The Life of John Marshall (Volume 2 of 4)

1275

Thus, for example, the Washington Federalist of Feb. 12, 1801, after the House had balloted "upwards of 30 times": —

"But say the bold and impetuous partisans of Mr. Jefferson, and that, too, in the Teeth of the Assembled Congress of America– 'Dare to designate any officer whatever, even temporarily, to administer the government in the event of a non-agreement on the part of the House of Representatives, and we will march and dethrone him as an usurper. Dare (in fact) to exercise the right of opinion, and place in the presidential chair any other than the philosopher of Monticello, and ten thousand republican swords will instantly leap from their scabbards, in defence of the violated rights of the People!!!

"Can our Countrymen be caught by so flimsy a pretext?

"Can it possibly interest either their feelings or their judgment?

"Are they, then, ripe for civil war, and ready to imbrue their hands in kindred blood?

"If the tumultuous meetings of a set of factious foreigners in Pennsylvania or a few fighting bacchanals of Virginia, mean the people, and are to dictate to the Congress of the United States whom to elect as President – if the constitutional rights of this body are so soon to become the prey of anarchy and faction – … it would be prudent to prepare for the contest: the woeful experiment if tried at all could never be tried at a more favorable conjuncture!

"With the militia of Massachusetts consisting of 70,000 (regulars let us call them) in arms – with those of New Hampshire and Connecticut united almost to a man, with half the number at least of the citizens of eleven other States ranged under the federal banner in support of the Constitution, what could Pennsylvania aided by Virginia – the militia of the latter untrained and farcically performing the manual exercise with corn-stalks instead of muskets – … What, may it be asked, would be the issue of the struggle?"

1276

"The means existed of electing Burr, but this required his co-operation. By deceiving one man (a great blockhead) and tempting two (not incorruptible) he might have secured a majority of the States." (Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 522-24.)

"The Federalists were confident at first, they could debauch Col. B.[urr]… His conduct has been honorable and decisive, and greatly embarrasses them." (Jefferson to his daughter, Jan. 4, 1801; Works: Ford, ix, 166.)

1277

"I was enabled soon to discover that he [Burr] was determined not to shackle himself with federal principles… When the experiment was fully made, and acknowledged upon all hands, … that Burr was resolved not to commit himself, … I came out … for Jefferson." (Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 523.)

1278

The Federalist managers were disgusted with Burr because he refused to aid them in their plot to elect him. "Burr has acted a miserable paultry part," writes Bayard. "The election was in his power, but he was determined to come in as a Democrat… We have been counteracted in the whole business by letters he has written to this place." (Bayard to Bassett, Feb. 16, 1801; Bayard Papers: Donnan; 126.)

Burr had not "used the least influence" to be elected. (Bayard's Deposition; Davis: Burr, ii, 127.)

"Had Burr done anything, for himself, he would, long ere this, have been President." (Cooper to Morris, Feb. 13, 1801; Davis: Burr, ii, 113.)

1279

Depositions of Bayard and Smith, in Gillespie vs. Smith; Randall, ii, 613-17; and Davis: Burr, ii, 135-37; also Baer to Bayard, April 19, 1830; ib., 118; and see Bayard's account; Remarks in the Senate, Jan. 31, 1835; also, Bayard to McLane, Feb. 17, 1801; Bayard Papers: Donnan, 126 et seq.

In his "Anas" (Works: Ford, i, 392-93) Jefferson flatly denied his deal with the Federalists, and this, afterwards, provoked much controversy. It now is established that the bargain was made. See Professor McMaster's conclusion: "The price settled … the Republicans secured ten states." (McMaster, ii, 526.)

1280

For accounts by participants in this exciting and historic contest, see Gallatin's letters to his wife and to Nicholson from Feb. 5 to Feb. 19, 1801; Adams: Gallatin, 257-63; Dana to Wolcott, Feb. 11, 1801; Gibbs, ii, 489-90; Bayard to several friends, Feb. 22, 1801; Bayard Papers, supra.

1281

Jefferson to Madison, Feb. 18, 1801; Works: Ford, ix, 183.

1282

After Jefferson's election, for many days the Washington Federalist carried in italics at the head of its editorial columns a sentiment characteristic of Marshall: "May he discharge its duties in such a manner as to merit and receive the blessings of all good men and without redding the cheek of the American Patriot with blushes for his country!!!"

1283

Gallatin to his wife, Feb. 17, 1801; Adams: Gallatin, 262.

1284

Adams to Congress, Dec. 3, 1799; Annals, 6th Cong., 1st Sess., 187-88; and Richardson, i, 289. Yet at this period the business of the courts was actually decreasing. (See Brown: Ellsworth, 198.) But the measure was demanded by the bar generally and insisted upon by the Justices of the Supreme Court. (See Gibbs, ii, 486.)

1285

Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams MSS.

1286

Gunn to Hamilton, Dec. 13, 1800; Works: Hamilton, vi, 483.

1287

The Federalist attitude is perfectly expressed in the following toast drunk at a banquet to Wolcott, attended by "the heads of departments" and the Justices of the Supreme Court: "The Judiciary of the United States! Independent of party, independent of power and independent of popularity." (Gazette of the United States, Feb. 7, 1801.)

1288

Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 316.

1289

Annals, 6th Cong., 1st Sess., Dec. 19, 837-38.

1290

Richmond Examiner, Feb. 6, 1801.

1291

Jefferson to Madison, Dec. 19, 1800; Works: Ford, ix, 159. The Republicans were chiefly alarmed because, in the extension of the National Judiciary, offices would be provided for Federalists. Even Jefferson then saw nothing but patronage in the Judiciary Act.

The "evident" purpose of the bill, said the Aurora, Feb. 4, 1801, was to "increase the influence of the present Executive and provide a comfortable retreat for some of those good federalists who have found it convenient to resign from their offices or been dismissed from them by the people."

In comparison to this objection little attention was paid to the more solid ground that the National Judiciary would be used to "force the introduction of the common law of England as a part of the law of the United States"; or even to the objection that, if the Judiciary was extended, it would "strengthen the system of terror by the increase of prosecutions under the Sedition law"; or to the increase of the "enormous influence" given the National Courts by the Bankruptcy Law.

The Aurora, March 18, 1801, sounded the alarm on these and other points in a clanging editorial, bidding "the people beware," for "the hell hounds of persecution may be let loose … and the people be roasted into implicit acquiescence with every measure of the 'powers that be.'" But at this time it was the creation of offices that the Federalists would fill to which the Republicans chiefly objected.

1292

Rutledge to Hamilton, Jan. 10, 1801; Works: Hamilton, vi, 511.

1293

Jefferson to Madison, Dec. 26, 1800; Works: Ford, ix, 161.

1294

Annals, 6th Cong., 1st Sess., 878.

1295

Annals, 6th Cong., 1st Sess., 879.

1296

Ib. The person who made this absurd speech is not named in the official report.

1297

Ib., 896.

1298

Annals, 6th Cong., 1st Sess., 897. This curious entry is, plainly, the work of some person who wished to injure Marshall and Lee. Nicholas's motion was lost, but only by the deciding vote of the Speaker. (Ib.) The bill, as finally passed, limited the jurisdiction of the National Courts to causes exceeding four hundred dollars. (Ib.)

1299

Ib., 900, 901, 903, and 905.

1300

Ib., 734.

1301

Ib., 740-41.

1302

Ib., 741.

1303

Ib., 742.

1304

Adams to Jay, Dec. 19, 1800; Works: Adams, ix, 91.

1305

Jay to Adams, Jan. 2, 1801; Jay: Johnston, iv, 284. Jay refused the reappointment because he believed the Supreme Court to be fatally lacking in power. See chap. i, vol. iii, of this work.

1306

Gunn to Hamilton, Dec. 18, 1800; Works: Hamilton, vi, 492.

1307

Jefferson to Madison, Dec. 19, 1800; Works: Ford, ix, 159. It is impossible to imagine what this "something worse" was. It surely was not Marshall, who was in nobody's mind for the Chief Justiceship when Jay was named.

1308

Pickering to King, Jan. 12, 1801; King, iii, 367.

1309

Story, in Dillon, iii, 359.

1310

Adams to William Cunningham, Nov. 7, 1808; Cunningham Letters, no. xiv, 44; also mentioned in Gibbs, ii, 349.

1311

Gibbs, ii, 349, 350.

1312

As we have seen, Marshall's "reading of the science," "fresh" or stale, was extremely limited.

1313

Adams to Boudinot, Jan. 26, 1801; Works: Adams, ix, 93-94. Adams's description of Marshall's qualifications for the Chief Justiceship is by way of contrast to his own. "The office of Chief Justice is too important for any man to hold of sixty-five years of age who has wholly neglected the study of the law for six and twenty years." (Ib.) Boudinot's "rumor" presupposes an understanding between Jefferson and Adams.

1314

Bayard to Andrew Bayard, Jan. 26, 1801; Bayard Papers: Donnan, 122.

1315

Aurora, Jan. 22, 1801.

1316

It is worthy of repetition that practically all the emphasis in their attacks on this act was laid by the Republicans on the point that offices were provided for Federalists whose characters were bitterly assailed. The question of the law's enlargement of National power was, comparatively, but little mentioned; and the objections enlarged upon in recent years were not noticed by the fierce partisans of the time.

1317

Aurora, Feb. 3, 1801.

1318

Baltimore American; reprinted in the Aurora, April 2, 1801.

1319

Richmond Examiner, Feb. 6, 1801.

1320

Marshall's nomination was confirmed January 27, 1801, a week after the Senate received it. Compare with the Senate's quick action on the nomination of Marshall as Secretary of State, May 12, 1800, confirmed May 13. (Executive Journal of the Senate, iii.)

1321

Adams to Dexter, Jan. 31, 1801; Works: Adams, ix, 95-96.

1322

Marshall to Adams, Feb. 4, 1801; ib., 96.

1323

Adams to Marshall, Feb. 4, 1801; ib., 96.

1324

Same to same, Feb. 4, 1801; ib., 96-97.

1325

Jay held both offices for six months.

1326

Auditor's Files, Treasury Department, no. 12, 166. This fact is worthy of mention only because Marshall's implacable enemies intimated that he drew both salaries. He could have done so, as a legal matter, and would have been entirely justified in doing so for services actually rendered. But he refused to take the salary of Secretary of State.

1327

Ames to Smith, Feb. 16, 1801; Works: Ames, i, 292.

1328

Marshall to Wolcott, Feb. 24, 1801; Gibbs, ii. 495.

1329

Wolcott to Marshall, March 2, 1801; Gibbs, ii, 496.

1330

The irresponsible and scurrilous Callender, hard-pressed for some pretext to assail Marshall, complained of his having procured the appointment of relatives to the Judiciary establishment. "Mr. John Marshall has taken particular care of his family," writes Jefferson's newspaper hack, in a characteristically partisan attack upon Adams's judicial appointments. (Scots Correspondent, in Richmond Examiner, March 13, 1801.)

Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed United States Attorney for the District of Kentucky; George Keith Taylor, another brother-in-law, was appointed United States Judge of the Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed Assistant Judge of the Territory (District) of Columbia. These appointments were made, however, before the new Judiciary Act was passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender appears to have been the only person to criticize these appointments. Even Jefferson did not complain of them or blame Marshall for them. The three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all.

1331

Jefferson to Rush, March 24, 1801; Works: Ford, ix, 231.

1332

The Republicans did so later. "This outrage on decency should not have its effect, except in life appointments [judges] which are irremovable." (Jefferson to Knox, March 27, 1801; Works: Ford, ix, 237.)

1333

Parton: Jefferson, 585-86. Parton relates this absurd tale on the authority of Jefferson's great-granddaughter. Yet this third-hand household gossip has been perpetuated by serious historians. The only contemporary reference is in the address of John Fowler of Kentucky to his constituents published in the Aurora of April 9, 1801: "This disgraceful abuse was continued to the latest hour of the President's holding his office." The "shameful abuse" was thus set forth: "It [Judiciary Law of 1801] creates a host of judges, marshalls, attorneys, clerks, &c., &c., and is calculated, if it could endure, to unhinge the state governments and render the state courts contemptible, while it places the courts of law in the hands of creatures of those who have lost the confidence of the people by their misconduct. The insidiousness of its design has been equalled only by the shameless manner of its being carried into execution. The Constitution disables any member of Congress from filling an office created during his period of service. The late President [Adams] removed persons from other branches of the Judiciary, to the offices created by this law & then put members of Congress into the thus vacated offices… This law can be considered in no other light than as providing pensions for the principals and adherents of a party [Federalist]. The evil however will not I trust be durable and as it was founded in fraud the return of a wiser system will release the country from the shame and imposition." (Fowler to his constituents in the Aurora, April 9, 1801.)

1334

Jefferson to Rush, March 24, 1801; Works: Ford, ix, 230-31; to Knox, March 27, 1801; ib., 237; to Mrs. Adams, June 13, 1804; ib., x, 85.

1335

Neither Randall nor Tucker, Jefferson's most complete and detailed biographers, both partisans of the great Republican, mentions the Lincoln-Marshall story, although, if it had even been current at the time they wrote, it is likely that they would have noticed it.

1336

Jefferson to Knox, supra.