The Life of John Marshall (Volume 2 of 4)

"We cannot permit ourselves to believe that John Marshall has been called to the bench to foster such a plot… Still, how can we account for the strange mutations which have passed before us – Marshall for a few weeks Secretary of State ascends the bench of the Chief Justice."1317 The principal objection of the Republican newspapers to Marshall, however, was that he, "before he left the office [of Secretary of State], made provision for all the Federal printers to the extent of his power… He employed the aristocratic presses alone to publish laws … for … one year."1318

Only the dissipated and venomous Callender, from his cell in prison, displayed that virulent hatred of Marshall with which an increasing number of Jefferson's followers were now obsessed. "We are to have that precious acquisition John Marshall as Chief Justice… The very sound of this man's name is an insult upon truth and justice"; and the dissolute scribbler then pours the contents of his ink-pot over Marshall's X. Y. Z. dispatches, bespatters his campaign for election to Congress, and continues thus: —

"John Adams first appointed John Jay in the room of Ellsworth. A strong suspicion exists that John did this with the previous certainty that John Jay would refuse the nomination. It was then in view to name John Marshall: first, because President Jefferson will not be able to turn him out of office, unless by impeachment; and in the second place that the faction [Federalist Party] who burnt the war office might, with better grace, attempt, forsooth, to set him up as a sort of president himself. Sus ad Minervam!"1319

That the voice of this depraved man, so soon to be turned against his patron Jefferson, who had not yet cast him off, was the only one raised against Marshall's appointment to the highest judicial office in the Nation, is a striking tribute, when we consider the extreme partisanship and unrestrained abuse common to the times.

Marshall himself, it appears, was none too eager to accept the position which Ellsworth had resigned and Jay refused; the Senate delayed the confirmation of his nomination;1320 and it was not until the last day of the month that his commission was executed.

On January 31, 1801, the President directed Dexter "to execute the office of Secretary of State so far as to affix the seal of the United States to the inclosed commission to the present Secretary of State, John Marshall, of Virginia, to be Chief Justice of the United States, and to certify in your own name on the commission as executing the office of Secretary of State pro hac vice."1321

It was almost a week before Marshall formally acknowledged and accepted the appointment. "I pray you to accept my grateful acknowledgments for the honor conferred on me in appointing me Chief Justice of the United States. This additional and flattering mark of your good opinion has made an impression on my mind which time will not efface. I shall enter immediately on the duties of the office, and hope never to give you occasion to regret having made this appointment."1322 Marshall's acceptance greatly relieved the President, who instantly acknowledged his letter: "I have this moment received your letter of this morning, and am happy in your acceptance of the office of Chief Justice."1323

Who should be Secretary of State for the remaining fateful four weeks? Adams could think of no one but Marshall, who still held that office although he had been appointed, confirmed, and commissioned as Chief Justice. Therefore, wrote Adams, "the circumstances of the times … render it necessary that I should request and authorize you, as I do by this letter, to continue to discharge all the duties of Secretary of State until ulterior arrangements can be made."1324

Thus Marshall was at the same time Chief Justice of the Supreme Court and Secretary of State. Thus for the second time these two highest appointive offices of the National Government were held simultaneously by the same man.1325 He drew but one salary, of course, during this period, that of Chief Justice,1326 the salary of Secretary of State remaining unpaid.

The President rapidly filled the newly created places on the Federal Bench. Marshall, it appears, was influential in deciding these appointments. "I wrote for you to Dexter, requesting him to show it to Marshall,"1327 was Ames's reassuring message to an aspirant to the Federal Bench. With astounding magnanimity or blindness, Adams bestowed one of these judicial positions upon Wolcott, and Marshall "transmits … the commission … with peculiar pleasure. Permit me," he adds, "to express my sincere wish that it may be acceptable to you." His anxiety to make peace between Adams and Wolcott suggests that he induced the President to make this appointment. For, says Marshall, "I will allow myself the hope that this high and public evidence, given by the President, of his respect for your services and character, will efface every unpleasant sensation respecting the past, and smooth the way to a perfect reconciliation."1328

Wolcott "cordially thanks" Marshall for "the obliging expressions of" his "friendship." He accepts the office "with sentiments of gratitude and good will," and agrees to Marshall's wish for reconciliation with Adams, "not only without reluctance or reserve but with the highest satisfaction."1329 Thus did Marshall end one of the feuds which so embarrassed the Administration of John Adams.1330

Until nine o'clock1331 of the night before Jefferson's inauguration, Adams continued to nominate officers, including judges, and the Senate to confirm them. Marshall, as Secretary of State, signed and sealed the commissions. Although Adams was legally within his rights, the only moral excuse for his conduct was that, if it was delayed, Jefferson would make the appointments, control the National Judiciary, and through it carry out his States' Rights doctrine which the Federalists believed would dissolve the Union; if Adams acted, the most the Republicans could do would be to oust his appointees by repealing the law.1332

The angry but victorious Republicans denounced Adams's appointees as "midnight judges." It was a catchy and clever phrase. It flew from tongue to tongue, and, as it traveled, it gathered force and volume. Soon a story grew up around the expression. Levi Lincoln, the incoming Attorney-General, it was said, went, Jefferson's watch in his hand, to Marshall's room at midnight and found him signing and sealing commissions. Pointing to the timepiece, Lincoln told Marshall that, by the President's watch, the 4th of March had come, and bade him instantly lay down his nefarious pen; covered with humiliation, Marshall rose from his desk and departed.1333

This tale is, probably, a myth. Jefferson never spared an enemy, and Marshall was his especial aversion. Yet in his letters denouncing these appointments, while he savagely assails Adams, he does not mention Marshall.1334 Jefferson's "Anas," inspired by Marshall's "Life of Washington," omits no circumstance, no rumor, no second, third, or fourth hand tale that could reflect upon an enemy. Yet he never once refers to the imaginary part played by Marshall in the "midnight judges" legend.1335

Jefferson asked Marshall to administer to him the presidential oath of office on the following day. Considering his curiously vindictive nature, it is unthinkable that Jefferson would have done this had he sent his newly appointed Attorney-General, at the hour of midnight, to stop Marshall's consummation of Adams's "indecent"1336 plot.

Indeed, in the flush of victory and the multitude of practical and weighty matters that immediately claimed his entire attention, it is probable that Jefferson never imagined that Marshall would prove to be anything more than the learned but gentle Jay or the able but innocuous Ellsworth had been. Also, as yet, the Supreme Court was, comparatively, powerless, and the Republican President had little cause to fear from it that stern and effective resistance to his anti-national principles, which he was so soon to experience. Nor did the Federalists themselves suspect that the Virginia lawyer and politician would reveal on the Supreme Bench the determination, courage, and constructive genius which was presently to endow that great tribunal with life and strength and give to it the place it deserved in our scheme of government.

In the opinions of those who thought they knew him, both friend and foe, Marshall's character was well understood. All were agreed as to his extraordinary ability. No respectable person, even among his enemies, questioned his uprightness. The charm of his personality was admitted by everybody. But no one had, as yet, been impressed by the fact that commanding will and unyielding purpose were Marshall's chief characteristics. His agreeable qualities tended to conceal his masterfulness. Who could discern in this kindly person, with "lax, lounging manners," indolent, and fond of jokes, the heart that dared all things? And all overlooked the influence of Marshall's youth, his determinative army life, his experience during the disintegrating years after Independence was achieved and before the Constitution was adopted, the effect of the French Revolution on his naturally orderly mind, and the part he had taken and the ineffaceable impressions necessarily made upon him by the tremendous events of the first three Administrations of the National Government.

Thus it was that, unobtrusively and in modest guise, Marshall took that station which, as long as he lived, he was to make the chief of all among the high places in the Government of the American Nation.

END OF VOLUME II

APPENDIX

I. LIST OF CASES

Argued by Marshall before the Court of Appeals of Virginia

II. GENERAL MARSHALL'S ANSWER TO AN ADDRESS OF THE CITIZENS OF RICHMOND, VIRGINIA

I will not, Gentlemen, attempt to describe the emotions of joy which my return to my native country, and particularly to this city, has excited in my mind; nor can I paint the sentiments of affection and gratitude towards you which my heart has ever felt, and which the kind and partial reception now given me by my fellow citizens cannot fail to increase. He only who has been … absent from a much loved country, and from friends greatly and deservedly esteemed – whose return is welcomed with expressions, which, di[rec]ted by friendship, surpass his merits or his ho[pes,] will judge of feelings to which I cannot do justice.

The situation in which the late Envoys from [the] United States to the French Republic found themselves in Paris was, indeed, attended with the unpleasant circumstances which you have traced. – Removed far from the councils of their country, and receiving no intelligence concerning it, the scene before them could not fail to produce the most anxious and disquieting sensations. Neither the ambition, the power, nor the hostile temper of France, was concealed from them; nor could they be unacquainted with the earnest and unceasing solicitude felt by the government and people of the United States for peace. But midst these difficulties, they possessed, as guides, clear and explicit instructions, a conviction of the firmness and magnanimity, as well as of the justice and pacific temper of their government, and a strong reliance on that patriotism and love of liberty, which can never cease to glow in the American bosom. With these guides, however thorny the path of duty might be, they could not mistake it. It was their duty, unmindful of personal considerations, to pursue peace with unabating zeal, through all the difficulties with which the pursuit was embarrassed by a haughty and victorious government, holding in perfect contempt the rights of others, but to repel, with unhesitating decision, any propositions, an acceptance of which would subvert the independence of the United States. – This they have endeavoured to do. I delight to believe that their endeavours have not dissatisfied their government or country, and it is most grateful to my mind to be assured that they receive the approbation of my fellow-citizens in Richmond, and its vicinity.

I rejoice that I was not mistaken in the opinion I had formed of my countrymen. I rejoice to find, though they know how to estimate, and therefore seek to avoid the horrors and dangers of war, yet they know also how to value the blessings of liberty and national independence: – They know that peace would be purchased at too high a price by bending beneath a foreign yoke, and that peace so purchased could be but of short duration. The nation thus submitting would be soon involved in the quarrels of its master, and would be compelled to exhaust its blood and its treasure, not for its own liberty, its own independence, or its own rights, but for the aggrandizement of its oppressor. The modern world unhappily exhibits but too plain a demonstration of this proposition. I pray heaven that America may never contribute its still further elucidation.

Terrible to her neighbors on the continent of Europe, as all must admit France to be, I believe that the United States, if indeed united, if awake to the impending danger, if capable of employing their whole, their undivided force – are so situated as to be able to preserve their independence. An immense ocean placed by a gracious Providence, which seems to watch over this rising empire, between us and the European world, opposes of itself such an obstacle to an invading ambition, must so diminish the force which can be brought to bear upon us, that our resources, if duly exerted, must be adequate to our protection, and we shall remain free if we do not deserve to be slaves.

You do me justice, gentlemen, when you suppose that consolation must be derived from a comparison of the Administration of the American Government, with that which I have lately witnessed. To a citizen of the United States, so familiarly habituated to the actual possession of liberty, that he almost considers it as the inseparable companion of man, a view of the despotism, which borrowing the garb and usurping the name of freedom, tyrannizes over so large and so fair a proportion of the earth, must teach the value which he ought to place on the solid safety and real security he enjoys at home. In support of these, all temporary difficulties, however great, ought to be encountered, and I agree with you that the loss of them would poison and embitter every other joy; and that deprived of them, men who aspire to the exalted character of freemen, would turn with loathing and disgust from every other comfort of life.

To me, gentlemen, the attachment you manifest to the government of your choice affords the most sincere satisfaction. Having no interests separate from or opposed to those of the people, being themselves subject in common with others, to the laws they make, being soon to return to that mass from which they are selected for a time in order to conduct the affairs of the nation, it is by no means probable that those who administer the government of the United States can be actuated by other motives than the sincere desire of promoting the real prosperity of those, whose destiny involves their own, and in whose ruin they must participate. Desirable as it is at all times, a due confidence in our government, it is peculiarly so in a moment of peril like the present, in a moment when the want of that confidence must impair the means of self defence, must increase a danger already but too great, and furnish, or at least give the appearance of furnishing, to a foreign real enemy, those weapons, which have so often been so successfully used.

Accept, gentlemen, my grateful acknowledgments for your kind expressions concerning myself, and do me the justice to believe, that your prosperity, and that of the city of Richmond and its vicinity, will ever be among the first wishes of my heart.

(From Columbian Centinel, Saturday, Sept. 22, 1798.)

III. FREEHOLDER'S QUESTIONS TO GENERAL MARSHALL

VIRGINIA. Fredericksburg, Oct. 2POLITICAL QUESTIONS

Addressed to General MARSHALL with his Answer thereto

To J. MARSHALL, Esq.

Richmond, Sept. 12.

Dear Sir,

Under a conviction that it will be of utility, should the answers to the following questions be such as I anticipate, I state them with a confidence of your readiness to give replies. They will, at all events, greatly satisfy my mind.

1st. Do you not in heart, and sentiment, profess yourself an American – attached to the genuine principles of the Constitution, as sanctioned by the will of the people, for their general liberty, prosperity and happiness?

2d. Do you conceive that the true interest and prosperity of America, is materially, or at all, dependent upon an alliance with any foreign nation? If you do, please state the causes, and a preference, if any exists, with the reasons for that preference.

3d. Are you in favor of an alliance, offensive and defensive, with Great Britain? In fine, are you disposed to advocate any other, or a closer connection with that nation, than exists at the ratification of the treaty of 1794? If so, please state your reasons.

4th. By what general principles, in your view, have the measures of our Administration and Government, in respect to France, been consistent with true policy or necessity? And could not the consequences have been avoided by a different line of conduct on our part?

5th. Are you an advocate for the Alien and Sedition Bills? Or, in the event of your election, will you use your influence to obtain a appeal of these laws?

A Freeholder

(Columbian Centinel, Boston, Mass., Saturday, October 20, 1798.)

MARSHALL'S ANSWERS TO FREEHOLDER'S QUESTIONSRichmond, Sept. 20, '98.

Dear Sir: —

I have just received your letter of yesterday, [sic] and shall with equal candor and satisfaction, answer all your queries. Every citizen has a right to know the political sentiments of the man who is proposed as his representative; and mine have never been of a nature to shun examination. To those who think another gentleman more capable of serving the district than myself, it would be useless to explain my opinions because whatever my opinions may be, they will, and ought, to vote for that other; but I cannot help wishing that those who think differently, would know my real principles, and not attribute to me those I never possessed; and with which active calumny has been pleased to asperse me.

Answ. 1. In heart and sentiment, as well as by birth and interest, I am an American, attached to the genuine principles of the constitution, as sanctioned by the will of the people, for their general liberty, prosperity and happiness. I consider that constitution as the rock of our political salvation, which has preserved us from misery, division and civil wars; and which will yet preserve us if we value it rightly and support it firmly.

2. I do not think the interest and prosperity of America, at all dependent on the alliance with any foreign nation; nor does the man exist who would regret more than myself the formation of such an alliance. In truth, America has, in my opinion, no motive for forming such connection, and very powerful motives for avoiding them. Europe is eternally engaged in wars in which we have no interest; and with which the fondest policy forbids us to intermeddle.

We ought to avoid any compact which may endanger our being involved in them. My sentiments on this subject are detailed at large in the beginning of the memorial addressed by the late envoys from the United States to the minister of foreign affairs of the French Republic, where the neutrality of the United States is justified, and the reasons for that neutrality stated.

3rd. I am not in favor of an alliance offensive and defensive with Great Britain nor for closer connection with that nation than already exists. No man in existence is more decidedly opposed to such an alliance, or more fully convinced of the evils that would result from it. I never have, in thought, word, or deed, given the smallest reason to suspect I wished it; nor do I believe any man acquainted with me does suspect it. Those who originate and countenance such an idea, may (if they know me) design to impose on others, but they do not impose on themselves.

The whole of my politics respecting foreign nations are reducible to this single position. We ought to have commercial intercourse with all, but political ties with none. Let us buy cheap and sell as dear as possible. Let commerce go wherever individual, and consequently national interest, will carry it; but let us never connect ourselves politically with any nation whatever.

I have not a right to say, nor can I say positively, what are the opinions of those who administer the Government of the United States; but I believe firmly that neither the President, nor any one of those with whom he advises, would consent to form a close and permanent political connection with any nation upon earth.

Should France continue to wage an unprovoked war against us, while she is also at war with Britain, it would be madness and folly not to endeavor to make such temporary arrangements as would give us the aid of the British fleets to prevent our being invaded; but I would not, even to obtain so obvious a good, make such a sacrifice as I think we should make, by forming a permanent political connection with that, or any other nation on earth.

4th. The measures of the administration and government of the United States with respect to France have in my opinion been uniformly directed by a sincere and unequivocal desire to observe, faithfully, the treaties existing between the two nations and to preserve the neutrality and independence of our country. – Had it been possible to maintain peace with France without sacrificing those great objects, I am convinced that our government would have maintained it.

Unfortunately it has been impossible. I do not believe that any different line of conduct on our part, unless we would have relinquished the rights of self government, and have become the colonies of France, could have preserved peace with that nation. – But be assured that the primary object of France is and for a long time past has been, dominion over others. This is a truth only to be disbelieved by those who shut their eyes on the history and conduct of that nation.

The grand instruments by which they effect this end, to which all their measures tend, are immense armies on their part, and divisions, which a variety of circumstances have enabled them to create, among those whom they wish to subdue. Whenever France has exhibited a disposition to be just toward the United States, an accurate attention to facts now in possession of the public, will prove that this disposition was manifest in the hope of involving us in her wars, as a dependent and subordinate nation.

5th. I am not an advocate for the alien and sedition bills; had I been in Congress when they passed, I should, unless my judgment could have been changed, certainly have opposed them. Yet, I do not think them fraught with all those mischiefs which many gentlemen ascribe to them. I should have opposed them because I think them useless; and because they are calculated to create unnecessary discontents and jealousies at a time when our very existence, as a nation, may depend on our union —

I believe that these laws, had they been opposed on these principles by a man, not suspected of intending to destroy the government, or being hostile to it, would never have been enacted. With respect to their repeal, the effort will be made before I can become a member of Congress.

If it succeeds there will be an end of the business – if it fails, I shall on the question of renewing the effort, should I be chosen to represent the district, obey the voice of my constituents. My own private opinion is, that it will be unwise to renew it for this reason: the laws will expire of themselves, if I recollect rightly the time for which they are enacted, during the term of the ensuing Congress. I shall indisputably oppose their revival; and I believe that opposition will be more successful, if men's minds are not too much irritated by the struggle about a repeal of laws which will, at the time, be expiring of themselves.