Chapter XII: Chief Justice of the United States (3)

[1215] Marshall to Hamilton, Jan. 1, 1801; _Works_: Hamilton, vi, 502-03; and see Brown: _Ellsworth_, 314-15. The principal American demand was compensation for the immense spoliation of American commerce by the French. The treaty not only failed to grant this, but provided that we should restore the French ships captured by American vessels during our two years' maritime war with France, which, though formally undeclared, was vigorous and successful. "One part of the treaty abandons all our rights, and the other part makes us the dupes of France in the game she means to play against the maritime power of England.... We lose our honor, by restoring the ships we have taken, and by so doing, perhaps, make an implicit acknowledgment of the injustice of our hostile operations." (Rutledge to Hamilton, Jan. 10, 1801; _Works_: Hamilton, vi, 511.)

[1216] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, 121.

[1217] Gallatin to his wife, Feb. 5, 1801; Adams: _Gallatin_, 259.

[1218] _Ib._, 254.

[1219] Ames to Gore, Dec. 29, 1800; reviewing political events of the year; _Works_: Ames, i, 286-87.

[1220] Hamilton to Wolcott, Aug. 3, 1800; _Works_: Lodge, x, 383; and Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 400.

[1221] Hamilton to Wolcott, Sept. 26, 1800; _Works_: Lodge, x, 389 (also in Gibbs, ii, 422); and see same to same, Aug. 3, 1800; _Works_: Lodge, x, 883.

[1222] Troup to King, Oct. 1, 1800; King, iii, 315.

[1223] _Aurora_, May 20, 1800.

[1224] Sedgwick to King, Sept. 26, 1800; King, iii, 309.

[1225] Ames to Hamilton, Aug. 26, 1800; _Works_: Hamilton, vi, 463; also Cabot to Hamilton, Aug. 21, 1800; ib., 458; and Aug. 23, 1800; _ib._, 460 (also in Lodge: _Cabot_, 284-88); and to Wolcott, Aug. 23, 1800; Lodge: _Cabot_, 288-89.

The local politicians were loyal to the President; Ames bitterly complains of "the small talk among the small politicians, about disrespect to the President, &c., &c." (Ames to Pickering, Nov. 23, 1799; _Works_: Ames, i, 272.)

[1226] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382; and same to same, Oct. 1, 1800; _ib._, 390. Wolcott supplied most of the material and revised Hamilton's manuscript. (Wolcott to Hamilton, Oct. 1, 2, 1800; _Works_: Hamilton, vi, 470-71.) For entire attack see Hamilton: "Public Conduct and Character of John Adams"; _Works_: vii, 687-726 (also in _Works_: Lodge, vii, 309-65.)

[1227] Parton: _Burr_, 256-57; Davis: _Burr_, ii, 65 _et seq._

[1228] "This pamphlet has done more mischief to the parties concerned than all the labors of the _Aurora_!" (Duane to Collot; Parton: _Burr_, 258.)

[1229] "Our friends ... lamented the publication.... Not a man ... but condemns it.... Our enemies are universally in triumph.... His [Hamilton's] usefulness hereafter will be greatly lessened." (Troup to King, Nov. 9, 1800; King, iii, 331.) "All ... blame ... Mr. Hamilton." (Carroll to McHenry, Nov. 4, 1800; Steiner, 476.)

Some Federalist politicians, however, observed Hamilton's wishes. For example: "You must at all events secure to the Genr. [Pinckney] a majority in Cong., it may there be done with _safety_, his success depends on the accomplishment of this measure. You know a friend of ours who can arrange this necessary business with the utmost perfect suavity." (Dickinson to McHenry, Oct. 7, 1800; Steiner, 471.)

Again Dickinson writes of "the absolute necessity of obtaining a _majority_ (if it should only be by a _single_ vote) in Cong. to favor the man who interests us most" and hopes "Hamilton's publication ... will produce the desired effect." (Oct. 31, 1800; _ib._, 472.)

[1230] _Washington Federalist_, Nov. 29, 1800.

[1231] For instance see the _Aurora's_ editorial on women in the army, January 14, 1800; and see titles of imaginary books editorially suggested for use by the various Federalist leaders, especially Hamilton, Harper, and Gouverneur Morris, in _ib._, May 10, 1800. On August 21 it described some Federalist leaders as "completely bankrupt of character as well as fortune."

Although it did not equal the extravagance of the Republican newspapers, the Federalist press was also violent. See, for instance, a satirical poem "by an Hibernian and an Alien" in the _Alexandria Advertiser_, reprinted in the _Washington Federalist_ of February 12, 1801, of which the last verse runs:--

"With J[effer]son, greatest of men,
Our President next we will dash on.
Republican marriages then,
And drowning boats will be in fashion.
Co-alitions, tri-color we'll form
'Twixt white Men, Mulattos, and Negroes.
The banks of the treasury we'll storm--
Oh! how we'll squeeze the old Quakers,
_Philosophy is a fine thing_!"

The familiar campaign arguments were, of course, incessantly reiterated as: "The Government" cost only "FIVE MILLION dollars ... before the British treaty"; now it costs "FIFTEEN MILLIONS. Therefore every man who paid _one dollar_ taxes then pays _three_ dollars now." (_Aurora_, Oct. 30, 1800.)

[1232] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 264.

[1233] Ames to Dwight, March 19, 1801; _ib._, 294.

[1234] Webster to Wolcott, June 23, 1800; Gibbs, ii, 374.

[1235] The _Washington Federalist_, Jan. 12, 1801, charged that, in Virginia, public money was used at the election and that a resolution to inquire into its expenditures was defeated in the Legislature.

[1236] Charles Pinckney to Jefferson, Oct. 12, 1800; _Amer. Hist. Rev._, iv, 117. For election arguments and methods see McMaster, ii, 499 _et seq._

[1237] Adams to Marshall, Sept. 27, 1800; _Works_: Adams, ix, 85; and see Graydon, footnote to 362.

[1238] Adams to Marshall, Sept. 30, 1800; Adams MSS.

[1239] Marshall to Adams, without date; Adams MSS.

[1240] Adams MSS. Marshall wrote two speeches for Adams. Both are in Marshall's handwriting. The President selected and delivered the one which appears in Adams's _Works_ and in Richardson. The undelivered speech was the better, although it was written before the French treaty arrived, and was not applicable to the state of our relations with France when Congress convened. Marshall also wrote for Adams the two brief separate addresses to the Senate and the House. (_Ib._)

[1241] The original manuscripts of these speeches, in Marshall's handwriting, are in the Adams MSS. They are notable only as an evidence of Adams's confidence in Marshall at this, the most irritating period of his life.

[1242] Beard: _Econ. O. J. D._, chap. xiii.

[1243] When it was certain that Adams had been defeated, "Solon," in the _Washington Federalist_ of Jan. 9, 1801, thus eulogized him:--

"The die is cast!... Our beloved ADAMS will now close his bright career.... Immortal sage! May thy counsels continue to be our saving Angel! Retire and receive ... the ... blessings of all _good_ men....

"Sons of faction [party]! demagogues and high priests of anarchy, now have you cause to triumph. Despots and tyrants! now may you safely pronounce 'ingratitude is the common vice of all republics. Envy and neglect are the only reward of superior merit. Calumny, persecution and banishment are the laurels of the hoary patriot.'...

"... We have to contend ... for national existence. Magistrates and rulers, be firm.... Our constitution is our last fortress. Let us entrench it against every innovation. When this falls, our country is lost forever."

This editorial, as well as all political matter appearing in the _Washington Federalist_ during 1800-01, is important because of Marshall's reputed influence over that paper. (See _infra_, 541.)

At news of Jefferson's success the leading Federalist journal declared that some Republicans in Philadelphia "huzzaed until they were seized with lockjaw ... and three hundred are now drunk beyond hope of recovery. Gin and whiskey are said to have risen in price 50 per cent since nine o'clock this morning. The bells have been ringing, guns firing, dogs barking, cats meuling, children crying, and jacobins getting drunk, ever since the news of Mr. Jefferson's election arrived in this city." (_Gazette of the United States_, Feb. 19, 1801.)

[1244] At that time, the presidential electors did not vote for a Vice-President, but only for President. The person receiving the largest number of electoral votes became President and the one for whom the second largest number of votes were cast became Vice-President. When Jefferson and Burr each had seventy-three votes for President, the election was thrown into the House of Representatives.

Thus, although, in casting their ballots for electors, the people really voted for Jefferson for President and for Burr for Vice-President, the equal number of votes received by each created a situation where it was possible to defeat the will of the people. Indeed, as appears in the text, that result was almost accomplished. It was this constitutional defect that led to the Twelfth Amendment which places the election of President and Vice-President on its present basis. (See "The Fifth Wheel in our Government"; Beveridge: _Century Magazine_, December, 1909.)

[1245] Jefferson to Burr, Dec. 15, 1800; _Works_: Ford, ix, 155.

[1246] "Jefferson & Burr have each 73 votes and ... the Democrats are in a sweat." (Uriah Tracy to McHenry, Dec. 30, 1800; Steiner, 483.)

[1247] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 158.

[1248] Jefferson to Breckenridge, Dec. 18, 1800; _ib._, 157.

[1249] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392.

[1250] See these letters in _ib._, 392 _et seq._; and to Bayard, Jan. 16, 1801; _ib._, 412 (also in _Works_: Hamilton, vi, 419, but misplaced and misdated).

[1251] Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; and see Carroll to Hamilton, April 18, 1800; _Works_: Hamilton, vi, 434-35.

The _Washington Federalist_, even when the balloting was in progress, thus stimulated the members of its party in the House: "_Unworthy_ will he be and consecrate his name to infamy, who ... has hitherto opposed ... Mr. Jefferson ... and shall now meanly and inconsistently lend his aid to promote it [Jefferson's election].... Will they confer on Mr. Jefferson the Federal suffrage in reward for the calumnies he has indiscriminately cast upon the Federal character; or will they remunerate him ... for the very honorable epithets of _pander, to the whore of England, 'timid men, office hunters, monocrats, speculators and plunderers'_ which he has missed no opportunity to bestow upon them." (_Washington Federalist_, Feb. 12, 1801.)

[1252] Hamilton to Wolcott, Dec. 17, 1800; _Works_: Lodge, x, 395.

[1253] Jefferson rightly attributed to Burr Republican success in the election. "He has certainly greatly merited of his country, & the Republicans in particular, to whose efforts his have given a chance of success." (Jefferson to Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.)

[1254] Sedgwick to Hamilton, Jan. 10, 1800; _Works_: Hamilton, vi, 511-14; Cabot to Hamilton, Aug. 10, 1800; _ib._, 453 (also in Lodge: _Cabot_, 284); Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; Morris to Hamilton, Jan. 5, 1801; Morris, ii, 398; and same to same, Jan. 26, 1801; _ib._, 402 (also in _Works_: Hamilton, vi, 503); Carroll to McHenry, Nov. 4, 1800; Steiner, 473-76; Rutledge to Hamilton, Jan. 10, 1801; _Works_: Hamilton, vi, 510.

[1255] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, 121.

[1256] Bayard to Hamilton, March 8, 1801; _Works_: Hamilton, vi, 524.

[1257] Tracy to McHenry, Jan. 15, 1801; Steiner, 488-99; and see Bayard to Andrew Bayard, Jan. 26, 1801; _supra_.

[1258] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392.

[1259] Wolcott to Hamilton, Dec. 25, 1800; _Works_: Hamilton, vi, 498.

[1260] See Chief Justice Ellsworth's statement of the conservative opinion of Jefferson. (Brown: _Ellsworth_, 324-25.)

[1261] 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.)

[1262] Marshall to Hamilton, January 1, 1801; _Works_: Hamilton, vi, 501-03.

[1263] Following is a list of the annual salaries of different officers:--

President $25,000
Vice-President 5,000
Chief Justice 4,000
Associate Justices 3,500
Attorney-General 1,500
Secretary of the Treasury 3,500
Secretary of State 3,500
Secretary of War 3,000
(_Annals_, 1st Cong., 1st Sess., Appendix, 2233-38.)

[1264] 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.)

[1265] Pickering to King, Jan. 5, 1801; King, iii, 366.

[1266] See _Aurora_, Jan. 21, 1801.

[1267] "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 _foetid 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!"

[1268] "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."

[1269] 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."

[1270] Monroe to Jefferson, Jan. 18, 1801; Monroe's _Writings_: Hamilton, iii, 256.

[1271] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161-62.

[1272] "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.

[1273] 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.)

[1274] Jefferson to Monroe, Feb. 15, 1801; _Works_: Ford, ix, 178-79; and see Jefferson to McKean, March 9, 1801; _ib._, 206.

[1275] Jefferson to Madison, Feb. 18, 1801; _ib._, 182.

[1276] Monroe to Hoomes, Feb. 14, 1801; Monroe's _Writings_: Hamilton, iii, 259; and Monroe to Nicholas, Feb. 18, 1801; _ib._, 260.

[1277] For these incidents and reports see Gallatin to his wife, May 8, 1801; Adams: _Gallatin_, 249.

[1278] 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?"

[1279] "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.)

[1280] "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.)

[1281] 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.)

[1282] 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.)

[1283] 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_.

[1284] Jefferson to Madison, Feb. 18, 1801; _Works_: Ford, ix, 183.

[1285] 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!!!_"

[1286] Gallatin to his wife, Feb. 17, 1801; Adams: _Gallatin_, 262.

[1287] 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.)

[1288] Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams MSS.

[1289] Gunn to Hamilton, Dec. 13, 1800; _Works_: Hamilton, vi, 483.

[1290] 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.)

[1291] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 316.

[1292] _Annals_, 6th Cong., 1st Sess., Dec. 19, 837-38.

[1293] _Richmond Examiner_, Feb. 6, 1801.

[1294] 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.

[1295] Rutledge to Hamilton, Jan. 10, 1801; _Works_: Hamilton, vi, 511.

[1296] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161.

[1297] _Annals_, 6th Cong., 1st Sess., 878.

[1298] _Annals_, 6th Cong., 1st Sess., 879.

[1299] _Ib._ The person who made this absurd speech is not named in the official report.

[1300] _Ib._, 896.

[1301] _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._)

[1302] _Ib._, 900, 901, 903, and 905.

[1303] _Ib._, 734.

[1304] _Ib._, 740-41.

[1305] _Ib._, 741.

[1306] _Ib._, 742.

[1307] Adams to Jay, Dec. 19, 1800; _Works_: Adams, ix, 91.

[1308] 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.

[1309] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492.

[1310] 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.

[1311] Pickering to King, Jan. 12, 1801; King, iii, 367.

[1312] Story, in Dillon, iii, 359.

[1313] Adams to William Cunningham, Nov. 7, 1808; _Cunningham Letters_, no. xiv, 44; also mentioned in Gibbs, ii, 349.

[1314] Gibbs, ii, 349, 350.

[1315] As we have seen, Marshall's "reading of the science," "fresh" or stale, was extremely limited.

[1316] 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.

[1317] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, 122.

[1318] _Aurora_, Jan. 22, 1801.

[1319] 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.

[1320] _Aurora_, Feb. 3, 1801.

[1321] _Baltimore American_; reprinted in the _Aurora_, April 2, 1801.

[1322] _Richmond Examiner_, Feb. 6, 1801.

[1323] 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.)

[1324] Adams to Dexter, Jan. 31, 1801; _Works_: Adams, ix, 95-96.

[1325] Marshall to Adams, Feb. 4, 1801; _ib._, 96.

[1326] Adams to Marshall, Feb. 4, 1801; _ib._, 96.

[1327] Same to same, Feb. 4, 1801; _ib._, 96-97.

[1328] Jay held both offices for six months.

[1329] 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.

[1330] Ames to Smith, Feb. 16, 1801; _Works_: Ames, i, 292.

[1331] Marshall to Wolcott, Feb. 24, 1801; Gibbs, ii. 495.

[1332] Wolcott to Marshall, March 2, 1801; Gibbs, ii, 496.

[1333] 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.

[1334] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 231.

[1335] 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.)

[1336] 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.)

[1337] 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.

[1338] 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.

[1339] Jefferson to Knox, _supra_.

END OF VOLUME II