THE LIFE OF JOHN MARSHALL
Standard Library Edition
IN FOUR VOLUMES
VOLUME III
[Illustration: JOHN MARSHALL
From the portrait by Chester Harding]
THE LIFE
OF
JOHN MARSHALL
BY
ALBERT J. BEVERIDGE
VOLUME III
CONFLICT AND CONSTRUCTION
1800-1815
[Illustration]
BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge
COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE
ALL RIGHTS RESERVED
PREFACE
Marshall's great Constitutional opinions grew out of, or were addressed
to, serious public conditions, national in extent. In these volumes the
effort is made to relate the circumstances that required him to give to
the country those marvelous state papers: for Marshall's opinions were
nothing less than state papers and of the first rank. In order to
understand the full meaning of his deliverances and to estimate the just
value of his labors, it is necessary to know the historical sources of
his foremost expositions of the Constitution, and the historical
purposes they were intended to accomplish. Without such knowledge,
Marshall's finest pronouncements become mere legal utterances,
important, to be sure, but colorless and unattractive.
It is worthy of repetition, even in a preface, that the history of the
times is a part of his greatest opinions; and that, in the treatment of
them a résumé of the events that produced them must be given. For
example, the decision of Marbury _vs._ Madison, at the time and in the
manner it was rendered, was compelled by the political situation then
existing, unless the principle of judicial supremacy over legislation
was to be abandoned. The Judiciary Debate of 1802 in Congress--one of
the most brilliant as well as most important legislative engagements in
parliamentary history--can no more be overlooked by the student of
American Constitutional development, than the opinion of Marshall in
Marbury _vs._ Madison can be disregarded.
Again, in Cohens _vs._ Virginia, the Chief Justice rises to heights of
exalted--almost emotional--eloquence. Yet the case itself was hardly
more than a police court controversy. If the trivial fine of itinerant
peddlars of lottery tickets were alone involved, Marshall's splendid
passages become unnecessary and, indeed, pompous rhetoric. But when the
curtains of history are raised, we see the heroic part that Marshall
played and realize the meaning of his powerful language. While
Marshall's opinion in M'Culloch _vs._ Maryland, even taken by itself, is
a major treatise on constitutional government, it becomes a fascinating
chapter in an engaging story, when read in connection with an account of
the situation which compelled that outgiving.
The same thing is true of his other historic utterances. Indeed, it may
be said that his weightiest opinions were interlocking parts of one
great drama.
Much space has been given to the conspiracy and trials of Aaron Burr.
The combined story of that adventure and of those prosecutions has not
hitherto been told. In the conduct of the Burr trials, Marshall appears
in a more intimate and personal fashion than in any other phase of his
judicial career; the entire series of events that make up that page of
our history is a striking example of the manipulation of public opinion
by astute politicians, and is, therefore, useful for the self-guidance
of American democracy. Most important of all, the culminating result of
this dramatic episode was the definitive establishment of the American
law of treason.
In narrating the work of a jurist, the temptation is very strong to
engage in legal discussion, and to cite and comment upon the decisions
of other courts and the opinions of other judges. This, however, would
be the very negation of biography; nor would it add anything of interest
or enlightenment to the reader. Such information and analysis are given
fully in the various books on Constitutional law and history, in the
annotated reports, and in the encyclopædias of law upon the shelves of
every lawyer. Care, therefore, has been taken to avoid making any part
of the _Life of John Marshall_ a legal treatise.
The manuscript of these volumes has been read by Professor Edward
Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S.
Corwin of Princeton; Professor William E. Dodd of Chicago University;
Professor Clarence W. Alvord of the University of Illinois; Professor
James A. Woodburn of Indiana University; Professor Charles H. Ambler of
the University of West Virginia; Professor Archibald Henderson of the
University of North Carolina; Professor D. R. Anderson of Richmond (Va.)
College; and Dr. H. J. Eckenrode of Richmond, Virginia.
The manuscript of the third volume has been read by Professor Charles A.
Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold
J. Laski of Harvard. The manuscript of both the third and fourth volumes
has been read, from the lawyer's point of view, by Mr. Arthur Lord of
Boston, President of the Massachusetts Bar Association, and by Mr.
Charles Martindale of Indianapolis.
The chapters on the Burr conspiracy and trials have been read by
Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin Cox
of the University of Cincinnati; and Mr. Samuel H. Wandell of New York.
Chapter Three of Volume Three (Marbury _vs._ Madison) has been read by
the Honorable Oliver Wendell Holmes, Associate Justice of the Supreme
Court of the United States; by the Honorable Philander Chase Knox,
United States Senator; and by Mr. James M. Beck of New York. Other
special chapters have been read by the Honorable Henry Cabot Lodge,
United States Senator; by Professor J. Franklin Jameson of the
Department of Historical Research of the Carnegie Institution of
Washington; by Professor Charles H. Haskins of Harvard; by Dr. William
Draper Lewis of Philadelphia, former Dean of the Law School of the
University of Pennsylvania; and by Mr. W. B. Bryan of Washington.
All of these gentlemen have made valuable suggestions of which I have
availed myself, and I gratefully acknowledge my indebtedness to them.
The responsibility for everything in these volumes, however, is, of
course, exclusively mine; and, in stating my appreciation of the comment
and criticism with which I have been favored, I do not wish to be
relieved of my burden by allowing the inference that any part of it
should be assigned to others.
I also owe it to myself again to express my heavy obligation to Mr.
Worthington Chauncey Ford, Editor of the Massachusetts Historical
Society. As was the case in the preparation of the first two volumes of
this work, Mr. Ford has extended to me the resources of his ripe
scholarship; while his wise counsel, steady encouragement, and unselfish
assistance, have been invaluable in the prosecution of a long and
exacting task.
I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of
the Boston Public Library, who has read with critical care not only the
many drafts of the manuscript, but also the proofs of the entire work.
Mr. Swift has given, unstintedly, his rare literary taste and critical
accomplishment to the examination of these pages.
I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who
has generously directed the preparation of the bibliography and
personally revised it.
Mr. David Maydole Matteson of Cambridge, Massachusetts, has made the
index of these volumes as he made that of the first two volumes, and has
combined both indexes into one. In rendering this service, Mr. Matteson
has also searched for points where text and notes could be made more
accurate; and I wish to express my appreciation of his kindness.
My thanks are also owing to the staff of The Riverside Press, and
particularly to Mr. Lanius D. Evans, to whose keen interest and watchful
care in the production of this work I am indebted for much of whatever
exactitude it may possess.
The manuscript sources have been acknowledged, in all instances, in the
footnotes where references to them have been made, except in the case of
the letters of Marshall to his relatives, for which I again thank those
descendants and connections of the Chief Justice named in the preface to
Volumes One and Two. The Hopkinson manuscripts are in the possession of
Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the
privilege of inspecting this valuable source and for furnishing me with
copies of important letters.
In preparing these volumes, Mr. A. P. C. Griffin, Assistant Librarian,
and Mr. John Clement Fitzpatrick, of the Manuscript Division of the
Library of Congress, have been even more obliging, if possible, than
they were in the preparation of the first part of this work. The
officers and their assistants of the Boston Public Library, the Boston
Athenæum, the Massachusetts State Library, the Massachusetts Historical
Society, the Pennsylvania Historical Society, the Virginia State
Library, the Indiana State Library, and the Indianapolis City Library,
have assisted whole-heartedly in the performance of my labors; and I am
glad of the opportunity to thank all of them for their interest and
help.
ALBERT J. BEVERIDGE
CONTENTS
I. DEMOCRACY JUDICIARY 1
The National Capital an unsightly "village in the woods"--
Difficulty and danger of driving through the streets--
Habits of the population--Taverns, shops, and dwellings--
Warring interests--A miniature of the country--Meaning of the
Republican victory of 1800--Anger, chagrin, and despair of
the Federalists--Marshall's views of the political situation--
He begins to strengthen the Supreme Court--The Republican
programme of demolition--Jefferson's fear and hatred of the
National Judiciary--The conduct of the National Judges gives
Jefferson his opportunity--Their arrogance, harshness, and
partisanship--Political charges to grand juries--Arbitrary
application of the common law--Jefferson makes it a political
issue--Rigorous execution of the Sedition Law becomes hateful
to the people--The picturesque and historic trials that made
the National Judiciary unpopular--The trial and conviction
of Matthew Lyon; of Thomas Cooper; of John Fries; of Isaac
Williams; of James T. Callender; of Thomas and Abijah Adams--
Lawyers for Fries and Callender abandon the cases and leave
the court-rooms--The famous Virginia and Kentucky Resolutions
raise the fundamental question as to the power that can
interpret the Constitution--Jefferson plans the assault on
the National Judiciary.
II. THE ASSAULT ON THE JUDICIARY 50
The assault on the Judiciary begins--Intense excitement of
political parties--Message on the Judiciary that Jefferson
sent to Congress--Message he did not send--The Federalists
fear the destruction of the National Judiciary--The grave
defects of the Ellsworth Judiciary Act of 1789--The excellent
Federalist Judiciary Act of 1801--The Republicans determined
to repeal it--The great Judiciary debate begins in the
Senate--The Federalists assert the exclusive power of the
Supreme Court to decide on the constitutionality of acts of
Congress--The dramatic language of Senator Gouverneur
Morris--The Republican Senators evade the issue--The
Federalist Senators press it--Aaron Burr takes his seat
as Vice-President--His fateful Judiciary vote--Senator
John Breckenridge denies the supervisory power of the
Supreme Court over legislation--The debate in the House--
Comments of the press--Extravagant speeches--Appearance
and characteristics of John Randolph of Roanoke--The
Federalists hint resistance--The lamentations of the
Federalist newspapers--The Republicans repeal the
Federalist Judiciary act--They also suspend the sessions
of the Supreme Court for fourteen months--This done to
prevent Marshall from overthrowing the Republican repeal
of the Federalist Judiciary Act of 1801--Marshall proposes
to his colleagues on the bench that they refuse to sit as
Circuit Judges--They reject his proposal--The New England
Federalist leaders begin to talk secession--The jubilation
of the Republican press: "Huzza for the _Washington
Judiciary_!"
III. MARBURY VERSUS MADISON 101
Power of the Judiciary over legislation the supreme issue--
Federalist majorities in State Legislatures assert that
Supreme Court can annul acts of Congress--Republican
minorities vigorously resist the doctrine of Judiciary
supremacy--Republican strength grows rapidly--Critical
situation before the decision of Marbury _vs._ Madison--
Power of the Supreme Court must be promptly asserted or
permanently abandoned--Marshall confronts a serious
dilemma--Escape from it apparently impossible--Republicans
expect him to decide against Madison--They threaten
impeachment--Marshall delivers his celebrated opinion--His
reasoning on the power of the Judiciary merely repeats
Federalist arguments in the Judiciary debate--He persuades
his associates on the Supreme Bench that Section 13 of
the Ellsworth Judiciary Act is unconstitutional--Startling
boldness of his conception--History of Section 13--
Drawn by framers of the Constitution and never before
questioned--Marshall's opinion excites no immediate comment--
Jefferson does not attack it until after his reëlection--
Republican opposition to the Judiciary apparently subsides--
Cause of this--Purchase of Louisiana--Jefferson compelled
to take "unconstitutional" action--He counsels secrecy--
The New England Federalist secession movement gains
strength--Jefferson reëlected--Impeachment the next move.
IV. IMPEACHMENT 157
Republicans plan to subjugate the Judiciary--Federalist
Judges to be ousted and Republicans put in their places--
Marshall's decision in United States _vs._ Fisher--The
Republican impeachment programme carried out--The trial
and the conviction of Judge Addison--The removal of Judge
Pickering--The House impeaches Justice Chase of the Supreme
Court--Republicans manipulate public opinion--The articles
of impeachment--Federalists convinced that Chase is
doomed--Marshall the chief object of attack--His alarm--He
proposes radical method of reviewing decisions of the Supreme
Court--Reason for Marshall's trepidation--The impeachment
trial--Burr presides--He is showered with favors by the
Administration--Appearance of Chase--His brilliant array
of counsel--Luther Martin of Maryland--Examination of
witnesses--Marshall testifies--He makes an unfavorable
impression: "too much caution; too much fear; too much
cunning"--Arguments of counsel--Weakness of the House
managers--They are overwhelmed by counsel for Chase--
Joseph Hopkinson's brilliant appeal--He captivates the
Senate--Nicholson's fatal admission--Rodney's absurd
speech--Luther Martin's great argument--Randolph closes
for the managers--He apostrophizes Marshall--His pathetic
breakdown--The Senate votes--Tense excitement in the
Chamber--Chase acquitted--A determinative event in American
history--Independence of the National Judiciary saved--
Marshall for the first time secure in the office of Chief
Justice.
V. BIOGRAPHER 223
Marshall agrees to write the "Life of Washington"--He is
unequipped for the task--His grotesque estimate of time,
labor, and profits--Jefferson is alarmed--Declares that
Marshall is writing for "electioneering purposes"--Postmasters
as book agents--They take their cue from Jefferson--Rumor
spreads that Marshall's book is to be partisan--Postmasters
take few subscriptions--Parson Weems becomes chief solicitor
for Marshall's book--His amusing canvass--Marshall is
exasperatingly slow--Subscribers are disgusted at delay--
First two volumes appear--Public is dissatisfied--Marshall
is worried--He writes agitated letters--His publisher
becomes disheartened--Marshall resents criticism--The
lamentable inadequacy of the first three volumes--Fourth
volume an improvement--Marshall's heavy task in the writing
of the last volume--He performs it skillfully--Description
of the foundation of political parties--Treatment of the
policies of Washington's administrations--Jefferson calls
Marshall's biography a "five-volume libel" and "a party
diatribe"--He seeks an author to answer Marshall--He
resolves to publish his "Anas" chiefly as a reply to
Marshall--He bitterly attacks him and the biography--
Other criticisms of Marshall's work--His lifelong worry
over the imperfections of the first edition--He decides
to revise it--He devotes nearly twenty years to the task--
Work on the Supreme Bench while writing the first edition.
VI. THE BURR CONSPIRACY 274
Remarkable effect on the Senate of Burr's farewell speech--
His desperate plight--Stanchness of friends--Jefferson's
animosity--Unparalleled combination against Burr--He runs
for Governor of New York and is defeated--Hamilton's lifelong
pursuit of Burr--The historic duel--Dismemberment of the Union
long and generally discussed--Washington's apprehensions in
1784--Jefferson in 1803 approves separation of Western country
"if it be for their good"--The New England secessionists ask
British Minister for support--He promises his aid--Loyalty of
the West--War with Spain imminent--People anxious to "liberate"
Mexico--Invasion of that country Burr's long-cherished dream--
He tries to get money from Great Britain--He promises British
Minister to divide the Republic--His first Western journey--
The people receive him cordially--He is given remarkable
ovation at Nashville--Andrew Jackson's ardent friendship--
Burr enthusiastically welcomed at New Orleans--War with Spain
seemingly inevitable--Burr plans to lead attack upon Mexico
when hostilities begin--Spanish agents start rumors against
him--Eastern papers print sensational stories--Burr returns
to the Capital--Universal demand for war with Spain--Burr
intrigues in Washington--He again starts for the West--
He sends his famous cipher dispatch to Wilkinson--
Blennerhassett joins Burr--They purchase four hundred
thousand acres of land on the Washita River--Plan to
settle this land if war not declared--Wilkinson's eagerness
for war--Burr arraigned in the Kentucky courts--He is
discharged--Cheered by the people--Wilkinson determines to
betray Burr--He writes mysterious letters to the President--
Jefferson issues his Proclamation--Wilkinson's reign of
military lawlessness in New Orleans--Arrest of Burr's agents,
Bollmann and Swartwout--Arrest of Adair--Prisoners sent under
guard by ship to Washington--The capital filled with wild
rumors--Jefferson's slight mention of the Burr conspiracy in
his Annual Message--Congress demands explanation--Jefferson
sends Special Message denouncing Burr: his "guilt is placed
beyond question"--Effect upon the public mind--Burr already
convicted in popular opinion.
VII. THE CAPTURE AND ARRAIGNMENT 343
Bollmann and Swartwout arrive at Washington and are
imprisoned--Adair and Alexander released by the court at
Baltimore for want of proof--Eaton's affidavit against
Burr--Bollmann and Swartwout apply to Supreme Court for
writ of habeas corpus--Senate passes bill suspending the
privilege of that writ--The House indignantly rejects
the Senate Bill--Marshall delivers the first of his series
of opinions on treason--No evidence against Bollmann and
Swartwout, and Marshall discharges them--Violent debate in
the House--Burr, ignorant of all, starts down the Cumberland
and Mississippi with nine boats and a hundred men--First
learns in Mississippi of the proceedings against him--
Voluntarily surrenders to the civil authorities--The
Mississippi grand jury refuses to indict Burr, asserting
that he is guilty of no offense--Court refuses to discharge
him--Wilkinson's frantic efforts to seize or kill him--He
goes into hiding--Court forfeits his bond--He escapes--He is
captured in Alabama and confined to Fort Stoddert--Becomes
popular with both officers and men--Taken under military
guard for a thousand miles through the wilderness--Arrives
at Richmond--Marshall issues warrant for his delivery to the
civil authorities--The first hearing before the Chief
Justice--Shall Burr be committed for treason--The argument--
Marshall's opinion--Probable cause to suspect Burr guilty of
attempt to attack Mexico; no evidence upon which to commit
Burr for treason--Marshall indirectly criticizes Jefferson--
Burr's letters to his daughter--Popular demand for Burr's
conviction and execution--Jefferson writes bitterly of
Marshall--Administration scours country for evidence
against Burr--Expenditure of public money for this purpose--
Burr gains friends in Richmond--His attorneys become devoted
to him--Marshall attends the famous dinner at the house of
John Wickham, not knowing that Burr is to be a guest--He is
denounced for doing so--His state of mind.
VIII. ADMINISTRATION VERSUS COURT 398
Richmond thronged with visitors--Court opens in the House
of Delegates--The hall packed--Dress, appearance, and manner
of spectators--Dangerous state of the public temper--Andrew
Jackson arrives and publicly denounces Jefferson--He declares
trial a "political persecution"--Winfield Scott's opinion:
the President the real prosecutor--Grand jury formed and
instructed--Believe Burr guilty--Burr's passionate reply to
George Hay, the District Attorney--Hay reports to Jefferson--
Burr's counsel denounce the Administration's efforts to
excite the public against him--Attorneys on both sides
speak to the public--Hay moves to commit Burr for treason--
Marshall's difficult and dangerous situation--Jefferson
instructs Hay--Government offers testimony to support
its motion--Luther Martin arrives--Hay again reports to
Jefferson, who showers the District Attorney with orders--
Burr asks that the court grant a writ of subpoena _duces
tecum_ directed to Jefferson--Martin boldly attacks the
President--Wirt's clever rejoinder--Jefferson calls Martin
that "Federal bulldog"--Wants Martin indicted--Marshall's
opinion on Burr's motion for a subpoena _duces tecum_--He
grants the writ--Hay writes Jefferson, who makes able and
dignified reply--Wilkinson arrives--Washington Irving's
description of him--Testimony before the grand jury--Burr
and Blennerhassett indicted for treason and misdemeanor--
Violent altercations between counsel.
IX. WHAT IS TREASON? 470
Burr becomes popular with Richmond society--Swartwout
challenges Wilkinson to a duel--Marshall sets the trial for
August 3--The prisoner's life in the penitentiary--Burr's
letters to his daughter--Marshall asks his associates on the
Supreme Bench for their opinions--Trial begins--Difficulty
of selecting a jury--Everybody convinced of Burr's guilt--
Hay writes Jefferson that Marshall favors Burr--At last
jury is formed--The testimony--No overt act proven--Burr's
counsel move that collateral testimony shall not be
received--Counsel on both sides make powerful and brilliant
arguments--Marshall delivers his famous opinion on the
law of constructive treason--Jury returns verdict of not
guilty--Jefferson declares Marshall is trying to keep
evidence from the public--He directs Hay to press trial
on indictment for misdemeanor--Burr demands letters called
for in the subpoena _duces tecum_ to Jefferson--President
attempts to arrange a truce with the Chief Justice--Hay
despairs of convicting Burr for misdemeanor--Trial on
this charge begins--Many witnesses examined--Prosecution
collapses--Jury returns a verdict of not guilty--Hay moves
to hold Burr and his associates for treason committed in
Ohio--On this motion Marshall throws the door wide open
to all testimony--He delivers his last opinion in the Burr
trials--Refuses to hold Burr for treason, but commits him for
misdemeanor alleged to have been committed in Ohio--Marshall
adjourns court and hurries to the Blue Ridge--He writes Judge
Peters of his situation during the trial--Jefferson denounces
Marshall in Message he prepares for Congress--Cabinet induces
him to strike out the most emphatic language--Marshall
scathingly assailed in the press--The mob at Baltimore--
Marshall is hanged in effigy--The attempt to expel Senator
John Smith of Ohio from the Senate--In his report on Smith
case, John Quincy Adams attacks Marshall's rulings and
opinion in the Burr trials--Grave foreign complications
probably save Marshall from impeachment.
X. FRAUD AND CONTRACT 546
The corrupting of the Georgia Legislature in the winter of
1794-95--The methods of bribery--Prominent men involved--Law
passed selling thirty-five million acres of land for less than
one and one half cents an acre--Land companies pay purchase
price and receive deeds--Merits of the transaction--Poverty of
Georgia and power of the Indians--Invention of the cotton gin
increases land values--Period of mad land speculation--The
origin of the contract clause in the Constitution--Wrath
of the people of Georgia on learning of the corrupt land
legislation--They demand that the venal act be repealed--
James Jackson leads the revolt--A new Legislature elected--
It "rescinds" the land sale law--Records of the transaction
publicly burned--John Randolph visits Georgia--Land companies
sell millions of acres to innocent purchasers--Citizens of
Boston purchase heavily--The news of Georgia's repeal of the
land sale act reaches New England--War of the pamphlets--
Georgia cedes to the Nation her claims to the disputed
domain--Five million acres are reserved to satisfy claimants--
The New England investors petition Congress for relief--
Jefferson's commissioners report in favor of the investors--
John Randolph's furious assault on the relief bill--He attacks
Gideon Granger, Jefferson's Postmaster-General, for lobbying
on the floor of the House--The origin of the suit Fletcher
_vs._ Peck--The nature of this litigation--The case is
taken to the Supreme Court--Marshall delivers his opinion--
Legislation cannot be annulled merely because legislators
voting for it were corrupted--"Great principles of justice
protect innocent purchasers"--The Georgia land sale act,
having been accepted, is a contract--The repeal of that act
by the Georgia Legislature is a violation of the contract
clause of the Constitution--Justice Johnson dissents--He
intimates that Fletcher _vs._ Peck "is a mere feigned case"--
Meaning, purpose, and effect of Marshall's opinion--In
Congress, Randolph and Troup of Georgia mercilessly assail
Marshall and the Supreme Court--The fight for the passage
of a bill to relieve the New England investors is renewed--
Marshall's opinion and the decision of the court influential
in securing the final passage of the measure.
APPENDIX
A. THE PARAGRAPH OMITTED FROM THE FINAL DRAFT OF JEFFERSON'S
MESSAGE TO CONGRESS, DECEMBER 8, 1801 605
B. LETTER OF JOHN TAYLOR "OF CAROLINE" TO JOHN BRECKENRIDGE
CONTAINING ARGUMENTS FOR THE REPEAL OF THE FEDERALIST
NATIONAL JUDICIARY ACT OF 1801 607
C. CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE
HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON 611
D. TEXT, AS GENERALLY ACCEPTED, OF THE CIPHER LETTER OF AARON
BURR TO JAMES WILKINSON, DATED JULY 29, 1806 614
E. EXCERPT FROM SPEECH OF WILLIAM WIRT AT THE TRIAL OF AARON
BURR 616
F. ESSENTIAL PART OF MARSHALL'S OPINION ON CONSTRUCTIVE
TREASON DELIVERED AT THE TRIAL OF AARON BURR, ON
MONDAY, AUGUST 31, 1807 619
WORKS CITED IN THIS VOLUME 627
ILLUSTRATIONS
JOHN MARSHALL _Colored Frontispiece_
From a portrait by Chester Harding painted in Washington in
1828 for the Boston Athenæum and still in the possession of
that institution.
GOUVERNEUR MORRIS 60
After a drawing by Quenedey made in Paris, 1789 or 1790,
in possession of his granddaughter, Mrs. Alfred Maudslay.
By permission of Messrs. Charles Scribner's Sons.
ASSOCIATE JUSTICES SITTING WITH MARSHALL IN THE CASE OF MARBURY
VERSUS MADISON: WILLIAM CUSHING, WILLIAM PATERSON, SAMUEL CHASE,
BUSHROD WASHINGTON, ALFRED MOORE 128
Reproduced from etchings by Max and Albert Rosenthal in Hampton
L. Carson's history of _The Supreme Court of the United States_,
by the courtesy of the Lawyers' Coöperative Publishing Company,
Rochester, New York. The etchings were made from originals as
follows: Cushing, from a pastel by Sharpless, Philadelphia,
1799, in the possession of the family; Paterson, from a painting
in the possession of the family; Chase, from a painting by
Charles Wilson Peale in Independence Hall, Philadelphia;
Washington, from a painting by Chester Harding in the possession
of the family; Moore, from a miniature in the possession of Mr.
Alfred Moore Waddell, of Wilmington, North Carolina.
SAMUEL CHASE 160
From Sanderson's _Biography of the Signers to the Declaration of
Independence_, after a painting by Jarvis.
FACSIMILE OF A LETTER FROM JOHN MARSHALL TO JUSTICE SAMUEL CHASE
DATED JANUARY 23, 1804, ADVOCATING APPELLATE JURISDICTION IN
THE LEGISLATURE 176
JOHN RANDOLPH 188
From the painting by Chester Harding in the Corcoran Gallery of
Art, Washington, D.C.
FACSIMILE OF A PART OF MARSHALL'S LIST OF CORRECTIONS FOR HIS
LIFE OF WASHINGTON 240
AARON BURR 276
From a portrait by John Vanderlyn in the possession of Mr.
Pierrepont Edwards, of Elizabeth, New Jersey.
JAMES WILKINSON 290
After a print presented to the Library of Harvard University by
Lucien Carr, Esq., from a plate in the possession of Colonel
John Mason Brown, of Louisville, Kentucky, and now inserted in
the Library's copy of Wilkinson's _Memoirs_, Philadelphia, 1816,
vol. 1.
JOHN MARSHALL 350
From a painting by Richard N. Brooke, on the Gallery Floor of
the House of Representatives at the Capitol, Washington, D.C.
THE STATE CAPITOL, RICHMOND, VIRGINIA 400
From an old photograph showing its appearance at the time of the
Burr trial. It was not then stuccoed, and its bare brick walls
were exposed between the columns or pilasters, giving it the
appearance of a barnlike structure.
LUTHER MARTIN 428
From a portrait in Independence Hall, Philadelphia.
JOHN WICKHAM 492
From a portrait in the possession of Henry T. Wickham, Esq., of
Richmond, Virginia.
JOHN MARSHALL 516
From the portrait by Robert Matthew Sully, a nephew and pupil of
Thomas Sully, in the possession of the Corcoran Gallery of Art,
Washington, D.C.
LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED
_All references here are to the List of Authorities at the end of
this volume_
Adams: _U.S._ _See_ Adams, Henry. History of the United States.
Ames. _See_ Ames, Fisher. Works.
Channing: _Jeff. System._ _See_ Channing, Edward. Jeffersonian System,
1801-11.
Channing: _U.S._ _See_ Channing, Edward. History of the United States.
_Chase Trial._ _See_ Chase, Samuel. Trial.
Corwin. _See_ Corwin, Edward Samuel. Doctrine of Judicial Review.
Cutler. _See_ Cutler, William Parker, and Julia Perkins. Life, Journals,
and Correspondence of Manasseh Cutler.
Dillon. _See_ Marshall, John. Life, Character, and Judicial Services.
Edited by John Forrest Dillon.
_Eaton_: Prentiss. _See_ Eaton, William. Life.
_Jay_: Johnston. _See_ Jay, John. Correspondence and Public Papers.
_Jefferson Writings_: Washington. _See_ Jefferson, Thomas, Writings.
Edited by Henry Augustine Washington.
King. _See_ King, Rufus. Life and Correspondence.
McCaleb. _See_ McCaleb, Walter Flavius. Aaron Burr Conspiracy.
McMaster: _U.S._ _See_ McMaster, John Bach. History of the People of the
United States.
Marshall. _See_ Marshall, John. Life of George Washington.
_Memoirs, J. Q. A._: Adams. _See_ Adams, John Quincy. Memoirs.
Morris. _See_ Morris, Gouverneur. Diary and Letters.
_N.E. Federalism_: Adams. _See_ New-England Federalism, 1800-1815,
Documents relating to. Edited by Henry Adams.
Plumer. _See_ Plumer, William. Life.
_Priv. Corres._: Colton. _See_ Clay, Henry. Private Correspondence.
Edited by Calvin Colton.
_Records Fed. Conv._: Farrand. _See_ Records of the Federal Convention
of 1787.
Story. _See_ Story, Joseph. Life and Letters.
_Trials of Smith and Ogden._ _See_ Smith, William Steuben, and Ogden,
Samuel Gouverneur. Trials for Misdemeanors.
Wharton: _Social Life_. _See_ Wharton, Anne Hollingsworth. Social Life
in the Early Republic.
Wharton: _State Trials_. _See_ Wharton, Francis. State Trials of the
United States during the Administrations of Washington and Adams.
Wilkinson: _Memoirs_. _See_ Wilkinson, James. Memoirs of My Own Times.
_Works_: Colton. _See_ Clay, Henry. Works.
_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited
by Paul Leicester Ford.
_Writings, J. Q. A._: Ford. _See_ Adams, John Quincy. Writings. Edited
by Worthington Chauncey Ford.
THE LIFE OF JOHN MARSHALL
THE LIFE OF JOHN MARSHALL
CHAPTER I
DEMOCRACY: JUDICIARY
Rigorous law is often rigorous injustice. (Terence.)
The Federalists have retired into the Judiciary as a stronghold,
and from that battery all the works of republicanism are to be
battered down. (Jefferson.)
There will be neither justice nor stability in any system, if
some material parts of it are not independent of popular
control. (George Cabot.)
A strange sight met the eye of the traveler who, aboard one of the
little river sailboats of the time, reached the stretches of the sleepy
Potomac separating Alexandria and Georgetown. A wide swamp extended
inland from a modest hill on the east to a still lower elevation of land
about a mile to the west.[1] Between the river and morass a long flat
tract bore clumps of great trees, mostly tulip poplars, giving, when
seen from a distance, the appearance of "a fine park."[2]
Upon the hill stood a partly constructed white stone building, mammoth
in plan. The slight elevation north of the wide slough was the site of
an apparently finished edifice of the same material, noble in its
dimensions and with beautiful, simple lines,[3] but "surrounded with a
rough rail fence 5 or 6 feet high unfit for a decent barnyard."[4] From
the river nothing could be seen beyond the groves near the banks of the
stream except the two great buildings and the splendid trees which
thickened into a seemingly dense forest upon the higher ground to the
northward.[5]
On landing and making one's way through the underbrush to the foot of
the eastern hill, and up the gullies that seamed its sides thick with
trees and tangled wild grapevines,[6] one finally reached the immense
unfinished structure that attracted attention from the river. Upon its
walls laborers were languidly at work.
Clustered around it were fifteen or sixteen wooden houses. Seven or
eight of these were boarding-houses, each having as many as ten or a
dozen rooms all told. The others were little affairs of rough lumber,
some of them hardly better than shanties. One was a tailor shop; in
another a shoemaker plied his trade; a third contained a printer with
his hand press and types, while a washerwoman occupied another; and in
the others there was a grocery shop, a pamphlets-and-stationery shop, a
little dry-goods shop, and an oyster shop. No other human habitation of
any kind appeared for three quarters of a mile.[7]
A broad and perfectly straight clearing had been made across the swamp
between the eastern hill and the big white house more than a mile away
to the westward. In the middle of this long opening ran a roadway, full
of stumps, broken by deep mud holes in the rainy season, and almost
equally deep with dust when the days were dry. On either border was a
path or "walk" made firm at places by pieces of stone; though even this
"extended but a little way." Alder bushes grew in the unused spaces of
this thoroughfare, and in the depressions stagnant water stood in
malarial pools, breeding myriads of mosquitoes. A sluggish stream
meandered across this avenue and broadened into the marsh.[8]
A few small houses, some of brick and some of wood, stood on the edge of
this long, broad embryo street. Near the large stone building at its
western end were four or five structures of red brick, looking much like
ungainly warehouses. Farther westward on the Potomac hills was a small
but pretentious town with its many capacious brick and stone residences,
some of them excellent in their architecture and erected solidly by
skilled workmen.[9]
Other openings in the forest had been cut at various places in the wide
area east of the main highway that connected the two principal
structures already described. Along these forest avenues were scattered
houses of various materials, some finished and some in the process of
erection.[10] Here and there unsightly gravel pits and an occasional
brick kiln added to the raw unloveliness of the whole.
Such was the City of Washington, with Georgetown near by, when Thomas
Jefferson became President and John Marshall Chief Justice of the United
States--the Capitol, Pennsylvania Avenue, the "Executive Mansion" or
"President's Palace," the department buildings near it, the residences,
shops, hostelries, and streets. It was a picture of sprawling
aimlessness, confusion, inconvenience, and utter discomfort.
When considering the events that took place in the National Capital as
narrated in these volumes,--the debates in Congress, the proclamations
of Presidents, the opinions of judges, the intrigues of
politicians,--when witnessing the scenes in which Marshall and Jefferson
and Randolph and Burr and Pinckney and Webster were actors, we must
think of Washington as a dismal place, where few and unattractive houses
were scattered along muddy openings in the forests.
There was on paper a harmonious plan of a splendid city, but the
realization of that plan had scarcely begun. As a situation for living,
the Capital of the new Nation was, declared Gallatin, a "hateful
place."[11] Most of the houses were "small miserable huts" which, as
Wolcott informed his wife, "present an awful contrast to the public
buildings."[12]
Aside from an increase in the number of residences and shops, the
"Federal City" remained in this state for many years. "The _Chuck_ holes
were not _bad_," wrote Otis of a journey out of Washington in 1815;
"that is to say they were none of them much deeper than the Hubs of the
hinder wheels. They were however exceedingly frequent."[13]
Pennsylvania Avenue was, at this time, merely a stretch of "yellow,
tenacious mud,"[14] or dust so deep and fine that, when stirred by the
wind, it made near-by objects invisible.[15] And so this street remained
for decades. Long after the National Government was removed to
Washington, the carriage of a diplomat became mired up to the axles in
the sticky clay within four blocks of the President's residence and its
occupant had to abandon the vehicle.
John Quincy Adams records in his diary, April 4, 1818, that on returning
from a dinner the street was in such condition that "our carriage in
coming for us ... was overset, the harness broken. We got home with
difficulty, twice being on the point of oversetting, and at the Treasury
Office corner we were both obliged to get out ... in the mud.... It was
a mercy that we all got home with whole bones."[16]
Fever and other malarial ills were universal at certain seasons of the
year.[17] "No one, from the North or from the high country of the South,
can pass the months of August and September there without intermittent
or bilious fever," records King in 1803.[18] Provisions were scarce and
Alexandria, across the river, was the principal source of supplies.[19]
"My God! What have I done to reside in such a city," exclaimed a French
diplomat.[20] Some months after the Chase impeachment[21] Senator Plumer
described Washington as "a little village in the midst of the
woods."[22] "Here I am in the wilderness of Washington," wrote Joseph
Story in 1808.[23]
Except a small Catholic chapel there was only one church building in the
entire city, and this tiny wooden sanctuary was attended by a
congregation which seldom exceeded twenty persons.[24] This absence of
churches was entirely in keeping with the inclination of people of
fashion. The first Republican administration came, testifies Winfield
Scott, in "the spring tide of infidelity.... At school and college, most
bright boys, of that day, affected to regard religion as base
superstition or gross hypocricy."[25]
Most of the Senators and Representatives of the early Congresses were
crowded into the boarding-houses adjacent to the Capitol, two and
sometimes more men sharing the same bedroom. At Conrad and McMunn's
boarding-house, where Gallatin lived when he was in the House, and where
Jefferson boarded up to the time of his inauguration, the charge was
fifteen dollars a week, which included service, "wood, candles and
liquors."[26] Board at the Indian Queen cost one dollar and fifty cents
a day, "brandy and whisky being free."[27] In some such inn the new
Chief Justice of the United States, John Marshall, at first, found
lodging.
Everybody ate at one long table. At Conrad and McMunn's more than thirty
men would sit down at the same time, and Jefferson, who lived there
while he was Vice-President, had the coldest and lowest place at the
table; nor was a better seat offered him on the day when he took the
oath of office as Chief Magistrate of the Republic.[28] Those who had to
rent houses and maintain establishments were in distressing case.[29] So
lacking were the most ordinary conveniences of life that a proposal was
made in Congress, toward the close of Jefferson's first administration,
to remove the Capital to Baltimore.[30] An alternative suggestion was
that the White House should be occupied by Congress and a cheaper
building erected for the Presidential residence.[31]
More than three thousand people drawn hither by the establishment of the
seat of government managed to exist in "this desert city."[32] One fifth
of these were negro slaves.[33] The population was made up of people
from distant States and foreign countries[34]--the adventurous, the
curious, the restless, the improvident. The "city" had more than the
usual proportion of the poor and vagrant who, "so far as I can judge,"
said Wolcott, "live like fishes by eating each other."[35] The sight of
Washington filled Thomas Moore, the British poet, with contempt.
"This embryo capital, where Fancy sees
Squares in morasses, obelisks in trees;
Where second-sighted seers, even now, adorn
With shrines unbuilt and heroes yet unborn,
Though nought but woods and Jefferson they see,
Where streets should run and sages _ought_ to be."[36]
Yet some officials managed to distill pleasure from materials which one
would not expect to find in so crude a situation. Champagne, it appears,
was plentiful. When Jefferson became President, that connoisseur of
liquid delights[37] took good care that the "Executive Mansion" was well
supplied with the choicest brands of this and many other wines.[38]
Senator Plumer testifies that, at one of Jefferson's dinners, "the wine
was the best I ever drank, particularly the champagne which was indeed
delicious."[39] In fact, repasts where champagne was served seem to have
been a favorite source of enjoyment and relaxation.[40]
Scattered, unformed, uncouth as Washington was, and unhappy and
intolerable as were the conditions of living there, the government of
the city was torn by warring interests. One would have thought that the
very difficulties of their situation would have compelled some harmony
of action to bring about needed improvements. Instead of this, each
little section of the city fought for itself and was antagonistic to the
others. That part which lay near the White House[41] strove exclusively
for its own advantage. The same was true of those who lived or owned
property about Capitol Hill. There was, too, an "Alexandria interest"
and a "Georgetown interest." These were constantly quarreling and each
was irreconcilable with the other.[42]
In all respects the Capital during the first decades of the nineteenth
century was a representation in miniature of the embryo Nation itself.
Physical conditions throughout the country were practically the same as
at the time of the adoption of the Constitution; and popular knowledge
and habits of thought had improved but slightly.[43]
A greater number of newspapers, however, had profoundly affected public
sentiment, and democratic views and conduct had become riotously
dominant. The defeated and despairing Federalists viewed the situation
with anger and foreboding. Of all Federalists John Marshall and George
Cabot were the calmest and wisest. Yet even they looked with gloom upon
the future. "There are some appearances which surprize me," wrote
Marshall on the morning of Jefferson's inauguration to his intimate
friend, Charles Cotesworth Pinckney.
"I wish, however, more than I hope that the public prosperity &
happiness will sustain no diminution under Democratic guidance. The
Democrats are divided into speculative theorists & absolute terrorists.
With the latter I am disposed to class Mr. Jefferson. If he ranges
himself with them it is not difficult to foresee that much difficulty is
in store for our country--if he does not, they will soon become his
enemies and calumniators."[44]
After Jefferson had been President for four months, Cabot thus
interpreted the Republican victory of 1800: "We are doomed to suffer all
the evils of _excessive_ democracy through the United States....
Maratists and Robespierrians everywhere raise their heads.... There will
be neither justice nor stability in any system, if some material parts
of it are not independent of popular control"[45]--an opinion which
Marshall, speaking for the Supreme Court of the Nation, was soon to
announce.
Joseph Hale wrote to King that Jefferson's election meant the triumph of
"the wild principles of uproar & misrule" which would produce
"anarchy."[46] Sedgwick advised our Minister at London: "The aristocracy
of virtue is destroyed."[47] In the course of a characteristic
Federalist speech Theodore Dwight exclaimed: "The great object of
Jacobinism is ... to force mankind back into a savage state.... We have
a country governed by blockheads and knaves; our wives and daughters are
thrown into the stews.... Can the imagination paint anything more
dreadful this side of hell."[48]
The keen-eyed and thoughtful John Quincy Adams was of the opinion that
"the basis of it all is democratic popularity.... There never was a
system of measures [Federalist] more completely and irrevocably
abandoned and rejected by the popular voice.... Its restoration would be
as absurd as to undertake the resurrection of a carcass seven years in
its grave."[49] A Federalist in the _Commercial Gazette_ of Boston,[50]
in an article entitled "Calm Reflections," mildly stated that "democracy
teems with fanaticism." Democrats "love liberty ... and, like other
lovers, they try their utmost to debauch ... their mistress."
There was among the people a sort of diffused egotism which appears to
have been the one characteristic common to Americans of that period. The
most ignorant and degraded American felt himself far superior to the
most enlightened European. "Behold the universe," wrote the chronicler
of Congress in 1802. "See its four quarters filled with savages or
slaves. Out of nine hundred millions of human beings but four millions
[Americans] are free."[51]
William Wirt describes the contrast of fact to pretension: "Here and
there a stately aristocratick palace, with all its appurtenances,
strikes the view: while all around for many miles, no other buildings
are to be seen but the little smoky huts and log cabins of poor,
laborious, ignorant tenants. And what is very ridiculous, these tenants,
while they approach _the great house_, cap in hand, with all the fearful
trembling submission of the lowest feudal vassals, boast in their
court-yards, with obstreperous exultation, that they live in a land of
freemen, a land of equal liberty and equal rights."[52]
Conservatives believed that the youthful Republic was doomed; they could
see only confusion, destruction, and decline. Nor did any nation of the
Old World at that particular time present an example of composure and
constructive organization. All Europe was in a state of strained
suspense during the interval of the artificial peace so soon to end. "I
consider the whole civilized world as metal thrown back into the furnace
to be melted over again," wrote Fisher Ames after the inevitable
resumption of the war between France and Great Britain.[53] "Tremendous
times in Europe!" exclaimed Jefferson when cannon again were thundering
in every country of the Old World. "How mighty this battle of lions &
tygers! With what sensations should the common herd of cattle look upon
it? With no partialities, certainly!"[54]
Jefferson interpreted the black forebodings of the defeated
conservatives as those of men who had been thwarted in the prosecution
of evil designs: "The clergy, who have missed their union with the
State, the Anglo men, who have missed their union with England, the
political adventurers who have lost the chance of swindling & plunder in
the waste of public money, will never cease to bawl, on the breaking up
of their sanctuary."[55]
Of all the leading Federalists, John Marshall was the only one who
refused to "bawl," at least in the public ear; and yet, as we have seen
and shall again find, he entertained the gloomy views of his political
associates. Also, he held more firmly than any prominent man in America
to the old-time Federalist principle of Nationalism--a principle which
with despair he watched his party abandon.[56] His whole being was fixed
immovably upon the maintenance of order and constitutional authority.
Except for his letter to Pinckney, Marshall was silent amidst the
clamor. All that now went forward passed before his regretful vision,
and much of it he was making ready to meet and overcome with the
affirmative opinions of constructive judicial statesmanship.
Meanwhile he discharged his duties--then very light--as Chief Justice.
But in doing so, he quietly began to strengthen the Supreme Court. He
did this by one of those acts of audacity that later marked the
assumptions of power which rendered his career historic. For the first
time the Chief Justice disregarded the custom of the delivery of
opinions by the Justices _seriatim_, and, instead, calmly assumed the
function of announcing, himself, the views of that tribunal. Thus
Marshall took the first step in impressing the country with the unity of
the highest court of the Nation. He began this practice in Talbot _vs_.
Seeman, familiarly known as the case of the Amelia,[57] the first
decided by the Supreme Court after he became Chief Justice.
During our naval war with France an armed merchant ship, the Amelia,
owned by one Chapeau Rouge of Hamburg, while homeward bound from
Calcutta, was taken by the French corvette, La Diligente. The Amelia's
papers, officers, and crew were removed to the French vessel, a French
crew placed in charge, and the captured ship was sent to St. Domingo as
a prize. On the way to that French port, she was recaptured by the
American frigate, Constitution, Captain Silas Talbot, and ordered to New
York for adjudication. The owner demanded ship and cargo without payment
of the salvage claimed by Talbot for his rescue. The case finally
reached the Supreme Court.
In the course of a long and careful opinion the Chief Justice held that,
although there had been no formal declaration of war on France, yet
particular acts of Congress had authorized American warships to capture
certain French vessels and had provided for the payment of salvage to
the captors. Virtually, then, we were at war with France. While the
Amelia was not a French craft, she was, when captured by Captain Talbot,
"an armed vessel commanded and manned by Frenchmen," and there was
"probable cause to believe" that she was French. So her capture was
lawful.
Still, the Amelia was not, in fact, a French vessel, but the property of
a neutral; and in taking her from the French, Talbot had, in reality,
rescued the ship and rendered a benefit to her owners for which he was
entitled to salvage. For a decree of the French Republic made it
"extremely probable" that the Amelia would be condemned by the French
courts in St. Domingo; and that decree, having been "promulgated" by the
American Government, must be considered by American courts "as an
authenticated copy of a public law of France interesting to all
nations." This, said Marshall, was "the real and only question in the
case." The first opinion delivered by Marshall as Chief Justice
announced, therefore, an important rule of international law and is of
permanent value.
Marshall's next case[58] involved complicated questions concerning lands
in Kentucky. Like nearly all of his opinions, the one in this case is of
no historical importance except that in it he announced for the second
time the views of the court. In United States _vs_. Schooner Peggy,[59]
Marshall declared that, since the Constitution makes a treaty a "supreme
law of the land," courts are as much bound by it as by an act of
Congress. This was the first time that principle was stated by the
Supreme Court. Another case[60] concerned the law of practice and of
evidence. This was the last case in which Marshall delivered an opinion
before the Republican assault on the Judiciary was made--the causes of
which assault we are now to examine.
At the time of his inauguration, Jefferson apparently meant to carry out
the bargain[61] by which his election was made possible. "We are all
Republicans, we are all Federalists," were the reassuring words with
which he sought to quiet those who already were beginning to regret that
they had yielded to his promises.[62] Even Marshall was almost favorably
impressed by the inaugural address. "I have administered the oath to the
Presdt.," he writes Pinckney immediately after Jefferson had been
inducted into office. "His inauguration speech ... is in general well
judged and conciliatory. It is in direct terms giving the lie to the
violent party declamation which has elected him, but it is strongly
characteristic of the general cast of this political theory."[63]
It is likely that, for the moment, the President intended to keep faith
with the Federalist leaders. But the Republican multitude demanded the
spoils of victory; and the Republican leaders were not slow or
soft-spoken in telling their chieftain that he must take those measures,
the assurance of which had captivated the popular heart and given "the
party of the people" a majority in both House and Senate.
Thus the Republican programme of demolition was begun. Federalist taxes
were, of course, to be abolished; the Federalist mint dismantled; the
Federalist army disbanded; the Federalist navy beached. Above all, the
Federalist system of National courts was to be altered, the newly
appointed Federalist National judges ousted and their places given to
Republicans; and if this could not be accomplished, at least the
National Judiciary must be humbled and cowed. Yet every step must be
taken with circumspection--the cautious politician at the head of the
Government would see to that. No atom of party popularity[64] must be
jeopardized; on the contrary, Republican strength must be increased at
any cost, even at the temporary sacrifice of principle.[65] Unless these
facts are borne in mind, the curious blending of fury and moderation--of
violent attack and sudden quiescence--in the Republican tactics during
the first years of Jefferson's Administration are inexplicable.
Jefferson determined to strike first at the National Judiciary. He hated
it more than any other of the "abominations" of Federalism. It was the
only department of the Government not yet under his control. His early
distrust of executive authority, his suspicion of legislative power when
his political opponents held it, were now combined against the National
courts which he did not control.
Impotent and little respected as the Supreme Court had been and still
was, Jefferson nevertheless entertained an especial fear of it; and this
feeling had been made personal by the thwarting of his cherished plan of
appointing his lieutenant, Spencer Roane of Virginia, Chief Justice of
the United States.[66] The elevation of his particular aversion, John
Marshall, to that office, had, he felt, wickedly robbed him of the
opportunity to make the new regime harmonious; and, what was far worse,
it had placed in that station of potential, if as yet undeveloped,
power, one who, as Jefferson had finally come to think, might make the
high court of the Nation a mighty force in the Government, retard
fundamental Republican reforms, and even bring to naught measures dear
to the Republican heart.
It seems probable that, at this time, Jefferson was the only man who had
taken Marshall's measure correctly. His gentle manner, his friendliness
and conviviality, no longer concealed from Jefferson the courage and
determination of his great relative; and Jefferson doubtless saw that
Marshall, with his universally conceded ability, would find means to
vitalize the National Judiciary, and with his fearlessness, would employ
those means.
"The Federalists," wrote Jefferson, "have retired into the judiciary as
a stronghold ... and from that battery all the works of republicanism
are to be beaten down and erased."[67] Therefore that stronghold must be
taken. Never was a military plan more carefully devised than was the
Republican method of capturing it. Jefferson would forthwith remove all
Federalist United States marshals and attorneys;[68] he would get rid of
the National judges whom Adams had appointed under the Judiciary Act of
1801.[69] If this did not make those who remained on the National Bench
sufficiently tractable, the sword of impeachment would be held over
their obstinate heads until terror of removal and disgrace should render
them pliable to the dominant political will. Thus by progressive stages
the Supreme Court would be brought beneath the blade of the executioner
and the obnoxious Marshall decapitated or compelled to submit.
To this agreeable course, so well adapted to his purposes, the President
was hotly urged by the foremost leaders of his party. Within two weeks
after Jefferson's inauguration, the able and determined William Branch
Giles of Virginia, faithfully interpreting the general Republican
sentiment, demanded "the removal of all its [the Judiciary's] executive
officers indiscriminately." This would get rid of the Federalist
marshals and clerks of the National courts; they had been and were,
avowed Giles, "the humble echoes" of the "vicious schemes" of the
National judges, who had been "the most unblushing violators of
constitutional restrictions."[70] Again Giles expressed the will of his
party: "The revolution [Republican success in 1800] is incomplete so
long as that strong fortress [the Judiciary] is in possession of the
enemy." He therefore insisted upon "the absolute repeal of the whole
judiciary system."[71]
The Federalist leaders quickly divined the first part of the Republican
purpose: "There is nothing which the [Republican] party more anxiously
wish than the destruction of the judicial arrangements made during the
last session," wrote Sedgwick.[72] And Hale, with dreary sarcasm,
observed that "the independence of our Judiciary is to be confirmed by
being made wholly subservient to the will of the legislature & the
caprice of Executive visions."[73]
The judges themselves had invited the attack so soon to be made upon
them.[74] Immediately after the Government was established under the
Constitution, they took a position which disturbed a large part of the
general public, and also awakened apprehensions in many serious minds.
Persons were haled before the National courts charged with offenses
unknown to the National statutes and unnamed in the Constitution;
nevertheless, the National judges held that these were indictable and
punishable under the common law of England.[75]
This was a substantial assumption of power. The Judiciary avowed its
right to pick and choose among the myriad of precedents which made up
the common law, and to enforce such of them as, in the opinion of the
National judges, ought to govern American citizens. In a manner that
touched directly the lives and liberties of the people, therefore, the
judges became law-givers as well as law-expounders. Not without reason
did the Republicans of Boston drink with loud cheers this toast: "The
Common Law of England! May wholesome statutes soon root out this engine
of oppression from America."[76]
The occasions that called forth this exercise of judicial authority were
the violation of Washington's Neutrality Proclamation, the violation of
the Treaty of Peace with Great Britain, and the numberless threats to
disregard both. From a strictly legal point of view, these indeed
furnished the National courts with plausible reasons for the position
they took. Certainly the judges were earnestly patriotic and sincere in
their belief that, although Congress had not authorized it,
nevertheless, that accumulation of British decisions, usages, and
customs called "the common law" was a part of American National
jurisprudence; and that, of a surety, the assertion of it in the
National tribunals was indispensable to the suppression of crimes
against the United States. In charging the National grand jury at
Richmond, May 22, 1793, Chief Justice John Jay first announced this
doctrine, although not specifically naming the common law.[77] Two
months later, Justice James Wilson claimed the same inclusive power in
his address to the grand jury at Philadelphia.[78]
In 1793, Joseph Ravara, consul for Genoa, was indicted in the United
States District Court of Pennsylvania for sending an anonymous and
threatening letter to the British Minister and to other persons in order
to extort money from them. There was not a word in any act of Congress
that referred even indirectly to such a misdemeanor, yet Justices Wilson
and Iredell of the Supreme Court, with Judge Peters of the District
Court, held that the court had jurisdiction,[79] and at the trial Chief
Justice Jay and District Judge Peters held that the rash Genoese could
be tried and punished under the common law of England.[80]
Three months later Gideon Henfield was brought to trial for the
violation of the Neutrality Proclamation. The accused, a sailor from
Salem, Massachusetts, had enlisted at Charleston, South Carolina, on a
French privateer and was given a commission as an officer of the French
Republic. As such he preyed upon the vessels of the enemies of France.
One morning in May, 1793, Captain Henfield sailed into the port of
Philadelphia in charge of a British prize captured by the French
privateer which he commanded.
Upon demand of the British Minister, Henfield was seized, indicted, and
tried in the United States Circuit Court for the District of
Pennsylvania.[81] In the absence of any National legislation covering
the subject, Justice Wilson instructed the grand jury that Henfield
could, and should, be indicted and punished under British
precedents.[82] When the case was heard the charge of the court to the
trial jury was to the same effect.[83]
The jury refused to convict.[84] The verdict was "celebrated with
extravagant marks of joy and exultation," records Marshall in his
account of this memorable trial. "It was universally asked," he says,
"what law had been offended, and under what statute was the indictment
supported? Were the American people already prepared to give to a
proclamation the force of a legislative act, and to subject themselves
to the will of the executive? But if they were already sunk to such a
state of degradation, were they to be punished for violating a
proclamation which had not been published when the offense was
committed, if indeed it could be termed an offense to engage with
France, combating for liberty against the combined despots of
Europe?"[85]
In this wise, political passions were made to strengthen the general
protest against riveting the common law of England upon the American
people by judicial fiat and without authorization by the National
Legislature.
Isaac Williams was indicted and tried in 1799, in the United States
Circuit Court for the District of Connecticut, for violating our treaty
with Great Britain by serving as a French naval officer. Williams proved
that he had for years been a citizen of France, having been "duly
naturalized" in France, "renouncing his allegiance to all other
countries, particularly to America, and taking an oath of allegiance to
the Republic of France." Although these facts were admitted by counsel
for the Government, and although Congress had not passed any statute
covering such cases, Chief Justice Oliver Ellsworth practically
instructed the jury that under the British common law Williams must be
found guilty.
No American could cease to be a citizen of his own country and become a
citizen or subject of another country, he said, "without the consent ...
of the community."[86] The Chief Justice announced as American law the
doctrine then enforced by European nations--"born a subject, always a
subject."[87] So the defendant was convicted and sentenced "to pay a
fine of a thousand dollars and to suffer four months imprisonment."[88]
These are examples of the application by the National courts of the
common law of England in cases where Congress had failed or refused to
act. Crime must be punished, said the judges; if Congress would not make
the necessary laws, the courts would act without statutory authority.
Until 1812, when the Supreme Court put an end to this doctrine,[89] the
National courts, with one exception,[90] continued to apply the common
law to crimes and offenses which Congress had refused to recognize as
such, and for which American statutes made no provision.
Practically all of the National and many of the State judges were highly
learned in the law, and, of course, drew their inspiration from British
precedents and the British bench. Indeed, some of them were more British
than they were American.[91] "Let a stranger go into our courts," wrote
Tyler, "and he would almost believe himself in the Court of the King's
Bench."[92]
This conduct of the National Judiciary furnished Jefferson with another
of those "issues" of which that astute politician knew how to make such
effective use. He quickly seized upon it, and with characteristic
fervency of phrase used it as a powerful weapon against the Federalist
Party. All the evil things accomplished by that organization of
"monocrats," "aristocrats," and "monarchists"--the bank, the treaty, the
Sedition Act, even the army and the navy--"have been solitary,
inconsequential, timid things," avowed Jefferson, "in comparison with
the audacious, barefaced and sweeping pretension to a system of law for
the U.S. without the adoption of their legislature, and so infinitely
beyond their power to adopt."[93]
But if the National judges had caused alarm by treating the common law
as though it were a statute of the United States without waiting for an
act of Congress to make it so, their manners and methods in the
enforcement of the Sedition Act[94] aroused against them an
ever-increasing hostility.
Stories of their performances on the bench in such cases--their tones
when speaking to counsel, to accused persons, and even to witnesses,
their immoderate language, their sympathy with one of the European
nations then at war and their animosity toward the other, their
partisanship in cases on trial before them--tales made up from such
material flew from mouth to mouth, until finally the very name and sight
of National judges became obnoxious to most Americans. In short, the
assaults upon the National Judiciary were made possible chiefly by the
conduct of the National judges themselves.[95]
The first man convicted under the Sedition Law was a Representative in
Congress, the notorious Matthew Lyon of Vermont. He had charged
President Adams with a "continual grasp for power ... an unbounded
thirst for ridiculous pomp, foolish adulation and selfish avarice."
Also, Lyon had permitted the publication of a letter to him from Joel
Barlow, in which the President's address to the Senate and the Senate's
response[96] were referred to as "the bullying speech of your President"
and "the stupid answer of your Senate"; and expressed wonder "that the
answer of both Houses had not been an order to send him [Adams] to the
mad house."[97]
Lyon was indicted under the accusation that he had tried "to stir up
sedition and to bring the President and Government of the United States
into contempt." He declared that the jury was selected from his
enemies.[98] Under the charge of Justice Paterson of the Supreme Court
he was convicted. The court sentenced him to four months in jail and the
payment of a fine of one thousand dollars.[99]
In the execution of the sentence, United States Marshal Jabez G. Fitch
used the prisoner cruelly. On the way to the jail at Vergennes, Vermont,
he was repeatedly insulted. He was finally thrown into a filthy,
stench-filled cell without a fireplace and with nothing "but the iron
bars to keep the cold out." It was "the common receptacle for
horse-thieves ... runaway negroes, or any kind of felons." He was
subjected to the same kind of treatment that was accorded in those days
to the lowest criminals.[100] The people were deeply stirred by the fate
of Matthew Lyon. Quick to realize and respond to public feeling,
Jefferson wrote: "I know not which mortifies me most, that I should fear
to write what I think, or my country bear such a state of things."[101]
One Anthony Haswell, editor of the _Vermont Gazette_ published at
Bennington, printed an advertisement of a lottery by which friends of
Lyon, who was a poor man, hoped to raise enough money to pay his fine.
This advertisement was addressed "to the enemies of political
persecutions in the western district of Vermont." It was asserted that
Lyon "is holden by the oppressive hand of usurped power in a loathsome
prison, deprived almost of the right of reason, and suffering all the
indignities which can be heaped upon him by a hard-hearted savage, who
has, to the disgrace of Federalism, been elevated to a station where he
can satiate his barbarity on the misery of his victims."[102] The
"savage" referred to was United States Marshal Fitch. In the same paper
an excerpt was reprinted from the _Aurora_ which declared that "the
administration publically notified that Tories ... were worthy of the
confidence of the government."[103]
Haswell was indicted for sedition. In defense he established the
brutality with which Lyon had been treated and proposed to prove by two
witnesses not then present (General James Drake of Virginia, and James
McHenry, President Adams's Secretary of War) that the Government favored
the occasional appointment of Tories to office. Justice Paterson ruled
that such evidence was inadmissible, and charged the jury that if
Haswell's intent was defamatory, he should be found guilty. Thereupon he
was convicted and sentenced to two months' imprisonment and the payment
of a fine of two hundred dollars.[104]
Dr. Thomas Cooper, editor of the _Sunbury and Northumberland Gazette_ in
Pennsylvania, in the course of a political controversy declared in his
paper that when, in the beginning of Adams's Administration, he had
asked the President for an office, Adams "was hardly in the infancy of
political mistake; even those who doubted his capacity thought well of
his intentions.... Nor were we yet saddled with the expense of a
permanent navy, or threatened ... with the existence of a standing
army.... Mr. Adams ... had not yet interfered ... to influence the
decisions of a court of justice."[105]
For this "attack" upon the President, Cooper was indicted under the
Sedition Law. Conducting his own defense, he pointed out the issues that
divided the two great parties, and insisted upon the propriety of such
political criticism as that for which he had been indicted.
Cooper was himself learned in the law,[106] and during the trial he
applied for a subpoena _duces tecum_ to compel President Adams to
attend as a witness, bringing with him certain documents which Cooper
alleged to be necessary to his defense. In a rage Justice Samuel Chase
of the Supreme Court, before whom, with Judge Richard Peters of the
District Court, the case was tried, refused to issue the writ. For this
he was denounced by the Republicans. In the trial of Aaron Burr,
Marshall was to issue this very writ to President Thomas Jefferson and,
for doing so, to be rebuked, denounced, and abused by the very
partisans who now assailed Justice Chase for refusing to grant it.[107]
Justice Chase charged the jury at intolerable length: "If a man attempts
to destroy the confidence of the people in their officers ... he
effectually saps the foundation of the government." It was plain that
Cooper "intended to provoke" the Administration, for had he not admitted
that, although he did not arraign the motives, he did mean "to censure
the conduct of the President"? The offending editor's statement that
"our credit is so low that we are obliged to borrow money at 8 per cent.
in time of peace," especially irritated the Justice. "I cannot," he
cried, "suppress my feelings at this gross attack upon the President."
Chase then told the jury that the conduct of France had "rendered a loan
necessary"; that undoubtedly Cooper had intended "to mislead the
ignorant ... and to influence their votes on the next election."
So Cooper was convicted and sentenced "to pay a fine of four hundred
dollars, to be imprisoned for six months, and at the end of that period
to find surety for his good behavior himself in a thousand, and two
sureties in five hundred dollars each."[108]
"Almost every other country" had been "convulsed with ... war,"
desolated by "every species of vice and disorder" which left innocence
without protection and encouraged "the basest crimes." Only in America
there was no "grievance to complain of." Yet our Government had been
"as grossly abused as if it had been guilty of the vilest tyranny"--as
if real "republicanism" could "only be found in the happy soil of
France" where "Liberty, like the religion of Mahomet, is propagated by
the sword." In the "bosom" of that nation "a dagger was concealed."[109]
In these terms spoke James Iredell, Associate Justice of the Supreme
Court, in addressing the grand jury for the District of Pennsylvania. He
was delivering the charge that resulted in the indictment for treason of
John Fries and others who had resisted the Federalist land tax.[110]
The triumph of France had, of course, nothing whatever to do with the
forcible protest of the Pennsylvania farmers against what they felt to
be Federalist extortion; nevertheless upon the charge of Justice Iredell
as to the law of treason, they were indicted and convicted for that
gravest of all offenses. A new trial was granted because one of the
jury, John Rhoad, "had declared a prejudice against the prisoner after
he was summoned as a juror."[111] On April 29, 1800, the second trial
was held. This time Justice Chase presided. The facts were agreed to by
counsel. Before the jury had been sworn, Chase threw on the table three
papers in writing and announced that these contained the opinion of the
judges upon the law of treason--one copy was for the counsel for the
Government, one for the defendant's counsel, and one for the jury.
William Lewis, leading attorney for Fries, and one of the ablest
members of the Philadelphia bar,[112] was enraged. He looked upon the
paper, flung it from him, declaring that "his hand never should be
polluted by a prejudicated opinion," and withdrew from the case,
although Chase tried to persuade him to "go on in any manner he liked."
Alexander J. Dallas, the other counsel for Fries, also withdrew, and the
terrified prisoner was left to defend himself. The court told him that
the judges, personally, would see that justice was done him. Again Fries
and his accomplices were convicted under the charge of the court. "In an
aweful and affecting manner"[113] Chase pronounced the sentence, which
was that the condemned men should be "hanged by the neck _until
dead_."[114]
The Republicans furiously assailed this conviction and sentence.
President Adams pardoned Fries and his associates, to the disgust and
resentment of the Federalist leaders.[115] On both sides the entire
proceeding was made a political issue.
On the heels of this "repetition of outrage," as the Republicans
promptly labeled the condemnation of Fries, trod the trial of James
Thompson Callender for sedition, over which it was again the fate
of the unlucky Chase to preside. _The Prospect Before Us_, written
by Callender under the encouragement of Jefferson,[116] contained a
characteristically vicious screed against Adams. His Administration had
been "a tempest of malignant passions"; his system had been "a French
war, an American navy, a large standing army, an additional load of
taxes." He "was a professed aristocrat and he had proved faithful and
serviceable to the British interest" by sending Marshall and his
associates to France. In the President's speech to Congress,[117] "this
hoary headed incendiary ... bawls to arms! then to arms!"
Callender was indicted for libel under the Sedition Law.
Before Judge Chase started for Virginia, Luther Martin had given him a
copy of Callender's pamphlet, with the offensive passages underscored.
During a session of the National court at Annapolis, Chase, in a
"jocular conversation," had said that he would take Callender's book
with him to Richmond, and that, "if Virginia was not too depraved" to
furnish a jury of respectable men, he would certainly punish Callender.
He would teach the lawyers of Virginia the difference between the
liberty and the licentiousness of the press.[118] On the road to
Richmond, James Triplett boarded the stage that carried the avenging
Justice of the Supreme Court. He told Chase that Callender had once been
arrested in Virginia as a vagrant. "It is a pity," replied Chase, "that
they had not hanged the rascal."[119]
But the people of Virginia, because of their hatred of the Sedition Law,
were ardent champions of Callender. Richmond lawyers were hostile to
Chase and were the bitter enemies of the statute which they knew he
would enforce. Jefferson was anxious that Callender "should be
substantially defended, whether in the first stages by public
interference or private contributors."[120]
One ambitious young attorney, George Hay, who seven years later was to
act as prosecutor in the greatest trial at which John Marshall ever
presided,[121] volunteered to defend Callender, animated to this course
by devotion to "the cause of the Constitution," in spite of the fact
that he "despised" his adopted client.[122] William Wirt was also
inspired to offer his services in the interest of free speech. These
Virginia attorneys would show this tyrant of the National Judiciary that
the Virginia bar could not be borne down.[123] Of all this the
hot-spirited Chase was advised; and he resolved to forestall the
passionate young defenders of liberty. He was as witty as he was
fearless, and throughout the trial brought down on Hay and Wirt the
laughter of the spectators.
But in the court-room there was one spectator who did not laugh. John
Marshall, then Secretary of State, witnessed the proceedings[124] with
grave misgivings.
Chase frequently interrupted the defendant's counsel. "What," said he,
"must there be a departure from common sense to find out a construction
favorable" to Callender? The Justice declared that a legal point which
Hay attempted to make was "a wild notion."[125] When a juror said that
he had never seen the indictment or heard it read, Chase declared that
of course he could not have formed or delivered an opinion on the
charges; and then denied the request that the indictment be read for the
information of the juror. Chase would not permit that eminent patriot
and publicist, Colonel John Taylor of Caroline, to testify that part of
Callender's statement was true; "No evidence is admissible," said the
Justice, "that does not ... justify the whole charge."[126]
William Wirt, in addressing the jury, was arguing that if the jury
believed the Sedition Act to be unconstitutional, and yet found
Callender guilty, they "would violate their oath." Chase ordered him to
sit down. The jury had no right to pass upon the constitutionality of
the law--"such a power would be extremely dangerous. Hear my words, I
wish the world to know them." The Justice then read a long and very able
opinion which he had carefully prepared in anticipation that this point
would be raised by the defense.[127] After another interruption, in
which Chase referred to Wirt as "the _young gentleman_" in a manner that
vastly amused the audience, the discomfited lawyer, covered with
confusion, abandoned the case.
When Hay, in his turn, was addressing the jury, Chase twice interrupted
him, asserting that the beardless attorney was not stating the law
correctly. The reporter notes that thereupon "Mr. Hay folded up and put
away his papers ... and refused to proceed." The Justice begged him to
go on, but Hay indignantly stalked from the room.
Acting under the instructions of Chase, Callender was convicted. The
court sentenced him to imprisonment for nine months, and to pay a fine
of two hundred dollars.[128]
The proceedings at this trial were widely published. The growing
indignation of the people at the courts rose to a dangerous point. The
force of popular wrath was increased by the alarm of the bar, which
generally had been the stanch supporter of the bench.[129]
Hastening from Richmond to New Castle, Delaware, Justice Chase
emphasized the opinion now current that he was an American Jeffreys and
typical of the spirit of the whole National Judiciary. Upon opening
court, he said that he had heard that there was a seditious newspaper in
the State. He directed the United States Attorney to search the files of
all the papers that could be found, and to report any abusive language
discovered. It was the haying season, and the grand jury, most of whom
were farmers, asked to be discharged, since there was no business for
them to transact. Chase refused and held them until the next day, in
order to have them return indictments against any printer that might
have criticized the Administration.[130] But the prosecutor's
investigation discovered nothing "treasonable" except a brief and
unpleasant reference to Chase himself. So ended the Delaware visit of
the ferret of the National Judiciary.
Thus a popular conviction grew up that no man was safe who assumed to
criticize National officials. The persecution of Matthew Lyon was
recalled, and the punishment of other citizens in cases less widely
known[131] became the subject of common talk,--all adding to the
growing popular wrath against the whole National Judiciary. The people
regarded those brought under the lash of justice as martyrs to the cause
of free speech; and so, indeed, they were.
The method of securing indictments and convictions also met with public
condemnation. In many States the United States Marshals selected what
persons they pleased as members of the grand juries and trial juries.
These officers of the National courts were, without exception,
Federalists; in many cases Federalist politicians. When making up juries
they selected only persons of the same manner of thinking as that of the
marshals and judges themselves.[132] So it was that the juries were
nothing more than machines that registered the will, opinion, or even
inclination of the National judges and the United States District
Attorneys. In short, in these prosecutions, trial by jury in any real
sense was not to be had.[133]
Certain State judges of the rabid Federalist type, apostles of "the
wise, the rich, and the good" political religion, were as insulting in
their bearing, as immoderate in their speech, and as intolerant in their
conduct as some of the National judges; and prosecutions in some State
courts were as bad as the worst of those in the National tribunals.
In Boston, when the Legislature of Massachusetts was considering the
Kentucky and Virginia Resolutions, John Bacon of Berkshire, a Republican
State Senator, and Dr. Aaron Hill of Cambridge, the leader of the
Republicans in the House, resisted the proposed answer of the Federalist
majority. Both maintained the ground upon which Republicans everywhere
now stood--that any State might disregard an act of Congress which it
deemed unconstitutional.[134] Bacon and Hill were supported by the solid
Republican membership of the Massachusetts Legislature, which the
_Columbian Centinel_ of Boston, a Federalist organ, called a
"contemptible minority," every member of which was "worse than an
infidel."[135]
The _Independent Chronicle_, the Republican newspaper of Boston,
observed that "It is difficult for the common capacities to conceive of
a sovereignty so situated that the _Sovereign shall have no right to
decide on any invasion of his constitutional powers_." Bacon's speech,
said the _Chronicle_, "has been read with delight by all true
Republicans, and will always stand as a monument of his firmness,
patriotism, and integrity.... The name of an _American_ Bacon will be
handed down to the latest generations of freemen with high respect and
gratitude, while the names of such as have aimed a _death wound_ to the
Constitution of the United States will rot _above ground_ and be
unsavoury to the nostrils of every lover of Republican freedom."[136]
The _Massachusetts Mercury_ of February 22, 1799, reports that "On
Tuesday last ... Chief Justice Dana ... commented on the contents of the
_Independent Chronicle_ of the preceding day. He properly stated to the
Jury that though he was not a subscriber to the paper, he obtained _that
one_ by accident, that if he was, his conscience would charge him with
assisting to support a traitorous enmity to the Government of his
Country."
Thereupon Thomas Adams, the publisher, and Abijah Adams, a younger
brother employed in the office, were indicted under the common law for
attempting "to bring the government into disrespect, hatred, and
contempt," and for encouraging sedition. Thomas Adams was fatally ill
and Abijah only was brought to trial. Under the instructions of the
court he was convicted. In pronouncing sentence Chief Justice Dana
delivered a political lecture.
The Virginia and Kentucky Resolutions, he said, had attempted "to
establish the monstrous position" that the individual States had the
right to pass upon the constitutionality of acts of Congress. He then
gave a résumé of the reply of the majority of the Massachusetts
Legislature to the Virginia Resolutions. This reply asserted that the
decisions of all questions arising under the Constitution and laws of
the United States "are exclusively vested in the Judicial Courts of the
United States," and that the Sedition Act was "wise and necessary, as an
audacious and unprincipled spirit of falsehood and abuse had been too
long unremittingly exerted for the purpose of _perverting_ public
opinion, and threatened to undermine the whole fabric of government."
The irate judge declared that the _Chronicle's_ criticism of this action
of the majority of the Legislature and its praise of the Republican
minority of that body was an "indecent and outrageous calumny."
"Censurable as the libel may be in itself," Dana continued, the
principles stated by Adams's counsel in conducting his defense were
equally "dangerous to public tranquility." These daring lawyers had
actually maintained the principle of the liberty of the press. They had
denied that an American citizen could be punished under the common law
of England. "Novel and disorganizing doctrines," exclaimed Dana in the
midst of a long argument to prove that the common law was operative in
the United States.[137]
In view of the fact that Abijah Adams was not the author of the libel,
nor even the publisher or editor of the _Chronicle_, but was "the only
person to whom the public can look for retribution," the court
graciously sentenced him to only one month's imprisonment, but required
him to find sureties for his good behavior for a year, and to pay the
costs of the trial.[138]
Alexander Addison, the presiding judge of one of the Pennsylvania State
courts, was another Federalist State judge whose judicial conduct and
assaults from the bench upon democracy had helped to bring courts into
disrepute. Some of his charges to grand juries were nothing but
denunciations of Republican principles.[139]
His manner on the bench was imperious; he bullied counsel, browbeat
witnesses, governed his associate judges, ruled juries. In one
case,[140] Addison forbade the Associate Judge to address the jury, and
prevented him from doing so.[141]
Nor did the judges stop with lecturing everybody from the bench.
Carrying with them the authority of their exalted positions, more than
one of them, notably Justice Chase and Judge Addison, took the stump in
political campaigns and made partisan speeches.[142]
So it fell out that the manners, language, and conduct of the judges
themselves, together with their use of the bench as a political rostrum,
their partisanship as to the European belligerents, their merciless
enforcement of the common law--aroused that public fear and hatred of
the courts which gave Jefferson and the Republicans their opportunity.
The questions which lay at the root of the Republican assault upon the
Judiciary would not of themselves, and without the human and dramatic
incidents of which the cases mentioned are examples, have wrought up
among citizens that fighting spirit essential to a successful onslaught
upon the National system of justice, which the Federalists had made so
completely their own.[143]
Those basic questions thus brought theatrically before the people's
eyes, had been created by the Alien and Sedition Laws, and by the
Virginia and Kentucky Resolutions which those undemocratic statutes
called forth. Freedom of speech on the one hand and Nationalism on the
other hand, the crushing of "sedition" as against that license which
Localism permitted--such were the issues which the imprudence and
hot-headedness of the Federalist judges had brought up for settlement.
Thus, unhappily, democracy marched arm in arm with State Rights, while
Nationalism found itself the intimate companion of a narrow, bigoted,
and retrograde conservatism.
Had not the Federalists, arrogant with power and frantic with hatred of
France and fast becoming zealots in their championship of Great Britain,
passed the drastic laws against liberty of the press and freedom of
speech; had not the Republican protest against these statutes taken the
form of the assertion that individual States might declare
unconstitutional and disregard the acts of the National Legislature;
and finally, had not National tribunals and some judges of State courts
been so harsh and insolent, the Republican assault upon the National
Judiciary,[144] the echoes of which loudly sound in our ears even to the
present day, probably never would have been made.
But for these things, Marbury _vs._ Madison[145] might never have been
written; the Supreme Court might have remained nothing more than the
comparatively powerless institution that ultimate appellate judicial
establishments are in other countries; and the career of John Marshall
might have been no more notable and distinguished than that of the many
ghostly figures in the shadowy procession of our judicial history. But
the Republican condemnations of the severe punishment that the
Federalists inflicted upon anybody who criticized the Government, raised
fundamental issues and created conditions that forced action on those
issues.
FOOTNOTES:
[1] Gallatin to his wife, Jan. 15, 1801, Adams: _Life of Albert
Gallatin_, 252; also Bryan: _History of the National Capital_, I,
357-58.
[2] _First Forty Years of Washington Society_: Hunt, 11.
[3] _Ib._; and see Wolcott to his wife, July 4, 1800, Gibbs:
_Administrations of Washington and John Adams_, II, 377.
[4] Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.
[5] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 252-53.
[6] Hunt, 10.
[7] Gallatin to his wife, _supra_.
[8] Bryan, I, 357-58.
[9] A few of these are still standing and occupied.
[10] Gallatin to his wife, _supra_; also Wharton: _Social Life in the
Early Republic_, 58-59.
[11] Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304.
[12] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.
[13] Otis to his wife, Feb. 28, 1815, Morison: _Life and Letters of
Harrison Gray Otis_, II, 170-71. This letter is accurately descriptive
of travel from the National Capital to Baltimore as late as 1815 and
many years afterward.
"The Bladensburg _run, before we came to the bridge_, was happily in no
one place _above_ the Horses bellies.--As we passed thro', the driver
pointed out to us the spot, right under our wheels, where all the stage
horses last year were drowned, but then he consoled us by shewing the
tree, on which all the Passengers _but one_, were saved. Whether that
one was gouty or not, I did not enquire....
"We ... arriv'd safe at our first stage, Ross's, having gone at a rate
rather exceeding two miles & an half per hour.... In case of a _break
Down_ or other accident, ... I should be sorry to stick and freeze in
over night (_as I have seen happen to twenty waggons_) for without an
extraordinary thaw I could not be dug out in any reasonable dinner-time
the next day."
Of course conditions were much worse in all parts of the country, except
the longest and most thickly settled sections.
[14] Parton: _Life of Thomas Jefferson_, 622.
[15] Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.
[16] _Memoirs of John Quincy Adams_: Adams, IV, 74; and see Quincy:
_Life of Josiah Quincy_, 186.
Bayard wrote to Rodney: "four months [in Washington] almost killed me."
(Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, IV, 230.)
[17] Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs.
Smith to her husband, July 8, 1803, _ib._ 41; and Gallatin to his wife,
Aug. 17, 1802, Adams: _Gallatin_, 304-05.
[18] King to Gore, Aug. 20, 1803, _Life and Correspondence of Rufus
King_: King, IV, 294; and see Adams: _History of the United States_, IV,
31.
[19] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.
[20] Wharton: _Social Life_, 60.
[21] See _infra_, chap. IV.
[22] Plumer to Lowndes, Dec. 30, 1805, Plumer: _Life of William Plumer_,
244.
"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805,
Plumer MSS. Lib. Cong.)
[23] Story to Fay, Feb. 16, 1808, _Life and Letters of Joseph Story_:
Story, I, 161.
[24] This was a little Presbyterian church building, which was abandoned
after 1800. (Bryan, I, 232; and see Hunt, 13-14.)
[25] _Memoirs of Lieut.-General Scott_, 9-10. Among the masses of the
people, however, a profound religious movement was beginning. (See
Semple: _History of the Rise and Progress of the Baptists in Virginia_;
and Cleveland: _Great Revival in the West_.)
A year or two later, religious services were held every Sunday afternoon
in the hall of the House of Representatives, which always was crowded on
these occasions. The throng did not come to worship, it appears;
seemingly, the legislative hall was considered to be a convenient
meeting-place for gossip, flirtation, and social gayety. The plan was
soon abandoned and the hall left entirely to profane usages. (Bryan, I,
606-07.)
[26] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.
[27] Wharton: _Social Life_, 72.
[28] Hunt, 12.
[29] See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: _U.S._ II,
362.
Public men seldom brought their wives to Washington because of the
absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec.
6, 1805, Hunt, 48.)
"I do not perceive how the members of Congress can possibly secure
lodgings, unless they will consent to live like scholars in a college or
monks in a monastery, crowded ten or twenty in a house; and utterly
excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, II,
377.)
[30] Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see
_Annals_, 8th Cong. 1st Sess. 282-88. The debate is instructive. The
bill was lost by 9 yeas to 19 nays.
[31] Hildreth: _History of the United States_, V, 516-17.
[32] Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.
[33] Channing: _History of the United States_, IV, 245.
[34] Bryan, I, 438.
[35] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.
"The workmen are the refuse of that class and, nevertheless very high in
their demands." (La Rochefoucauld-Liancourt: _Travels Through the United
States of North America_, III, 650.)
[36] "To Thomas Hume, Esq., M.D.," Moore: _Poetical Works_, II, 83.
[37] See Jefferson to Short, Sept. 6, 1790, _Works of Thomas Jefferson_:
Ford, VI, 146; same to Mrs. Adams, July 7, 1785, _ib._ IV, 432-33; same
to Peters, June 30,1791, _ib._ VI, 276; same to Short, April 24, 1792,
_ib._ 483; same to Monroe, May 26, 1795, _ib._ VIII, 179; same to Jay,
Oct. 8, 1787, _Memoir, Correspondence, and Miscellanies, from the Papers
of Thomas Jefferson_: Randolph, II, 249; also see Chastellux: _Travels
in North America in the Years 1780-81-82_, 299.
[38] See Singleton: _Story of the White House_, I, 42-43.
[39] Plumer to his wife, Dec. 25, 1802, Plumer, 246.
[40] "Mr. Granger [Jefferson's Postmaster-General] ... after a few
bottles of champagne were emptied, on the observation of Mr. Madison
that it was the most delightful wine when drank in moderation, but that
more than a few glasses always produced a headache the next day,
remarked with point that this was the very time to try the experiment,
as the next day being Sunday would allow time for a recovery from its
effects. The point was not lost upon the host and bottle after bottle
came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)
[41] At that time it was called "The Executive Mansion" or "The
President's Palace."
[42] Bryan, I, 44; also see La Rochefoucauld-Liancourt, III, 642-51.
[43] See vol. I, chaps. VI and VII, of this work.
[44] Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S.
Thayer of Baltimore.
[45] Cabot to Wolcott, Aug. 3, 1801, Lodge: _Life and Letters of George
Cabot_, 322.
George Cabot was the ablest, most moderate and far-seeing of the New
England Federalists. He feared and detested what he called "excessive
democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his
brother partisans, did not run to the opposite extreme himself and never
failed to assert the indispensability of the democratic element in
government. Cabot was utterly without personal ambition and was very
indolent; otherwise he surely would have occupied a place in history
equal to that of men like Madison, Gallatin, Hamilton, and Marshall.
[46] Hale to King, Dec. 19, 1801, King, IV, 39.
[47] Sedgwick to King, Dec. 14, 1801, _ib._ 34-35.
[48] Dwight's oration as quoted in Adams: U.S. I, 225.
[49] J. Q. Adams to King, Oct. 8,1802, _Writings of John Quincy Adams_:
Ford, III, 8-9. Within six years Adams abandoned a party which offered
such feeble hope to aspiring ambition. (See _infra_, chap, IX.)
[50] J. Russell's _Gazette-Commercial and Political_, January 28, 1799.
[51] _History of the Last Session of Congress Which Commenced 7th Dec.
1801_ (taken from the _National Intelligencer_). Yet at that time in
America manhood suffrage did not exist excepting in three States, a
large part of the people could not read or write, imprisonment for debt
was universal, convicted persons were sentenced to be whipped in public
and subjected to other cruel and disgraceful punishments. Hardly a
protest against slavery was made, and human rights as we now know them
were in embryo, so far as the practice of them was concerned.
[52] Wirt: _Letters of the British Spy_, 10-11.
These brilliant articles, written by Wirt when he was about thirty years
old, were published in the Richmond _Argus_ during 1803. So well did
they deceive the people that many in Gloucester and Norfolk declared
that they had seen the British Spy. (Kennedy: _Memoirs of the Life of
William Wirt_, I, 111, 113.)
[53] Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.
[54] Jefferson to Rush, Oct. 4, 1803, _Works_: Ford, X, 32.
Immediately after his inauguration, Jefferson restated the American
foreign policy announced by Washington. It was the only doctrine on
which he agreed with Marshall.
"It ought to be the very first object of our pursuits to have nothing to
do with European interests and politics. Let them be free or slaves at
will, navigators or agricultural, swallowed into one government or
divided into a thousand, we have nothing to fear from them in any
form.... To take part in their conflicts would be to divert our energies
from creation to destruction." (Jefferson to Logan, March 21, 1801,
_Works_: Ford, IX, 219-20.)
[55] Jefferson to Postmaster-General (Gideon Granger), May 3, 1801,
_Works_: Ford, IX, 249.
The democratic revolution that overthrew Federalism was the beginning of
the movement that finally arrived at the abolition of imprisonment for
debt, the bestowal of universal manhood suffrage, and, in general, the
more direct participation in every way of the masses of the people in
their own government. But in the first years of Republican power there
was a pandering to the crudest popular tastes and passions which, to
conservative men, argued a descent to the sansculottism of France.
[56] See _infra_, chaps. III and VI; also vol. IV, chap. I.
[57] 1 Cranch, 1 _et seq._
[58] Wilson _vs._ Mason, 1 Cranch, 45-101.
[59] 1 Cranch, 102-10.
[60] Turner _vs._ Fendall, 1 Cranch, 115-30.
[61] See vol. II, 531-47, of this work.
[62] See Adams: _U.S._ I, chaps. IX and X, for account of the
revolutionary measures which the Republicans proposed to take.
[63] Marshall to Pinckney, March 4, 1801, "four o'clock," MS.
[64] "It is the sole object of the Administration to acquire
popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: _Cabot_, 325.)
"The President has ... the itch for popularity." (J. Q. Adams to his
father, November, 1804, _Writings, J. Q. A._: Ford, III, 81.)
"The mischiefs of which his immoderate thirst for ... popularity are
laying the foundation, are not immediately perceived." (Adams to Quincy,
Dec. 4, 1804, Quincy, 64.)
"It seems to be a great primary object with him never to pursue a
measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer
MSS. Lib. Cong.)
"In dress, conversation, and demeanor he studiously sought and displayed
the arts of a low demagogue seeking the gratification of the democracy
on whose voices and votes he laid the foundation of his power."
(Quincy's Diary, Jan. 1806, Quincy, 93.)
[65] Ames to Gore, Dec. 13, 1802, _Works of Fisher Ames_: Ames, I, 309.
[66] Dodd in _American Historical Review_, XII, 776; and see next
chapter.
[67] Jefferson to Dickinson, Dec. 19, 1801, _Writings of Thomas
Jefferson_: Washington, IV, 424.
[68] "The only shield for our Republican citizens against the federalism
of the courts is to have the attorneys & Marshals republicans."
(Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 248.)
[69] "The judge of course stands until the law [Judiciary Act of 1801]
shall be repealed which we trust will be at the next Congress."
(Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 247.) For two
weeks Jefferson appears to have been confused as to the possibility of
repealing the Judiciary Act of 1801. A fortnight before he informed
Stuart that this course would be taken, he wrote Giles that "the courts
being so decidedly federal and irremovable," it was "indispensably
necessary" to appoint "republican attorneys and marshals." (Jefferson to
Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in
_American Political Science Review_, IX, 522.)
But the repeal had been determined upon within six weeks after
Jefferson's inauguration as his letter to Stuart shows.
[70] Giles to Jefferson, March 16, 1801, Anderson: _William Branch
Giles--A Study in the Politics of Virginia 1790-1830_, 77.
[71] Same to same, June 1, 1801, _ib._ 80.
[72] Sedgwick to King, Dec. 14, 1801, King, IV, 36.
[73] Hale to King, Dec. 19, 1801, King, IV, 39.
[74] It must be carefully kept in mind that from the beginning of the
Revolution most of the people were antagonistic to courts of any kind,
and bitterly hostile to lawyers. (See vol. I, 297-99, of this work.)
Braintree, Mass., in 1786, in a town meeting, denounced lawyers and
demanded by formal resolution the enactment of "such laws ... as may
crush or, at least, put a proper check of restraint" upon them.
Dedham, Mass., instructed its members of the Legislature to secure the
passage of laws that would "check" attorneys; and if this were not
practicable, then "you are to endeavor [to pass a bill declaring] that
the order of Lawyers be totally abolished." (Warren: _History of the
American Bar_, 215.) All this, of course, was the result of the bitter
hardships of debtors.
[75] For an able defense of the adoption by the National courts of the
British common law, see _Works of the Honourable James Wilson_: Wilson,
III, 384.
[76] _Columbian Centinel_, July 11, 1801, as quoted in Warren, 225-27.
[77] _Correspondence and Public Papers of John Jay_: Johnston, III,
478-85.
[78] Wharton: _State Trials of the U.S. during the Administrations of
Washington and Adams_, 60 _et seq._; and see Wilson's law lecture on the
subject, Wilson, III, 384.
[79] 2 Dallas, 297-99.
[80] _Ib._ Ravara was tried and convicted by the jury under the
instructions of the bench, "but he was afterward pardoned on condition
that he surrender his commission and Exequatur." (Wharton: _State
Trials_, 90-92.)
[81] For the documents preceding the arrest and prosecution of Henfield,
see Wharton: _State Trials_, footnotes to 49-52.
[82] See Wilson's charge, Wharton: _State Trials_, 59-66.
[83] See Wharton's summary of Wilson's second charge, _ib._ footnote to
85.
[84] _Ib._ 88.
[85] Marshall: _Life of George Washington_, 2d ed. II, 273-74. After the
Henfield and Ravara cases, Congress passed a law applicable to such
offenses. (See Wharton: _State Trials_, 93-101.)
[86] Wharton: _State Trials_, 653-54.
[87] This was the British defense for impressment of seamen on American
ships. It was one of the chief points in dispute in the War of 1812. The
adherence of Federalists to this doctrine was one of the many causes of
the overthrow of that once great party. (See _infra_, vol. IV, chap. I,
of this work.)
[88] Wharton: _State Trials_, 654. Upon another indictment for having
captured a British ship and crew, Williams, with no other defense than
that offered on his trial under the first indictment, pleaded guilty,
and was sentenced to an additional fine of a thousand dollars, and to
further imprisonment of four months. (_Ib._; see also vol II, 495, of
this work.)
[89] U.S. _vs._ Hudson, 7 Cranch, 32-34. "Although this question is
brought up now for the first time to be decided by this court, we
consider it as having been long since settled in public opinion.... The
legislative authority of the Union must first make an act a crime, affix
a punishment to it and declare the court that shall have jurisdiction of
the offense." (Justice William Johnson delivering the opinion of the
majority of the court, _ib._)
Joseph Story was frantic because the National judges could not apply the
common law during the War of 1812. (See his passionate letters on the
subject, vol. IV, chap. I, of this work; and see his argument for the
common law, Story, I, 297-300; see also Peters to Pickering, Dec. 5,
1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)
[90] The opinion of Justice Chase, of the Supreme Court of Philadelphia,
sitting with Peters, District Judge, in the case of the United States
_vs._ Robert Worral, indicted under the common law for attempting to
bribe a United States officer. Justice Chase held that English common
law was not a part of the jurisprudence of the United States as a
Nation. (Wharton: _State Trials_, 189-99.)
[91] This was notably true of Justice James Wilson, of the Supreme
Court, and Alexander Addison, President Judge of the Fifth Pennsylvania
(State) Circuit, both of whom were born and educated in the United
Kingdom. They were two of the ablest and most learned men on the bench
at that period.
[92] Message of Governor John Tyler, Dec. 3, 1810, Tyler: _Letters and
Times of the Tylers_, I, 261; and see Tyler to Monroe, Dec. 4, 1809,
_ib._ 232.
[93] Jefferson to Randolph, Aug. 18, 1799, _Works_: Ford, IX, 73.
[94] See vol. II, chaps. X and XI, of this work.
[95] The National judges, in their charges to grand juries, lectured and
preached on religion, on morality, on partisan politics.
"On Monday last the Circuit Court of the United States was opened in
this town. The Hon. Judge Patterson ... delivered a most elegant and
appropriate charge.
"The _Law_ was laid down in a masterly manner: _Politics_ were set in
their true light by holding up the Jacobins [Republicans] as the
disorganizers of our happy country, and the only instruments of
introducing discontent and dissatisfaction among the well meaning part
of the community. _Religion & Morality_ were pleasingly inculcated and
enforced as being necessary to good government, good order, and good
laws; for 'when the righteous [Federalists] are in authority, the people
rejoice.'...
"After the charge was delivered the Rev. Mr. Alden addressed the Throne
of Grace in an excellent and well adapted prayer." (_United States
Oracle of the Day_, May 24, 1800, as quoted by Hackett, in _Green Bag_,
II, 264.)
[96] Adams's War Speech of 1798; see vol. II, 351, of this work.
[97] Wharton: _State Trials_, 333-34.
[98] _Ib._ 339.
[99] _Ib._ 337. Paterson sat with District Judge Hitchcock and delivered
the charge in this case. Luther Martin in the trial of Justice Chase
(see _infra_, chap. IV) said that Paterson was "mild and amiable," and
noted for his "suavity of manners." (_Trial of the Hon. Samuel Chase_:
Evans, stenographer, 187-88.)
[100] See Lyon to Mason, Oct. 14, 1798, Wharton: _State Trials_, 339-41.
[101] Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong.
[102] Wharton: _State Trials_, 684.
[103] _Ib._ 685.
[104] _Ib._ 685-86.
[105] Wharton: _State Trials_, 661-62. Cooper was referring to the case
of Jonathan Robins. (See vol. II, 458-75, of this work.)
[106] Cooper afterward became a State judge.
[107] See _infra_, chap. VIII.
[108] Wharton: _State Trials_, 679. Stephen Girard paid Cooper's fine.
(McMaster: _Life and Times of Stephen Girard_, I, 397-98.)
[109] Wharton: _State Trials_, 466-69.
[110] See vol. II, 429 _et seq._ of this work.
[111] Wharton: _State Trials_, 598-609.
[112] For sketch of Lewis see Wharton: _State Trials_, 32-33.
[113] _Independent Chronicle_, Boston, May 12, 1800.
[114] Wharton: _State Trials_, 641 et seq.
[115] See vol. II, 429 _et seq._ of this work.
[116] Jefferson to Mason, Oct. 11, 1798, _Works_: Ford, VIII, 449-50;
same to Callender, Sept. 6, 1799, _ib._ IX, 81-82; same to same, Oct. 6,
1799, _ib._ 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS.
Mass. Hist. Soc.
[117] War speech of Adams to Congress in 1798, see vol. II, 351, of this
work.
[118] Testimony of James Winchester (_Annals_, 8th Cong. 2d Sess.
246-47); of Luther Martin (_ib._ 245-46); and of John T. Mason (_ib._
216); see also _Chase Trial_, 63.
[119] Testimony of James Triplett, _Chase Trial_, 44-45, and see
_Annals_, 8th Cong. 2d Sess. 217-19.
[120] Jefferson to Monroe, May 26, 1800, _Works_: Ford, IX, 136. By
"public interference" Jefferson meant an appropriation by the Virginia
Legislature. (_Ib._ 137.)
[121] The trial of Aaron Burr, see _infra_, chaps. VI, VII, VIII, and
IX.
[122] See testimony of George Hay,_ Annals_, 8th Cong. 2d Sess. 203; and
see especially Luther Martin's comments thereon, _infra_, chap. IV.
[123] The public mind was well prepared for just such appeals as those
that Hay and Wirt planned to make. For instance, the citizens of
Caroline County subscribed more than one hundred dollars for Callender's
use.
The subscription paper, probably drawn by Colonel John Taylor, in whose
hands the money was placed, declared that Callender "has a cause closely
allied to the preservation of the Constitution, and to the freedom of
public opinion; and that he ought to be comforted in his bonds."
Callender was "a sufferer for those principles." Therefore, and "because
also he is poor and has three infant children who live by his daily
labor" the contributors freely gave the money "to be applied to the use
of James T. Callender, and if he should die in prison, to the use of his
children." (_Independent Chronicle_, Boston, July 10, 1800.)
[124] See _infra_, chap. IV.
[125] Wharton: _State Trials_, 692.
[126] _Ib._ 696-98; and see testimony of Taylor, _Chase Trial_, 38-39.
[127] Wharton: _State Trials_, 717-18. Chase's charge to the jury was an
argument that the constitutionality of a law could not be determined by
a jury, but belonged exclusively to the Judicial Department. For a brief
_précis_ of this opinion see chap. III of this volume. Chase advanced
most of the arguments used by Marshall in Marbury _vs._ Madison.
[128] _Ib._ 718. When Jefferson became President he immediately pardoned
Callender. (See next chapter.)
[129] Wharton: _State Trials_, footnote to 718.
[130] See testimonies of Gunning Bedford, Nicholas Vandyke, Archibald
Hamilton, John Hall, and Samuel P. Moore, _Chase Trial_, 98-101.
[131] For example, one Charles Holt, publisher of a newspaper, _The
Bee_, of New London, Connecticut, had commented on the uselessness of
enlisting in the army, and reflected upon the wisdom of the
Administration's policy; for this he was indicted, convicted, and
sentenced to three months' imprisonment, and the payment of a fine of
two hundred dollars. (Randall: _Life of Thomas Jefferson_, II, 418.)
When President Adams passed through Newark, New Jersey, the local
artillery company fired a salute. One of the observers, a man named
Baldwin, idly remarked that "he wished the wadding from the cannon had
been lodged in the President's backside." For this seditious remark
Baldwin was fined one hundred dollars. (Hammond: _History of Political
Parties in the State of New York_, I, 130-31.)
One Jedediah Peck, Assemblyman from Otsego County, N.Y., circulated
among his neighbors a petition to Congress to repeal the Alien and
Sedition Laws. This shocking act of sedition was taken up by the United
States District Attorney for New York, who procured the indictment of
Peck; and upon bench warrant, the offender was arrested and taken to New
York for trial. It seems that such were the demonstrations of the
people, wherever Peck appeared in custody of the officer, that the case
was dropped. (Randall, II, 420.)
[132] They were supposed to select juries according to the laws of the
States where the courts were held. As a matter of fact they called the
men they wished to serve.
[133] McMaster: _History of the People of the United States_, II, 473;
and see speech of Charles Pinckney in the Senate, March 5, 1800,
_Annals_, 6th Cong. 1st and 2d Sess. 97.
[134] See speech of Bacon in the _Independent Chronicle_, Feb. 11-14,
1799; and of Hill, _ib._ Feb. 25, 1799.
[135] _Columbian Centinel_, Feb. 16, 1799; also see issue of Jan. 23,
1799. For condensed account of this incident see Anderson in _Am. Hist.
Rev._ V, 60-62, quoting the _Centinel_ as cited. A Federalist mob stoned
the house of Dr. Hill the night after he made this speech. (_Ib._) See
also _infra_, chap. III.
[136] _Independent Chronicle_, Feb. 18, 1799.
[137] _Columbian Centinel_, March 30, 1799. The attorneys for Adams also
advanced the doctrines of the Kentucky and Virginia Resolutions, so far,
at least, as to assert that any State ought to protest against and
resist any act of Congress that the Commonwealth believed to be in
violation of the National Constitution. (Anderson, in _Am. Hist. Rev._
V, 226-27.)
[138] _Columbian Centinel_, March 27, 1799.
Another instance of intolerant and partisan prosecutions in State courts
was the case of Duane and others, indicted and tried for getting
signatures to a petition in Congress against the Alien and Sedition
Laws. They were acquitted, however. (Wharton: _State Trials_, 345-89.)
[139] These charges of Judge Addison were, in reality, political
pamphlets. They had not the least reference to any business before the
court, and were no more appropriate than sermons. They were, however,
written with uncommon ability. It is doubtful whether any arguments more
weighty have since been produced against what George Cabot called
"excessive democracy." These grand jury charges of Addison were
entitled: "Causes and Error of Complaints and Jealousy of the
Administration of the Government"; "Charges to the Grand Juries of the
County Court of the Fifth Circuit of the State of Pennsylvania, at
December Session, 1798"; "The Liberty of Speech and of the Press";
"Charge to Grand Juries, 1798"; "Rise and Progress of Revolution," and
"A Charge to the Grand Juries of the State of Pennsylvania, at December
Session, 1800."
[140] Coulter _vs._ Moore, for defamation. Coulter, a justice of the
peace, sued Moore for having declared, in effect, that Coulter "kept a
house of ill fame." (_Trial of Alexander Addison, Esq._: Lloyd,
stenographer, 38; also Wharton: _State Trials_, 32 _et seq._)
[141] This judge was John C. B. Lucas. He was a Frenchman speaking
broken English, and, judging from the record, was a person of very
inferior ability. There seems to be no doubt that he was the mere tool
of another judge, Hugh H. Brackenridge, who hated Addison virulently.
From a study of the case, one cannot be surprised that the able and
erudite Addison held in greatest contempt the fussy and ignorant Lucas.
[142] Wharton: _State Trials_, 45; Carson: _Supreme Court of the United
States, Its History_, I, 193.
[143] The uprising against the Judiciary naturally began in Pennsylvania
where the extravagance of the judges had been carried to the most
picturesque as well as obnoxious extremes. For a faithful narrative of
these see McMaster: _U.S._ III, 153-55.
On the other hand, wherever Republicans occupied judicial positions, the
voice from the bench, while contrary to that of the Federalist judges,
was no less harsh and absolute.
For instance, the judges of the Supreme Court of New Hampshire refused
to listen to the reading of British law reports, because they were from
"musty, old, worm-eaten books." One of the judges declared that "not
Common Law--not the quirks of Coke and Blackstone--but common sense"
controlled American judges. (Warren, 227.)
[144] See next chapter.
[145] See _infra_, chap. III, for a résumé of the conditions that forced
Marshall to pronounce his famous opinion in the case of Marbury _vs._
Madison, as well as for a full discussion of that controversy.