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

395

See infra, chap. iv.

396

Jefferson to Mrs. Adams, Sept. 11, 1804, Works: Ford, x, footnote to 89.

397

See infra, chap. viii.

398

Jefferson to Jarvis, Sept. 28, 1820, Works: Ford, xii, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798, ib. viii, 448.)

399

Jefferson to Gallatin, July 12, 1803, Works: Ford, x, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.

400

See Channing: U.S. iv, 313-14.

401

Talleyrand to Decrès, May 24, 1803, as quoted in Adams: U.S. ii, 55.

402

Morison: Otis, i, 262; see also Adams: U.S. ii, 56.

403

See instructions to Livingston and Monroe, Am. State Papers, Foreign Relations, ii, 540.

404

Adams: U.S. i, 442-43.

405

Ib. ii, 120-28.

406

Works: Ford, x, 3-12.

407

American Insurance Company et al. vs. Canter, 1 Peters, 511-46, and see vol. iv, chap. iii, of this work.

408

See U.S. Statutes at Large, ii, 283; and Annals, 8th Cong. 2d Sess. 1597.

409

For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)

410

Jefferson to Nicholas, Sept. 7, 1803, Works: Ford, x, 10.

411

Jefferson to Breckenridge, Aug. 12, 1803, ib. 7.

412

Jefferson to Madison, Aug. 18, 1803, ib. 8.

413

"The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800, ib. ix, 129; and see Adams: U.S. iii, 147.)

414

"The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803, Life of the Late Gen. William Eaton: Prentiss, 263; also quoted in Adams: U.S. ii, 431.)

415

Cabot to King, July 1, 1803, King, iv, 279. The Louisiana Purchase was first publicly announced through the press by the Independent Chronicle of Boston, June 30, 1803. (Adams: U.S. ii, 82-83.)

416

Ames to Gore, Oct. 3, 1803, Ames, i, 323-24.

417

Tracy to McHenry, Oct. 19, 1803, Steiner: Life and Correspondence of James McHenry, 522.

418

Oct. 20, 1803, Plumer, 285.

419

Ames to Dwight, Oct. 26, 1803, Ames, i, 328.

420

Reeve to Tracy, Feb. 7, 1804, N.E. Federalism: Adams, 342; and see Adams: U.S. ii, 160.

Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)

421

Pickering to Cabot, Jan. 29, 1804, Lodge: Cabot, 338.

422

Griswold to Wolcott, March 11, 1804, N.E. Federalism: Adams, 356.

423

Morse to Plumer, Feb. 3, 1804, Plumer, 289.

424

Plumer to Morse, March 10, 1804, ib.

425

Cabot to King, March 17, 1804, Lodge: Cabot, 345.

426

See Morison: Otis, i, 262.

427

Jefferson to Ritchie, Dec. 25, 1820, Works: Ford, xii, 177.

428

For instance, in 1808, the United States District Court of Massachusetts, in the decision of a case requiring all possible precedents like that of Marbury vs. Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marbury vs. Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citing Am. Law Journal, old series, ii, 255-64.)

Marshall's opinion in Marbury vs. Madison was first referred to by counsel in a legal controversy in Ex Parte Burford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and see infra, chap. vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.

A year later Marshall's opinion in Marbury vs. Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the case Ex Parte Gilchrist et al. vs. The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.

Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marbury vs. Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (see infra, chaps. vii, viii, ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marbury vs. Madison. He did not even answer Rodney's letter.

429

Giles was appointed Senator August 11, 1804, by the Governor to fill the unexpired term of Abraham Venable who resigned in order that Giles might be sent to the Senate. In December the Legislature elected him for the full term. Upon taking his seat Giles immediately became the Republican leader of the Senate. (See Anderson, 93.)

430

Dec. 21, 1804, Memoirs, J. Q. A.: Adams, i, 322-23.

431

Dec. 21, 1804. Memoirs, J. Q. A.: Adams, i, 322-23.

432

Plumer, 274-75; and see especially Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

433

The powerful Republican organ, the Aurora, of Philadelphia, thus indicted the National Judiciary: Because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors… It is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the Constitution." (Aurora, Jan. 28, 1805, as quoted in Corwin, 41.) Professor Corwin says that this utterance was approved by Jefferson.

434

"Mr. Giles from Virginia … is the Ministerial leader in the Senate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.)

"I considered Mr. Giles as the ablest practical politician of the whole party enlisted under Mr. Jefferson's banners." (Pickering to Marshall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.)

435

William Johnson of South Carolina, appointed March 26, 1804, vice William Moore, resigned. Johnson was a stanch Jeffersonian when appointed. He was thirty-three years old at the time he was made Associate Justice.

436

It is impossible to put too much emphasis on Giles's avowal. His statement is the key to the Chase impeachment.

437

Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, iii, 108.

438

Pickering to Lyman, Feb. 11, 1804, N.E. Federalism: Adams, 344; Lodge: Cabot, 444; also see Plumer, 275.

439

Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong.

440

Bayard to Bassett, Feb. 12, 1802, Bayard Papers: Donnan, 148.

441

Channing: Jeffersonian System, 119-20; Adams: U.S. ii, 225-27, 235; Anderson, 93, 95.

442

Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

443

See infra, 176-77, 196.

444

2 Cranch, 358-405.

445

See vol. ii, 481-82, of this work.

446

See vol. ii, 71-74, of this work.

447

Fifteen years passed before a critical occasion called for another assertion by Marshall of the doctrine of implied powers; and that occasion produced one of Marshall's greatest opinions – in the judgment of many, the greatest of all his writings. (See McCulloch vs. Maryland, vol. iv, chap. vi, of this work.)

448

Addison's address is historically important; it perfectly shows the distrust of democracy which all Federalist leaders then felt. Among other things, he pleaded for the independence of the Judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. (Addison Trial, 101-43.)

449

The petition praying for the impeachment of Addison was sent to the Pennsylvania House of Representatives on January 11, 1802. On March 23, 1802, that body transmitted articles of impeachment to the State Senate. The trial was held in early January, 1803. Addison was convicted January 26, 1803. (Ib.)

450

Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the ship Eliza, and suggested that "the Constitution has confided [to the House] a power of instituting proceedings of redress." (Annals, 7th Cong. 2d Sess. 460.)

On March 2 the committee reported a resolution for Pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few Federalists tried to postpone a vote, the resolution was adopted immediately.

451

Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, Edward St. Loe Livermore. (Annals, 8th Cong. 1st Sess. 334-42.)

452

Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan Steele. (Ib. 351-56.)

453

The wise and comprehensive Federalist Judiciary Act of 1801 covered just such cases. It provided that when a National judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (See Annals, 6th Cong. 2d Sess. 1545.) This very thing had been done in the case of Judge Pickering (see McMaster: U.S. iii, 166). It is curious that, in the debate, the Republicans did not denounce this as unconstitutional.

454

Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

455

Annals, 8th Cong. 1st Sess. 328-30.

456

Memoirs, J. Q. A.: Adams, i, 299-300.

457

"This," records Adams, "had evidently been settled … out of court. And this is the way in which these men administer justice." (Ib.)

458

"In the House … speeches are making every day to dictate to the Senate how they are to proceed; and the next morning they proceed accordingly." (Ib. 301-02.)

459

Feb. 18, 1803, Plumer, 253.

460

Annals, 8th Cong. 1st Sess. 365.

461

See Memoirs, J. Q. A.; Adams, i, 302-04, for a vivid account of the whole incident.

462

Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.

463

Annals, 8th Cong. 1st Sess. 367. "The independence of our judiciary is no more … I hope the time is not far distant when the people east of the North river will manage their own affairs in their own way; … and that the sound part will separate from the corrupt." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On the unconstitutional and revolutionary conduct of the Republicans in the Pickering impeachment trial see Adams: U.S. ii, 158.

464

Senators John Armstrong of New York, Stephen R. Bradley of Vermont, and David Stone of North Carolina. Jonathan Dayton of New Jersey and Samuel White of Delaware, Federalists, also withdrew. (Annals, 8th Cong. 1st Sess. 366.) And see Memoirs, J. Q. A.: Adams, i, 308-09; J. Q. Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, iii, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.

Senator John Brown of Kentucky, a Republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) Senator Brown had been elected President pro tem. of the Senate, January 23, 1804.

Burr "abruptly left the Senate" to attend to his candidacy for the governorship of New York. (Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.) Senator Franklin of North Carolina was then chosen President pro tem. and presided during the trial of Pickering. But Burr returned in time to arrange for, and preside over, the trial of Justice Chase.

465

The Republicans even refused to allow the report of the proceedings to be "printed in the Appendix to the Journals of the Session." (Memoirs, J. Q. A.: Adams, I, 311.)

The conviction and removal of Pickering alarmed the older Federalists almost as much as did the repeal of the Judiciary Act. "The demon of party governed the decision. All who condemned were Jeffersonians, and all who pronounced the accused not guilty were Federalists." (Pickering to Lyman, March 4, 1804, N.E. Federalism: Adams, 358-59; Lodge: Cabot, 450.)

"I really wish those in New England who are boasting of the independence of our Judiciary would reflect on what a slender tenure Judges hold their offices whose political sentiments are at variance with the dominant party." (Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.)

466

Exhibit viii, Chase Trial, Appendix, 61-62; also see Annals, 8th Cong. 2d Sess. 675-76.

467

June 13, 1803.

468

See Chase Trial, 101 et seq.

469

See McMaster: U.S. iii, 162-70.

470

Jefferson to Nicholson, May 13, 1803, Jefferson Writings: Washington, iv, 484.

471

Macon to Nicholson, Aug. 6, 1803, Dodd: Life of Nathaniel Macon, 187-88. Macon seriously doubted the expediency and legality of the impeachment of Chase. However, he voted with his party.

472

Dodd, 187-88.

473

Adams to Rush, June 22, 1806, Old Family Letters, 100.

474

Chase "is very obnoxious to the powers that be & must be denounced, but articles will not be exhibited agt him this session. The Accusers have collected a volume of exparte evidence against him, printed & published it in pamphlets, & now it is publishing in the Court gazette to be diffused in every direction… If a party to a suit at law, … was to practice in this manner he would merit punishment." (Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.)

475

See supra, chap. i. For the articles of impeachment see Annals, 8th Cong. 2d Sess. 85-88; Chase Trial, 10-11.

The Republicans, for a time, contemplated the impeachment of Richard Peters, Judge of the United States Court for the District of Pennsylvania, who sat with Chase during the trial of Fries. (Annals, 8th Cong. 1st Sess. 823-24, 850, 873-74.) But his name was dropped because he had not "so acted in his judiciary capacity as to require the interposition of the Constitutional powers of this House." (Ib. 1171.)

Peters was terrified and turned upon his fellow judge. He showered Pickering and other friends with letters, complaining of the conduct of his judicial associate. "If I am to be immolated let it be with some other Victim – or for my own Sins." (Peters to Pickering, Jan. 26, 1804, Pickering MSS. Mass. Hist. Soc.)

476

J. Q. Adams to his father, March 14, 1805, Writings, J. Q. A.: Ford, iii, 116.

477

Dec. 20, 1804, Memoirs, J. Q. A.: Adams, i, 321.

478

Plumer to Cogswell, Jan. 4, 1805, Plumer MSS. Lib. Cong.; and see Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. loc. cit.

479

Bayard to Harper, Jan. 30, 1804, Bayard Papers: Donnan, 160.

480

Pickering to Lyman, March 14, 1804, Lodge: Cabot, 450; also N.E. Federalism: Adams, 359.

481

Ames to Dwight, Jan. 20, 1805, Ames, i, 338.

482

The Yazoo fraud. No other financial scandal in our history equaled this, if one considers the comparative wealth and population of the country at the times other various great frauds were perpetrated. For an account of it, see infra, chap. x.

483

For Randolph's frantic speech on the Yazoo fraud and Marshall's opinion in Fletcher vs. Peck, see infra, chap. x.

484

This form was adopted in the trial of Judge Pickering. See Annals, 8th Cong. 1st Sess. 319.

485

See Plumer, 323.

486

Channing: U.S. iv, 287.

487

Marshall to James M. Marshall, April 1, 1804, MS.

488

William Marshall. See infra, 191-92.

489

John Wickham, leader of the Richmond bar and one of Marshall's intimate friends.

490

See supra, chap. i; and infra.

491

See 1 Kings, xii, 10.

492

Marshall to Chase, Jan. 23, 1804, Etting MSS. Pa. Hist. Soc.

493

See infra, 192-96.

494

See supra, chap. iii, 113.

495

"Mr Burr had the sole power of making the arrangements … for the trial." (Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. Lib. Cong.)

496

Annals, 8th Cong. 2d Sess. 100; Chase Trial, 2-5.

497

Plumer to Norris, Nov. 7, 1804, Plumer, 329.

498

See infra, chap. vi.

499

See J. Q. Adams to his father, Jan. 5, 1805, Writings, J. Q. A.: Ford, iii, 104.

500

Plumer, 274. "John S. Sherburne, Jonathan Steele, Michael McCleary and Richard Cutts Shannon were the principal witnesses against Pickering. Sherburne was appointed Judge [in Pickering's place]; Steele, District Attorney; McCleary, Marshal; and Shannon, Clerk of the Court… Steele, expecting to have been Judge refused to accept his appointment, assigning as the reason his agency in the removal of Pickering."

501

Plumer, 329-30; and see Adams: U.S. ii, 220.

502

Nov. 26, 1804, Memoirs, J. Q. A.: Adams, i, 317-18; and Adams, U.S. ii, 220-22.

"Burr is flattered and feared by the administration." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.; and Plumer to Wilson, Dec. 7, 1804, Plumer MSS. loc. cit.)

503

Davis, ii, 360; also Adams: U.S. 218-44.

"It must be acknowledged that Burr has displayed much ability, and since the first day I have seen nothing of partiality." (Cutler to Torrey, March 1, 1805, Cutler: Life, Journals and Correspondence of Manasseh Cutler, ii, 193.)

At the beginning of the trial, however, Burr's rigor irritated the Senate: "Mr. Burr is remarkably testy – he acts more of the tyrant – is impatient, passionate – scolds – he is in a rage because we do not sit longer." (Plumer, Feb. 8, 1805, "Diary," Plumer MSS. Lib. Cong.)

"Just as the time for adjourning to morrow was to be put … Mr. Burr said he wished to inform the Senate of some irregularities that he had observed in the Court.

"Some of the Senators as he said during the trial & while a witness was under examination walked between him & the Managers – others eat apples – & some eat cake in their seats.

"Mr. Pickering said he eat an apple – but it was at a time when the President had retired from the chair. Burr replied he did not mean him – he did not see him.

"Mr. Wright said he eat cake – he had a just right to do so – he was faint – but he disturbed nobody – He never would submit to be schooled & catechised in this manner.

"At this instance a motion was made by Bradley, who also had eaten cake, for an adjournment. Burr told Wright he was not in order – sit down. The Senate adjourned – & I left Burr and Wright scolding.

"Really, Master Burr, you need a ferule, or birch to enforce your lectures on polite behavior!" (Ib. Feb. 12, 1805; also ib. Jan. 2, 1805.) Burr was sharply criticized by the Washington Federalist, January 8, for his rude conduct at the beginning of the trial.

504

Plumer to Sheafe, Jan. 1805, Plumer, 330-31.

505

Annals, 8th Cong. 2d Sess. 92; Chase Trial, 4.

506

Dwight: Signers of the Declaration of Independence, 245-52.

507

Hudson: Journalism in the United States, 1690-1872, 214; and see Story to Bramble, June 10, 1807, Story, i, 154.

508

"In person, in manners, in unwieldy strength, in severity of reproof, in real tenderness of heart; and above all in intellect," he was "the living, I had almost said the exact, image of Samuel Johnson." (Story to Fay, Feb. 25, 1808, Story, i, 168.)

Chase's career had been stirring and important. Carefully educated by his father, an Episcopal clergyman, and thoroughly grounded in the law, he became eminent at the Maryland bar at a very early age. From the first his aggressive character asserted itself. He was rudely independent and, as a member of the Maryland House of Burgesses, treated the royal governor and his Tory partisans with contemptuous defiance. When the British attempted to enforce the Stamp Act, he joined a band of high-spirited young patriots who called themselves "The Sons of Liberty," and led them in their raids upon public offices, which they broke open, seizing and destroying the stamps and burning in effigy the stamp distributor.