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

On the advice of his Cabinet,1328 Jefferson struck out from the Message the sentences italicized above. But even with this strong language omitted, Congress was told to impeach Marshall in far more emphatic terms than those by which Jefferson had directed the impeachment of Pickering – in plainer words, indeed, than those privately written to Nicholson ordering the attack upon Chase. Jefferson's assault on Marshall was also inserted in a Message dealing with probable war against Great Britain and setting out the continuance of our unhappy relations with Spain, "to our former grounds of complaint" against which country had "been added a very serious one."1329

Had these grave conditions not engaged the instant attention of Congress, had public sentiment – even with part of its fury drawn from Burr to Great Britain – been heeded at the National Capital, there can be little doubt that John Marshall would have been impeached by the House that was now all but unanimously Republican, and would have been convicted by the overwhelmingly Jeffersonian Senate.

Well for Marshall's peace of mind that he had secluded himself in the solitudes of the Blue Ridge, for never was an American judge subjected to abuse so unsparing. The Jeffersonian press, particularly the Aurora and the Enquirer, the two leading Republican papers, went to the limits of invective. "Let the judge be impeached," said the Enquirer; the Wickham dinner was recalled – why had Marshall attended it? His speech on the Jonathan Robins case1330– "the price of his seat on the bench" – was "a lasting monument of his capacity to defend error."

Marshall's "wavering and irresolute spirit" manifested throughout the trial had disgusted everybody. His attempt to make his rulings "palatable to all parties" had "so often wrapt them in obscurity" that it was hard "to understand on which side the court had decided." His conduct had been inspired by "power illicitly obtained." And think of his encouragement to Burr's counsel to indulge in "unbounded … slander and vilification" of the President! Callender's libel on Adams was insipid compared with Martin's vulgar billingsgate toward Jefferson! But that "awful tribunal" – the people – would try Marshall; before it "evidence will neither be perverted nor suppressed… The character of the Chief Justice awaits the issue."1331

Another attack soon followed. Marshall's disgraceful conduct "has proved that the Judges are too independent of the people." Let them be made removable by the President on the address of Congress. The Chase trial had shown that impeachment could not be relied on to cleanse the bench of a judge no matter how "noxious," "ridiculous," "contemptible," or "immoral" he might be. But "shall an imposter be suffered to preside on the bench of justice?.. Are we to be eternally pestered with that most ridiculous and dangerous cant; that the people … are incompetent to their own government: and that masters must be set over them and that barriers are to be raised up to protect those masters from the vengeance of the people?"1332

Next came a series of "Letters to John Marshall," which appeared simultaneously in the Aurora and the Enquirer. They were written by William Thompson under the nom de guerre of "Lucius"; he undoubtedly was also the author of the earlier attacks on the Chief Justice in the Enquirer. They were widely copied in the Republican press of the country, and were a veracious expression of public sentiment.

"Your country, sir, owes you a debt of gratitude for former favors," which cannot be paid because "the whole stock of national indignation and contempt would be exhausted, before the half of your just claim could be discharged." Marshall had earned "infamy and detestation" by his efforts to erect "tyranny upon the tomb of freedom." His skill "in conducting the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of John Thompson, whose "literary glory … will shine when even the splendour of your talents and your crimes shall have faded forever. When your volumes of apology for British insolence and cruelty1333 shall be buried in oblivion, the 'Letters of Curtius'1334 will … 'damn you to everlasting fame.'" Marshall's entire life, according to Lucius, had been that of a sly, bigoted politician who had always worked against the people. He might have become "one of the boasted patriots of Virginia," but now he was "a disgrace to the bench of justice." He was a Jeffreys, a Bromley, a Mansfield.1335

Quickly appeared a second letter to Marshall, accusing him of having "prostrated the dignity of the chief justice of the United States." Lucius goes into a lengthy analysis of Marshall's numerous opinions in the Burr trials. A just review of the proceedings, he said, demonstrates that the Chief Justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude … to implicate the government … as negligent of their duty" – something that "a less malicious magistrate" never would have dared to display.1336 A third letter continued the castigation of Marshall and the defense of Jefferson. Closing an extended argument on this joint theme, Lucius addressed Marshall thus: "Common sense, and violated justice, cry aloud against such conduct; and demand against you the enforcement of these laws, which you refuse to administer."1337

All these arraignments of Marshall had, as we have seen,1338 been submitted to Jefferson. They rose in the final letter to a climax of vituperation: "Could I be instrumental in removing you from the elevation which you have dishonored by … your crimes, I would still trace you … for screening a criminal and degrading a judge" by the "juggle of a judicial farce." Marshall and Burr were alike "morally guilty," alike "traitors in heart and in fact… Such a criminal and such a judge, few countries ever produced… You are forever doomed to blot the fair page of American history, to be held up, as examples of infamy and disgrace, of perverted talents and unpunished criminality, of foes to liberty and traitors to your country."1339

Incited by similar attacks in the Republican press of Baltimore,1340 the more ardent patriots of that place resolved publicly to execute Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the morning of November 3, satirical handbills, announcing this act of public justice, were scattered over the city:

"AWFUL!!!

"The public are hereby notified that four 'choice spirits' are this afternoon, at 3 o'clock, to be marshaled for execution by the hangman, on Gallows Hill, in consequence of the sentence pronounced against them by the unanimous voice of every honest man in the community.

"The respective crimes for which they suffer are thus stated in the record:

"First, Chief Justice M. for a repetition of his X.Y.Z. tricks, which are said to be much aggravated by his felonins [sic] capers in open Court, on the plea of irrelevancy;

"Secondly, His Quid Majesty [Burr], charged with the trifling fault of wishing to divide the Union, and farm Baron Bastrop's grant;

"Thirdly, B[lennerhassett], the chemist, convicted of conspiracy to destroy the tone of the public Fiddle;

"Fourthly, and lastly, but not least, Lawyer Brandy-Bottle, for a false, scandalous, malicious Prophecy, that, before six months, 'Aaron Burr would divide the Union.'

"N.B. The execution of accomplices is postponed to a future day."1341

Martin demanded of the Mayor the protection of the law. In response, police were sent to his house and to the Evans Hotel where Blennerhassett was staying. Burr and the faithful Swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage office, where they quickly left for Philadelphia.1342 Martin's law students and other friends armed themselves to resist violence to him.

A policeman named Goldsmith notified Blennerhassett that a great mob was gathering, "had everything prepared for tarring and feathering and would, … if disappointed or opposed, tear Martin [and Blennerhassett] to pieces." The manager of the hotel begged Blennerhassett to hide in the garret of the hostelry. This the forlorn Irishman did, and beheld from a window in the attic what passed below.

Shouting and huzzaing men poured by, headed by fifers and drummers playing the "Rogue's march." Midway in the riotous throng were drawn two carts containing effigies of Chief Justice Marshall and the other popularly condemned men "habited for execution… Two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and behold their conduct." At Martin's house the crowd stopped for a moment, hurling threats and insults, jeering at and defying the armed defenders within and "the cavalry without."

Making "as much noise as if they were about to destroy the city," these devotees of justice and liberty proceeded to the place of public execution. There, amid roars of approval, the effigy of John Marshall, Chief Justice of the United States, was hanged by the neck until the executioner pronounced the stuffed figure to be dead. About him dangled from the gibbet the forms of the "traitors" – Aaron Burr and Harman Blennerhassett – and also that of Luther Martin, who had dared to defend them and had thus incurred the malediction of Thomas Jefferson and "the people."1343

In the Senate Giles reported a bill to punish as traitors persons who permitted or aided in the perpetration of certain acts, "although not personally present when any such act was done"; and he supported it in an argument of notable ability. He powerfully attacked Marshall, analyzed his opinions in the Burr case, contrasted them with those of other National judges, and pointed out the resulting confusion in the interpretation of the law. All this was spoken, however, with careful regard to the rules of parliamentary discussion.1344

Legislation was necessary, said Giles; as matters stood, the decisions of judges on treason were like Congress "enacting our speeches, interspersed with our laws." With what result? No two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are principals. Were they in America? "Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."1345

Solely to gratify vox populi, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio. With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee1346 presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."1347 This surprising document was the work of John Quincy Adams,1348 who apparently adopted the ideas and almost the language of Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.1349

Marshall had "withheld from the jury … a great part of the testimony which was essential to [Burr's] conviction… In consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. Marshall's "decisions, forming the basis of the issue upon the trials of Burr … were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accomplice" of these diabolical plans, and the safety which Marshall's decisions in the Burr trial had thrown around Smith and other associates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of Smith had brought to his door.

"If," wrote Adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon."

Adams continued: "Whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt … that, but for the vigilance and energy of the government, and of faithful citizens under its directions … in crushing his designs, they would … have terminated not only in war, but in a war of the most horrible description, … at once foreign and domestic."

To such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. Adams's Federalist confrères reacted quickly;1350 and the New York Evening Post sharply criticized him.1351 When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Bayard was especially severe.1352 Thus assailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. God speed me through it!" he wrote in his diary that night.1353

William Branch Giles cast the deciding vote which defeated Adams's resolution – the Senate refusing to expel Smith by a vote of 19 yeas to 10 nays,1354 just one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of Adams himself.1355 "I shall vote against the resolution," Giles concluded, "solely from the conviction of the innocence of the accused."1356

Herefrom one may judge the temper of the times and the perilous waters through which John Marshall had been compelled to pilot the craft of justice. If that "most deliberative legislative body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmond during the trial of Aaron Burr, and the real impending danger for Marshall, after the acquittal of the man whom Jefferson and the majority had branded with the most hideous infamy.

Fortunate, indeed, for the Chief Justice of the United States, and for the stability of American institutions, that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and the Nation were forced to give their attention to the grave foreign situation which could no longer be ignored.

Going about his duties in Washington, or, at home, plodding out to the farm near Richmond, joking or gossiping with friends, and caring for his afflicted wife, Marshall heard the thunders of popular denunciation gradually swallowed up in the louder and ever-increasing reverberations that heralded approaching war with Great Britain. Before the clash of arms arrived, however, his level common sense and intelligent courage were again called upon to deal with another of those perplexing conditions which produced, one by one, opinions from the Supreme Bench that have become a part of the living, growing, yet stable and enduring Constitution of the American Nation.

CHAPTER X

FRAUD AND CONTRACT

If I were to characterize the United States, it should be by the appellation of the land of speculation. (William Priest.)

By the God of Heaven, if we go on in this way, our nation will sink into disgrace and slavery. (John Tyler.)

Millions of acres are easily digested by such stomachs. They buy and sell corruption in the gross. (John Randolph.)

When a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights. The people can act only by their agents and, within the powers conferred upon them, their acts must be considered as the acts of the people. (Marshall.)

The Honorable William Longstreet was an active and influential member of the Georgia Legislature during the winter of 1794-95. He was also a practical man. An important bill was then before that body, and Mr. Longstreet employed effective methods to forward its passage. The proposed legislation was to authorize the sale to four speculating land companies1357 of most of that territory which comprises the present States of Alabama and Mississippi.

"Why are you not in favor of selling the western lands?" frequently asked Representative Longstreet of his fellow member, Clem Lanier. "Because I do not think it right to sell to companies of speculators," was the answer. "Better vote for the bill," observed his seat mate, Representative Henry Gindrat, one day as they sat chatting before the Speaker of the House took the chair. "It will be worth your while. Senator Thomas Wylly says that he can have eight or ten likely negroes for his part."

That afternoon Senator Wylly came to Lanier and began to talk of the land bill. A Mr. Dennison sauntered up. Wylly left, and the newcomer remarked that, of course, he advised no legislator how to vote, but he could not help noticing that all who favored the sale of the lands "were handsomely provided for." If Lanier should support the bill, he would be taken care of like the rest. He was buying, Dennison said, from members who wished to sell lands allotted to them for agreeing to support the measure.

Once more came Longstreet, who "presented a certificate entitling the bearer to two shares of twenty-five thousand acres each," as security that Lanier would be rewarded if he voted for the sale bill. The obdurate Representative, who wished to probe the depths of the plot, objected, and Longstreet assured him that he would immediately procure "another certificate … for the same number of acres." But Lanier finally declined the bribe of seventy-five thousand acres of land.1358

Representative Gindrat had offered to sell his shares for one thousand dollars, the price generally given; but, securing "a better market," declined that sum.1359 Representative Lachlan M'Intosh received six shares in one of the land companies, which he sold at a premium of two hundred and fifty dollars each.1360

After the bill had passed, Senator Robert Thomas, who had no means of acquiring ready cash,1361 brought two thousand dollars to the house where he boarded and asked Philip Clayton, the owner, to keep it for him. Clayton was curious – did Senator Thomas get the money for his share of the lands? he inquired. "It is nothing to you; take care of it," answered the suddenly affluent legislator, smiling.1362

Representative Longstreet offered Representative John Shepperd one hundred thousand acres, but Shepperd was not interested; then Philip Clayton, the tavern-keeper, offered him seventy pounds to go home for the session.1363

A saturnalia of corruption was in progress in the little village of Augusta, where the Legislature of Georgia was in session.1364 The leading men of that and neighboring States were on the ground urging the enactment of the law in which all were interested. Wade Hampton of South Carolina was on hand. State and National judges were present. James Wilson of Pennsylvania, Associate Justice of the Supreme Court of the United States, was there with twenty-five thousand dollars in bank bills.1365

William Smith, Judge of the Superior Court of Georgia, added his influence, receiving for his services as lobbyist thirteen thousand dollars. Nathaniel Pendleton, Judge of the United States Court for that district, urged the legislation and signed and issued the certificates for shares that were given to the members for their votes.1366 Directing all was General James Gunn, United States Senator from Georgia: his first term in the National Senate about to expire, he was now reëlected by this very Legislature.1367

A majority of Georgia's lawmaking body thus became financially interested in the project, and the bill passed both houses. But Governor George Mathews vetoed the measure, because he thought the time not propitious for selling the lands, the price too low, the reservations for Georgians too small, and the principle of monopoly wrong.1368 Another bill was prepared to meet some of the Governor's objections. This was introduced as a supplement to a law just enacted to pay the State troops.1369 Again every possible influence was brought upon the Legislature to pass this bill with utmost dispatch.1370 Some members, who would not support it, were induced to leave the tiny Georgia Capital; others, who were recalcitrant, were browbeaten and bullied.

Senator Gunn, the field marshal of this legislative campaign, strode about the village arrayed in broadcloth, top boots, and beaver hat, commending those who favored the bill, abusing those who opposed it. In his hand he carried a loaded whip, and with this the burly Senator actually menaced members who objected to the scheme.1371 In a little more than one week the bill was rushed through both houses. This time it received the reluctant approval of the Governor, and on January 7, 1795, became a law.

In such fashion was enacted the legislation which disposed of more than thirty-five million acres of fertile, well-watered, heavily wooded land at less than one and one half cents an acre.1372 The purchasers were four companies known as The Georgia Company, The Georgia Mississippi Company, The Tennessee Company, and The Upper Mississippi Company. The total purchase price was five hundred thousand dollars in specie or approved currency, one fifth to be deposited with the State Treasurer before the passage of the act, and the remainder to be paid on or before November 1, 1795. The Governor was directed to execute a deed in fee-simple to the men composing each company as tenants in common; and the deferred payments were secured by mortgages to the Governor, to be immediately foreclosed upon default of payment, and the one fifth already deposited to be forfeited to the State.

Two million acres were reserved for exclusive entry by citizens of Georgia, and the land companies were bound to form settlements within five years after the Indian titles had been extinguished. The lands were declared free of taxation until they should be so occupied that the settlers were represented in the Legislature.1373 Governor Mathews executed deeds in compliance with the law, and, the entire amount of the purchase money having been paid into the State Treasury before November 1, the mortgages were canceled and the transaction was closed in accordance with the provisions of the statute. So far as that legislation and the steps taken in pursuance of it could bring about such a result, the legal title to practically all of the domain stretching from the present western boundary of Georgia to the Mississippi River, and from the narrow strip of Spanish territory on the Gulf to the Tennessee line, was transferred to the men composing these four land companies. The greatest real estate deal in history was thus consummated.

But even while this bill was before the Legislature, popular opposition to it began. A young man of twenty-three was then teaching in a little school-house at Augusta, but he was destined to become United States Senator, Minister to France, Secretary of the Treasury, and candidate for President. Enraged at what he believed the despoiling of the people by a band of robbers using robbers' methods, young William H. Crawford hurried to his home in Columbia County, got up a petition to the Governor to reject the bill again, and hurried to the Capital where he presented it to the Chief Executive of the State.1374 But Governor Mathews, against whom no man, then or thereafter, charged corrupt motives, persisted in signing the measure.

And it must be said that the bill was not without merit. Georgia was but thinly populated, not more than fifty thousand human beings inhabiting its immense extent of savanna and forest. Most of these people were very poor1375 and unable to pay any public charges whatever. The State Treasury was empty; the State troops, who had been employed in the endless Indian troubles, were unpaid and clamoring for the money long due them; the State currency had so depreciated that it was almost without value. No commonwealth in the Union was in worse financial case.1376