The Life of John Marshall (Volume 2 of 4)

As autumn was painting the New England trees, Adams, still tarrying at his Massachusetts home, wrote Marshall to give his "sentiments as soon as possible in writing" as to what the President should say to Congress when it met December 3.1234 Three days later, when his first request was not yet halfway to Washington, Adams, apparently forgetful of his first letter, again urged Marshall to advise him as President in regard to his forthcoming farewell address to the National Legislature.1235

Statue of John Marshall

By W. W. Story, at the Capitol, Washington, D. C.

Marshall not only favored the President with his "sentiments" – he wrote every word of the speech which Adams delivered to Congress and sent it to the distressed Chief Magistrate in such haste that he did not even make a copy.1236 This presidential address, the first ever made to Congress in Washington, was delivered exactly as Marshall wrote it, with a change of only one word "much" for "such" and the omission of an adjective "great."1237

The address is strong on the necessity for military and naval preparation. It would be "a dangerous imprudence to abandon those measures of self-protection … to which … violence and the injustice of others may again compel us to resort… Seasonable and systematic arrangements … for a defensive war" are "a wise and true economy." The navy is described as particularly important, coast defenses are urged, and the manufacture of domestic arms is recommended in order to "supercede the necessity of future importations." The extension of the national Judiciary is pressed as of "primary importance … to the public happiness."1238

The election, at last, was over. The Republicans won, but only by a dangerously narrow margin. Indeed, outside of New York, the Federalists secured more electoral votes in 1800 than in the election of Adams four years earlier.1239 The great constructive work of the Federalist Party still so impressed conservative people; the mercantile and financial interests were still so well banded together; the Federalist revival of 1798, brought about by Marshall's dispatches, was, as yet, so strong; the genuine worth of Adams's statesmanship1240 was so generally recognized in spite of his unhappy manner, that it would seem as though the Federalists might have succeeded but for the quarrels of their leaders and Burr's skillful conduct of the Republican campaign in New York.

Jefferson and Burr each had seventy-three votes for President. Under the Constitution, as it stood at that time, the final choice for President was thus thrown into the House of Representatives.1241 By united and persistent effort, it was possible for the Federalists to elect Burr, or at least prevent any choice and, by law, give the Presidency to one of their own number until the next election. This, Jefferson advises Burr, "they are strong enough to do."1242 The Federalists saw their chance; the Republicans realized their danger.1243 Jefferson writes of the "great dismay and gloom on the republican gentlemen here and equal exultation on the federalists who openly declare they will prevent an election."1244 This "opens upon us an abyss, at which every sincere patriot must shudder."1245

Although Hamilton hated Burr venomously, he advised the Federalist managers in Washington "to throw out a lure for him, in order to tempt him to start for the plate, and then lay the foundation of dissension between" him and Jefferson.1246 The Federalists, however, already were turning to Burr, not according to Hamilton's unworthy suggestion, but in deadly earnest. At news of this, the fast-weakening New York Federalist chieftain became frantic. He showered letters upon the party leaders in Congress, and upon all who might have influence, appealing, arguing, persuading, threatening.1247

But the Federalists in Congress were not to be influenced, even by the once omnipotent Hamilton. "The Federalists, almost with one Mind, from every Quarter of the Union, say elect Burr" because "they must be disgraced in the Estimation of the People if they vote for Jefferson having told Them that He was a Man without Religion, the Writer of the Letter to Mazzei, a Coward, &c., &c."1248 Hamilton's fierce warnings against Burr and his black prophecies of "the Cataline of America"1249 did not frighten them. They knew little of Burr, personally, and the country knew less. What was popularly known of this extraordinary man was not unattractive to the Federalists.

Burr was the son of the President of Princeton and the grandson of the celebrated Jonathan Edwards, the greatest theologian America had produced. He had been an intrepid and efficient officer in the Revolutionary War, and an able and brilliant Senator of the United States. He was an excellent lawyer and a well-educated, polished man of the world. He was a politician of energy, resourcefulness, and decision. And he was a practical man of affairs. If he were elected by Federalist votes, the fury with which Jefferson and his friends were certain to assail Burr1250 would drive that practical politician openly into their camp; and, as President, he would bring with him a considerable Republican following. Thus the Federalists would be united and strengthened and the Republicans divided and weakened.1251

This was the reasoning which drew and bound the Federalists together in their last historic folly; and they felt that they might succeed. "It is … certainly within the compass of possibility that Burr may ultimately obtain nine States," writes Bayard.1252 In addition to the solid Federalist strength in the House, there were at least three Republican members, two corrupt and the other light-minded, who might by "management" be secured for Burr.1253 The Federalist managers felt that "the high Destinies … of this United & enlightened people are up";1254 and resolved upon the hazard. Thus the election of Burr, or, at least, a deadlock, faced the Republican chieftain.

At this critical hour there was just one man who still had the confidence of all Federalists from Adams to Hamilton. John Marshall, Secretary of State, had enough influence to turn the scales of Federalist action. Hamilton approached Marshall indirectly at first. "You may communicate this letter to Marshall," he instructed Wolcott, in one of his most savage denunciations of Burr.1255 Wolcott obeyed and reported that Marshall "has yet expressed no opinion."1256 Thereupon Hamilton wrote Marshall personally.

This letter is lost; but undoubtedly it was in the same vein as were those to Wolcott, Bayard, Sedgwick, Morris, and other Federalists. But Hamilton could not persuade Marshall to throw his influence to Jefferson. The most Marshall would do was to agree to keep hands off.

"To Mr. Jefferson," replies Marshall, "whose political character is better known than that of Mr. Burr, I have felt almost insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep and permanent injury.

"In addition to this solid and immovable objection, Mr. Jefferson appears to me to be a man, who will embody himself with the House of Representatives.1257 By weakening the office of President, he will increase his personal power. He will diminish his responsibility, sap the fundamental principles of the government, and become the leader of that party which is about to constitute the majority of the legislature. The morals of the author of the letter to Mazzei1258 cannot be pure…

"Your representation of Mr. Burr, with whom I am totally unacquainted, shows that from him still greater danger than even from Mr. Jefferson may be apprehended. Such a man as you describe is more to be feared, and may do more immediate, if not greater mischief.

"Believing that you know him well, and are impartial, my preference would certainly not be for him, but I can take no part in this business. I cannot bring myself to aid Mr. Jefferson. Perhaps respect for myself should, in my present situation, deter me from using any influence (if, indeed I possessed any) in support of either gentleman.

"Although no consideration could induce me to be the Secretary of State while there was a President whose political system I believed to be at variance with my own; yet this cannot be so well known to others, and it might be suspected that a desire to be well with the successful candidate had, in some degree, governed my conduct."1259

Marshall had good personal reasons for wishing Burr to be elected, or at least that a deadlock should be produced. He did not dream that the Chief Justiceship was to be offered to him; his law practice, neglected for three years, had passed into other hands; the head of the Cabinet was then the most important1260 office in the Government, excepting only the Presidency itself; and rumor had it that Marshall would remain Secretary of State in case Burr was chosen as Chief Magistrate. If the tie between Jefferson and Burr were not broken, Marshall might even be chosen President.1261

"I am rather inclined to think that Mr. Burr will be preferred… General Marshall will then remain in the department of state; but if Mr. Jefferson be chosen, Mr. Marshall will retire," writes Pickering.1262 But if Marshall cherished the ambition to continue as Secretary of State, as seems likely, he finally stifled it and stood aloof from the struggle. It was a decision which changed Marshall's whole life and affected the future of the Republic. Had Marshall openly worked for Burr, or even insisted upon a permanent deadlock, it is reasonably certain that the Federalists would have achieved one of their alternate purposes.

Although Marshall refrained from assisting the Federalists in their plan to elect Burr, he did not oppose it. The "Washington Federalist," which was the Administration organ1263 in the Capital, presented in glowing terms the superior qualifications of Burr over Jefferson for the Presidency, three weeks after Marshall's letter to Hamilton.1264 The Republicans said that Marshall wrote much that appeared in this newspaper.1265 If he was influential with the editor, he did not exercise his power to exclude the paper's laudation of the New York Republican leader.

It was reported that Marshall had declared that, in case of a deadlock, Congress "may appoint a Presidt. till another election is made."1266 The rumor increased Republican alarm and fanned Republican anger. From Richmond came the first tidings of the spirit of popular resistance to "such a usurpation,"1267 even though it might result in the election of Marshall himself to the Presidency. If they could not elect Burr, said Jefferson, the Federalists planned to make Marshall or Jay the Chief Executive by a law to be passed by the expiring Federalist Congress.1268

Monroe's son-in-law, George Hay, under the nom de guerre of "Hortensius," attacked Marshall in an open letter in the "Richmond Examiner," which was copied far and wide in the Republican press. Whether Congress will act on Marshall's opinion, says Hay, "is a question which has already diffused throughout America anxiety and alarm; a question on the decision of which depends not only the peace of the nation, but the existence of the Union." Hay recounts the many indications of the Federalists' purpose and says: "I understand that you, Sir, have not only examined the Constitution, but have given an opinion in exact conformity with the wishes of your party." He challenges Marshall to "come forward … and defend it." If a majority of the House choose Burr the people will submit, says Hay, because such an election, though contrary to their wishes, would be constitutional. But if, disregarding the popular will and also violating the Constitution, Congress "shall elect a stranger to rule over us, peace and union are driven from the land… The usurpation … will be instantly and firmly repelled. The government will be at an end."1269

Although the "Washington Federalist" denounced as "a lie"1270 the opinion attributed to him, Marshall, personally, paid no attention to this bold and menacing challenge. But Jefferson did. After waiting a sufficient time to make sure that this open threat of armed revolt expressed the feeling of the country, he asserted that "we thought best to declare openly and firmly, one & all, that the day such an act passed, the Middle States would arm, & that no such usurpation, even for a single day, should be submitted to."1271 The Republicans determined not only to resist the "usurpation … by arms," but to set aside the Constitution entirely and call "a convention to reorganize and amend the government."1272

The drums of civil war were beating. Between Washington and Richmond "a chain of expresses" was established, the messengers riding "day and night."1273 In Maryland and elsewhere, armed men, wrought up to the point of bloodshed, made ready to march on the rude Capital, sprawling among the Potomac hills and thickets. Threats were openly made that any man appointed President by act of Congress, pursuant to Marshall's reputed opinion, would be instantly assassinated. The Governor of Pennsylvania prepared to lead the militia into Washington by the 3d of March.1274

To this militant attitude Jefferson ascribed the final decision of the Federalists to permit his election. But no evidence exists that they were intimidated in the least, or in any manner influenced, by the ravings of Jefferson's adherents. On the contrary, the Federalists defied and denounced the Republicans and met their threats of armed interference with declarations that they, too, would resort to the sword.1275

The proof is overwhelming and decisive that nothing but Burr's refusal to help the Federalists in his own behalf,1276 his rejection of their proposals,1277 and his determination, if chosen, to go in as a Republican untainted by any promises;1278 and, on the other hand, the assurances which Jefferson gave Federalists as to offices and the principal Federalist policies – Neutrality, the Finances, and the Navy1279– only all of these circumstances combined finally made Jefferson president. Indeed, so stubborn was the opposition that, in spite of his bargain with the Federalists and Burr's repulsion of their advances, nearly all of them, through the long and thrillingly dramatic days and nights of balloting,1280 with the menace of physical violence hanging over them, voted against Jefferson and for Burr to the very end.

The terms concluded with Jefferson, enough Federalists cast blank ballots1281 to permit his election; and so the curtain dropped on this comedy of shame.1282 "Thus has ended the most wicked and absurd attempt ever tried by the Federalists," said the innocent Gallatin.1283 So it came about that the party of Washington, as a dominant and governing force in the development of the American Nation, went down forever in a welter of passion, tawdry politics, and disgraceful intrigue. All was lost, including honor.

But no! All was not lost. The Judiciary remained. The newly elected House and President were Republican and in two years the Senate also would be "Jacobin"; but no Republican was as yet a member of the National Judiciary. Let that branch of the Government be extended; let new judgeships be created, and let new judges be made while Federalists could be appointed and confirmed, so that, by means, at least, of the National Courts, States' Rights might be opposed and retarded, and Nationalism defended and advanced – thus ran the thoughts and the plans of the Federalist leaders.

Adams, in the speech to Congress in December of the previous year, had urged the enactment of a law to this end as "indispensably necessary."1284 In the President's address to the expiring Federalist Congress on December 3, 1800, which Marshall wrote, the extension of the National Judiciary, as we have seen, was again insistently urged.1285 Upon that measure, at least, Adams and all Federalists agreed. "Permit me," wrote General Gunn to Hamilton, "to offer for your consideration, the policy of the federal party extending the influence of our judiciary; if neglected by the federalists the ground will be occupied by the enemy, the very next session of Congress, and, sir, we shall see – and many other scoundrels placed on the seat of justice."1286

Indeed, extension of the National Judiciary was now the most cherished purpose of Federalism.1287 A year earlier, after Adams's first recommendation of it, Wolcott narrates that "the steady men" in the Senate and House were bent upon it, because "there is no other way to combat the state opposition [to National action] but by an efficient and extended organization of judges."1288

Two weeks after Congress convened, Roger Griswold of Connecticut reported the eventful bill to carry out this Federalist plan.1289 It was carefully and ably drawn and greatly widened the practical effectiveness of the National Courts. The Supreme Court was reduced, after the next vacancy, to five members – to prevent, said the Republicans, the appointment of one of their party to the Nation's highest tribunal.1290 Many new judgeships were created. The Justices of the Supreme Court, who had sat as circuit judges, were relieved of this itinerant labor and three circuit judges for each circuit were to assume these duties. At first, even the watchful and suspicious Jefferson thought that "the judiciary system will not be pushed, as the appointments, if made, by the present administration, could not fall on those who create them."1291

But Jefferson underestimated the determination of the Federalists. Because they felt that the bill would "greatly extend the judiciary power and of course widen the basis of government," they were resolved, writes Rutledge, to "profit of our shortlived majority, and do as much good as we can before the end of this session"1292 by passing the Judiciary Bill.

In a single week Jefferson changed from confidence to alarm. After all, he reflected, Adams could fill the new judgeships, and these were life appointments. "I dread this above all the measures meditated, because appointments in the nature of freehold render it difficult to undo what is done,"1293 was Jefferson's second thought.

The Republicans fought the measure, though not with the vigor or animosity justified by the political importance they afterwards attached to it. Among the many new districts created was an additional one in Virginia. The representatives from that State dissented; but, in the terms of that period, even their opposition was not strenuous. They said that, in Virginia, litigation was declining instead of increasing. "At the last term the docket was so completely cleared in … ten days … that the court … had actually decided on several [suits] returnable to the ensuing term."1294

That, replied the Federalists, was because the courts were too far away from the citizens. As for the National revenues, they could be collected only through National tribunals; for this purpose,1295 two Federal Courts in Virginia, as provided by the bill, were essential. But, of course, sneered the Federalists, "Virginia would be well satisfied with one court in preference to two or with no court whatever in preference to one."1296

But there was a defect in the bill, intimated the Virginia Republicans, that affected tenants and landowners of the Northern Neck. A clause of section thirteen gave the newly established National Court jurisdiction of all causes arising under the Constitution where original or exclusive jurisdiction was not conferred upon the Supreme Court or Admiralty Courts.1297 The National Court of the new Virginia District was to be held at Fredericksburg. Thus all suits for quitrents or other claims against those holding their lands under the Fairfax title could be brought in this near-by National Court, instead of in State Courts. This criticism was so attenuated and so plainly based on the assumption that the State Courts would not observe the law in such actions, that it was not pressed with ardor even by the impetuous and vindictive Giles.

But Nicholas went so far as to move that the jurisdiction of National Courts should be limited to causes exceeding five hundred dollars. This would cut out the great mass of claims which the present holders of the Fairfax title might lawfully have against tenants or owners. The Marshalls were the Fairfax assignees, as we have seen. No Republican, however, mentioned them in debate; but some one procured the insertion in the record of an insinuation which nobody made on the floor. In brackets, the "Annals," after the brief note of Nicholas's objection, states: "[It is understood that the present assignees of the claims of Lord Fairfax, are General Marshall, General Lee, and a third individual and that they maintain their claims under the British Treaty.]"1298

For three weeks the debate in the House dragged along. Republican opposition, though united, was languid.1299 At last, without much Republican resistance, the bill passed the House on January 20, 1801, and reached the Senate the next day.1300 Two weeks later the Senate Republicans moved a substitute providing for fewer circuits, fewer judges, and a larger Supreme Court, the members of which were to act as circuit judges as formerly.1301 It was defeated by a vote of 17 to 13.1302 The next day the bill was passed by a vote of 16 to 11.1303

When the debate began, the National Judiciary was without a head. Ellsworth, broken in health, had resigned. Adams turned to Jay, the first Chief Justice, and, without asking his consent, reappointed him. "I have nominated you to your old station,"1304 wrote the President. "This is as independent of the inconstancy of the people, as it is of the will of a President." But Jay declined.1305 Some of the Federalist leaders were disgruntled at Jay's appointment. "Either Judge Paterson [of New Jersey] or General Pinckney ought to have been appointed; but both these worthies were your friends,"1306 Gunn reported to Hamilton. The Republicans were relieved by Jay's nomination – they "were afraid of something worse."1307

Then, on January 20, 1801, with no herald announcing the event, no trumpet sounding, suddenly, and without previous notification even to himself, John Marshall was nominated as Chief Justice of the United States a few weeks before the Federalists went out of power forever. His appointment was totally unexpected. It was generally thought that Judge Paterson was the logical successor to Ellsworth.1308 Marshall, indeed, had recommended his selection.1309 The letters of the Federalist leaders, who at this period were lynx-eyed for any office, do not so much as mention Marshall's name in connection with the position of Chief Justice.

Doubtless the President's choice of Marshall was influenced by the fact that his "new minister, Marshall, did all to" his "entire satisfaction."1310 Federalist politicians afterward caviled at this statement of Adams. It was quite the other way around, they declared. "Every one who knew that great man [Marshall] knew that he possessed to an extraordinary degree the faculty of putting his own ideas into the minds of others, unconsciously to them. The secret of Mr. Adams's satisfaction [with Marshall] was, that he obeyed his Secretary of State without suspecting it."1311

The President gave Marshall's qualifications as the reason of his elevation. Boudinot reported to Adams that the New Jersey bar hailed with "the greatest pleasure" a rumor that "the office of Chief Justice … may be filled by" Adams himself "after the month of March next." The President, who admitted that he was flattered, answered: "I have already, by the nomination of a gentleman in the full vigor of middle age, in the full habits of business, and whose reading of the science is fresh in his head,1312 to this office, put it wholly out of my power as it never was in my hopes or wishes."1313

Marshall's appointment as Chief Justice was not greeted with applause from any quarter; there was even a hint of Federalist resentment because Paterson had not been chosen. "I see it denied in your paper that Mr. Marshall was nominated Chief Justice of the U.S. The fact is so and he will without doubt have the concurrence of the Senate, tho' some hesitation was at first expressed from respect for the pretensions of Mr. Paterson."1314 The Republican politicians were utterly indifferent; and the masses of both parties neither knew nor cared about Marshall's elevation.

The Republican press, of course, criticized the appointment, as it felt bound to attack any and every thing, good or bad, that the Federalists did. But its protests against Marshall were so mild that, in view of the recklessness of the period, this was a notable compliment. "The vacant Chief Justiceship is to be conferred on John Marshall, one time General, afterwards ambassador to X. Y. and Z., and for a short time incumbent of the office of Secretary of State… Who is to receive the salary of the Secretary of State, after Mr. Marshall's resignation, we cannot foretell, because the wisdom of our wise men surpasseth understanding."1315 Some days later the "Aurora," in a long article, denounced the Judiciary Law as a device for furnishing defeated Federalist politicians with offices,1316 and declared that the act would never be "carried into execution, … unless" the Federalists still meant to usurp the Presidency. But it goes on to say: —