Chapter XII: Chief Justice of the United States (2)

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.[1239] 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."[1240]

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."[1241]

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.[1242] 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 statesmanship[1243] 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.[1244] 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."[1245] The Federalists saw their chance; the Republicans realized their danger.[1246] 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."[1247] This "opens upon us an abyss, at which every sincere patriot must shudder."[1248]

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.[1249] 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.[1250]

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."[1251] Hamilton's fierce warnings against Burr and his black prophecies of "the _Cataline_ of America"[1252] 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 Burr[1253] 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.[1254]

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.[1255] 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.[1256] The Federalist managers felt that "the high Destinies ... of this United & enlightened people are up";[1257] 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.[1258] Wolcott obeyed and reported that Marshall "has yet expressed no opinion."[1259] 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.[1260] 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 Mazzei[1261] 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."[1262]

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 important[1263] 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.[1264]

"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.[1265] 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 organ[1266] 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.[1267] The Republicans said that Marshall wrote much that appeared in this newspaper.[1268] 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."[1269] 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,"[1270] 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.[1271]

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."[1272]

Although the "Washington Federalist" denounced as "a lie"[1273] 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."[1274] 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."[1275]

The drums of civil war were beating. Between Washington and Richmond "a chain of expresses" was established, the messengers riding "day and night."[1276] 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.[1277]

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.[1278]

The proof is overwhelming and decisive that nothing but Burr's refusal to help the Federalists in his own behalf,[1279] his rejection of their proposals,[1280] and his determination, if chosen, to go in as a Republican untainted by any promises;[1281] and, on the other hand, the assurances which Jefferson gave Federalists as to offices and the principal Federalist policies--Neutrality, the Finances, and the Navy[1282]--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,[1283] 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 ballots[1284] to permit his election; and so the curtain dropped on this comedy of shame.[1285] "Thus has ended the most wicked and absurd attempt ever tried by the Federalists," said the innocent Gallatin.[1286] 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."[1287] 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.[1288] 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."[1289]

Indeed, extension of the National Judiciary was now the most cherished purpose of Federalism.[1290] 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."[1291]

Two weeks after Congress convened, Roger Griswold of Connecticut reported the eventful bill to carry out this Federalist plan.[1292] 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.[1293] 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."[1294]

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"[1295] 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,"[1296] 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."[1297]

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,[1298] 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."[1299]

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.[1300] 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.]"[1301]

For three weeks the debate in the House dragged along. Republican opposition, though united, was languid.[1302] At last, without much Republican resistance, the bill passed the House on January 20, 1801, and reached the Senate the next day.[1303] 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.[1304] It was defeated by a vote of 17 to 13.[1305] The next day the bill was passed by a vote of 16 to 11.[1306]

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,"[1307] 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.[1308] 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,"[1309] Gunn reported to Hamilton. The Republicans were relieved by Jay's nomination--they "were afraid of something worse."[1310]

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.[1311] Marshall, indeed, had recommended his selection.[1312] 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."[1313] 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."[1314]

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,[1315] to this office, put it wholly out of my power as it never was in my hopes or wishes."[1316]

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."[1317] 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."[1318] Some days later the "Aurora," in a long article, denounced the Judiciary Law as a device for furnishing defeated Federalist politicians with offices,[1319] 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:--

"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."[1320] 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."[1321]

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!_"[1322]

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;[1323] 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_."[1324]

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."[1325] 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."[1326]

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."[1327]

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.[1328] He drew but one salary, of course, during this period, that of Chief Justice,[1329] 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,"[1330] 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."[1331]

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."[1332] Thus did Marshall end one of the feuds which so embarrassed the Administration of John Adams.[1333]

Until nine o'clock[1334] 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.[1335]

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.[1336]

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.[1337] 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.[1338]

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"[1339] 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.

FOOTNOTES:

[1093] Adams to McHenry, May 5, 1800; Steiner, 453.

[1094] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348.

[1095] According to McHenry, Adams's complaints were that the Secretary of War had opposed the sending of the second mission to France, had not appointed as captain a North Carolina elector who had voted for Adams, had "EULOGIZED GENERAL WASHINGTON ... attempted to praise Hamilton," etc. (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348; and see Hamilton's "Public Conduct, etc., of John Adams"; Hamilton: _Works_: Lodge, vii, 347-49.)

[1096] Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to Hamilton, May 7, 1800; _Works_: Hamilton, vi, 437-38.

[1097] Adams to Pickering, May 10, 1800; _Works_: Adams, ix, 53.

[1098] Pickering to Adams, May 11, 1800; _ib._, 54.

[1099] Pickering to Hamilton, May 15, 1800; _Works_: Hamilton, vi, 443.

[1100] Adams to Pickering, May 12, 1800; _Works_: Adams, ix, 55.

[1101] Sedgwick to Hamilton, May 13, 1800; _Works_: Hamilton, vi, 442.

[1102] Adams to Rush, March 4, 1809; _Old Family Letters_, 219.

[1103] "There never was perhaps a greater contrast between two characters than between those of the present President & his predecessor.... The one [Washington] cool, considerate, & cautious, the other [Adams] headlong & kindled into flame by every spark that lights on his passions; the one ever scrutinizing into the public opinion and ready to follow where he could not lead it; the other insulting it by the most adverse sentiments & pursuits; W. a hero in the field, yet overweighing every danger in the Cabinet--A. without a single pretension to the character of a soldier, a perfect Quixotte as a statesman." (Madison to Jefferson, Feb., 1798; _Writings_: Hunt, vi, 310.) And [Adams] "always an honest man, often a wise one, but sometimes wholly out of his senses." (Madison to Jefferson, June 10, 1798; _ib._, 325.)

[1104] Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 76.

[1105] Cabot to King, April 26, 1799; King, iii, 8.

[1106] Wolcott was as malicious as, but more cautious than, Pickering in his opposition to the President.

[1107] "He [Adams] is liable to gusts of passion little short of frenzy.... I speak of what I have seen." (Bayard to Hamilton, Aug. 18, 1800; _Works_: Hamilton, vi, 457.) "He would speak in such a manner ... as to persuade one that he was actually insane." (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347.) "Mr. Adams had conducted strangely and unaccountably." (Ames to Hamilton, Aug. 26, 1800; _Works_: Ames, i, 280.) These men were Adams's enemies; but the extreme irritability of the President at this time was noted by everybody. Undoubtedly this was increased by his distress over the illness of his wife.

[1108] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347.

[1109] See preceding chapter.

[1110] _Aurora_, May 9, 1800; the _Aurora_ had been attacking Pickering with all the animosity of partisanship.

[1111] The French press had been quite as much under the control of the Revolutionary authorities as it was under that of Bonaparte as First Consul or even under his rule when he had become Napoleon I.

[1112] _Aurora_, May 27, 1800.

[1113] _Ib._, June 4, 1800; and June 17, 1800. The _Aurora_ now made a systematic campaign against Pickering. It had "_substantial and damning facts_" which it threatened to publish if Adams did not subject Pickering to a "scrutiny" (_ib._, May 21, 1800). Pickering was a "disgrace to his station" (_ib._, May 23); several hundred thousand dollars were "unaccounted for" (_ib._, June 4, and 17).

The attack of the Republican newspaper was entirely political, every charge and innuendo being wholly false. Adams's dismissal of his Secretary of State was not because of these charges, but on account of the Secretary's personal and political disloyalty. Adams also declared, afterwards, that Pickering lacked ability to handle the grave questions then pending and likely to arise. (_Cunningham Letters_, nos. xii, xiii, and xiv.) But that was merely a pretense.

[1114] _Aurora_, June 12, 1800.

[1115] Pinckney to McHenry, June 10, 1800; Steiner, 460.

[1116] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 402.

[1117] Cabot to Gore, Sept. 30, 1800; Lodge: _Cabot_, 291.

[1118] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 401-02.

[1119] Adams's correspondence shows that the shortest time for a letter to go from Washington to Quincy, Massachusetts, was seven days, although usually nine days were required. "Last night I received your favor of the 4th." (Adams at Quincy to Dexter at Washington, Aug. 13, 1800; _Works_: Adams, ix, 76; and to Marshall, Aug. 14; _ib._, 77; and Aug. 26; _ib._, 78; and Aug. 30; _ib._, 80.)

[1120] Washington at this time was forest, swamp, and morass, with only an occasional and incommodious house. Georgetown contained the only comfortable residences. For a description of Washington at this period, see chap. I, vol. III, of this work.

[1121] Marshall to Adams, Sept. 17, 1800; Adams MSS. This trip was to argue the case of Mayo _vs._ Bentley (4 Call, 528), before the Court of Appeals of Virginia. (See _supra_, chap. VI.)

[1122] Randall, ii, 547. Although Randall includes Dexter, this tribute is really to Marshall who was the one dominating character in Adams's reconstructed Cabinet.

[1123] Adams to Marshall, July 30, 1800; _Works_: Adams, ix, 66; also Marshall to Adams, Aug. 1, Aug. 2, and July 29, 1800; Adams MSS.

[1124] Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams the support of young Chase's powerful father. (McHenry to John McHenry, Aug. 24, 1800; Gibbs, ii, 408.)

[1125] McMaster, ii, 448.

[1126] Adams to Marshall, Aug. 7, 1800; _Works_: Adams, ix, 72; and Marshall to Adams, Aug. 16, 1800; Adams MSS. Chief Justice Ellsworth presided at the trial of Williams, who was fairly convicted. (Wharton: _State Trials_, 652-58.) The Republicans, however, charged that it was another "political" conviction. It seems probable that Adams's habitual inclination to grant the request of any one who was his personal friend (Adams's closest friend, Governor Trumbull, had urged the pardon) caused the President to wish to extend clemency to Williams.

[1127] Marshall to Adams, June 24, 1800; Adams MSS.

[1128] Marshall to Adams, Aug. 2, 1800; _ib._

[1129] Marshall to Adams, July 26, 1800; _ib._

[1130] De Yrujo to Marshall, July 31, 1800; _ib._

[1131] Marshall does not state what these measures were.

[1132] Marshall to Adams, Sept. 6, 1800; Adams MSS.

[1133] _Am. St. Prs._, v, _Indian Affairs_, i, 184, 187, 246. For picturesque description of Bowles and his claim of British support see Craig's report, _ib._, 264; also, 305. Bowles was still active in 1801. (_Ib._, 651.)

[1134] Adams to Marshall, July 31, 1800; _Works_: Adams, ix, 67; Marshall to De Yrujo, Aug. 15, 1800; Adams MSS.

[1135] Adams to Marshall, Aug. 11, 1800; _Works_: Adams, ix, 73.

[1136] Marshall to Adams, Aug. 12, 1800; Adams MSS.

[1137] _Ib._

[1138] Liston to Marshall, Aug. 25, 1800; _ib._

[1139] Marshall to Adams, Sept. 6, 1800; _ib._

[1140] Marshall to Liston, Sept. 6, 1800; Adams MSS.

[1141] Marshall to J. Q. Adams, July 24, 1800; MS. It is incredible that the Barbary corsairs held the whole of Europe and America under tribute for many years. Although our part in this general submission to these brigands of the seas was shameful, America was the first to move against them. One of Jefferson's earliest official letters after becoming President was to the Bey of Tripoli, whom Jefferson addressed as "Great and Respected Friend ... Illustrious & honored ... whom God preserve." Jefferson's letter ends with this fervent invocation: "I pray God, very great and respected friend, to have you always in his holy keeping." (Jefferson to Bey of Tripoli, May 21, 1801; _Am. St. Prs., For. Rel._, ii, 349.)

And see Jefferson to Bey of Tunis (Sept. 9, 1801; _ib._, 358), in which the American President addresses this sea robber and holder of Americans in slavery, as "Great and Good Friend" and apologizes for delay in sending our tribute. In Jefferson's time, no notice was taken of such expressions, which were recognized as mere forms. But ninety years later the use of this exact expression, "Great and Good Friend," addressed to the Queen of the Hawaiian Islands, was urged on the stump and in the press against President Cleveland in his campaign for re-election. For an accurate and entertaining account of our relations with the Barbary pirates see Allen: _Our Navy and the Barbary Corsairs_.

[1142] Marshall to Adams, Aug. 1, 1800; Adams MSS.

[1143] Marshall to Adams, June 24, 1800; Adams MSS.

[1144] Marshall to Adams, Aug. 16, 1800; July 24, 1800; _Ib._ and see Adams to Marshall, Aug. 2, and to Secretary of State, May 25; King, iii, 243-46. The jewels were part of our tribute to the Barbary pirates.

[1145] King to Secretary of State, Oct. 11, 1799; note to Grenville; King, iii, 129.

[1146] Secretary of State to King, Feb. 5, 1799; _Am. St. Prs., For. Rel._, ii, 383. Hildreth says that the total amount of claims filed was twenty-four million dollars. (Hildreth, v, 331; and see Marshall to King, _infra_.)

[1147] Secretary of State to King, Sept. 4, 1799; _Am. St. Prs., For. Rel._, ii, 383.

[1148] Troup to King, Sept. 2, 1799; King, iii, 91.

[1149] Secretary of State to King, Dec. 31, 1799; _Am. St. Prs._, _For. Rel._, ii, 384-85.

[1150] King to Secretary of State, April 7, 1800; King, iii, 215.

[1151] Marshall to Adams, June 24, 1800; Adams MSS.

[1152] King to Secretary of State, April 22, 1800; King, iii, 222.

[1153] Marshall to Adams, July 21, 1800; Adams MSS.

[1154] Adams to Marshall, Aug. 1, 1800; _Works_: Adams, ix, 68-69.

[1155] Marshall to Adams, Aug. 12, 1800; Adams MSS.

[1156] _Infra_, 507 _et seq._

[1157] _Am. St. Prs._, _For. Rel._, ii, 386.

[1158] _Am. St. Prs., For. Rel._, ii, 387.

[1159] _Am. St. Prs., For. Rel._, ii, 387.

[1160] Marshall to Adams, Sept. 9, 1800; Adams MSS.

[1161] Adams to Marshall, Sept. 18, 1800; _Works_: Adams, ix, 84. After Jefferson became President and Madison Secretary of State, King settled the controversy according to these instructions of Marshall. But the Republicans, being then in power, claimed the credit.

[1162] Secretary of State to King, Oct. 26, 1796; King, ii, 102.

[1163] For a comprehensive though prejudiced review of British policy during this period see Tench Coxe: _Examination of the Conduct of Great Britain Respecting Neutrals_. Coxe declares that the purpose and policy of Great Britain were to "monopolize the commerce of the world.... She denies the lawfulness of supplying and buying from her enemies, and, in the face of the world, enacts statutes to enable her own subjects to do these things. (_Ib._, 62.) ... She now aims at the Monarchy of the ocean.... Her trade is war.... The spoils of neutrals fill her warehouses, while she incarcerates their bodies in her floating castles. She seizes their persons and property as the rich fruit of bloodless victories over her unarmed friends." (_Ib._, 72.)

This was the accepted American view at the time Marshall wrote his protest; and it continued to be such until the War of 1812. Coxe's book is packed closely with citations and statistics sustaining his position.

[1164] Secretary of State to King, June 14, 1799; King, iii, 47; and see King to Secretary of State, July 15, 1799; _ib._, 58-59; and King to Grenville, Oct. 7, 1799; _ib._, 115-21.

[1165] This complete paper is in _Am. St. Prs., For. Rel._, ii, 486-90.

[1166] At one place the word "distinctly" is used and at another the word "directly," in the _American State Papers_ (ii, 487 and 488). The word "directly" is correct, the word "distinctly" being a misprint. This is an example of the inaccuracies of these official volumes, which must be used with careful scrutiny.

[1167] _Am. St. Prs., For. Rel._, ii, 488.

[1168] _Am. St. Prs., For. Rel._, ii, 490.

[1169] _Infra_, 524.

[1170] While political parties, as such, did not appear until the close of Washington's first Administration, the Federalist Party of 1800 was made up, for the most part, of substantially the same men and interests that forced the adoption of the Constitution and originated all the policies and measures, foreign and domestic, of the first three Administrations.

[1171] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 404.

[1172] During this period, the word "Democrat" was used by the Federalists as a term of extreme condemnation, even more opprobrious than the word "Jacobin." For many years most Republicans hotly resented the appellation of "Democrat."

[1173] Marshall to Otis, Aug. 5, 1800; Otis MSS.

[1174] For a vivid review of factional causes of the Federalists' decline see Sedgwick to King, Sept. 26, 1800; King, iii, 307-10; and Ames to King, Sept. 24, 1800; _ib._, 304.

[1175] "The Public mind is puzzled and fretted. People don't know what to think of measures or men; they are mad because they are in the dark." (Goodrich to Wolcott, July 28, 1800; Gibbs, ii, 394.)

[1176] Ames to Hamilton, Aug. 26, 1800; _Works_: Ames, i, 280.

[1177] Hamilton to Sedgwick, May 4, 1800; _Works_: Lodge, x, 371.

[1178] Same to same, May 10, 1800; _ib._, 375.

[1179] "In our untoward situation we should do as well with Jefferson for President and Mr. Pinckney Vice President as with anything we can now expect. Such an issue of the election, if fairly produced, is the only one that will keep the Federal Party together." (Cabot to Wolcott, Oct. 5, 1800; Lodge: _Cabot_, 295.)

"If Mr. Adams should be reëlected, I fear our constitution would be more injured by his unruly passions, antipathies, & jealousy, than by the whimsies of Jefferson." (Carroll to McHenry, Nov. 4, 1800; Steiner, 473.)

"He [Adams] has palsied the sinews of the party, and" another four years of his administration "would give it its death wound." (Bayard to Hamilton, Aug. 18, 1800; _Works_: Hamilton, vi, 457.)

[1180] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. According to the caucus custom, two candidates were named for President, one of whom was understood really to stand for Vice-President, the Constitution at that time not providing for a separate vote for the latter officer.

[1181] "You may rely upon my co-operation in every reasonable measure for effecting the election of General Pinckney." (Wolcott to Hamilton, July 7, 1800; _Works_: Hamilton, vi, 447-48.)

"The affairs of this government will not only be ruined but ... the disgrace will attach to the federal party if they permit the re-election of Mr. Adams." (_Ib._) "In Massachusetts almost all the leaders of the first class are dissatisfied with Mr. Adams and enter heartily into the policy of supporting General Pinckney." (Hamilton to Bayard, Aug. 6, _ib._, 452 (also in _Works_: Lodge, x, 384); and see Jefferson to Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.)

[1182] Hamilton to Carroll, July 1, 1800; _Works_: Lodge, x, 378; and see Hamilton to Bayard, Aug. 6, 1800; _ib._, 384.

[1183] Sedgwick to Hamilton, May 7, 1800, quoting "our friend D.[ayton] who is not perfectly right" (_Works_: Hamilton, vi, 437; and see Cabot to Hamilton, Aug. 10, 1800; _ib._, 454; also Cabot to Wolcott, July 20, 1800; Lodge: _Cabot_, 282.)

[1184] Knox to Adams, March 5, 1799; _Works_: Adams, viii, 626-27. Knox had held higher rank than Hamilton in the Revolutionary War and Adams had tried to place him above Hamilton in the provisional army in 1798. But upon the demand of Washington Knox was given an inferior rank and indignantly declined to serve. (Hildreth, v, 242-44. And see Washington to Knox, July 16, 1798; _Writings_: Ford, xiv, 43-46.) Thereafter he became the enemy of Hamilton and the ardent supporter of Adams.

[1185] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 315.

[1186] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382, and see 390; Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396; Wolcott to Ames, Dec. 29, 1799; _ib._, 315.

The public discussion of Adams's charge of a "British faction" against his party enemies began with the publication of a foolish letter he had written to Coxe, in May of 1792, insinuating that Pinckney's appointment to the British Court had been secured by "much British influence." (Adams to Coxe, May, 1792; Gibbs, ii, 424.) The President gave vitality to the gossip by talking of the Hamiltonian Federalists as a "British faction." He should have charged it publicly and formally or else kept perfectly silent. He did neither, and thus only enraged his foe within the party without getting the advantage of an open and aggressive attack. (See Steiner, footnote 3, to 468.)

[1187] Phelps to Wolcott, July 15, 1800; relating Noah Webster's endorsement of Adams's opinions; Gibbs, ii, 380.

[1188] Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396.

[1189] In the summer of 1800, Jefferson dined with the President. Adams was utterly unreserved to the Republican leader. After dinner, General Henry Lee, also a guest, remonstrated with the President, who responded that "he believed Mr. Jefferson never had the ambition, or desire to aspire to any higher distinction than to be his [Adams's] first Lieutenant." (Lee to Pickering, 1802; Pickering MSS., Mass. Hist. Soc.; also partly quoted in Gibbs, ii, 366; and see Ames to Wolcott, June 12, 1800; Gibbs, ii, 368; and to King, Sept. 24, 1800; King, iii, 304.)

[1190] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 261.

[1191] Ames to Gore, Nov. 10, 1799; _ib._, 265.

[1192] Ames to Gore, Nov. 10, 1799; Ames, i, 268.

[1193] Cabot to Wolcott, June 14, 1800; Lodge: _Cabot_, 274.

[1194] Jefferson to Granger, Aug. 13, 1800; _Works_: Ford, ix, 138-41; and see Jefferson to Gerry, January 26, 1799; _ib._, 17-19.

[1195] "The Jacobins and the half federalists are ripe for attacking the permanent force, as expensive, and unnecessary, and dangerous to liberty." (Ames to Pickering, Oct. 19, 1799; _Works_: Ames, i, 258.)

[1196] "In my lengthy journey through this State [Pennsylvania] I have seen many, very many Irishmen and with very few exceptions, they are United Irishmen, Free Masons, and the most God-provoking Democrats on this side of Hell," who, "with the joy and ferocity of the damned, are enjoying the mortification of the few remaining honest men and Federalists, and exalting their own hopes of preferment, and that of their friends, in proportion as they dismiss the fears of the gallows.... The Democrats are, without doubt, increasing." (Uriah Tracy to Wolcott, Aug. 7, 1800; Gibbs, ii, 399.)

[1197] Huntington to Wolcott, Aug. 6, 1800; _ib._, 398.

[1198] Ames to Wolcott, June 12, 1800; _ib._, 369.

[1199] McHenry to Wolcott, July 22, 1800; Steiner, 462. "Your very wise political correspondents will tell you anything sooner than the truth. For not one of them will look for anything but profound reasons of state at the bottom of the odd superstructure of parties here. There is nothing of the kind at the bottom." (Ames to King, Aug. 19, 1800; King, iii, 294.)

[1200] The Republicans were making much political capital out of the second mission. They had "saved the country from war," they said, by forcing Adams to send the envoys: "What a roaring and bellowing did this excite among all the hungry gang that panted for blood only to obtain pelf in every part of the country." (_Aurora_, March 4, 1800.)

[1201] Goodrich to Wolcott, Aug. 26, 1800; Gibbs, ii, 412.

[1202] _Am. St. Prs., For. Rel._, ii, 325.

[1203] Republican success in the approaching election.

[1204] Marshall to Adams, July 21, 1800; Adams MSS.

[1205] Marshall to Hamilton, Aug. 23, 1800; _Works_: Hamilton, vi, 460.

[1206] A Republican victory.

[1207] Marshall to Adams, Aug. 25, 1800; Adams MSS.

[1208] Adams to Marshall, Sept. 4 and 5, 1800; _Works_: Adams, ix, 80-82.

[1209] Marshall to Adams, Sept. 17, 1800; Adams MSS. The "retrograde steps" to which Marshall refers were the modification of the French _arrêts_ and decrees concerning attacks on our commerce.

[1210] Marshall to Tinsley, Sept. 13, 1800; MS., Mass. Hist. Soc.

[1211] Marshall, ii, 438.

[1212] _Am. St. Prs., For. Rel._, ii, 342 _et seq._

[1213] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492; and Rutledge to Hamilton, Jan. 10, 1801; _ib._, 511; Ames to Gore, Nov. 10, 1799; _Works_: Ames, i, 265.

[1214] Hamilton to Sedgwick, Dec. 22, 1800; _Works_: Lodge, x, 397; also, to Morris, Dec. 24, 1800; _ib._, 398.