The Life of John Marshall (Volume 2 of 4)

1253

Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 524.

1254

Tracy to McHenry, Jan. 15, 1801; Steiner, 488-99; and see Bayard to Andrew Bayard, Jan. 26, 1801; supra.

1255

Hamilton to Wolcott, Dec. 16, 1800; Works: Lodge, x, 392.

1256

Wolcott to Hamilton, Dec. 25, 1800; Works: Hamilton, vi, 498.

1257

See Chief Justice Ellsworth's statement of the conservative opinion of Jefferson. (Brown: Ellsworth, 324-25.)

1258

Jefferson to Mazzei, April 24, 1796; Works: Ford, viii, 237-41. The letter as published in America, although it had undergone three translations (from English into Italian, from Italian into French, and from French into English again), does not materially differ from Jefferson's original.

It greatly angered the Federalist leaders. Jefferson calls the Federalists "an Anglican, monarchical & aristocratical party." The Republicans had "the landed interests and men of talent"; the Federalists had "the Executive, the Judiciary," the office-holders and office-seekers – "all timid men who prefer the calm of despotism to the boisterous sea of liberty, British merchants & Americans trading on British capital, speculators & holders in the banks & public funds, a contrivance invented for the purposes of corruption," etc.

Jefferson thus refers to Washington: "It would give you a fever were I to name to you the apostates who have gone over to these heresies, men who were Samsons in the field & Solomons in the council, but who have had their heads shorn by the whore England." It was this insult to Washington which Marshall resented most bitterly.

Jefferson must have known that Mazzei would probably publish this letter. Writing at Paris, in 1788, of Mazzei's appointment by the French King as "intelligencer," Jefferson said: "The danger is that he will overact his part." (Jefferson to Madison, July 31, 1788; Works: Ford, v, 425.)

The Republicans frankly defended the Mazzei letter; both its facts and "predictions" were correct, said the Aurora, which found scarcely "a line in it which does not contain something to admire for elegance of expression, striking fact, and profound and accurate penetration." (Aurora, May 26, 1800.)

1259

Marshall to Hamilton, January 1, 1801; Works: Hamilton, vi, 501-03.

1260

Following is a list of the annual salaries of different officers: —

(Annals, 1st Cong., 1st Sess., Appendix, 2233-38.)

1261

At the very beginning of the movement in his favor, Burr refused to encourage it. "Every man who knows me ought to know that I disclaim all competition. Be assured that the Federalist party can entertain no wish for such a change… My friends would dishonor my views and insult my feelings by a suspicion that I would submit to be instrumental in counteracting the wishes and expectations of the United States. And I now constitute you my proxy to declare these sentiments if the occasion shall require." (Burr to Smith, Dec. 16, 1800; Washington Federalist, Dec. 31, 1800.)

1262

Pickering to King, Jan. 5, 1801; King, iii, 366.

1263

See Aurora, Jan. 21, 1801.

1264

"Lucius," of Fredericksburg, Virginia, in the Washington Federalist, Jan. 21, 25, and Feb. 6, 1801.

The following extracts from the first of these articles reveal the temper and beliefs of the Federalists: "Burr never penned a declaration of independence; … but he … has engraved that declaration in capitals with the point of his sword: It is yet legible on the walls of Quebeck. He has fought for that independency, for which Mr. Jefferson only wrote. He has gallantly exposed his life in support of that declaration and for the protection of its penn-man. He has been liberal of his blood, while Mr. Jefferson has only hazarded his ink…

"He never shrank from the post of danger. He is equally fitted for service in the field and in the public counsels: He has been tried in both: in the one we have seen him an able and distinguished Senator; – in the other a brave and gallant officer…

"Mr. Jefferson is better qualified to give the description of a butterfly's wing or to write an essay on the bones of the Mammouth; … but Mr. Burr … in … knowledge … necessary to form the great and enlightened statesman, is much superior to Mr. Jefferson…

"Mr. Burr is not … consecrated to the French; … nor has he unquenchable hatred to … Great Britain. Unlike the penn-man of the declaration he feels the full force of the expression, 'in war enemies, in peace friends'… Mr. Burr … will only consult national honor and national happiness, having no improper passions to gratify.

"Mr. Burr is … a friend of the Constitution … a friend of the commercial interests … the firm and decided friend of the navy … the Eastern States have had a President and Vice President; So have the Southern. It is proper that the middle states should also be respected…

"Mr. Burr has never procured or encouraged those infamous Calumnies against those who have filled the Executive departments … which we long have witnessed: Nor have those polluted Sinks, the Aurora, the Argus, the Press, the Richmond Examiner, and the like, poured forth their impure and fœtid streams at the influence of Mr. Burr, or to subserve his vanity or his ambition.

"If Mr. Burr is elected, the Federalists have nothing to fear… The vile calumniators … of all who have … supported our government, and the foreign incendiaries, who, having no interest in Heaven, have called Hell to their assistance, … from Mr. Burr have nothing to hope…

"Mr. Burr can be raised to the Presidency without any insult to the feelings of the Federalists, the friends of Government; … without an insult to the Memory of our Washington; for it was not by Mr. Burr, nor was it by his friends, nor to serve him that the great, the good, the immortal Washington was charged with having, by his name, given a sanction to corruption, with being meanly jealous of the fame of even that contemptible wretch Tom Paine, with being an unprincipled Hypocrite and with being a foul murderer! a murderer under circumstances of such peculiar atrocity as to shock with horror the merciless savages, and to cause them indignantly to fly from his blood polluted banner!"

1265

"John Marshall … is the reputed author of a great part of the [rubbish] in the Washington Federalist." (Scots Correspondent [Callender] in Richmond Examiner, Feb. 24, 1801.) There is no proof of Callender's assertion; but some of the matter appearing in the Washington Federalist is characteristic of Marshall's style and opinions. See, for instance, the editorial on the prosecution of Theodore Dwight, denouncing "party spirit" (Washington Federalist, March 1, 1801). The Aurora of March 26, 1801, denounced "John Marshall's Federal Gazette at Washington."

1266

Monroe to Jefferson, Jan. 18, 1801; Monroe's Writings: Hamilton, iii, 256. An article signed "Horatius" in the Washington Federalist of Jan. 6, 1801, stated this position with great ability. The argument is able and convincing; and it is so perfectly in Marshall's method of reasoning and peculiar style of expression that his authorship would appear to be reasonably certain.

"Horatius's" opinion concluded that the power of Congress "is completely adequate … to provide by law for the vacancy that may happen by the removal of both President and Vice President on the 3d of March next, and the non-election of a successor in the manner prescribed by the constitution."

1267

Monroe to Jefferson, Jan. 18, 1801; Monroe's Writings: Hamilton, iii, 256.

1268

Jefferson to Madison, Dec. 26, 1800; Works: Ford, ix, 161-62.

1269

"Hortensius" to John Marshall, Secretary of State, in the Richmond Examiner; reprinted in the Aurora, Feb. 9, 1801. George Hay, the writer of this letter, was a lawyer in Richmond. Jefferson appointed him United States Attorney for the District of Virginia, and, as such, he conducted the prosecution of Aaron Burr for treason before John Marshall, who, as Chief Justice of the United States, presided at the trial. (See vol. iii of this work.)

Marshall was again attacked in two open letters, signed "Lucius," in the Richmond Examiner, Feb. 10, 13, 1801. His reported opinion, said "Lucius," alarmed "the active friends of freedom"; Marshall was "the Idol of his party" and knew the influence of his views: unless he publicly disclaimed the one now attributed to him, "Lucius" proposed to "unveil" Marshall's "motives" and "expose" him "uncovered to the sight of the people" – his "depravity shall excite their odium," etc. "Lucius's" attacks ended with Jefferson's election.

1270

The paper criticized "the intemperate counsel of a certain would be attorney-general of the United States (George Hay, Esq. of the antient dominion) … under the signature of Hortensius, and addressed to General Marshall, in consequence of a lie fabricated against him relative to an opinion said to have been given by him upon the late presidential election, which the honorable attorney knew to be a lie as well as we did, but was fearful of being forgot, and despaired of getting a better opportunity to shew himself!!!" (Washington Federalist, Feb. 12, 1801.)

1271

Jefferson to Monroe, Feb. 15, 1801; Works: Ford, ix, 178-79; and see Jefferson to McKean, March 9, 1801; ib., 206.

1272

Jefferson to Madison, Feb. 18, 1801; ib., 182.

1273

Monroe to Hoomes, Feb. 14, 1801; Monroe's Writings: Hamilton, iii, 259; and Monroe to Nicholas, Feb. 18, 1801; ib., 260.

1274

For these incidents and reports see Gallatin to his wife, May 8, 1801; Adams: Gallatin, 249.

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.