 180.

206

Annals, 7th Cong. 1st Sess. 181.

207

Troup to King, April 9, 1802, King, iv, 103.

208

Bayard to Bassett, Jan. 25, 1802, Papers of James A. Bayard: Donnan, 146-47.

209

Except Colhoun of South Carolina, converted by Tracy. See supra, 62.

210

Annals, 7th Cong. 1st Sess. 183.

211

Ib. 510. A correspondent of the Columbian Centinel, reporting the event, declared that "the stand which the Federal Senators have made to preserve the Constitution, has been manly and glorious. They have immortalized their names, while those of their opposers will be execrated as the assassins of the Constitution." (Columbian Centinel, Feb. 17, 1802.)

212

Annals, 7th Cong. 1st Sess. 518-19.

213

Ib. 521-22.

214

See vol. ii, 532, 541.

215

Washington Federalist, Feb. 13, 1802.

216

Henderson in North Carolina Booklet, xvii, 66.

217

Annals, 7th Cong. 1st Sess. 529-30.

218

See infra, chap. iv.

219

Annals, 7th Cong. 1st Sess. 531.

220

Annals, 7th Cong. 1st Sess. 552-53.

221

Ib. 554.

222

Ib. 558.

223

See infra, chap. iv.

224

See, for example, the speeches of Thomas Morris of New York (Annals, 7th Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut (ib. 727-34); John Stanley of North Carolina (ib. 569-78); Roger Griswold of Connecticut (ib. 768-69).

225

Annals, 7th Cong. 1st Sess. 579.

226

Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him (Giles) the ablest debater of the age." His speech on the Repeal Act, Grigsby declares to have been "by far his most brilliant display." (Grigsby: Virginia Convention of 1829-30, 23, 29.)

227

Anderson, 76-82.

228

See supra, 72.

229

This statement, coming from the Virginia radical, reveals the profound concern of the Republicans, for Giles thus declared that the Judiciary debate was of greater consequence than those historic controversies over Assumption, the Whiskey Rebellion, the Bank, Neutrality, the Jay Treaty, the French complication, the army, and other vital subjects. In most of those encounters Giles had taken a leading and sometimes violent part.

230

Annals, 7th Cong. 1st Sess. 512.

231

Story's description of Giles six years later: Story to Fay, Feb. 13, 1808, Story, i, 158-59. Also see Anderson, frontispiece and 238.

Giles was thirty-nine years of age. He had been elected to the House in 1790, and from the day he entered Congress had exasperated the Federalists. It is an interesting though trivial incident that Giles bore to Madison a letter of introduction from Marshall. Evidently the circumspect Richmond attorney was not well impressed with Giles, for the letter is cautious in the extreme. (See Anderson, 10; also Annals, 7th Cong. 1st Sess. 581.)

232

Annals, 7th Cong. 1st Sess. 580-81.

233

Annals, 7th Cong. 1st Sess. 582.

234

Ib. 583.

235

See supra, chap. i.

236

Marbury vs. Madison (see infra, chap. iii). For Giles's great speech see Annals, 7th Cong. 1st Sess. 579-602.

237

Bayard is "a fine, personable man … of strong mental powers… Nature has been liberal to him… He has, in himself, vast resources … a lawyer of high repute … and a man of integrity and honor… He is very fond of pleasure … a married man but fond of wine, women and cards. He drinks more than a bottle of wine each day… He lives too fast to live long… He is very attentive to dress and person." (Senator William Plumer's description of James A. Bayard, March 10, 1803, "Repository," Plumer MSS. Lib. Cong.)

238

Annals, 7th Cong. 1st Sess. 605.

239

Ib. 606.

240

Ib. 609.

241

Ib. 611.

242

Ib. 614.

243

Annals, 7th Cong. 1st Sess. 615.

244

Bayard's summary of the shortcomings of the Ellsworth Act of 1789 and the excellence of the Judiciary Act of 1801 (Annals, 7th Cong. 1st Sess. 616-27) was the best made at that time or since.

245

Ib. 632.

246

See infra, chap. iv.

247

Bayard pointed out that Charles Pinckney of South Carolina, whose "zeal and industry" decided the Presidential vote of his State, had been appointed Minister to Spain; that Claiborne of Tennessee held the vote of that State and cast it for Jefferson, and that Jefferson had conferred upon him "the high degree of Governor of the Mississippi Territory"; that Mr. Linn of New Jersey, upon whom both parties depended, finally cast his deciding vote in favor of Jefferson and "Mr. Linn has since had the profitable office of supervisor of his district conferred upon him"; and that Mr. Lyon of Vermont neutralized the vote of his State, but since "his character was low … Mr. Lyon's son has been handsomely provided for in one of the Executive offices." (Annals, 7th Cong. 1st Sess. 640.) Bayard named other men who had influenced the vote in the House and who had thereafter been rewarded by Jefferson.

248

Annals, 7th Cong. 1st Sess. 645-48.

249

Ib. 648-50. This was the second open expression in Congress of the spirit that led the New England Federalist leaders into their futile secession movement. (See infra, chaps. iii and vi; also vol. iv, chap. i, of this work.)

250

Adams to Bayard, April 10, 1802; Bayard Papers: Donnan, 152.

251

Washington Federalist, Feb. 20, 1802.

252

Members of Congress wore their hats during the sessions of House and Senate until 1828. For a description of Randolph in the House, see Tyler, I, 291. Senator Plumer pictured him as "a pale, meagre, ghostly man," with "more popular and effective talents than any other member of his party." (Plumer to Emery, Plumer, 248.) See also Plumer's letter to his son, Feb. 22, 1803, in which the New Hampshire Senator says that "Randolph goes to the House booted and spurred, with his whip in his hand, in imitation, it is said, of members of the British Parliament. He is a very slight man, but of the common stature." At a distance he looks young, but "upon a nearer approach you perceive his wrinkles and grey hairs. He is, I believe, about thirty." (Ib. 256.)

253

The personal domination which John Randolph of Roanoke wielded over his party in Congress, until he broke with Jefferson (see infra, chaps. iv and x), is difficult to realize at the present day. Nothing like it has since been experienced, excepting only the merciless rule of Thaddeus Stevens of Pennsylvania from 1862 until 1868. (See Woodburn: Life of Thaddeus Stevens, 247 et seq.)

254

Washington Federalist, Feb. 22, 1802.

255

Annals, 7th Cong. 1st Sess. 650-51.

256

Annals, 7th Cong. 1st Sess. 652.

257

See supra, chap. i, 33; also infra, chap. ix, where Marshall, during the trial of Aaron Burr, actually issued such a subpœna. Randolph was now denouncing the National court before which Cooper was tried, because it refused to grant the very writ for the issuing of which Marshall in a few years was so rancorously assailed by Jefferson personally, and by nearly all Republicans as a party.

258

At the time Marshall issued the rule against Madison he apparently had no idea that Section 13 of the Ellsworth Judiciary Act was unconstitutional. (See next chapter.)

259

Annals, 7th Cong. 1st Sess. 662-63.

260

The Federalist organ tried, by ridicule, to minimize Randolph's really strong speech. "The speech of Mr. Randolph was a jumble of disconnected declamation… He was horribly tiresome to the ear and disgusting to the taste." (Washington Federalist, Feb. 22, 1802.)

261

Annals, 7th Cong. 1st Sess. 727.

262

Ib. 737. See also vol. i, 452, of this work.

263

Annals, 7th Cong. 1st Sess. 747-55.

264

Ib. 759.

265

Ib. 760.

266

See infra, chap. x.

267

Annals, 7th Cong. 1st Sess. 760.

268

Ib. 760.

269

See infra, chaps. iii and vi.

270

Annals, 7th Cong. 1st Sess. 767-94.

[271] Ib. 793.

271

Ib. 805-06.

272

In sour disgust Morris notes in his diary: "The House of Representatives have talked themselves out of self-respect, and at headquarters [White House] there is such an abandonment of manner and such a pruriency of conversation as would reduce even greatness to the level of vulgarity." (March 10, 1802, Morris, ii, 421.)

273

Annals, 7th Cong. 1st Sess. 904.

Dana's statement is of first importance and should be carefully noted. It was at the time the universally accepted view of the power of the Supreme Court to issue writs of mandamus. Neither Federalists nor Republicans had ever questioned the Constitutional right of the Supreme Court to entertain original jurisdiction of mandamus proceedings in proper cases. Yet just this was what Marshall was so soon to deny in Marbury vs. Madison. (See infra, chap. iii.)

274

Annals, 7th Cong. 1st Sess. 920.

275

Ib. 923-26.

276

See supra, chap, i, 43.