Kitabı oxu: «The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815»

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

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

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 impeachment²¹ 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 countries³⁴– 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 delights³⁷ 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 House⁴¹ 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.

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. Madison¹⁴⁵ 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.

CHAPTER II
THE ASSAULT ON THE JUDICIARY

The angels of destruction are making haste. Our judges are to be as independent as spaniels. (Fisher Ames.)

The power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. (John Randolph.)

On January 6, 1802, an atmosphere of intense but suppressed excitement pervaded the little semi-circular room where the Senate of the United States was in session.¹⁴⁶ The Republican assault upon the Judiciary was about to begin and the Federalists in Congress had nerved themselves for their last great fight. The impending debate was to prove one of the permanently notable engagements in American legislative history and was to create a situation which, in a few months, forced John Marshall to pronounce the first of those fundamental opinions which have helped to shape and which still influence the destiny of the American Nation.

The decision of Marbury vs. Madison was to be made inevitable by the great controversy to which we are now to listen. Marshall's course, and, indeed, his opinion in this famous case, cannot be understood without a thorough knowledge of the notable debate in Congress which immediately preceded it.¹⁴⁷

Never was the effect of the long years of party training which Jefferson had given the Republicans better manifested than now. There was unsparing party discipline, perfect harmony of party plan. The President himself gave the signal for attack, but with such skill that while his lieutenants in House and Senate understood their orders and were eager to execute them, the rank and file of the Federalist voters, whom Jefferson hoped to win to the Republican cause in the years to come, were soothed rather than irritated by the seeming moderation and reasonableness of the President's words.

"The Judiciary system … and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress," was the almost casual reference in the President's first Message to the Republican purpose to subjugate the National Judiciary. To assist Senators and Representatives in determining "the proportion which the institution bears to the business it has to perform" Jefferson had "procured from the several states … an exact statement of all the causes decided since the first establishment of the courts and of the causes which were pending when additional courts and judges were brought to their aid." This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the President suggested Congressional inquiry as to whether jury trials had not been withheld in many cases, and advised the investigation of the manner of impaneling juries.¹⁴⁸

Thus far and no farther went the comments on the National Judiciary which the President laid before Congress. The status of the courts – a question that filled the minds of all, both Federalists and Republicans – was not referred to. But the thought of it thrilled Jefferson, and only his caution restrained him from avowing it. Indeed, he had actually written into the message words as daring as those of his cherished Kentucky Resolutions; had boldly declared that the right existed in each department "to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other department"; had asserted that he himself, as President, had the authority and power to decide the constitutionality of National laws; and had, as President, actually pronounced, in official form, the Sedition Act to be "in palpable and unqualified contradiction to the Constitution."¹⁴⁹

This was not merely a part of a first rough draft of this Presidential document, nor was it lightly cast aside. It was the most important paragraph of the completed Message. Jefferson had signed it on December 8, 1801, and it was ready for transmission to the National Legislature. But just before sending the Message to the Capitol, he struck out this passage,¹⁵⁰ and thus notes on the margin of the draft his reason for doing so: "This whole paragraph was omitted as capable of being chicaned, and furnishing something to the opposition to make a handle of. It was thought better that the message should be clear of everything which the public might be made to misunderstand."

Although Jefferson's programme, as stated in the altered message which he finally sent to Congress, did not arouse the rank and file of Federalist voters, it did alarm and anger the Federalist chieftains, who saw the real purpose back of the President's colorless words. Fisher Ames, that delightful reactionary, thus interpreted it: "The message announces the downfall of the late revision of the Judiciary; economy, the patriotism of the shallow and the trick of the ambitious… The U. S. Gov't … is to be dismantled like an old ship… The state gov'ts are to be exhibited as alone safe and salutary."¹⁵¹

The Judiciary Law of 1801, which the Federalist majority enacted before their power over legislation passed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party.¹⁵² Almost from the time of the organization of the National Judiciary the National judges had complained of the inadequacy and positive evils of the law under which they performed their duties. The famous Judiciary Act of 1789, which has received so much undeserved praise, did not entirely satisfy anybody except its author, Oliver Ellsworth. "It is a child of his and he defends it … with wrath and anger," wrote Maclay in his diary.¹⁵³

In the first Congress opposition to the Ellsworth Act had been sharp and determined. Elbridge Gerry denounced the proposed National Judiciary as "a tyranny."¹⁵⁴ Samuel Livermore of New Hampshire called it "this new fangled system" which "would … swallow up the State Courts."¹⁵⁵ James Jackson of Georgia declared that National courts would cruelly harass "the poor man."¹⁵⁶ Thomas Sumter of South Carolina saw in the Judiciary Bill "the iron hand of power."¹⁵⁷ Maclay feared that it would be "the gunpowder plot of the Constitution."¹⁵⁸

When the Ellsworth Bill had become a law, Senator William Grayson of Virginia advised Patrick Henry that it "wears so monstrous an appearance that I think it will be felo-de-se in the execution… Whenever the Federal Judiciary comes into operation, … the pride of the states … will in the end procure its destruction"¹⁵⁹– a prediction that came near fulfillment and probably would have been realized but for the courage of John Marshall.

While Grayson's eager prophecy did not come to pass, the Judiciary Act of 1789 worked so badly that it was a source of discontent to bench, bar, and people. William R. Davie of North Carolina, a member of the Convention that framed the Constitution and one of the most eminent lawyers of his time, condemned the Ellsworth Act as "so defective … that … it would disgrace the composition of the meanest legislature of the States."¹⁶⁰

It was, as we have seen,¹⁶¹ because of the deficiencies of the original Judiciary Law that Jay refused reappointment as Chief Justice. "I left the bench," he wrote Adams, "perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess."¹⁶²

The six Justices of the Supreme Court were required to hold circuit courts in pairs, together with the judge of the district in which the court was held. Each circuit was to be thus served twice every year, and the Supreme Court was to hold two sessions annually in Washington.¹⁶³ So great were the distances between places where courts were held, so laborious, slow, and dangerous was all travel,¹⁶⁴ that the Justices – men of ripe age and studious habits – spent a large part of each year upon the road.¹⁶⁵ Sometimes a storm would delay them, and litigants with their assembled lawyers and witnesses would have to postpone the trial for another year or await, at the expense of time and money, the arrival of the belated Justices.¹⁶⁶

A graver defect of the act was that the Justices, sitting together as the Supreme Court, heard on appeal the same causes which they had decided on the Circuit Bench. Thus, in effect, they were trial and appellate judges in identical controversies. Moreover, by the rotation in riding circuits different judges frequently heard the same causes in their various stages, so that uniformity of practice, and even of decisions, was made impossible.

The admirable Judiciary Act, passed by the Federalists in 1801, corrected these defects. The membership of the Supreme Court was reduced to five after the next vacancy, the Justices were relieved of the heavy burden of holding circuit courts, and their duties were confined exclusively to the Supreme Bench. The country was divided into sixteen circuits, and the office of circuit judge was created for each of these. The Circuit Judge, sitting with the District Judge, was to hold circuit court, as the Justices of the Supreme Court had formerly done. Thus the prompt and regular sessions of the circuit courts were assured. The appeal from decisions rendered by the Supreme Court Justices, sitting as circuit judges, to the same men sitting as appellate judges, was done away with.¹⁶⁷

In establishing these new circuits and creating these circuit judges, this excellent Federalist law gave Adams the opportunity to fill the offices thus created with stanch Federalist partisans. Indeed, this was one motive for the enactment of the law. The salaries of the new circuit judges, together with other necessary expenses of the remodeled system, amounted to more than fifty thousand dollars every year – a sum which the Republicans exaggerated in their appeals to the people and even in their arguments in Congress.¹⁶⁸

Chiefly on the pretext of this alleged extravagance, but in reality to oust the newly appointed Federalist judges and intimidate the entire National Judiciary, the Republicans, led by Jefferson, determined to repeal the Federalist Judiciary Act of 1801, upon the faith in the passage of which John Marshall, with misgiving, had accepted the office of Chief Justice.

On January 6, 1802, Senator John Breckenridge of Kentucky pulled the lanyard that fired the opening gun.¹⁶⁹ He was the personification of anti-Nationalism and aggressive democracy. He moved the repeal of the Federalist National Judiciary Act of 1801.¹⁷⁰ Every member of Senate and House – Republican and Federalist – was uplifted or depressed by the vital importance of the issue thus brought to a head; and in the debate which followed no words were too extreme to express their consciousness of the gravity of the occasion.¹⁷¹

In opening the debate, Senator Breckenridge confined himself closely to the point that the new Federalist judges were superfluous. "Could it be necessary," he challenged the Federalists, "to increase courts when suits were decreasing? … to multiply judges, when their duties were diminishing?" No! "The time never will arrive when America will stand in need of thirty-eight Federal Judges."¹⁷² The Federalist Judiciary Law was "a wanton waste of the public treasure."¹⁷³ Moreover, the fathers never intended to commit to National judges "subjects of litigation which … could be left to State Courts." Answering the Federalist contention that the Constitution guaranteed to National judges tenure of office during "good behavior" and that, therefore, the offices once established could not be destroyed by Congress, the Kentucky Senator observed that "sinecure offices, … are not permitted by our laws or Constitution."¹⁷⁴

James Monroe, then in Richmond, hastened to inform Breckenridge that "your argument … is highly approved here." But, anxiously inquired that foggy Republican, "Do you mean to admit that the legislature [Congress] has not a right to repeal the law organizing the supreme court for the express purpose of dismissing the judges when they cease to possess the public confidence?" If so, "the people have no check whatever on them … but impeachment." Monroe hoped that "the period is not distant" when any opposition to "the sovereignty of the people" by the courts, such as "the application of the principles of the English common law to our constitution," would be considered "good cause for impeachment."¹⁷⁵ Thus early was expressed the Republican plan to impeach and remove Marshall and the entire Federal membership of the Supreme Court so soon to be attempted.¹⁷⁶

In reply to Breckenridge, Senator Jonathan Mason of Massachusetts, an accomplished Boston lawyer, promptly brought forward the question in the minds of Congress and the country. "This," said he, "was one of the most important questions that ever came before a Legislature." Why had the Judiciary been made "as independent of the Legislature as of the Executive?" Because it was their duty "to expound not only the laws, but the Constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the Constitution."¹⁷⁷

The old system which the Republicans would now revive was intolerable, declared Senator Gouverneur Morris of New York. "Cast an eye over the extent of our country" and reflect that the President, "in selecting a character for the bench, must seek less the learning of a judge than the agility of a post boy." Moreover, to repeal the Federal Judiciary Law would be "a declaration to the remaining judges that they hold their offices subject to your [Congress's] will and pleasure." Thus "the check established by the Constitution is destroyed."

Morris expounded the conservative Federalist philosophy thus: "Governments are made to provide against the follies and vices of men… Hence, checks are required in the distribution of power among those who are to exercise it for the benefit of the people." The most efficient of these checks was the power given the National Judiciary – "a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws – a check which might prevent any faction from intimidating or annihilating the tribunals themselves."¹⁷⁸

Let the Republican Senators consider where their course would end, he warned. "What has been the ruin of every Republic? The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save them from themselves."¹⁷⁹ Do not, he besought, "commit the fate of America to the mercy of time and chance."¹⁸⁰

"Good God!" exclaimed Senator James Jackson of Georgia, "is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia.¹⁸¹… I am more afraid of an army of judges, … than of an army of soldiers… Have we not seen sedition laws?" The Georgia Senator "thanked God" that the terrorism of the National Judiciary was, at last, overthrown. "That we are not under dread of the patronage of judges, is manifest, from their attack on the Secretary of State."¹⁸²

Senator Uriah Tracy of Connecticut was so concerned that he spoke in spite of serious illness. "What security is there to an individual," he asked, if the Legislature of the Union or any particular State, should pass an ex post facto law? "None in the world" but revolution or "an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void."¹⁸³

That typical Virginian, Senator Stevens Thompson Mason, able, bold, and impetuous, now took up Gouverneur Morris's gage of battle. He was one of the most fearless and capable men in the Republican Party, and was as impressive in physical appearance as he was dominant in character. He was just under six feet in height, yet heavy with fat; he had extraordinarily large eyes, gray in color, a wide mouth with lips sternly compressed, high, broad forehead, and dark hair, thrown back from his brow. Mason had "wonderful powers of sarcasm" which he employed to the utmost in this debate.¹⁸⁴

It was true, he said, in beginning his address, that the Judiciary should be independent, but not "independent of the nation itself." Certainly the Judiciary had not Constitutional authority "to control the other departments of the Government."¹⁸⁵ Mason hotly attacked the Federalist position that a National judge, once appointed, was in office permanently; and thus, for the second time, Marbury vs. Madison was brought into the debate. "Have we not heard this doctrine supported in the memorable case of the mandamus, lately¹⁸⁶ before the Supreme Court? Was it not there said [in argument of counsel] that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years?"¹⁸⁷

The true principle, Mason declared, was that judicial offices like all others "are made for the good of the people and not for that of the individual who administers them." Even Judges of the Supreme Court should do something to earn their salaries; but under the Federalist Judiciary Act of 1801 "what have they got to do? To try ten suits, [annually] for such is the number now on their docket."

Mason now departed slightly from the Republican programme of ignoring the favorite Federalist theory that the Judiciary has the power to decide the constitutionality of statutes. He fears that the Justices of the Supreme Court "will be induced, from want of employment, to do that which they ought not to do… They may … hold the Constitution in one hand, and the law in the other, and say to the departments of Government, so far shall you go and no farther." He is alarmed lest "this independence of the Judiciary" shall become "something like supremacy."¹⁸⁸

Seldom in parliamentary contests has sarcasm, always a doubtful weapon, been employed with finer art than it was by Mason against Morris at this time. The Federalists, in the enactment of the Judiciary Act of 1801, had abolished two district courts – the very thing for which the Republicans were now assailed by the Federalists as destroyers of the Constitution. Where was Morris, asked Mason, when his friends had committed that sacrilege? "Where was the Ajax Telamon of his party" at that hour of fate? "Where was the hero with his seven-fold shield – not of bull's hide, but of brass – prepared to prevent or to punish this Trojan rape?"¹⁸⁹

Morris replied lamely. He had been criticized, he complained, for pointing out "the dangers to which popular governments are exposed, from the influence of designing demagogues upon popular passion." Yet "'tis for these purposes that all our Constitutional checks are devised." Otherwise "the Constitution is all nonsense." He enumerated the Constitutional limitations and exclaimed, "Why all these multiplied precautions, unless to check and control that impetuous spirit … which has swept away every popular Government that ever existed?"¹⁹⁰

Should all else fail, "the Constitution has given us … an independent judiciary" which, if "you trench upon the rights of your fellow citizens, by passing an unconstitutional law … will stop you short." Preserve the Judiciary in its vigor, and in great controversies where the passions of the multitude are aroused, "instead of a resort to arms, there will be a happier appeal to argument."¹⁹¹

Answering Mason's fears that the Supreme Court, "having little else to do, would do mischief," Morris avowed that he should "rejoice in that mischief," if it checked "the Legislative or Executive departments in any wanton invasion of our rights… I know this doctrine is unpleasant; I know it is more popular to appeal to public opinion – that equivocal, transient being, which exists nowhere and everywhere. But if ever the occasion calls for it, I trust the Supreme Court will not neglect doing the great mischief of saving this Constitution."¹⁹²

His emotions wrought to the point of oratorical ecstasy, Morris now made an appeal to "the good sense, patriotism, and … virtue" of the Republic, in the course of which he became badly entangled in his metaphors. "Do not," he pleaded, "rely on that popular will, which has brought us frail beings into political existence. That opinion is but a changeable thing. It will soon change. This very measure will change it. You will be deceived. Do not … commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compass and your charts into the ocean. Do not believe that its billows will waft you into port. Indeed, indeed, you will be deceived.

"Cast not away this only anchor of our safety. I have seen its progress. I know the difficulties through which it was obtained. I stand in the presence of Almighty God, and of the world; and I declare to you, that if you lose this charter, never, no, never will you get another! We are now, perhaps, arrived at the parting point. Here, even here, we stand on the brink of fate. Pause – Pause! For Heaven's sake, pause!"¹⁹³

Senator Breckenridge would not "pause." The "progress" of Senator Morris's "anchor," indeed, dragged him again to "the brink of fate." The Senate had "wandered long enough" with the Federalist Senators "in those regions of fancy and of terror, to which they [have] led us." He now insisted that the Senate return to the real subject, and in a speech which is a model of compact reasoning, sharpened by sarcasm, discussed all the points raised by the Federalist Senators except their favorite one of the power of the National Judiciary to declare acts of Congress unconstitutional. This he carefully avoided.¹⁹⁴

The debate ran into the month of March.²⁷² Every possible phase of the subject was gone over time and again. All authorities which the ardent and tireless industry of the contending partisans could discover were brought to light. The pending case of Marbury vs. Madison was in the minds of all; and it was repeatedly dragged into the discussion. Samuel W. Dana of Connecticut examined it minutely, citing the action of the Supreme Court in the case of the application for a mandamus to the Secretary of War upon which the court acted February 14, 1794: "There does not appear to have been any question respecting the general power of the Supreme Court, to issue a mandamus to the Secretary of War, or any other subordinate officer." That was "a regular mode for obtaining a decision of the Supreme Court… When such has been the unquestioned usage heretofore, is it not extraordinary that there has not been prudence enough to say less about the case of Marbury against the Secretary of State?"²⁷³

Dana then touched upon the general expectation that Marshall would declare void the Repeal Act. Because of this very apprehension, the Republicans, a few days later, suspended for more than a year the sessions of the Supreme Court. So Dana threatened that if the Republicans should pass the bill, the Supreme Court would annul it; for, said he, the Judiciary were sworn to support the Constitution, and when they find that instrument on one side and an act of Congress on the other, "what is their duty? Are they not to obey their oath, and judge accordingly? If so, they necessarily decide, that your act is of no force; for they are sworn to support the Constitution. This is a doctrine coeval with the existence of our Government, and has been the uniform principle of all the constituted authorities."²⁷⁴ And he cited the position taken by National judges in 1792 in the matter of the pension commission.²⁷⁵

John Bacon, that stanch Massachusetts Republican,²⁷⁶ asserted that "the Judiciary have no more right to prescribe, direct or control the acts of the other departments of the Government, than the other departments of the Government have to prescribe or direct those of the Judiciary."²⁷⁷

The Republicans determined to permit no further delay; for the first time in its history the House was kept in session until midnight.²⁷⁸ At twelve o'clock, March 3, 1802, the vote was taken on the final passage of the bill, the thirty-two Federalists voting against and the fifty-nine Republicans for the measure.²⁷⁹ "Thus ended this gigantic debate," chronicles the historian of that event.²⁸⁰ No discussion in Congress had hitherto been so widely reported in the press or excited such general comment. By the great majority of the people the repeal was received with enthusiasm, although some Republicans believed that their party had gone too far.²⁸¹ Republican papers, however, hailed the repeal as the breaking of one of those judicial fetters which shackled the people, while Federalist journals bemoaned it as the beginning of the annihilation of all that was sane and worthy in American institutions.

"The fatal bill has passed; our Constitution is no more," exclaimed the Washington Federalist in an editorial entitled

"Farewell, a long Farewell, to all our Greatness."

The paper despaired of the Republic – nobody could tell "what other acts, urged by the intoxication of power and the fury of party rage" would be put through. But it announced that the Federalist judges would disregard the infamous Republican law: "The judges will continue to hold their courts as if the bill had not passed. 'Tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it. By the judges this bill will be declared null and void… And we now ask the mighty victors, what is your triumph?.. What is the triumph of the President? He has gratified his malice towards the judges, but he has drawn a tear into the eye of every thoughtful patriot … and laid the foundation of infinite mischief." The Federalist organ declared that the Republican purpose was to force a "dissolution of the Union," and that this was likely to happen.

This significant editorial ended by a consideration of the Republican purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring forward a resolution to repeal the law establishing the Supreme Court of the United States, we should only consider it a part of the system to be pursued… We sincerely expect it will be done next session… Such is democracy."²⁸²

Senator Plumer declared, before the final vote, that the passage of the Republican Repeal Bill and of other Republican measures meant "anarchy."²⁸³

The ultra-Federalist Palladium of Boston lamented: "Our army is to be less and our navy nothing: Our Secretaries are to be aliens and our Judges as independent as spaniels. In this way we are to save everything, but our reputation and our rights²⁸⁴… Has Liberty any citadel or fortress, has mob despotism any impediments?"²⁸⁵

The Independent Chronicle, on the other hand, "congratulated the public on the final triumph of Republicanism, in the repeal of the late obnoxious judiciary law."²⁸⁶ The Republicans of Boston and Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle of … disorganizing … goes on with a destructive zeal. Internal Taxes – Judicial Sanctity – all are to be overset."²⁸⁷ Sedgwick was sure that no defense was left against "legislative usurpation."²⁸⁸ "The angels of destruction … are making haste," moaned Fisher Ames.²⁸⁹

"The angels of destruction" lost no time in striking their next blow. On March 18, two weeks after the threat of the Washington Federalist that the Supreme Court would declare unconstitutional the Republican Repeal Act, a Senate committee was appointed to examine further the National Judiciary establishment and report a bill for any improvements considered necessary.²⁹⁰ Within a week the committee laid the measure before the Senate,²⁹¹ and on April 8 it was passed²⁹² without debate.

When it reached the House, however, the Federalists had taken alarm. The Federalist Judiciary Act of 1801 had fixed the terms of the Supreme Court in December and June instead of February and August. This new bill, plainly an afterthought, abolished the June session of the Supreme Court, directed that, thereafter, that tribunal should convene but once each year, and fixed the second Monday of February as the time of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the opportunity to pass upon the repeal of the Federalist Judiciary Act of 1801 until the old and defective system of 1789, which it restored, was again in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.²⁹³ John Marshall should have no early opportunity to overturn the Repeal Act, as the Republicans believed he would do if given the chance. Neither should he proceed further with the case of Marbury vs. Madison for many months to come.²⁹⁴

Bayard moved that the bill should not go into effect until July 1, thus permitting the Supreme Court to hold its June session; but, said Nicholson, that was just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard. "The effect of the present bill will be, to have no court for fourteen months… Are gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void?"²⁹⁵

Nicholson did not care whether the Supreme Court "pronounced the repealing law unconstitutional or not." The Republican postponement of the session for more than a year "does not arise from any design … to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to suppose gentlemen on the other side are as anxious for a session in June, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise."²⁹⁶

Griswold could not credit the Republicans with so base a purpose: "I know that it has been said, out of doors, that this is the great object of the bill. I know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supreme Court to hold its summer session. He frankly avowed a wish for an early decision that the Repeal Act was void. "I think the speedier it [usurpation] is checked the better."²⁹⁷

Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconstitutional. "This act is not designed to amend the Judicial system," he asserted; "that is but pretense… It is to prevent that court from expressing their opinion upon the validity of the act lately passed … until the act has gone into full execution, and the excitement of the public mind is abated… Could a less motive induce gentlemen to agree to suspend the sessions of the Supreme Court for fourteen months?"²⁹⁸

But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Court of the United States was practically abolished for fourteen months.²⁹⁹

At that moment began the movement that finally developed into the plan for the secession of the New England States from the Union. It is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extreme New England Federalist leaders from the time Theodore Sedgwick threatened it in the debate over the Assumption Bill.³⁰⁰

Hints of withdrawing from the Union if Virginia should become dominant crop out in their correspondence. The Republican repeal of the Judiciary Act immediately called forth many expressions in Federalist papers such as this from the Boston Palladium of March 2, 1802: "Whether the rights and interests of the Eastern States would be perfectly safe when Virginia rules the nation is a problem easy to solve but terrible to contemplate… As ambitious Virginia will not be just, let valiant Massachusetts be zealous."

Fisher Ames declared that "the federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins."³⁰¹ He thought the Federalists had neglected the press. "It is practicable," said he, "to rouse our sleeping patriotism – sleeping, like a drunkard in the snow… The newspapers have been left to the lazy or the ill-informed, or to those who undertook singly work enough for six."³⁰²

Pickering, the truculent, brave, and persistent, anticipated "a new confederacy… There will be – and our children at farthest will see it – a separation… The British Provinces, even with the assent of Britain, will become members of the Northern Confederacy."³⁰³

The more moderate George Cabot, on the contrary, thought that the strong defense made by the Federalists in Congress would induce the Republicans to cease their attacks on the National courts. "The very able discussions of the Judiciary Question," he wrote, "& great superiority of the Federalists in all the debates & public writings have manifestly checked the career of the Revolutionists."³⁰⁴ But for once Cabot was wrong; the Republicans were jubilant and hastened to press their assault more vigorously than ever.

The Federalist newspapers teemed with long arguments against the repeal and laboriously strove, in dull and heavy fashion, to whip their readers into fighting humor. These articles were little more than turgid repetitions of the Federalist speeches in Congress, with a passage here and there of the usual Federalist denunciation. For instance, the Columbian Centinel, after restating the argument against the Repeal Act, thought that this "refutes all the absurd doctrines of the Jacobins upon that subject, … and it will be sooner or later declared by the people, in a tone terrible to the present disorganizing party, to be the true construction of their constitution, and the only one compatible with their safety and happiness."³⁰⁵

The Independent Chronicle, on the other hand, was exultant. After denouncing "the impudence and scurrility of the Federal faction," a correspondent of that paper proceeded in this fashion: "The Judiciary! The Judiciary! like a wreck on Cape Cod is dashing at every wave"; but, thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing by the grace of God in the Washington Frigate– our judges are as at first and Mr. Jefferson has thought fit to practice the old navigation and steer with the same compass by which Admiral Washington regulated his log book. The Essex Junto may be afraid to trust themselves on board but every true Washington American will step on board in full confidence of a prosperous voyage. Huzza for the Washington Judiciary– no windows broke – no doors burst in – free from leak – tight and dry."³⁰⁶

Destiny was soon again to call John Marshall to the performance of an imperative duty.

CHAPTER III
MARBURY VERSUS MADISON

To consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy. (Jefferson.)

The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty. (Marshall.)

To have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it – this is an achievement of statesmanship which a thousand years may not exhaust or reveal all that is good. (Rufus Choate.)

"Rawleigh, Jan^y: 2^ḍ 1803

"My dearest Polly

"You will laugh at my vexation when you hear the various calamaties that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained & sought their liberty in the sands of Carolina.

"I determined not to vex myself with what coud not be remedied & orderd Peter to take out my cloaths that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, staring at vacancy, & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of inteligence was not very graciously receivd; however, after a little scolding I determined to make the best of my situation & immediately set out to get a pair made.

"I thought I should be a sans culotte only one day & that for the residue of the term I might be well enough dressd for the appearance on the first day to be forgotten. But, the greatest of evils, I found, was followed by still greater! Not a taylor in town coud be prevaild on to work for me. They were all so busy that it was impossible to attend to my wants however pressing they might be, & I have the extreme mortification to pass the whole time without that important article of dress I have mentiond. I have no alleviation for this misfortune but the hope that I shall be enabled in four or five days to commence my journey homeward & that I shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches you.

"In the meantime I flatter myself that you are well & happy.

"Adieu my dearest Polly

I am your ever affectionate

J Marshall."³⁰⁷

With the same unfailing light-heartedness which, nearly a quarter of a century before, had cheered his comrades at Valley Forge, John Marshall, Chief Justice of the United States, thus went about his duties and bore his troubles. Making his circuit in a battered gig or sulky, which he himself usually drove, absent-minded and laughing at himself for the mishaps that his forgetfulness and negligence continually brought upon him, he was seemingly unperturbed in the midst of the political upheaval.

Yet he was not at ease. Rufus King, still the American Minister to Great Britain, had finally settled the controversy over the British debts, upon the very basis laid down by Marshall when Secretary of State.³⁰⁸ But Jefferson's Administration now did not hesitate to assert that this removal of one cause of conflict with Great Britain was the triumph of Republican diplomacy. Marshall, with unreserve so unlike him, reveals to King his disgust and sense of injury, and in doing so portrays the development of political conditions.

"The advocates of the present administration ascribe to it great praise," wrote Marshall to our Minister in London, "for having, with so much dexterity & so little loss, extricated our country from a debt of twenty-four million of dollars in which a former administration had involved it… The mortifying reflection obtrudes itself, that the reputation of the most wise & skilful conduct depends, in this our capricious world, so much on accident. Had Mr. Adams been reelected President of the United States, or had his successor been [a Federalist] … a very different reception … would have been given to the same measure.

"The payment of a specific sum would then have been pronounced, by those who now take merit to themselves for it, a humiliating national degradation, an abandonment of national interest, a free will offering of millions to Britain for her grace & favor, by those who sought to engage in a war with France, rather than repay, in part, by a small loan to that republic, the immense debt of gratitude we owe her."

So speaks with bitter sarcasm the new Chief Justice, and pessimistically continues: "Such is, & such I fear will ever be human justice!" He tells King that the Federalist "disposition to coalesce" with the Republicans, which seemed to be developing during the first few months after Jefferson's inauguration, had disappeared; "but," he adds, "the minority [Federalist Party] is only recovering its strength & firmness. It acquires nothing." Then, with the characteristic misgivings of a Federalist, he prophesies: "Our political tempests will long, very long, exist, after those who are now toss'd about by them shall be at rest."³⁰⁹

For more than five years³¹⁰ Marshall had foreseen the complicated and dangerous situation in which the country now found itself; and for more than a year³¹¹ he had, in his ample, leisurely, simple manner of thinking, been framing the constructive answer which he was at last forced to give to the grave question: Who shall say with final authority what is and what is not law throughout the Republic? In his opinion in the case of Marbury vs. Madison, to which this chapter is devoted, we shall see how John Marshall answered this vital question.

The philosophy of the Virginia and Kentucky Resolutions had now become the ruling doctrine of the Republican Party. The writer of the creed of State Rights sat in the Executive chair, while in House and Senate Virginia and her daughter Kentucky ruled the Republican majority. The two States that had declared the right and power of any member of the Union to pronounce a National law unconstitutional, and that had actually asserted a National statute to be null and void, had become the dominant force in the National Government.

The Federalist majority in the legislatures of ten States,³¹² it is true, had passed resolutions denouncing that anti-National theory, and had vigorously asserted that the National Judiciary alone had the power to invalidate acts of Congress.³¹³ But in none of these States had the Republican minority concurred. In all of them the Republicans had vigorously fought the Federalist denial of the right and power of the States to nullify National laws, and had especially resisted the Federalist assertion that this power was in the National Judiciary.

In the New York Legislature, forty-three Republicans voted solidly against the Federalist reply to Virginia and Kentucky, while the Federalists were able to muster but fifty votes in its favor. In Massachusetts, Pennsylvania, and Maryland, the Republican opposition was determined and outspoken.

The thirty-three Republicans of the Vermont Legislature cited, in their protest, the position which Marshall had taken on the Sedition Law in his campaign for Congress:³¹⁴ "We have ever been of an opinion, with that much and deservedly respected statesman, Mr. Marshall, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's rights, has been universally admired)³¹⁵ that 'it was calculated to create unnecessarily, discontents and jealousies, at a time, when our very existence as a nation may depend on our union.'"³¹⁶

In Southern States, where the Federalists were dominant when Kentucky and Virginia adopted their famous Resolutions, the Republicans were, nevertheless, so strong that the Federalist majority in the Legislatures of those States dared not attempt to deny formally the new Republican gospel.³¹⁷

So stood the formal record; but, since it had been written, the Jeffersonian propaganda had drawn scores of thousands of voters into the Republican ranks. The whole South had now decisively repudiated Federalism. Maryland had been captured; Pennsylvania had become as emphatically Republican as Virginia herself; New York had joined her forces to the Republican legions. The Federalists still held New England and the States of Delaware and New Jersey, but even there the incessant Republican assaults, delivered with ever-increasing strength, were weakening the Federalist power. Nothing was plainer than that, if the Kentucky and Virginia Resolutions had been submitted to the Legislatures of the various States in 1801-1803, most of them would have enthusiastically endorsed them.

Thus the one subject most discussed, from the campaign of 1800 to the time when Marshall delivered his opinion in Marbury vs. Madison, was the all-important question as to what power, if any, could annul acts of Congress.³¹⁸ During these years popular opinion became ever stronger that the Judiciary could not do so, that Congress had a free hand so far as courts were concerned, and that the individual States might ignore National laws whenever those States deemed them to be infractions of the Constitution. As we have seen, the Republican vote in Senate and House, by which the Judiciary Act of 1801 was repealed, was also a vote against the theory of the supervisory power of the National Judiciary over National legislation.

Should this conclusion go unchallenged? If so, it would have the sanction of acquiescence and soon acquire the strength of custom. What then would become the condition of the country? Congress might pass a law which some States would oppose and which they would refuse to obey, but which other States would favor and of which they would demand the enforcement. What would this entail? At the very least it would provoke a relapse into the chaos of the Confederation and more probably civil war. Or a President might take it upon himself to pronounce null and void a law of Congress, as Jefferson had already done in the matter of the Sedition Law,³¹⁹ and if House and Senate were of a hostile political party, Congress might insist upon the observance of its legislation; but such a course would seriously damage the whole machinery of the National Government.

The fundamental question as to what power could definitely pass upon the validity of legislation must be answered without delay. Some of Marshall's associates on the Supreme Bench were becoming old and feeble, and death, or resignation enforced by illness, was likely at any moment to break the Nationalist solidarity of the Supreme Court;³²⁰ and the appointing power had fallen into the hands of the man who held the subjugation of the National Judiciary as one of his chief purposes.

Only second in importance to these reasons for Marshall's determination to meet the issue was the absolute necessity of asserting that there was one department of the Government that could not be influenced by temporary public opinion. The value to a democracy of a steadying force was not then so well understood as it is at present, but the Chief Justice fully appreciated it and determined at all hazards to make the National Judiciary the stabilizing power that it has since become. It should be said, however, that Marshall no longer "idolized democracy," as he declared he did when as a young man he addressed the Virginia Convention of 1788.³²¹ On the contrary, he had come to distrust popular rule as much as did most Federalists.

A case was then pending before the Supreme Court the decision of which might, by boldness and ingenuity, be made to serve as the occasion for that tribunal's assertion of its right and power to invalidate acts of Congress and also for the laying-down of rules for the guidance of all departments of the Government. This was the case of Marbury vs. Madison.

Just before his term expired,³²² President Adams had appointed forty-two persons to be justices of the peace for the Counties of Washington and Alexandria in the District of Columbia.³²³ The Federalist Senate had confirmed these nominations,³²⁴ and the commissions had been signed and sealed, but had not been delivered. When Jefferson was inaugurated he directed Madison, as Secretary of State, to issue commissions to twenty-five of the persons appointed by Adams, but to withhold the commissions from the other seventeen.³²⁵

Among the latter were William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper. These four men applied to the Supreme Court for a writ of mandamus compelling Madison to deliver their commissions. The other thirteen did not join in the suit, apparently considering the office of justice of the peace too insignificant to be worth the expense of litigation. Indeed, these offices were deemed so trifling that one of Adams's appointees to whom Madison delivered a commission resigned, and five others refused to qualify.³²⁶

When the application of Marbury and his associates came before Marshall he assumed jurisdiction, and in December, 1801, issued the usual rule to Madison ordering him to show cause at the next term of the Supreme Court why the writ of mandamus should not be awarded against him. Soon afterward, as we have seen, Congress abolished the June session of the Supreme Court;³²⁷ thus, when the court again convened in February, 1803, the case of Marbury vs. Madison was still pending.

Marshall resolved to make use of this unimportant litigation to assert, at the critical hour when such a pronouncement was essential, the power of the Supreme Court to declare invalid acts of Congress that violate the Constitution.

Considering the fact that Marshall was an experienced politician, was intimately familiar with the political methods of Jefferson and the Republican leaders, and was advised of their purposes, he could not have failed to realize the probable consequences to himself of the bold course he now determined to take. As the crawling months of 1802 wore on, no signs appeared that the Republican programme for overthrowing the independence of the Judiciary would be relinquished or modified. On the contrary, the coming of the new year (1803) found the second phase of the Republican assault determined upon.

At the beginning of the session of 1803 the House impeached John Pickering, Judge of the United States District Court for the District of New Hampshire. In Pennsylvania, the recently elected Republican House had impeached Judge Alexander Addison, and his conviction by a partisan vote was assured. Already the Republican determination to remove Samuel Chase from the Supreme Bench was frankly avowed.³²⁸

Moreover, the Republicans openly threatened to oust Marshall and his Federalist associates in case the court decided Marbury vs. Madison as the Republicans expected it would. They did not anticipate that Marshall would declare unconstitutional that section of the old Federalist Judiciary Act of 1789 under which the suit had been brought. Indeed, nobody imagined that the court would do that.

Everybody apparently, except Marshall and the Associate Justices, thought that the case would be decided in Marbury's favor and that Madison would be ordered to deliver the withheld commissions. It was upon this supposition that the Republican threats of impeachment were made. The Republicans considered Marbury's suit as a Federalist partisan maneuver and believed that the court's decision and Marshall's opinion would be inspired by motives of Federalist partisanship.³²⁹

There was a particular and powerful reason for Marshall to fear impeachment and removal from office; for, should he be deposed, it was certain that Jefferson would appoint Spencer Roane of Virginia to be Chief Justice of the United States. It was well known that Jefferson had intended to appoint Roane upon the death of Chief Justice Ellsworth.³³⁰ But Ellsworth had resigned in time to permit Adams to appoint Marshall as his successor and thus thwart Jefferson's purpose. If now Marshall were removed, Roane would be given his place.

Should he be succeeded by Roane, Marshall knew that the great principles of Nationalism, to the carrying-out of which his life was devoted, would never be asserted by the National Judiciary. On the contrary, the Supreme Court would become an engine for the destruction of every theory of government which Marshall held dear; for a bolder, abler, and more persistent antagonist of those principles than Spencer Roane did not exist.³³¹ Had he become Chief Justice those cases in which Marshall delivered opinions that vitalized the Constitution would have been decided in direct opposition to Marshall's views.³³²

CHAPTER IV
IMPEACHMENT

The judges of the Supreme Court must fall. Our affairs approach an important crisis. (William Plumer.)

These articles contained in themselves a virtual impeachment of not only Mr. Chase but of all the Judges of the Supreme Court. (John Quincy Adams.)

We shall bring forward such a specimen of judicial tyranny, as, I trust in God, will never be again exhibited in our country. (John Randolph.)

We appear for an ancient and infirm man whose better days have been worn out in the service of that country which now degrades him. (Joseph Hopkinson.)

Our property, our liberty, our lives can only be protected by independent judges. (Luther Martin.)

"We want your offices, for the purpose of giving them to men who will fill them better." In these frank words, Senator William Branch Giles⁴²⁹ of Virginia stated one of the purposes of the Republicans in their determined attack on the National Judiciary. He was speaking to the recently elected young Federalist Senator from Massachusetts, John Quincy Adams.⁴³⁰

They were sitting before the blazing logs in the wide fireplace that warmed the Senate Chamber. John Randolph, the Republican leader of the House, and Israel Smith, a Republican Senator from Vermont, were also in the group. The talk was of the approaching trial of Samuel Chase, Associate Justice of the Supreme Court of the United States, whom the House had impeached for high crimes and misdemeanors. Giles and Randolph were, "with excessive earnestness," trying to convince the doubting Vermont Senator of the wisdom and justice of the Republican method of ousting from the National Bench those judges who did not agree with the views of the Republican Party.

Giles scorned the idea of "an independent judiciary!" The independence claimed by the National judges was "nothing more nor less than an attempt to establish an aristocratic despotism in themselves." The power of the House to impeach, and of the Senate to try, any public officer was unlimited.

"If," continued Giles, "the Judges of the Supreme Court should dare, as they had done, to declare acts of Congress unconstitutional, or to send a mandamus to the Secretary of State, as they had done, it was the undoubted right of the House to impeach them, and of the Senate to remove them for giving such opinions, however honest or sincere they may have been in entertaining them." He held that the Senate, when trying an impeached officer, did not act as a court. "Removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the Nation."⁴³¹

Thus Giles made plain the Republican objective. Judges were to be removed for any cause that a dominant political party considered to be sufficient.⁴³² The National Judiciary was, in this manner, to be made responsive to the popular will and responsible to the representatives of the people in the House and of the States in the Senate.⁴³³

Giles, who was now Jefferson's personal representative in the Senate,⁴³⁴ as he had been in the House, bore down upon his mild but reluctant fellow partisan from Vermont in a "manner dogmatical and peremptory." Not only must the aggressive and irritating Chase be stripped of his robes, but the same fate must fall upon "all other Judges of the Supreme Court except the one last appointed,"⁴³⁵ who, being a Republican, was secure.⁴³⁶ Adams rightly concluded that the plan was to "have swept the supreme judicial bench clean at a stroke."⁴³⁷

For a long time everybody had understood that the impeachment of Chase was only the first step in the execution of the Republican plan to replace with Republicans Marshall and the four Federalist Associate Justices. "The judges of the Supreme Court are all Federalists," wrote Pickering six weeks before Johnson's appointment. "They stand in the way of the ruling power… The Judges therefore, are, if possible, to be removed," by impeachment.⁴³⁸

Nearly two years before, Senator William Plumer of New Hampshire had accurately divined the Republican plan: "The judges of the Supreme Court must fall," he informed Jeremiah Mason. "They are denounced by the Executive, as well as the House. They must be removed; they are obnoxious unyielding men; & why should they remain to awe & embarrass the administration? Men of more flexible nerves can be found to succeed them. Our affairs seem to approach an important crisis."⁴³⁹ The Federalists rightly believed that Jefferson was the directing mind in planning and effecting the subjugation of the National Judiciary. That, said Bayard, "has been an object on which Mr. Jefferson has long been resolved, at least ever since he has been in office."⁴⁴⁰

John Marshall especially must be overthrown.⁴⁴¹ He had done all the things of which Giles and the Republicans complained. He had "dared to declare an act of Congress unconstitutional," had "dared" to order Madison to show cause why he should not be compelled to do his legal duty. Everybody was at last awake to the fact that Marshall had become the controlling spirit of the Supreme Court and of the whole National Judiciary.

Every one knew, too, that he was the most determined Nationalist in the entire country, and that Jefferson and the Republican Party had no more unyielding enemy than the Chief Justice. And he had shown by his management of the Supreme Court and by his opinion in Marbury vs. Madison, how powerful that tribunal could be made. The downfall of Samuel Chase was a matter of small importance compared with the removal of John Marshall.

"They hate Marshall, Paterson, etc. worse than they hate Chase because they are men of better character," asserted Judge Jeremiah Smith of New Hampshire. "To be safe in these times good men must not only resign their offices but they must resign their good names… They will be obnoxious as long as they retain either. If they will neither die nor resign they give Mr J the trouble of correcting the procedure… Tell me what the judges say – are they frightened?" he anxiously inquired of Plumer.⁴⁴² Frightened they were – and very badly frightened. Even John Marshall, hitherto imperturbable and dauntless, was shaken.⁴⁴³

In addition to his "heretical" opinion in Marbury vs. Madison, Marshall had given the Republicans, and Jefferson especially, another cause for complaint. A year after the decision of that case, he had again gone out of his way to announce from the Supreme Bench the fallacy of Jefferson's Constitutional views and the soundness of the Nationalist theory. During the February term of the Supreme Court for the year 1804, that tribunal, in the case of the United States vs. Fisher,⁴⁴⁴ was called upon to decide whether the United States was a preferred creditor of an insolvent, under the Bankruptcy Act of 1800, which Marshall had helped to draw.⁴⁴⁵ Among other objections, it was suggested by counsel for Fisher, the insolvent, that the Bankruptcy Law was unconstitutional and that the priority which that act gave the Nation over other creditors of the bankrupt would prevent the States from making similar laws for their own protection.

But, said Marshall, this is "the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of the United States extends… The Constitution did not prohibit Congress" from enacting a bankruptcy law and giving the Nation preference as a creditor. On the contrary, Congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the National Government." To say that "no law was authorized which was not indispensably necessary … would produce endless difficulties… Congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution."

This was an emphatic denial of Jefferson's famous opinion on the power of Congress to charter a bank, and an outright assertion of the views of Hamilton on that celebrated question.⁴⁴⁶ The case could have been decided without such an expression from the court, but it presented an opportunity for a judicial statement of liberal construction which might not soon come again,⁴⁴⁷ and Marshall availed himself of it.

For two years no part of the Republican plans against the Judiciary had miscarried. Close upon the very day when John Breckenridge in the Senate had moved to repeal the National Judiciary Act of 1801, a petition signed by the enraged Republicans of Alleghany County, Pennsylvania, had been sent to the Legislature of that State, demanding the impeachment of Alexander Addison; and almost simultaneously with the passage of the Judiciary Repeal Act of Congress, the Pennsylvania House of Representatives transmitted to the State Senate articles charging the able but arrogant Federalist judge with high crimes and misdemeanors.

Addison's trial speedily followed; and while the evidence against him, viewed through the perspective of history, seems trivial, the Republican Pennsylvania Senate pronounced judgment against him and deposed him from the bench. With notable ability, Addison conducted his own defense. He made a powerful speech which is a classic of conservative philosophy.⁴⁴⁸ But his argument was unavailing. The Republican theory, that a judge might be deposed from office for any conduct or opinion of which the Legislature disapproved, was ruthlessly carried out.⁴⁴⁹

Almost as soon as Congress convened after the overthrow of the obnoxious Pennsylvania Federalist judge, the Republicans in the National House, upon representations from Jefferson, took steps to impeach John Pickering, Judge of the United States Court for the District of New Hampshire.⁴⁵⁰ This judge had been hopelessly insane for at least three years and, as one result of his mental and nervous malady, had become an incurable drunkard.⁴⁵¹ In this condition he had refused to hear witnesses for the Government in the case of the ship Eliza, seized for violation of the revenue laws. He peremptorily ordered the vessel returned to its captain, and finally declined to allow an appeal from his decree. All this had been done with ravings, cursings, and crazed incoherences.⁴⁵²

That he was wholly incapacitated for office and unable to perform any act requiring intelligence was conceded by all. But the Constitution provided no method of removing an officer who had become insane.⁴⁵³ This defect, however, gave the Republicans an ideal opportunity to put into practice their theory that impeachment was unrestricted and might be applied to any officer whom, for any reason, two thirds of the Senate deemed undesirable. "If the facts of his denying an appeal & of his intoxication, as stated in the impeachment, are proven, that will be sufficient cause for removal without further enquiry," asserted Jefferson when assured that Pickering was insane, and when asked "whether insanity was good cause for impeachment & removal from office."⁴⁵⁴

The demented judge did not, of course, appear at his trial. Instead, a petition by his son was presented, alleging the madness of his father, and praying that evidence to that effect be received by the Senate.⁴⁵⁵ This plea was stoutly resisted, and for two days the question was debated. "The most persevering and determined opposition is made against having evidence and counsel to prove the man insane," records John Quincy Adams, "only from the fear, that if insanity should be proved, he cannot be convicted of high crimes and misdemeanors by acts of decisive madness."⁴⁵⁶ Finally the determined Republicans proceeded to the trial of the insane judge for high crimes and misdemeanors, evidence of his dethroned reason to be received "in mitigation."⁴⁵⁷ In immense disgust the House managers withdrew, because "the Senate had determined to hear evidence" that the accused person was insane. Before they returned, they publicly denounced the Senators for their leniency; and thus Republican discipline was restored.⁴⁵⁸

Jefferson was impatient. "It will take two years to try this impeachment," he complained to Senator Plumer. "The Constitution ought to be altered," he continued, "so that the President should be authorized to remove a Judge from office, on the address of the two Houses."⁴⁵⁹ But the exasperated Republicans hastened the proceedings; and the trial did not consume two weeks all told.

If an insane man should be condemned, "it will not hereafter be necessary," declared Senator Samuel Smith of Maryland, "that a man should be guilty of high crimes and misdemeanors," the commission of which was the only Constitutional ground for impeachment. Senator Jonathan Dayton of New Jersey denounced the whole proceeding as "a mere mockery of a trial."⁴⁶⁰ Senator John Quincy Adams, in the flurry of debate, asserted that he should "speak until [his] mouth was stopped by force."⁴⁶¹ Senator Nicholas of Virginia shouted "Order! order! order!" when Samuel White of Delaware was speaking. So furious became the altercation that a duel seemed possible.⁴⁶² No delay was permitted and, on March 12, 1804, the demented Pickering was, by a strictly partisan vote of 19 to 7,⁴⁶³ adjudged guilty of high crimes and misdemeanors.

An incident happened which was prophetic of a decline in the marvelous party discipline that had kept the Republicans in Senate and House in solid support of the plans of the leaders. Three Republican Senators left the Chamber in order to avoid the balloting.⁴⁶⁴ They would not adjudge an insane man to be guilty of high crimes and misdemeanors, but they were not yet independent enough to vote against their party.⁴⁶⁵ This, however, did not alarm the Republican managers. They instantly struck the next blow upon which they had determined more than two years before. Within an hour after John Pickering was convicted the House voted to impeach Samuel Chase.

Marshall's irascible associate on the Supreme Bench had given the Republicans a new and serious cause for hostilities against him. In less than two months after Marshall had delivered the unanimous opinion of the Supreme Court in Marbury vs. Madison, Justice Chase, in charging the grand jury at Baltimore, denounced Republican principles and mercilessly assailed Republican acts and purposes.

This judicial critic of democracy told the grand jury that "the bulk of mankind are governed by their passions, and not by reason… The late alteration of the federal judiciary … and the recent change in our state constitution, by the establishing of universal suffrage, … will … take away all security for property and personal liberty … and our republican constitution will sink into a mobocracy, the worst of all popular governments."

Chase condemned "the modern doctrines by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, [which] have brought this mighty mischief upon us"; – a mischief which he feared "will rapidly progress, until peace and order, freedom and property, shall be destroyed… Will justice be impartially administered by judges dependent on the legislature for their … suport? Will liberty or property be protected or secured, by laws made by representatives chosen by electors, who have no property in, or a common interest with, or attachment to, the community?"⁴⁶⁶

Burning with anger, a young Republican member of the Maryland Legislature, John Montgomery, who had listened to this judicial tirade, forthwith savagely denounced Chase in the Baltimore American.⁴⁶⁷ He demanded that the Justice be impeached and removed from the bench.⁴⁶⁸ Montgomery hastened to send to the President⁴⁶⁹ a copy of the paper.

Jefferson promptly wrote Nicholson: "Ought this seditious and official attack on the principles of our Constitution, and on the proceedings of a State, go unpunished? And, to whom so pointedly as yourself will the public look for the necessary measures?"

But Jefferson was not willing to appear openly. With that uncanny power of divining political currents to which coarser or simpler minds were oblivious, he was conscious of the uneasiness of Northern Republicans over ruthless impeachment and decided not to become personally responsible. "For myself," he cautioned Nicholson, "it is better that I should not interfere."⁴⁷⁰

Upon the advice of Nathaniel Macon,⁴⁷¹ Republican Speaker of the House, Nicholson concluded that it would be more prudent for another to take the lead. It was well understood that he was to have Chase's place on the Supreme Bench,⁴⁷² and this fact would put him at a disadvantage if he became the central figure in the fight against the aged Justice. The procurement of the impeachment was, therefore, placed in the eager hands of John Randolph, that "unusual Phenomenon," as John Adams called him,⁴⁷³ whose lust for conspicuous leadership was insatiable.

The Republican managers had carefully moulded public opinion into the belief that Chase was guilty of some monstrous crime. Months before articles of impeachment were presented to the House, ex parte statements against him were collected, published in pamphlet form, and scattered throughout the country. To assure wider publicity all this "evidence" was printed in the Republican organ at Washington. The accused Justice had, therefore, been tried and convicted by the people before the charges against him were even offered in the House.⁴⁷⁴

This preparation of the popular mind accomplished, Chase was finally impeached. Eight articles setting forth the Republican accusations were laid before the Senate. Chase was accused of everything of which anybody had complained since his appointment to the Supreme Bench. His conduct at the trials of Fries and Callender was set forth with tedious particularity: in Delaware he had stooped "to the level of an informer"; his charge to the grand jury at Baltimore was an "intemperate and inflamatory political harangue"; he had prostituted his "high judicial character … to the low purpose of an electioneering partizan"; his purpose was "to excite … odium … against the government."⁴⁷⁵

This curious scramble of fault-finding, which was to turn out so fatally for the prosecution, was the work of Randolph. When the conglomerate indictment was drawn, no one, except perhaps Jefferson, had the faintest idea that the Republican plan would miscarry; Randolph's multifarious charges pleased those in Virginia, Pennsylvania, Delaware, and Maryland who had first made them; they were so drawn as to lay a foundation for the assault which was to follow immediately. "These articles," wrote John Quincy Adams, "contained in themselves a virtual impeachment not only of Mr. Chase, but of all the Judges of the Supreme Court from the first establishment of the national judiciary."⁴⁷⁶

In an extended and carefully prepared speech, Senator Giles, who had drawn the rules governing the conduct of the trial in the Senate, announced the Republican view of impeachment which, he said, "is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another." Adams was convinced that "this is undoubtedly the source and object of Mr. Chase's impeachment, and on the same principle any officer may easily be removed at any time."⁴⁷⁷

From the time the House took action against Chase, the Federalists were in despair. "I think the Judge will be removed from Office," was Senator Plumer's opinion.⁴⁷⁸ "The event of the impeachment is already determined," wrote Bayard before the trial began.⁴⁷⁹ Pickering was certain that Chase would be condemned – so would any man that the House might impeach; such "measures … are made questions of party, and therefore at all events to be carried into effect according to the wishes of the prime mover [Jefferson]."⁴⁸⁰

As the day of the arraignment of the impeached Justice approached, his friends were not comforted by their estimate of the public temper. "Our public … will be as tame as Mr. Randolph can desire," lamented Ames. "You may broil Judge Chase and eat him, or eat him raw; it shall stir up less anger or pity, than the Six Nations would show, if Cornplanter or Red Jacket were refused a belt of wampum."⁴⁸¹

When finally Chase appeared before the bar of the Senate, he begged that the trial should be postponed until next session, in order that he might have time to prepare his defense. His appeal fell on remorseless ears; the Republicans gave him only a month. But this scant four weeks proved fatal to their purpose. Jefferson's wise adjustment of the greatest financial scandal in American history⁴⁸² came before the House during this interval; and fearless, honest, but impolitic John Randolph attacked the Administration's compromise of the Yazoo fraud with a ferocity all but insane in its violence. Literally screaming with rage, he assailed Jefferson's Postmaster-General who was lobbying on the floor of the House for the passage of the President's Yazoo plan, and delivered continuous philippics against that polluted transaction out of which later came the third of John Marshall's most notable opinions.⁴⁸³

In this frame of mind, nervously exhausted, physically overwrought and troubled, the most brilliant and effective Congressional partisan leader of our early history came to the trial. Moreover, Randolph had broken with the Administration and challenged Jefferson's hitherto undisputed partisan autocracy. This was the first public manifestation of that schism in the Republican Party which was never entirely healed.

Such was the situation on the 4th of February, 1805, when the Senate convened to hear and determine the case of Samuel Chase, impeached by the House for high crimes and misdemeanors, to settle by the judgment it should render the fate of John Marshall as Chief Justice of the United States, and to fix forever the place of the National Judiciary in the scheme of American government.

"Oyez! Oyez! Oyez! – All persons are commanded to keep silence on pain of imprisonment, while the grand inquest of the nation is exhibiting to the Senate of the United States, sitting as a Court of Impeachments, articles of impeachment against Samuel Chase, Associate Justice of the Supreme Court of the United States."⁴⁸⁴

So cried the Sergeant-at-Arms of the National Senate when, in the Chase trial, John Marshall, the Supreme Court, and the whole National Judiciary were called to judgment by Thomas Jefferson, on the bleak winter day in dismal, scattered, and quarreling Washington. An audience crowded the Senate Chamber almost to the point of suffocation. There were present not only the members of Senate and House, the officers of the Executive departments, and the men and women of the Capital's limited society, but also scores of eminent persons from distant parts of the country.⁴⁸⁵

LETTER TO SAMUEL CHASE (Facsimile)

Among the spectators were John Marshall and the Associate Justices of the Supreme Court, thoroughly conscious that they, and the institution of which they were the highest representatives, were on trial almost as much as their imprudent, rough, and outspoken fellow member of the Bench. It is not improbable that they were helping to direct the defense of Chase,⁴⁸⁶ in which, as officials, they were personally interested, and in which, too, all their convictions as citizens and jurists were involved.

Marshall, aroused, angered, and frightened by the articles of the impeachment, had written his brother a year before the Chase trial that they are "sufficient to alarm the friends of a pure, and, of course, an independent Judiciary, if, among those who rule our land there be any of that description."⁴⁸⁷ At the beginning of the proceedings Chase had asked Marshall, who was then in Richmond, to write an account of what occurred at the trial of Callender, and Marshall promptly responded: "I instantly applied to my brother⁴⁸⁸ & to Mr. Wickham⁴⁸⁹ to state their recollection of the circumstances under which Colo. Taylors testimony was rejected.⁴⁹⁰ They both declared that they remembred them very imperfectly but that they woud endeavor to recollect what passed & commit it to writing. I shall bring it with me to Washington in february." Marshall also promised to bring other documents.

"Admitting it to be true," continues Marshall, "that on legal principles Colo. Taylors testimony was admissible, it certainly constitutes a very extraordinary ground for an impeachment. According to the antient doctrine a jury finding a verdict against the law of the case was liable to an attaint; & the amount of the present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.

"As, for convenience & humanity the old doctrine of attaint has yielded to the silent, moderate but not less operative influence of new trials, I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.

"The other charges except the 1st & 4th which I suppose to be altogether unfounded, seem still less to furnish cause for impeachment. But the little finger of [blotted out – probably "democracy"] is heavier than the loins of – .⁴⁹¹

"Farewell – With much respect and esteem…

"J. Marshall."⁴⁹²

Marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first class. Appeals from the Supreme Court to Congress! Senators and Representatives to be the final judges of any judicial decision with which a majority of the House was dissatisfied! Had we not the evidence of Marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments. They were in direct contradiction to his reasoning in Marbury vs. Madison, utterly destructive of the Federalist philosophy of judicial control of legislation.

The explanation is that Marshall was seriously alarmed. By his own pen he reveals to us his state of mind before and on that dismal February day when he beheld Samuel Chase arraigned at the bar of the Senate of the United States. During the trial Marshall's bearing as a witness⁴⁹³ again exhibited his trepidation. And, as we have seen, he had good cause for sharp anxiety.⁴⁹⁴

The avowed Republican purpose to remove him and his Federalist associates from the Supreme Bench, the settled and well-known intention of Jefferson to appoint Spencer Roane as Chief Justice when Marshall was ousted, and the certainty that this would be fatal to the execution of those fundamental principles of government to which Marshall was so passionately devoted – these important considerations fully warranted the apprehension which the Chief Justice felt and now displayed.

Had he been indifferent to the peril that confronted him and the whole National Judiciary, he would have exhibited a woeful lack of sense and feeling. He was more than justified in resorting to any honorable expedient to save the great office he held from occupancy by a resolute and resourceful foe of those Constitutional theories, the application of which, Marshall firmly believed, was indispensable to the sound development of the American Nation.

The arrangements for the trial were as dramatic as the event itself was momentous.⁴⁹⁵ The scenes of the impeachment prosecution of Warren Hastings were still vivid in the minds of all, and in imitation of that spectacle, the Senate Chamber was now bedecked with impressive splendor. It was aglow with theatrical color, and the placing of the various seats was as if a tragic play were to be performed.

To the right and left of the President's chair were two rows of benches with desks, the whole covered with crimson cloth. Here sat the thirty-four Senators of the United States. Three rows of benches, arranged in tiers, extended from the wall toward the center of the room; these were covered with green cloth and were occupied by the members of the House of Representatives. Upon their right an enclosure had been constructed, and in it were the members of Jefferson's Cabinet.

Beneath the permanent gallery to which the general public was admitted, a temporary gallery, supported by pillars, ran along the wall, and faced the crimson-covered places of the Senators. At either end of it were boxes. Comfortable seats had been provided in this enclosure; and these were covered with green cloth, which also was draped over the balustrade.

This sub-gallery and the boxes were filled with ladies dressed in the height of fashion. A passageway was left from the President's chair to the doorway. On either side of this aisle were two stalls covered with blue cloth, as were also the chairs within them. They were occupied by the managers of the House of Representatives and by the lawyers who conducted the defense.⁴⁹⁶

A short, slender, elegantly formed man, with pallid face and steady black eyes, presided over this Senatorial Court. He was carefully dressed, and his manners and deportment were meticulously correct. Aaron Burr, fresh from his duel with Hamilton, and under indictment in two States, had resumed his duties as Vice-President. Nothing in the bearing of this playwright character indicated in the smallest degree that anything out of the ordinary had happened to him. The circumstance of his presence, however, dismayed even the most liberal of the New England Federalists. "We are indeed fallen on evil times," wrote Senator Plumer. "The high office of President is filled by an infidel, that of Vice-President by a murderer."⁴⁹⁷

For the first time since the Republican victory of 1800, which, but for his skill, courage, and energy in New York, would not have been achieved,⁴⁹⁸ Burr now found himself in favor with the Administration and the Republican chieftains.⁴⁹⁹ Jefferson determined that Aaron Burr must be captured – at least conciliated. He could not be displaced as the presiding officer at the Chase impeachment trial; his rulings would be influential, perhaps decisive; the personal friendship and admiration of several Senators for him were well known; the emergency of the Republican Party was acute. Chase must be convicted at all hazards; and while nobody but Jefferson then doubted that this would be the result, no chances were to be taken, no precaution overlooked.

CHAPTER V
BIOGRAPHER

Marshall has written libels on one side. (Jefferson.)

What seemed to him to pass for dignity, will, by his reader, be pronounced dullness. (Edinburgh Review.)

That work was hurried into the world with too much precipitation. It is one of the most desirable objects I have in this life to publish a corrected edition. (Marshall.)

Although the collapse of the Chase impeachment made it certain that Marshall would not be removed from office, and he was thus relieved from one source of sharp anxiety, two other causes of worry served to make this period of his life harried and laborious. His heavy indebtedness to Denny Fairfax⁵⁹¹ continuously troubled him; and, worse still for his peace of mind, he was experiencing the agonies of the literary composer temperamentally unfitted for the task, wholly unskilled in the art, and dealing with a subject sure to arouse the resentment of Jefferson and all his followers. Marshall was writing the "Life of Washington."

In a sense it is fortunate for us that he did so, since his long and tiresome letters to his publishers afford us an intimate view of the great Chief Justice and reveal him as very human. But the biography itself was to prove the least satisfactory of all the labors of Marshall's life.

Not long after the death of Washington, his nephew, Bushrod Washington, had induced Marshall to become the biographer of "the Father of his Country." Washington's public and private papers were in the possession of his nephew. Although it was advertised that these priceless original materials were to be used in this work exclusively, many of Washington's writings had already been used by other authors.

Marshall needed little urging to undertake this monumental labor. Totally unfamiliar with the exhausting toil required of the historian, he deemed it no great matter to write the achievements of his idolized leader. Moreover, he was in pressing need of money with which to pay the remaining $31,500⁵⁹² which his brother and he still owed on the Fairfax purchase, as well as the smaller but yet annoying sum due their brother-in-law, Rawleigh Colston, for his share of the estate which the Marshall brothers had bought of him.⁵⁹³ To discharge these obligations, Marshall had nothing but his salary and the income from his lands, which were wholly insufficient to meet the demands upon him. Some of his plantations, in fact, were "productive only of expense & vexation."⁵⁹⁴

Marshall and Bushrod Washington made extravagant estimates of the prospective sales of the biography and of the money they would receive. Everybody, they thought, would be eager to buy the true story of the life of America's "hero and sage." Perhaps the multitude could not afford volumes so expensive as those Marshall was to write, but there would be tens of thousands of prosperous Federalists who could be depended upon to purchase at a generous price a definitive biography of George Washington.⁵⁹⁵

Nor was the color taken from these rosy expectations by the enthusiasm of those who wished to publish the biography. When it became known that the book was to be produced, many printers applied to Bushrod Washington "to purchase the copyright,"⁵⁹⁶ among them C. P. Wayne, a successful publisher of Philadelphia, who made two propositions to bring out the work. After a consultation with Marshall, Bushrod Washington wrote Wayne: "Being ignorant of such matters … we shall therefore decline any negotiation upon the subject for the present."⁵⁹⁷

After nearly two years of negotiation, Marshall and his associate decided that the biography would require four or five volumes, and arrived at the modest opinion that there would be "30,000 subscribers in America… Less than a dollar a volume cannot be thought of," and this price should yield to the author and his partner "$150,000, supposing there to be five volumes. This … would content us, whilst it would leave a very large profit" to the publisher. But, since the number of subscribers could not be foretold with exactness, Marshall and Bushrod Washington decided to "consent to receive $100,000 for the copyright in the United States"; and they sternly announced that, "less than this sum we will not take."⁵⁹⁸

Wayne sought to reduce the optimism of Marshall and Washington by informing them that "the greatest number of subscribers ever obtained for any one publication in this country was … 2000 and the highest sum ever paid in for the copyright of any one work … was 30,000 Dollars." Wayne thinks that Marshall's work may sell better, but is sure that more than ten thousand sets cannot be disposed of for many years. He gives warning that, if the biography should contain anything objectionable to the British Government, the sale of it would be prevented in England, as was the case with David Ramsay's "History of the Revolution."⁵⁹⁹

Marshall and Washington also "rec^d propositions for the purchase of the right to sell in G^t. Britain," and so informed Wayne, calling upon him to "say so" if he wished to acquire British, as well as American rights, "knowing the grounds upon which we calculate the value in the United States."⁶⁰⁰

So we find Marshall counting on fifty thousand dollars⁶⁰¹ at the very least from his adventure in the field of letters. His financial reckoning was expansive; but his idea of the time within which he could write so important a history was grotesque. At first he counted on producing "4 or 5 volumes in octavos of from 4 to 500 pages each" in less than one year, provided "the present order of the Courts be not disturbed or very materially changed."⁶⁰²

It thus appears that Marshall expected the Federalist Judiciary Act of 1801 to stand; that he would not be called upon to ride the long, tiresome, time-consuming Southern circuit; and that, with no great number of cases to be disposed of by the Supreme Court, he would have plenty of leisure to write several large volumes of history in a single year.

But the Republican repeal of the act gave the disgusted Chief Justice "duties to perform," as John Randolph expressed it. Marshall was forthwith sent upon his circuit riding, and his fondly anticipated relief from official labors vanished. Although he had engaged to write the biography during the winter following Washington's death, not one line of it had he penned at the time the contract for publication was made in the autumn of 1802. He had, of course, done some reading of the various histories of the period; but he had not even begun the examination of Washington's papers, the subsequent study of which proved so irksome to him.

After almost two years of bartering, a contract was made with Wayne to print and sell the biography. This agreement, executed September 22, 1802, gave to the publisher the copyright in the United States and all rights of the authors "in any part of North and South America and in the West India Islands." The probable extent of the work was to be "four or five volumes in Octavo, from four to five hundred pages" each; and it was "supposed" that these would "be compleated in less than two years" – Marshall's original estimate of time having now been doubled.

Wayne engaged to pay "one dollar for every volume of the aforesaid work which may be subscribed for or which may be sold and paid for." It was further covenanted that the publisher should "not demand" of the public "a higher price than three dollars per volume in boards."⁶⁰³ This disappointed Marshall, who had insisted that the volumes must be sold for four dollars each, a price which Wayne declared the people would not pay.⁶⁰⁴

It would seem that for a long time Marshall tried to conceal the fact that he was to be the author; and, when the first volume was about to be issued, strenuously objected to the use of his name on the title-page. However, Jefferson soon got wind of the project. The alert politician took swift alarm and promptly suggested measures to counteract the political poison with which he was sure Marshall's pen would infect public opinion. He consulted Madison, and the two picked out the brilliant and versatile Joel Barlow, then living in Paris, as the best man to offset the evil labor in which Marshall was engaged.

"Mr. Madison and myself have cut out a piece of work for you," Jefferson wrote Barlow, "which is to write the history of the United States, from the close of the War downwards. We are rich ourselves in materials, and can open all the public archives to you; but your residence here is essential, because a great deal of the knowledge of things is not on paper, but only within ourselves for verbal communication."

Then Jefferson states the reason for the "piece of work" which he and Madison had "cut out" for Barlow: "John Marshall is writing the life of Gen. Washington from his papers. It is intended to come out just in time to influence the next presidential election." The imagination of the party manager pictured Marshall's work as nothing but a political pamphlet. "It is written therefore," Jefferson continues, "principally with a view to electioneering purposes; but it will consequently be out in time to aid you with information as well as to point out the perversions of truth necessary to be rectified."⁶⁰⁵

Thus Marshall's book was condemned before a word of it had been written, and many months before the contract with Wayne was signed – a circumstance that was seriously to interfere with subscriptions to the biography. Jefferson's abnormal sensitiveness to even moderate criticism finally led him to the preparation of the most interesting and untrustworthy of all his voluminous papers, as a reply to Marshall's "Washington."⁶⁰⁶

News was sent to Republicans all over the country that Marshall's book was to be an attack upon their party. Wayne tells Marshall and Washington of the danger, but Washington testily assures the nervous publisher that he need have no fear: "The democrats may say what they please and I have expected they would say a great deal, but this is at least not intended to be a party work nor will any candid man have cause to make this charge."⁶⁰⁷

The contract signed, Wayne quickly put in motion the machinery to procure subscribers. Of this mechanism, the most important part should have been the postmasters, of whom Wayne expected to make profitable use. There were twelve hundred of them, "each acquainted with all the gentlemen of their respective neighborhoods … and their neighbors would subscribe at request, when they would not to a stranger… All letters to and from these men go free of postage," Wayne advised Marshall, while assuring the anxious author that "every Post Master in the United States holds a subscription paper."⁶⁰⁸ But, thanks to Jefferson, the postmasters were to prove poor salesmen of the product of Marshall's pen.

Other solicitors, however, were also put to work: among them the picturesque Mason Locke Weems, part Whitefield, part Villon, a delightful mingling of evangelist and vagabond, lecturer and politician, writer and musician.⁶⁰⁹ Weems had himself written a "Life of Washington" which had already sold extensively among the common people.⁶¹⁰ He had long been a professional book agent with every trick of the trade at his fingers' ends, and was perfectly acquainted with the popular taste.

First, the parson-subscription agent hied himself to Baltimore. "I average 12 sub^s pr day. Thank God for that," he wrote to his employer. He is on fire with enthusiasm: "If the Work be done handsomely, you will sell at least 20,000," he brightly prophesies. Within a week Weems attacks the postmasters and insists that he be allowed to secure sub-agents from among the gentry: "The Mass of Riches and of Population in America lie in the Country. There is the wealthy Yeomanry; and there the ready Thousands who w^d. instantly second you were they but duly stimulated."⁶¹¹

Almost immediately Weems discovered a popular distrust of Marshall's forthcoming volumes: "The People are very fearful that it will be prostituted to party purposes," he informs Wayne. "For Heaven's Sake, drop now and then a cautionary Hint to John Marshall Esq. Your all is at stake with respect to this work. If it be done in a generally acceptable manner you will make your fortune. Otherwise the work will fall an Abortion from the press."⁶¹²

Weems's apprehension grew. Wayne had written that the cities would yield more subscribers than the country. "For a moment, admit it," argues Weems: "Does it follow that the Country is a mere blank, a cypher not worth your notice? Because there are 30,000 wealthy families in the City and but 20,000 in the Country, must nothing be tried to enlist 5000, at least of these 20,000??? If the Fed^s sh^d be disappointed, and the Demo^s disgusted with Gen^l. Marshals performance, will it not be very convenient to have 4 to 5000 good Rustic Blades to lighten your shelves & to shovel in the Dol^$."⁶¹³

The dean of book agents evidently was having a hard time, but his resourcefulness kept pace with his discouragement: "Patriotic Orations – Gazetter Puffs – Washingtonian Anecdotes, Sentimental, Moral Military and Wonderful – All sh^d be Tried," he advises Wayne.⁶¹⁴ Again, he notes the failure of the postmasters to sell Marshall's now much-talked-of book. "In six months," he writes from Martinsburg, Virginia, "the P. Master here got 1. In ½ day. I thank God, I've got 13 sub^s."⁶¹⁵

The outlook for subscriptions was even worse in New England. Throughout the whole land, there was, it seems, an amazing indifference to Washington's services to the Nation. "I am sorry to inform you," Wayne advised Marshall and his associate, "that the Prospect of an extensive Subscription is gloomy in N. England, particularly they argue it is too Expensive and wait for a cheaper Edition – 'tis like Americans, Mr. Wolcott and Mr. Pickering say they are loud in their professions, but attempt to touch their purses and they shut them in a moment."⁶¹⁶

Writing from Fredericksburg, Virginia, Weems at last mingles cheer with warning: "Don't indulge a fear – let no sigh of thine arise. Give Old Washington fair play and all will be well. Let but the Interior of the Work be Liberal & the Exterior Elegant, and a Town House & a Country House, a Coach and Sideboard and Massy Plate shall be thine." Still, he declared, "I sicken when I think how much may be marr^d."⁶¹⁷

A week later found the reverend solicitor at Carlisle, Pennsylvania, and here the influence of politics on the success of Marshall's undertaking again crops out: "The place had been represented to me," records Weems, "as a Nest of Anti Washingtonian Hornets who w^d draw their Stings at mention of his name – and the Fed [torn] Lawyers are all gone to York – However, I dash^d in among them and thank God have obtain^d already 17 good names."⁶¹⁸

By now even the slow-thinking Bushrod Washington had become suspicious of Jefferson's postmasters: "The postmasters being (I believe) Democrats.⁶¹⁹ Are you sure they will feel a disposition to advance the work?"⁶²⁰ Later he writes: "I would not give one honest soliciting agent for 1250 quiescent postmasters."⁶²¹

A year passed after the first subscriptions were made, and not even the first volume had appeared. Indeed, no part of the manuscript had been finished and sent to the publisher. Wayne was exasperated. "I am extremely anxious on this subject," he complains to Bushrod Washington, "as the Public evince dissatisfaction at the delay. Each hour I am questioned either verbally or by letter relative to it & its procrastination. The subscription seems to have received a check in consequence of an opinion that it is uncertain when the work will go to press. Twelve thousand dollars is the Total Cash yet rece^d– not quite 4,000 subscribers."⁶²²

By November, 1803, many disgusted subscribers are demanding a refund of the money, and Wayne wants the contract changed to the payment of a lump sum. The "Public [are] exclaiming against the price of 3 Doll^s per vol.," and his sanguine expectations have evaporated: "I did hope that I should realize half the number of subscribers you contemplated, thirty thousand; … but altho' two active, and twelve hundred other agents have been employed 12 months, the list of names does not amount to one seventh of the contemplated number."⁶²³

Wayne insists on purchasing the copyright "for a moderate, specifick sum" so that he can save himself from loss and "that the Publick disgust may be removed." He has heard, he says, and quite directly, that the British rights have been sold "at two thousand doll^s!!!" – and this in spite of the fact that, only the previous year, Marshall and Washington "expected Seventy Thousand."⁶²⁴

At last, more than three years after Marshall had decided to embark upon the uncertain sea of authorship, he finished the first of the five volumes. And such a mass of manuscript! "It will make at least Eight hundred pages!!!!" moaned the distraught publisher. At that rate, considering the small number of subscribers and the greatly increased cost of paper and labor,⁶²⁵ Wayne would be ruined. No title-page had been sent, and Marshall's son, who had brought the manuscript to Philadelphia, "astonished" Wayne by telling him "that his father's name was not to appear in the Title."⁶²⁶

When Marshall learned that the publisher demanded a title-page bearing his name, he insisted that this was unnecessary and not required by the copyright law. "I am unwilling," he hastened to write Wayne, "to be named in the book or in the clerk's office as the author of it, if it be avoidable." He cannot tell how many volumes there will be, or even examine, before some time in May, 1804, Washington's papers relating to the period of his two administrations. The first volume he wants "denominated an introduction." It is too long, he admits, and authorizes Wayne to split it, putting all after "the peace of 1763" into the second volume.⁶²⁷

Marshall objects again to appearing as the author: "My repugnance to permitting my name to appear in the title still continues, but it shall yield to your right to make the best use you can of the copy." He does not think that "the name of the author being given or withheld can produce any difference in the number of subscribers"; but, since he does not wish to leave Wayne "in the Opinion that a real injury has been sustained," he would "submit scruples" to Wayne and Washington, "only requesting that [his] name may not be given but on mature consideration and conviction of its propriety." In any case, Marshall declares: "I wish not my title in the judiciary of the United States to be annexed to it."

He writes at great length about punctuation, paragraphing, capital letters, and spelling, giving minute directions, but leaves much to Wayne's judgment. As to spelling: "In any doubtful case I wou^d decidedly prefer to follow Johnson."⁶²⁸ Two other long letters about details of printing the first volume followed. By the end of March, 1804, his second volume was ready.⁶²⁹

He now becomes worried about "the inaccuracies … the many and great defects in composition" of the first two volumes; but "the hurried manner in which it is press^d forward renders this inevitable." He begs Bushrod Washington to "censure and alter freely… You mistake me very much if you think I rank the corrections of a friend with the bitter sarcasms of a foe, or that I shou^d feel either wounded or chagrined at my inattentions being pointed out by another."⁶³⁰

Once more the troubled author writes his associate, this time about the spelling of "Chesapeak" and "enterprise," the size of the second volume, and as to "the prospects of subscribers."⁶³¹ Not until June, 1804, did Marshall give the proof-sheets of the first volume even "a hasty reading" because of "the pressure of … official business."⁶³² Totally forgotten was the agreed plan to publish maps in a separate volume, although it was thus "stated in the prospectus."⁶³³ He blandly informs the exasperated publisher that he must wait a long time after publishing the volumes describing the Revolution and those on the Presidency of Washington before the manuscript of the last volume can be sent to press – this when many subscribers were clamoring for the return of the money they had paid, and the public was fast losing interest in the book. Large events had meanwhile filled the heavens of popular interest, and George Washington's heroic figure was already becoming dim and indistinct.

The proof-sheets of the second volume were now in Marshall's hands; but the toil of writing, "super-intending the copying," and various other avocations "absolutely disabled" him, he insists, from giving them any proper examination. He had no idea that he had been so careless in his writing and is anxious to revise the work for a second edition. He complains of his health and says he must spend the summer in the mountains, where, of course, he "cannot take the papers with [him] to prosecute the work." He will, however, read the pages of the first two volumes while on his vacation.

The manuscript of the third he had finished and sent to Bushrod Washington.⁶³⁴ When Wayne saw the length of it, his Quaker blood was heated to wrath. Did Marshall's prolixity know no limit? The first two volumes had already cost the publisher far more than the estimate – would not Washington persuade Marshall to be more concise?⁶³⁵

By midsummer of 1804 the first two volumes appeared. They were a dismal performance. Nevertheless, one or two Federalist papers praised them, and Marshall was as pleased as any youthful writer by a first compliment. He thanks Wayne for sending the reviews and comments on one of them: "The very handsome critique in the 'Political and Commercial Register' was new to me." He modestly admits: "I cou^d only regret that there was in it more of panuegyric than was merited. The editor … manifests himself to be master of a style of a very superior order and to be, of course, a very correct judge of the composition of Others."

A PART OF MARSHALL'S LIST OF CORRECTIONS FOR HIS LIFE OF WASHINGTON

Marshall is somewhat mollified that his parentage of the biography has been revealed: "Having, Heaven knows how reluctantly, consented against my judgement to be known as the author of the work in question I cannot be insensible to the opinions entertained of it. But, I am much more solicitous to hear the strictures upon it" – than commendation of it – because, he says, these would point out defects to be corrected. He asks Wayne, therefore, to send to him at Front Royal, Virginia, "every condemnatory criticism… I shall not attempt to polish every sentence; that wou^d require repeated readings & a long course of time; but I wish to correct obvious imperfections & the animadversions of others wou^d aid me very much in doing so."⁶³⁶

Within three weeks Marshall had read his first volume in the form in which it had been delivered to subscribers, and was "mortified beyond measure to find that it [had] been so carelessly written." He had not supposed that so many "inelegancies … cou^d have appeared in it," and regrets that he must require Wayne to reset the matter "so materially." He informs his publisher, nevertheless, that he is starting on his vacation in the Alleghanies; and he promises that when he returns he "will … review the corrections" he has made in the first volume, although he would "not have time to reperuse the whole volume."⁶³⁷

Not for long was the soul of the perturbed author to be soothed with praise. He had asked for "strictures"; he soon got them. Wayne promptly sent him a "Magazine⁶³⁸ containing a piece condemnatory of the work." Furthermore, the books were not going well; not a copy could the publisher sell that had not been ordered before publication. "I have all those on hand which I printed over the number of subscribers," Wayne sourly informs the author.

In response to Marshall's request for time for revision, Wayne is now willing that he shall take all he wishes, since "present prospects would not induce [him] to republish," but he cautions Marshall to "let the idea of a 2^d edit. revised and corrected remain a secret"; if the public should get wind of such a purpose the stacks of volumes in Wayne's printing house would never be sold. He must have the manuscript of the "fourth vol. by the last of September at furthest… Can I have it? – or must I dismiss my people."

At the same time he begs Marshall to control his redundancy: "The first and second vols. have cost me (1500) fifteen hundred dollars more than calculated!"⁶³⁹

It was small wonder that Marshall's first two bulky books, published in the early summer of 1804, were not hailed with enthusiasm. In volume one the name of Washington was mentioned on only two minor occasions described toward the end.⁶⁴⁰ The reader had to make his way through more than one hundred thousand words without arriving even at the cradle of the hero. The voyages of discovery, the settlements and explorations of America, and the history of the Colonies until the Treaty of Paris in 1763, two years before the Stamp Act of 1765, were treated in dull and heavy fashion.

The author defends his plan in the preface: No one connected narrative tells the story of all the Colonies and "few would … search through the minute details"; yet this he held to be necessary to an understanding of the great events of Washington's life. So Marshall had gathered the accounts of the various authorities⁶⁴¹ in parts of the country and in England, and from them made a continuous history. If there were defects in the book it was due to "the impatience … of subscribers" which had so hastened him.

The volume is poorly done; parts are inaccurate.⁶⁴² To Bacon's Rebellion are given only four pages.⁶⁴³ The story of the Pilgrims is fairly well told.⁶⁴⁴ A page is devoted to Roger Williams and six sympathetic lines tell of his principles of liberty and toleration.⁶⁴⁵ The Salem witchcraft madness is well treated.⁶⁴⁶ The descriptions of military movements constitute the least disappointing parts of the volume. The beginnings of colonial opposition to British rule are tiresomely set out; and thus at last, the reader arrives within twelve years of Bunker Hill.

Marshall admits that every event of the Revolutionary War has been told by others who had examined Washington's "immensely voluminous correspondence," and that he had copied these authors, sometimes using their very language. Still, he promises the reader "a particular account of his [Washington's] own life."⁶⁴⁷

One page and three lines at the beginning of the second volume are all that Marshall gives of the ancestry, birth, environment, upbringing, education, and experiences of George Washington, up to the nineteenth year of his age. On the second page the hero, fully uniformed and accoutred, is plunged into the French and Indian Wars. Braddock's defeat, already described in the first volume, is repeated and elaborated.⁶⁴⁸ Six lines, closing the first chapter, disposes of Washington in marriage and describes the bride.⁶⁴⁹

About three pages are devoted to the Stamp Act speeches in the British Parliament; while but one short paragraph is given to the immortal resolutions of Patrick Henry and the passage of them by the Virginia House of Burgesses. Not a word describes the "most bloody" debate over them, and Henry's time-surviving speech is not even referred to.⁶⁵⁰ All mention of the fact that Washington was a fellow member with Henry and voted for the resolutions is omitted. Henry's second epoch-making speech at the outbreak of the Revolution is not so much as hinted at, nor is any place found for the Virginia Resolutions for Arming and Defense, which his unrivaled eloquence carried.

The name of the supreme orator of the Revolution is mentioned for the second time in describing the uprising against Lord Dunmore,⁶⁵¹ and then Marshall adds this footnote: "The same gentleman who had introduced into the assembly of Virginia the original resolution against the stamp act."⁶⁵²

Marshall's account of the development of the idea of independence is scattered.⁶⁵³ He gives with unnecessary completeness certain local resolutions favoring it,⁶⁵⁴ while to the great Declaration less than two pages⁶⁵⁵ are assigned. It is termed "this important paper"; and a footnote disposes of the fact that "Mr. Jefferson, Mr. John Adams, Mr. Franklin, Mr. Sherman, and Mr. R. R. Livingston, were appointed to prepare this declaration; and the draft reported by the committee has been generally attributed to Mr. Jefferson."⁶⁵⁶ A report of the talk between Washington and Colonel Paterson of the British Army, concerning the title by which Washington insisted upon being addressed,⁶⁵⁷ is given one and one third times the space that is bestowed upon the Declaration of Independence.

Marshall is satisfactory only when dealing with military operations. He draws a faithful picture of the condition of the army;⁶⁵⁸ quotes Washington's remorseless condemnations of the militia,⁶⁵⁹ short enlistments, and the democratic spirit among men and officers.⁶⁶⁰ When writing upon such topics, Marshall is spirited; his pages are those of the soldier that, by nature, he was.

The earliest objection to Marshall's first two volumes came from American Tories, who complained of the use of the word "enemy" as applied to the British military forces. Wayne reluctantly calls Marshall's attention to this. Marshall replies: "You need make no apology for mentioning to me the criticism of the word 'enemy.' I will endeavor to avoid it where it can be avoided."⁶⁶¹

Unoffended by such demands, Marshall was deeply chagrined by other and entirely just criticisms. Why, he asks, had not some one pointed out to him "some of those objections … to the plan of the work" before he wrote any part of it? He wishes "very sincerely" that this had been done. He "should very readily have relinquished [his own] opinion … if [he] had perceiv^d that the public taste required a different course." Thus, by implication, he blames Wayne or Bushrod Washington, for his own error of judgment.

"The sufferings inflicted on endeavors to vindicate the rights of humanity are related with all the frigid insensibility with which a monk would have contemplated the victims of an auto da fé. Let no man believe that Gen. Washington ever intended that his papers should be used for the suicide of the cause, for which he had lived, and for which there never was a moment in which he would not have died."

Marshall's "abuse of these materials," Jefferson charges, "is chiefly however manifested in the history of the period immediately following the establishment of the present constitution; and nearly with that my memorandums [the "Anas"] begin. Were a reader of this period to form his idea of it from this history alone, he would suppose the republican party (who were in truth endeavoring to keep the government within the line of the Constitution, and prevent it's being monarchised in practice) were a mere set of grumblers, and disorganisers, satisfied with no government, without fixed principles of any, and, like a British parliamentary opposition, gaping after loaves and fishes, and ready to change principles, as well as position, at any time, with their adversaries."⁷³⁵

Jefferson denounces Hamilton and his followers as "monarchists," "corruptionists," and other favorite Jeffersonian epithets, and Marshall is again assailed: "The horrors of the French revolution, then raging, aided them mainly, and using that as a raw head and bloody bones they were enabled by their stratagems of X. Y. Z. in which this historian was a leading mountebank, their tales of tub-plots, Ocean massacres, bloody buoys, and pulpit lyings, and slanderings, and maniacal ravings of their Gardiners, their Osgoods and Parishes, to spread alarm into all but the firmest breasts."⁷³⁶

Criticisms of Marshall's "Life of Washington" were not, however, confined to Jefferson and the Republicans. Plumer thought the plan of the work "preposterous."⁷³⁷ The Reverend Samuel Cooper Thatcher of Boston reviewed the biography through three numbers of the Monthly Anthology.⁷³⁸ "Every reader is surprized to find," writes Mr. Thatcher, "the history of North America, instead of the life of an individual… He [Washington] is always presented … in the pomp of the military or civil costume, and never in the ease and undress of private life." However, he considers Marshall's fifth volume excellent. "We have not heard of a single denial of his fidelity… In this respect … his work [is] unique in the annals of political history."

Thatcher concludes that Marshall's just and balanced treatment of his subject is not due to a care for his own reputation: "We are all so full of agitation and effervescence on political topicks, that a man, who keeps his temper, can hardly gain a hearing." Indeed, he complains of Marshall's fairness: he writes as a spectator, instead of as "one, who has himself descended into the arena … and is yet red with the wounds which he gave, and smarting with those which his enemies inflicted in return"; but the reviewer charges that these volumes are full of "barbarisms" and "grammatical impurities," "newspaper slang," and "unmeaning verbiage."

The Reverend Timothy Flint thought that Marshall's work displayed more intellect and labor than "eloquence and interest."⁷³⁹ George Bancroft, reviewing Sparks's "Washington," declared that "all that is contained in Marshall is meagre and incomplete in comparison."⁷⁴⁰ Even the British critics were not so harsh as the New York Evening Post, which pronounced the judgment that if the biography "bears any traces of its author's uncommon powers of mind, it is in the depths of dulness which he explored."⁷⁴¹

The British critics were, of course, unsparing. The Edinburgh Review called Marshall's work "unpardonably deficient in all that constitutes the soul and charm of biography… We look in vain, through these stiff and countless pages, for any sketch or anecdote that might fix a distinguishing feature of private character in the memory… What seemed to pass with him for dignity, will, by his reader, be pronounced dullness and frigidity."⁷⁴² Blackwood's Magazine asserted that Marshall's "Life of Washington" was "a great, heavy book… One gets tired and sick of the very name of Washington before he gets half through these … prodigious … octavos."⁷⁴³

Marshall was somewhat compensated for the criticisms of his work by an event which soon followed the publication of his last volume. On August 29, 1809, he was elected a corresponding member of the Massachusetts Historical Society. In a singularly graceful letter to John Eliot, corresponding secretary of the Society at that time, Marshall expresses his thanks and appreciation.⁷⁴⁴

As long as he lived, Marshall worried over his biography of Washington. When anybody praised it, he was as appreciative as a child. In 1827, Archibald D. Murphey eulogized Marshall's volumes in an oration, a copy of which he sent to the Chief Justice, who thanks Murphey, and adds: "That work was hurried into a world with too much precipitation, but I have lately given it a careful examination and correction. Should another edition appear, it will be less fatiguing, and more worthy of the character which the biographer of Washington ought to sustain."⁷⁴⁵

Toilsomely he kept at his self-imposed task of revision. In 1816, Bushrod Washington wrote Wayne to send Marshall "the last three volumes in sheets (the two first he has) that he may devote this winter to their correction."⁷⁴⁶

When, five years later, the Chief Justice learned that Wayne was actually considering the risk of bringing out a new edition, Marshall's delight was unbounded. "It is one of the most desirable objects I have in this life to publish a corrected edition of that work. I would not on any terms, could I prevent it, consent that one other set of the first edition should be published."⁷⁴⁷

Finally, in 1832, the revised biography was published. Marshall clung to the first volume, which was issued separately under the title "History of the American Colonies." The remaining four volumes were, seemingly, reduced to two; but they were so closely printed and in such comparatively small type that the real condensation was far less than it appeared to be. The work was greatly improved, however, and is to this day the fullest and most trustworthy treatment of that period, from the conservative point of view.⁷⁴⁸

Fortunately for Marshall, the work required of him on the Bench gave him ample leisure to devote to his literary venture. During the years he consumed in writing his "Life of Washington" he wrote fifty-six opinions in cases decided in the Circuit Court at Richmond, and in twenty-seven cases determined by the Supreme Court. Only four of them⁷⁴⁹ are of more than casual interest, and but three of them⁷⁵⁰ are of any historical consequence. All the others deal with commercial law, practice, rules of evidence, and other familiar legal questions. In only one case, that of Marbury vs. Madison, was he called upon to deliver an opinion that affected the institutions and development of the Nation.

CHAPTER VI
THE BURR CONSPIRACY

My views are such as every man of honor and every good citizen must approve. (Aaron Burr.)

His guilt is placed beyond question. (Jefferson.)

I never believed him to be a Fool. But he must be an Idiot or a Lunatic if he has really planned and attempted to execute such a Project as is imputed to him. But if his guilt is as clear as the Noonday Sun, the first Magistrate ought not to have pronounced it so before a Jury had tryed him. (John Adams.)

On March 2, 1805, not long after the hour of noon, every Senator of the United States was in his seat in the Senate Chamber. All of them were emotionally affected – some were weeping.⁷⁵¹ Aaron Burr had just finished his brief extemporaneous address⁷⁵² of farewell. He had spoken with that grave earnestness so characteristic of him.⁷⁵³ His remarks produced a curious impression upon the seasoned politicians and statesmen, over whose deliberations he had presided for four years. The explanation is found in Burr's personality quite as much as in the substance of his speech. From the unprecedented scene in the Senate Chamber when the Vice-President closed, a stranger would have judged that this gifted personage held in his hands the certainty of a great and brilliant career. Yet from the moment he left the Capital, Aaron Burr marched steadily toward his doom.

An understanding of the trial of Aaron Burr and of the proceedings against his agents, Bollmann and Swartwout, is impossible without a knowledge of the events that led up to them; while the opinions and rulings of Chief Justice Marshall in those memorable controversies are robbed of their color and much of their meaning when considered apart from the picturesque circumstances that produced them. This chapter, therefore, is an attempt to narrate and condense the facts of the Burr conspiracy in the light of present knowledge of them.

Although in a biography of John Marshall it seems a far cry to give so much space to that episode, the import of the greatest criminal trial in American history is not to be fully grasped without a summary of the events preceding it. Moreover, the fact that in the Burr trial Marshall destroyed the law of "constructive treason" requires that the circumstances of the Burr adventure, as they appeared to Marshall, be here set forth.

AARON BURR

A strong, brave man who, until then, had served his country well, Aaron Burr was in desperate plight when on the afternoon of March 2 he walked along the muddy Washington streets toward his lodging. He was a ruined man, financially, politically, and in reputation. Fourteen years of politics had destroyed his once extensive law practice and plunged him hopelessly into debt. The very men whose political victory he had secured had combined to drive him from the Republican Party.

The result of his encounter with Hamilton had been as fatal to his standing with the Federalists, who had but recently fawned upon him, as it was to the physical being of his antagonist. What now followed was as if Aaron Burr had been the predestined victim of some sinister astrology, so utterly did the destruction of his fortunes appear to be the purpose of a malign fate.

His fine ancestry now counted for nothing with the reigning politicians of either party. None of them cared that he came of a family which, on both sides, was among the worthiest in all the country.⁷⁵⁴ His superb education went for naught. His brilliant services as one of the youngest Revolutionary officers were no longer considered – his heroism at Quebec, his resourcefulness on Putnam's staff, his valor at Monmouth, his daring and tireless efficiency at West Point and on the Westchester lines, were, to these men, as if no such record had ever been written.

Nor, with those then in power, did Burr's notable public services in civil life weigh so much as a feather in his behalf. They no longer remembered that only a few years earlier he had been the leader of his party in the National Senate, and that his appointment to the then critically important post of Minister to France had been urged by the unanimous caucus of his political associates in Congress. None of the notable honors that admirers had asserted to be his due, nor yet his effective work for his party, were now recalled. The years of provocation⁷⁵⁵ which had led, in an age of dueling,⁷⁵⁶ to a challenge of his remorseless personal, professional, and political enemy were now unconsidered in the hue and cry raised when his shot, instead of that of his foe, proved mortal.

Yet his spirit was not broken. His personal friends stood true; his strange charm was as potent as ever over most of those whom he met face to face; and throughout the country there were thousands who still admired and believed in Aaron Burr. Particularly in the West and in the South the general sentiment was cordial to him; many Western Senators were strongly attached to him; and most of his brother officers of the Revolution who had settled beyond the Alleghanies were his friends.⁷⁵⁷ Also, he was still in vigorous middle life, and though delicate of frame and slight of stature, was capable of greater physical exertion than most men of fewer years.

What now should the dethroned political leader do? Events answered that question for him, and, beckoned forward by an untimely ambition, he followed the path that ended amid dramatic scenes in Richmond, Virginia, where John Marshall presided over the Circuit Court of the United States.

Although at the time Jefferson had praised what he called Burr's "honorable and decisive conduct"⁷⁵⁸ during the Presidential contest in the House in February of 1801, he had never forgiven his associate for having received the votes of the Federalists, nor for having missed, by the merest chance, election as Chief Magistrate.⁷⁵⁹ Notwithstanding that Burr's course as Vice-President had won the admiration even of enemies,⁷⁶⁰ his political fall was decreed from the moment he cast his vote on the Judiciary Bill in disregard of the rigid party discipline that Jefferson and the Republican leaders then exacted.⁷⁶¹

Even before this, the constantly increasing frigidity of the President toward him, and the refusal of the Administration to recognize by appointment any one recommended by him for office in New York,⁷⁶² had made it plain to all that the most Burr could expect was Jefferson's passive hostility. Under these circumstances, and soon after his judiciary vote, the spirited Vice-President committed another imprudence. He attended a banquet given by the Federalists in honor of Washington's birthday. There he proposed this impolitic toast: "To the union of all honest men." Everybody considered this a blow at Jefferson. It was even more offensive to the Administration than his judiciary vote had been.⁷⁶³

From that moment all those peculiar weapons which politicians so well know how to use for the ruin of an opponent were employed for the destruction of Aaron Burr. Moreover, Jefferson had decided not only that Burr should not again be Vice-President, but that his bitterest enemy from his own State, George Clinton, should be the Republican candidate for that office; and, in view of Burr's strength and resourcefulness, this made necessary the latter's political annihilation.⁷⁶⁴ "Never in the history of the United States did so powerful a combination of rival politicians unite to break down a single man as that which arrayed itself against Burr."⁷⁶⁵

Nevertheless, Burr, who "was not a vindictive man,"⁷⁶⁶ did not retaliate for a long time.⁷⁶⁷ But at last to retrieve himself,⁷⁶⁸ he determined to appeal to the people – at whose hands he had never suffered defeat – and, in 1804, he became a candidate for the office of Governor of New York. The New York Federalists, now reduced to a little more than a strong faction, wished to support him, and were urged to do so by many Federalist leaders of other States. Undoubtedly Burr would have been elected but for the attacks of Hamilton.

At this period the idea of secession was stirring in the minds of the New England Federalist leaders. Such men as Timothy Pickering, Roger Griswold, Uriah Tracy, and James Hillhouse had even avowed separation from the Union to be desirable and certain; and talk of it was general.⁷⁶⁹ All these men were warm and insistent in their support of Burr for Governor, and at least two of them, Pickering and Griswold, had a conference with him in New York while the campaign was in progress.

Plumer notes in his diary that during the winter of 1804, at a dinner given in Washington attended by himself, Pickering, Hillhouse, Burr, and other public men, Hillhouse "unequivocally declared that … the United States would soon form two distinct and separate governments."⁷⁷⁰ More than nine months before, certain of the most distinguished New England Federalists had gone to the extreme length of laying their object of national dismemberment before the British Minister, Anthony Merry, and had asked and received his promise to aid them in their project of secession.⁷⁷¹

There was nothing new in the idea of dismembering the Union. Indeed, no one subject was more familiar to all parts of the country. Since before the adoption of the Constitution, it had been rife in the settlements west of the Alleghanies.⁷⁷² The very year the National Government was organized under the Constitution, the settlers beyond the Alleghanies were much inclined to withdraw from the Union because the Mississippi River had not been secured to them.⁷⁷³ For many years this disunion sentiment grew in strength. When, however, the Louisiana Purchase gave the pioneers on the Ohio and the Mississippi a free water-way to the Gulf and the markets of the world, the Western secessionist tendency disappeared. But after the happy accident that bestowed upon us most of the great West as well as the mouth of the Mississippi, there was in the Eastern States a widely accepted opinion that this very fact made necessary the partitioning of the Republic.

Even Jefferson, as late as 1803, did not think that outcome unlikely, and he was prepared to accept it with his blessing: "If they see their interest in separation, why should we take sides with our Atlantic rather than our Mississippi descendants? It is the elder and the younger brother differing. God bless them both, and keep them in union, if it be for their good, but separate them, if it be better."⁷⁷⁴

Neither Spain nor Great Britain had ever given over the hope of dividing the young Republic and of acquiring for themselves portions of its territory. The Spanish especially had been active and unceasing in their intrigues to this end, their efforts being directed, of course, to the acquisition of the lands adjacent to them and bordering on the Mississippi and the Ohio.⁷⁷⁵ In this work more than one American was in their pay. Chief of these Spanish agents was James Wilkinson, who had been a pensioner of Spain from 1787,⁷⁷⁶ and so continued until at least 1807, the bribe money coming into his hands for several years after he had been placed in command of the armies of the United States.⁷⁷⁷

None of these plots influenced the pioneers to wish to become Spanish subjects; the most that they ever desired, even at the height of their dissatisfaction with the American Government, was independence from what they felt to be the domination of the East. In 1796 this feeling reached its climax in the Kentucky secession movement, one of its most active leaders being Wilkinson, who declared his purpose of becoming "the Washington of the West."⁷⁷⁸

By 1805, however, the allegiance of the pioneers to the Nation was as firm as that of any other part of the Republic. They had become exasperated to the point of violence against Spanish officials, Spanish soldiers, and the Spanish Government. They regarded the Spanish provinces of the Floridas and of Mexico as mere satrapies of a hated foreign autocracy; and this indeed was the case. Everywhere west of the Alleghanies the feeling was universal that these lands on the south and southwest, held in subjection by an ancient despotism, should be "revolutionized" and "liberated"; and this feeling was shared by great numbers of people of the Eastern States.

Moreover, that spirit of expansion – of taking and occupying the unused and misused lands upon our borders – which has been so marked through American history, was then burning fiercely in every Western breast. The depredations of the Spaniards had finally lashed almost to a frenzy the resentment which had for years been increasing in the States bordering upon the Mississippi. All were anxious to descend with fire and sword upon the offending Spaniards.

Indeed, all over the Nation the conviction was strong that war with Spain was inevitable. Even the ultra-pacific Jefferson was driven to this conclusion; and, in less than ten months after Aaron Burr ceased to be Vice-President, and while he was making his first journey through the West and Southwest, the President, in two Messages to Congress, scathingly arraigned Spanish misdeeds and all but avowed that a state of war actually existed.⁷⁷⁹

Such, in broad outline, was the general state of things when Aaron Burr, his political and personal fortunes wrecked, cast about for a place to go and for work to do. He could not return to his practice in New York; there his enemies were in absolute control and he was under indictment for having challenged Hamilton. The coroner's jury also returned an inquest of murder against Burr and two of his friends, and warrants for their arrest were issued. In New Jersey, too, an indictment for murder hung over him.⁷⁸⁰

Only in the fresh and undeveloped West did a new life and a new career seem possible. Many projects filled his mind – everything was possible in that inviting region beyond the mountains. He thought of forming a company to dig a canal around the falls of the Ohio and to build a bridge over that river, connecting Louisville with the Indiana shore. He considered settling lands in the vast dominions beyond the Mississippi which the Nation had newly acquired from Spain. A return to public life as Representative in Congress from Tennessee passed through his mind.

But one plan in particular fitted the situation which the apparently certain war with Spain created. Nearly ten years earlier,⁷⁸¹ Hamilton had conceived the idea of the conquest of the Spanish possessions adjacent to us, and he had sought to enlist the Government in support of the project of Miranda to revolutionize Venezuela.⁷⁸² Aaron Burr had proposed the invasion and capture of the Floridas, Louisiana, and Mexico two years before Hamilton embraced the project,⁷⁸³ and the desire to carry out the plan continued strong within him. Circumstances seemed to make the accomplishment of it feasible. At all events, a journey through the West would enlighten him, as well as make clearer the practicability of his other schemes.

Now occurred the most unfortunate and disgraceful incident of Burr's life. In order to get money for his Mexican adventure, Burr played upon the British Minister's hostile feelings toward America and, in doing so, used downright falsehood. Although it was unknown at the time and not out of keeping with the unwritten rules of the game called diplomacy as then played, and although it had no effect upon the thrilling events that brought Burr before Marshall, so inextricably has this shameful circumstance been woven into the story of the Burr conspiracy, that mention of it must be made. It was the first thoroughly dishonorable act of Burr's tempestuous career.⁷⁸⁴

Five months after Pickering, Griswold, and other New England Federalists had approached Anthony Merry with their plan to divide the Union, Burr prepared to follow their example. He first sounded that diplomat through a British officer, one Colonel Charles Williamson. The object of the New England Senators and Representatives had been to separate their own and other Northern States from the Union; the proposition that Williamson now made to the British Minister was that Burr might do the same thing for the Western States.⁷⁸⁵ It was well known that the break-up of the Republic was expected and hoped for by the British Government, as well as by the Spaniards, and Williamson was not surprised when he found Merry as favorably disposed toward a scheme for separation of the States beyond the Alleghanies as he had been hospitable to the plan for the secession of New England.

Of the results of this conference Burr was advised; and when he had finished his preparations for his journey down the Ohio, he personally called upon Merry. This time a part of his real purpose was revealed; it was to secure funds.⁷⁸⁶ Burr asked that half a million dollars be supplied him⁷⁸⁷ for the revolutionizing of the Western States, but he did not tell of his dream about Mexico, for the realization of which the money was probably to be employed. In short, Burr lied; and in order to persuade Merry to secure for him financial aid he proposed to commit treason. Henry Adams declares that, so far as the proposal of treason was concerned, there was no difference between the moral delinquency of Pickering, Griswold, Hillhouse, and other Federalists and that of Aaron Burr.⁷⁸⁸

The eager and credulous British diplomat promised to do his best and sent Colonel Williamson on a special mission to London to induce Pitt's Ministry to make the investment.⁷⁸⁹ It should be repeated that Burr's consultations with the shallow and easily deceived Merry were not known at the time. Indeed, they never were fully revealed until more than three quarters of a century afterward.⁷⁹⁰ Moreover, it has been demonstrated that they had little or no bearing upon the adventure which Burr finally tried to carry out.⁷⁹¹ He was, as has been said, audaciously and dishonestly playing upon Merry's well-known hostility to this country in order to extract money from the British Treasury.⁷⁹² This attempt and the later one upon the Spanish Minister, who was equally antagonistic to the United States, were revolting exhibitions of that base cunning and duplicity which, at that period, formed so large a part of secret international intrigue.⁷⁹³

On April 10, 1805, Burr left Philadelphia on horseback for Pittsburgh, where he arrived after a nineteen days' journey. Before starting he had talked over his plans with several friends, among them former Senator Jonathan Dayton of New Jersey, who thereafter was a partner and fellow "conspirator."⁷⁹⁴

Another man with whom Burr had conferred was General James Wilkinson. Burr expected to meet him at Pittsburgh, but the General was delayed and the meeting was deferred. Wilkinson had just been appointed Governor of Upper Louisiana – one of the favors granted Burr during the Chase impeachment – and was the intimate associate of the fallen politician in his Mexican plan until, in a welter of falsehood and corruption, he betrayed him. Indeed, it was Wilkinson who, during the winter of 1804-05, when Burr was considering his future, proposed to him the invasion of Mexico and thus gave new life to Burr's old but never abandoned hope.⁷⁹⁵

On May 2, Burr started down the Ohio. When he reached Marietta, Ohio, he was heartily welcomed. He next stopped at an island owned by Harman Blennerhassett, who happened to be away. While inspecting the grounds Burr was invited by Mrs. Blennerhassett to remain for dinner. Thus did chance lay the foundations for that acquaintance which, later, led to a partnership in the enterprise that was ended so disastrously for both.

At Cincinnati, then a town of some fifteen hundred inhabitants, the attentions of the leading citizens were markedly cordial. There Burr was the guest of John Smith, then a Senator from Ohio, who had become attached to Burr while the latter was Vice-President, and who was now one of his associates in the plans under consideration. At Smith's house he met Dayton, and with these friends and partners he held a long conversation on the various schemes they were developing.⁷⁹⁶

A week later found him at the "unhealthy and inconsiderable village"⁷⁹⁷ of Louisville and from there he traveled by horseback to Frankfort and Lexington. While in Kentucky he conferred with General John Adair, then a member of the National Senate, who, like Smith and Dayton, had in Washington formed a strong friendship for Burr, and was his confidant.⁷⁹⁸ Another eminent man with whom he consulted was John Brown, then a member of the United States Senate from Kentucky, also an admirer of Burr.

It would appear that the wanderer was then seriously considering the proposal, previously made by Matthew Lyon, now a Representative in Congress from Kentucky, that Burr should try to go to the National House from Tennessee,⁷⁹⁹ for Burr asked and received from Senator Brown letters to friends in that State who could help to accomplish that design. But not one word did Burr speak to General Adair, to Senator Brown, or to any one else of his purpose to dismember the Nation.

Burr arrived at Nashville at the end of the month. The popular greeting had grown warmer with each stage of his journey, and at the Tennessee Capital it rose to noisy enthusiasm. Andrew Jackson, then Major-General of the State Militia, was especially fervent and entertained Burr at his great log house. A "magnificent parade" was organized in his honor. From miles around the pioneers thronged into the frontier Capital. Flags waved, fifes shrilled, drums rolled, cannon thundered. A great feast was spread and Burr addressed the picturesque gathering.⁸⁰⁰ Never in the brightest days of his political success had he been so acclaimed. Jackson, nine years before, when pleading with Congress to admit Tennessee into the Union, had met and liked Burr, who had then advocated statehood for that vigorous and aggressive Southern Territory. Jackson's gratitude for Burr's services to the State in championing its admission,⁸⁰¹ together with his admiration for the man, now ripened into an ardent friendship.

His support of Burr well reflected that of the people among whom the latter now found himself. Accounts of Burr's conduct as presiding officer at the trial of Chase had crept through the wilderness; the frontier newspapers were just printing Burr's farewell speech to the Senate, and descriptions of the effect of it upon the great men in Washington were passing from tongue to tongue. All this gilded the story of Burr's encounter with Hamilton, which, from the beginning, had been applauded by the people of the West and South.

Burr was now in a land of fighting men, where dueling was considered a matter of honor rather than disgrace. He was in a rugged democracy which regarded as a badge of distinction, instead of shame, the killing in fair fight of the man it had been taught to believe to be democracy's greatest foe. Here, said these sturdy frontiersmen, was the captain so long sought for, who could lead them in the winning of Texas and Mexico for America; and this Burr now declared himself ready to do – a purpose which added the final influence toward the conquest of the mind and heart of Andrew Jackson.

CHAPTER VII
THE CAPTURE AND ARRAIGNMENT

It was President Jefferson who directed and animated the prosecution. (Winfield Scott.)

The President's popularity is unbounded and his will is that of the nation. (Joseph Nicholson.)

The press from one end of the continent to the other has been enlisted to excite prejudices against Colonel Burr. (John Wickham.)

Two thirds of our speeches have been addressed to the people. (George Hay.)

It would be difficult or dangerous for a jury to acquit Burr, however innocent they might think him. (Marshall.)

While Washington was still agitated by the President's Special Message, the long winter voyage of Bollmann and Swartwout ended at Baltimore, and Burr's dazed dispatch-bearers were brought by military guards to the National Capital. There, on the evening of January 22, they were thrown into the military prison at the Marine Barracks, and "guarded, night and day, by an officer & 15 soldiers of the Marine Corps."⁹¹⁶

The ship bearing James Alexander had made a swift passage. On its arrival, friends of this prisoner applied to Joseph F. Nicholson, now United States Judge at Baltimore, for a writ of habeas corpus. Alexander was at once set free, there being not the slightest evidence to justify his detention.⁹¹⁷

A week or two later the schooner Thatcher, on board which was the disconsolate and dumbfounded General Adair – Wilkinson's fourth prisoner to be sent to Jefferson – tied up to its dock at Baltimore and he was delivered "over to the commander of the fort at that city." But a passenger on the vessel, "a stranger … of his own accord … assured [Adair] he would procure a writ of Habeas Corpus for him." Adair also was "immediately liberated, … there being no evidence against him."⁹¹⁸

After the incarceration of Bollmann and Swartwout in Washington, attorneys were secured for them and an application was made to Judge William Cranch, United States Judge for the District of Columbia, for a writ of habeas corpus in their behalf, directed to Colonel Wharton, who was in command at Washington. Wharton brought the luckless prisoners into court and stated that "he held them under the orders of his superior officer. They were then taken upon a bench warrant charging them with treason which superseded the writ. A motion was made by the prisoners council … that they be discharged. The Court required evidence of their probable guilt."⁹¹⁹

Jefferson now took a hand in the prosecution. He considered Wilkinson's affidavit insufficient⁹²⁰ to hold Bollmann and Swartwout, and, in order to strengthen the case against them, secured from Eaton an affidavit stating the dire revelations which Eaton alleged Burr had made to him a year before.⁹²¹ Eaton's theatrical story was thus given to the press,⁹²² and not only fortified the public conviction that a conspiracy to destroy the Union had been under way, but also horrified the country by the account of Burr's intention to assassinate Jefferson.

The Attorney-General and the United States District Attorney, representing the Government, demanded that Bollmann and Swartwout be held; Charles Lee, Robert Goodloe Harper, and Francis S. Key, attorneys for the prisoners, insisted that they be released. Long was the argument and "vast" the crowd that heard it; "collected & firm" was the appearance of the accused men.⁹²³ So universal was the curiosity, says John Quincy Adams, that the Senate was "scarcely able here to form a quorum … and the House … actually adjourned."⁹²⁴ The court decided that Bollmann and Swartwout should be sent back to prison "for trial without bail or main-prize." For the first time in our history a National court divided on political grounds. Judge Cranch, a Federalist first appointed by President Adams,⁹²⁵ thought that the prisoners should be discharged, but was overruled by his associates, Judges Nicholas Fitzhugh and Allen Bowie Duckett, Republicans appointed by Jefferson.⁹²⁶

But John Marshall and the Supreme Court had yet to be reckoned with. Counsel for the reimprisoned men at once applied to that tribunal for a writ of habeas corpus, and Marshall directed process to the jailer to show cause why the writ should not issue.

An extreme and violent step was now taken to end the proceedings in court. On Friday, January 23, 1807, the day after the President's Special Message denouncing Burr had been read in the Senate, Senator Giles, who, it should be repeated, was Jefferson's personal representative in that body, actually moved the appointment of a committee to draft a bill "to suspend the privilege of the writ of habeas corpus." Quickly Giles himself reported the measure, the Senate suspended its rules, and the bill was hurriedly passed, only Bayard of Delaware voting against it.⁹²⁷ More astounding still, Giles recommended, and the Senate adopted, a special message to the House, stating the Senate's action "which they think expedient to communicate to you in confidence," and asking the popular branch of Congress to pass the Senate bill without delay.⁹²⁸

Immediately after the House convened on Monday, January 26,⁹²⁹ Senator Samuel Smith of Maryland appeared on the floor and delivered this "confidential message," together with the Senate bill, which provided that "in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor … shall be arrested or imprisoned … the privilege of the writ of habeas corpus shall be … suspended, for and during the term of three months."⁹³⁰

The House was astounded. Party discipline was, for the moment, wrathfully repudiated. Mr. Philip R. Thompson of Virginia instantly moved that the "message and the bill received from the Senate ought not to be kept secret and that the doors be opened." Thompson's motion was adopted by 123 yeas to 3 nays.

Then came a motion to reject the bill, followed by a brief and almost one-sided debate, which was little more than the angry protest of the representatives of the people against the proposed overthrow of this last defense of liberty. William A. Burwell of Virginia asked whether there was any danger "to justify this suspension of this most important right of the citizen… He could judge from what he had already seen that men, who are perfectly innocent, would be doomed to … undergo the infamy of the dungeon."⁹³¹ "Never," exclaimed John W. Eppes of the same State, "under this Government, has personal liberty been held at the will of a single individual."⁹³²

On the other hand, Joseph B. Varnum of Massachusetts said that Burr's "insurrection" was the worst in all history.⁹³³ James Sloan of New Jersey made a similar statement.⁹³⁴ But the House promptly rejected the Senate bill by 113 yeas to 19 nays. The shameful attempt to prevent John Marshall from deciding whether Bollmann and Swartwout were entitled to the benefit of the most sacred writ known to the law was thereby defeated and the Chief Justice was left free to grant or reject it, as justice might require.

The order of the court of the District of Columbia was that Bollmann and Swartwout "be committed to prison of this court, to take their trial for treason against the United States, by levying war against them."⁹³⁵ In the Supreme Court the prisoners and the Government were represented by the same counsel who had argued the case below, and Luther Martin also appeared in behalf of the men whose long-continued and, as he believed, wholly illegal suffering had aroused the sympathies of that admirable lawyer.

The Supreme Court first decided that it had jurisdiction. The application for the writs of habeas corpus was, in effect, an appeal from the decision of the District Court. On this point Justice Johnson delivered a dissenting opinion, observing, as an aside, that the argument for the prisoners had shown "an unnecessary display of energy and pathos."⁹³⁶ The affidavit of General Wilkinson and his version of the Burr letter, concerning which "the court had difficulty," were admitted by a vote of the majority of the Justices. At noon on the twenty-first day of February, 1807, Marshall delivered the opinion of the majority of the court upon the main question,⁹³⁷ "whether the accused shall be discharged or held to trial."

The specific charge was that of "treason in levying war against the United States." This, declared Marshall, was the most serious offense of which any man can be accused: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both."

John Marshall

From a painting by Richard N. Brooke

In order that it should never be possible to extend treason "to offenses of minor importance," the Constitution "has given a rule on the subject both to the legislatures and the courts of America, which neither can be permitted to transcend." Marshall then read, with solemn impressiveness, these words from the Constitution of the United States: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

To support the charge against Bollmann and Swartwout, said Marshall, "war must be actually levied… To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed." It was not necessary for the commission of this crime that a man should actually "appear in arms against his country… If a body of men be actually assembled for the purpose of effecting by force a treasonable purpose; all those who perform any part, however minute, or however remote from the scene of the action, and who are actually leagued in the general conspiracy, are to be considered as traitors."⁹³⁸ This passage was soon to cause Marshall great embarrassment when he was confronted with it in the trial of Aaron Burr at Richmond.

Did this mean that men who go to the very edge of legal boundaries – who stop just short of committing treason – must go scathless? By no means! Such offenses could be and must be provided for by statute. They were not, like treason, Constitutional crimes. "The framers of our Constitution … must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."

This was a direct rebuke to Jefferson. There can be no doubt that Marshall was referring to the recent attempt to deprive Bollmann and Swartwout of the protection of the courts by suspending the writ of habeas corpus. "It is, therefore, more safe," continued Marshall, "as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide."

What do the words "levying war" mean? To complete that crime, Marshall repeated, "there must be an actual assemblage of men for the purpose of executing a treasonable design … but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war."⁹³⁹ He then applied these principles to the testimony. First he took up the deposition of Eaton⁹⁴⁰ which, he said, indicated that the invasion of Mexico "was the immediate object"⁹⁴¹ that Burr had in mind.

But, asked the Chief Justice, what had this to do with Bollmann and Swartwout? The prosecution connected the prisoners with the statements made in Eaton's deposition by offering the affidavit of General Wilkinson, which included his version of Burr's celebrated letter. Marshall then overruled the "great and serious objections made" to the admission of Wilkinson's affidavit. One of these objections was to that part which purported to set out the Wilkinson translation of the Burr cipher, the original letter not having been presented. Marshall announced that "a division of opinion has taken place in the court," two of the Judges believing such testimony totally inadmissible and two others holding that it was proper to consider it "at this incipient stage of the prosecution."

Thereupon Marshall analyzed Wilkinson's version of Burr's confidential cipher dispatch.⁹⁴² It was so vague, said the Chief Justice, that it "furnishes no distinct view of the design of the writer." But the "coöperation" which Burr stated had been secured "points strongly to some expedition against the territories of Spain."

Marshall then quoted these words of Burr's famous message: "'Burr's plan of operations is to move down rapidly from the falls on the 15th of November, with the first 500 or 1,000 men in the light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of December, there to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on, or to pass by, Baton Rouge. The people of the country to which we are going are prepared to receive us. Their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled.'"

This language was, said Marshall, "rather more explicit." But "there is no expression in these sentences which would justify a suspicion that any territory of the United States was the object of the expedition. For what purpose seize on Baton Rouge? Why engage Spain against this enterprise, if it was designed against the United States?"⁹⁴³

Burr's statement that "the people of the country to which we are going are prepared to receive us," was, said Marshall, "peculiarly appropriate to a foreign country." And what was the meaning of the statement: "Their agents now with Burr say, that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled"? It was not probable that this referred to American citizens; but it perfectly fitted the Mexicans. "There certainly is not in the letter delivered to General Wilkinson … one syllable which has a necessary or a natural reference to an enterprise against the territory of the United States."

According to Wilkinson's affidavit, Swartwout knew the contents of the dispatch he was carrying; Wilkinson had deposed that Burr's messenger had frankly said so. Without stating that, in his long journey from New York through the Western States and Territories in quest of Wilkinson, he had "performed on his route any act whatever which was connected with the enterprise," Swartwout had declared "their object to be 'to carry an expedition to the Mexican provinces.'"⁹⁴⁴ This, said Marshall, was "explanatory of the letter of Col. Burr, if the expressions of that letter could be thought ambiguous."

But Wilkinson declared in his affidavit that Swartwout had also told him that "this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed at New Orleans."⁹⁴⁵ If this meant that the Government in any American territory was to be revolutionized by force, "although merely as a … means of executing some greater projects, the design was unquestionably treasonable," said Marshall; "and any assemblage of men for that purpose would amount to a levying of war." It was, then, of first importance to discover the true meaning of the youthful and indiscreet messenger.

For the third time the court divided. "Some of the judges," Marshall explained, suppose that these words of Swartwout "refer to the territory against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to a territory of the United States, as alluding to a revolution to be effected by the people, rather than by the party conducted by Col. Burr."

Swartwout's statement, as given in Wilkinson's affidavit, that Burr was assembling thousands of armed men to attack Mexico, did not prove that Burr had gathered an army to make war on the United States.⁹⁴⁶ If the latter were Burr's purpose, it was not necessary that the entire host should have met at one spot; if detachments had actually formed and were marching to the place of rendezvous, treason had been committed. Following his tedious habit of repeating over and over again, often in identical language, statements already clearly made, Marshall for the fourth time asserted that there must be "unequivocal evidence" of "an actual assemblage."

The mere fact that Burr "was enlisting men in his service … would not amount to levying war." That Swartwout meant only this, said Marshall, was "sufficiently apparent." If seven thousand men had actually come together in one body, every one would know about it; and surely, observed Marshall, "some evidence of such an assembling would have been laid before the court."

Burr's intention to do certain "seizing at New Orleans" did not amount to levying war from anything that could be inferred from Swartwout's statement. It only "indicated a design to rob." Having thus examined all the testimony before the court, Marshall announced the opinion of the majority of the Justices that there was not "sufficient evidence of his [Swartwout's] levying war against the United States to justify his commitment on the charge of treason."⁹⁴⁷

The testimony against Bollmann was, if possible, still weaker. There was, indeed, "no evidence to support a charge of treason" against him. Whoever believed the assertions in Wilkinson's affidavit could not doubt that both Bollmann and Swartwout "were engaged in a most culpable enterprise against the dominions of a power at peace with the United States"; but it was apparent that "no part of this crime was committed in the District of Columbia." They could not, therefore, be tried in that District.

Upon that point the court was at last unanimous. The accused men could have been tried in New Orleans – "there existed a tribunal in that city," sarcastically observed Marshall; but to say that citizens might be seized by military power in the jurisdiction where the alleged crime was committed and thereafter tried "in any place which the general might select, and to which he might direct them to be carried," was not to be thought of – such a thing "would be extremely dangerous." So the long-suffering Bollmann and Swartwout were discharged.⁹⁴⁸

Thus, by three different courts, five of the "conspirators" had successively been released. In the case of Ogden, there was no proof; of Alexander, no proof; of Adair, no proof; of Bollmann and Swartwout, no proof. And the Judges had dared to set free the accused men – had refused to consign them to prison, despite public opinion and the desire of the Administration. Could anything be more undemocratic, more reprehensible? The Supreme Court, especially, should be rebuked.

On learning of that tribunal's action, Giles adjourned the meeting of his committee on the treason bill in order to secure immediately a copy of Marshall's opinion. In a true Virginian rage, Giles threatened to offer an amendment to the Constitution "taking away all jurisdiction of the Supreme Court in criminal cases." There was talk of impeaching every occupant of the Supreme Bench.⁹⁴⁹

More news had now reached Washington concerning the outrages committed at New Orleans; and on the day that the attorneys for Bollmann and Swartwout applied to the Supreme Court for writs of habeas corpus, James M. Broom of Delaware rose in the House, and introduced a resolution "to make further provision for securing the privilege of the writ of habeas corpus to persons in custody under or by color of the authority of the United States."⁹⁵⁰ While the cases were being argued in the Supreme Court and the divided Judges were wrangling over the disputed points, a violent debate sprang up in the House over Broom's resolution. "If, upon every alarm of conspiracy," said Broom, "our rights of personal liberty are to be entrusted to the keeping of a military commander, we may prepare to take our leave of them forever."⁹⁵¹ All day the debate continued; on the next day, February 18, while Marshall was delivering his opinion that the Supreme Court had jurisdiction of the application of Bollmann and Swartwout, the controversy in the House was renewed.

James Elliot of Vermont said that "most of the privileges intended to be secured" by the Fourth, Fifth, and Sixth Amendments⁹⁵² "have recently been denied … at the point of the bayonet, and under circumstances of peculiar violence." He read Wilkinson's impertinent return to the Orleans County Court. This, said Elliot, was "not obedience to the laws … but … defiance… What necessity could exist for seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the Constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government"?⁹⁵³ Not only was the swish of the party whip heard in the House, he asserted, but members who would not desert the fundamentals of liberty must "be prepared for the insinuation that we countenance treason, and sympathize with traitors."⁹⁵⁴

The shrill voice of John Randolph was heard. Almost his first sentence was a blow at Jefferson. If the President and his party "ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage."⁹⁵⁵ Randolph assailed the recent attempt to suspend the writ of habeas corpus which, he said, "was intended … to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done."⁹⁵⁶ The Declaration of Independence had assigned wrongs of precisely the kind suffered by Bollmann and Swartwout "as one of the grievances imposed by the British Government on the colonies. Now, it is done under the Constitution," exclaimed Randolph, "and under a republican administration, and men are transported without the color of law, nearly as far as across the Atlantic."⁹⁵⁷

Again and again angry speakers denounced the strenuous attempts of the Administration's supporters to influence Republican votes on partisan grounds. Only by the most desperate efforts was Jefferson saved from the rebuke and humiliation of the passage of the resolution. But his escape was narrow. Indefinite postponement was voted by the dangerous majority of 2 out of a total of 118 members.⁹⁵⁸

While Burr's messengers were on the high seas, prisoners of war, and Wilkinson at New Orleans was saving the Republic by rending its laws, Burr himself, ignorant of all, was placidly making his way down the Ohio and Mississippi with his nine boats and sixty adventurers, mostly youths, many only boys. He had left Jackson at Nashville on December 22, and floating down the Cumberland in two unarmed boats, had joined the remainder of the little expedition.

He then met for the first time the young adventurers whom Blennerhassett, Comfort Tyler of Syracuse, New York, and Davis Floyd of the tiny settlement of New Albany, Indiana Territory, had induced to join the expedition. On a cold, rainy December morning they were drawn up in a semi-circle on a little island at the mouth of the Cumberland River, and Burr was introduced to each of them. Greeting them with his customary reserved friendliness, he told them that the objects of the expedition not already disclosed to them would be revealed at a more opportune time.⁹⁵⁹

Such was the second "overt act" of the gathering of an armed host to "levy war" on the United States for which Jefferson later fastened the charge of treason upon Aaron Burr.

As it floated down the Ohio and Mississippi, the little flotilla⁹⁶⁰ stopped at the forts upon the river bluffs, and the officers proffered Burr all the courtesies at their command. Seven days after Burr had left Fort Massac, Captain Bissel, in answer to a letter of inquiry from Andrew Jackson, assured him that "there has nothing the least alarming appeared"; Burr had passed with a few boats "having nothing on board that would even suffer a conjecture, more than a man bound to market."⁹⁶¹ John Murrell of Tennessee, sent on a secret mission of investigation, reported to Jackson that, pursuant to instructions, he had closely followed and examined Burr's movements on the Cumberland; that he had heard reports that Burr "had gone down the river with one thousand armed men"; but Murrell had found the fact to be that there were but ten boats with only "sixty men on board," and "no appearance of arms."⁹⁶²

During the week when John Randolph, in the House, was demanding information of the President, and Wilkinson, in New Orleans, was making his second series of arrests, Burr, with his little group of boats and small company of men – totally unequipped for anything but the settlement of the Washita lands, and poorly supplied even for that – serenely drew up to the landing at the small post of Bayou Pierre in the Territory of Mississippi. He was still uninformed of what was going forward at New Orleans and at Washington – still unconscious of the storm of hatred and denunciation that had been blown up against him.

At the little settlement, Burr learned for the first time of the fate prepared for him. Bloody and violent were the measures he then adopted! He wrote a letter to Cowles Mead, Acting Governor of the Territory, stating that rumors he had just heard were untrue; that "his object is agriculture and his boats are the vehicles of immigration." But he "hinted at resistance to any attempt to coerce him."⁹⁶³

What followed was related by Mead himself. As directed by the War Department, he had prorogued the Legislature, put the Territory in a state of defense, and called out the militia. When Burr's letter came, Mead ordered these frontier soldiers to "rendezvous at certain points… With the promptitude of Spartans, our fellow-citizens shouldered their firelocks, and in twenty-four hours I had the honor to review three hundred and seventy-five men at Natches, prepared to defend their country." Mead sent two aides to Burr, "who tendered his respects to the civil authority." The Acting Governor himself then saw Burr, whereupon the desperado actually "offered to surrender himself to the civil authority of the Territory, and to suffer his boats to be searched." This was done by "four gentlemen of unquestionable respectability, with a detachment of thirty men." Burr readily went into court and awaited trial.

"Thus, sir," concludes Governor Mead, "this mighty alarm, with all its exaggeration, has eventuated in nine boats and one hundred men,⁹⁶⁴ and the major part of these are boys, or young men just from school," wholly unaware of Burr's evil designs.⁹⁶⁵

The Legislature of the Territory of Orleans had just convened. Governor Claiborne recommended that a law be passed suspending the writ of habeas corpus. Behind closed doors the Representatives were harangued by Wilkinson on the subject of the great conspiracy. All the old horrors were again paraded to induce the legislators to support Wilkinson in his lawless acts. Instead, that body denied the existence of treason in Louisiana, expressed alarm at the "late privation" of the rights of American citizens, and determined to investigate the "measures and motives" of Wilkinson. A memorial to Congress was adopted, denouncing "the acts of high-handed military power … too notorious to be denied, too illegal to be justified, too wanton to be excused," by which "the temple of justice" had been "sacrilegiously rifled."⁹⁶⁶

In Mississippi, Burr calmly awaited his trial before the United States Court of that Territory. Bail in the sum of five thousand dollars had been furnished by Colonel Benijah Osmun and Lyman Harding, two Revolutionary comrades of Burr, who years before had emigrated to Mississippi and developed into wealthy planters. Colonel Osmun invited Burr to be his guest. Having seen the ogre and talked with him, the people of the neighborhood became Burr's enthusiastic friends.

Soon the grand jury was impaneled to investigate Burr's "crimes" and indict him for them if a true bill could be found. This body outdid the performance of the Kentucky grand jury nine weeks earlier. The grand jurors asserted that, after examining the evidence, they were "of the opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory or given any just alarm or inquietude to the good people of this Territory." Worse still followed – the grand jury formally presented as "a grievance" the march of the militia against Burr, since there had been no prior resistance by him to the civil authorities. Nor did the grand jurors stop there. They also presented "as a grievance, destructive of personal liberty," Wilkinson's military outrages in New Orleans.⁹⁶⁷

When the grand jury was dismissed, Burr asked to be discharged and his sureties released from his bond. The judge was Thomas Rodney, the father of Cæsar A. Rodney whom Jefferson soon afterward appointed Attorney-General. Judge Rodney out-Wilkinsoned Wilkinson; he denied Burr's request and ordered him to renew his bond or go to jail. This was done despite the facts that the grand jury had refused to indict Burr and that there was no legal charge whatever before the court.

Jefferson cannot sufficiently criticize Marshall's opinion: "If, in Nov. or Dec. last, a body of troops had assembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March," he quotes from Marshall's ruling. "I ask the judge where they [the affidavits] should have been lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?.. New Orleans?.. Where? At Richmond he certainly meant, or meant only to throw dust in the eyes of his audience."¹⁰⁰²

As his pen flew over the burning page, Jefferson's anger grew. Marshall's love of monarchy was at the bottom of his decision: "All the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Republic."

Marshall's refinements as to proof required to establish probable cause to believe Burr guilty, particularly irritated Jefferson. "As to the overt acts, were not the bundle of letters of information in Mr. Rodney's hands, the letters and facts published in the local newspapers, Burr's flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts … so as to put him on trial? Is there a candid man in the U S who does not believe some one, if not all, of these overt acts to have taken place?"

How dare Marshall require legal evidence when "letters, newspapers and rumors" condemned Burr! How dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by Jefferson himself!

That Marshall was influenced by politics and was of a kidney with the whole breed of National judges up to that time, Jefferson had not the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with more charity."

But the conduct of the Chief Justice will be the final outrage which will compel a great reform. "The nation will judge both the offender & judges for themselves … the people … will see … & amend the error in our Constitution, which makes any branch independent of the nation… One of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again."

Thus Jefferson extracts some comfort from Marshall's refusal to obey popular clamor and condemn on "rumor." If Marshall's "protection of Burr produces this amendment,¹⁰⁰³ it will do more good than his condemnation would have done. Against Burr, personally," audaciously adds Jefferson, "I never had one hostile sentiment."¹⁰⁰⁴

Such was the state of the President's mind when he learned of Marshall's ruling on the Government's motion to commit Burr to jail upon the charges of treason and high misdemeanor. Jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will.

Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director-general of a propaganda planned to confirm public opinion of Burr's treason, and to discredit Marshall should his decisions from the bench result in the prisoner's escape from the gallows.¹⁰⁰⁵ Jefferson ordered his Attorney-General, Cæsar A. Rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of Burr, his plans, movements, or conversations. Long lists of questions, designed to elicit replies that would convict Burr, were sent to these officials on printed forms. A vast drag-net was spread over almost the whole of the United States and drawn swiftly and remorselessly to Washington.

The programme for the prosecution became the subject of anxious Cabinet meetings, and the resources of every department of the Executive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to take the necessary measures," including the advance of money for their expenses, to bring to Richmond witnesses "from great distances."

Five thousand dollars, in a single warrant, was given to the Attorney-General for use in supporting the Administration's case.¹⁰⁰⁶ The total amount of the public money expended by Jefferson's orders to secure Burr's conviction was $11,721.11, not a dollar of which had been appropriated for that purpose. "All lawful expenses in the prosecution of Burr were audited, and paid in full," under a law which provided for the conduct of criminal cases; the sums spent by direction of the President were in addition to the money dispensed by authority of that law.¹⁰⁰⁷

When Bollmann had been brought to Washington, he had read with rage and amazement the newspaper accounts that Burr had led two thousand armed men in a violent and treasonable attack upon the United States. Accordingly, after Marshall released him from imprisonment, he hastened to Jefferson and tried to correct what he declared to be "false impressions" concerning Burr's treason. Bollmann also wished to convince the President that war with Spain was desirable, and to get his support of Burr's expedition. Jefferson, having taken the precaution to have the Secretary of State present at the interview, listened with apparent sympathy. The following day he requested Bollmann to write out and deliver to him his verbal statements, "Thomas Jefferson giving him his word of honour that they should never be used against himself [Bollmann] and that the paper shall never go out of his [Jefferson's] hand."¹⁰⁰⁸

The confiding Bollmann did as the President requested, his whole paper going "to disprove treason, and to show the expediency of war." Because of unfamiliarity with the English language "one or two expressions" may have been "improperly used."¹⁰⁰⁹ Bollmann's statement Jefferson now transmitted to the District Attorney at Richmond, in order, said the President, "that you may know how to examine him and draw everything from him."

Jefferson ordered Hay to show the paper only to his associate counsel; but, if Bollmann "should prevaricate," the President adds, "ask him whether he did not say so and so to Mr. Madison and myself." The President assures Hay that "in order to let him [Bollmann] see that his prevarication will be marked, Mr. Madison will forward [Hay] a pardon for him, which we mean should be delivered previously." Jefferson fears that Bollmann may not appear as a witness and directs Hay to "take effectual measures to have him immediately taken into custody."

Nor was this all. Three months earlier, Wilkinson had suggested to Jefferson the base expedient of offering pardons to Burr's associates, in order to induce them to betray him and thus make certain his conviction.¹⁰¹⁰ Apparently this crafty and sinister advice now recurred to Jefferson's mind – at least he followed it. He enclosed a sheaf of pardons and directed Hay to fill them out "at [his] discretion, if [he] should find a defect of evidence, & believe that this would supply it, by avoiding to give them to the gross offenders, unless it be visible that the principal will otherwise escape."¹⁰¹¹

In the same letter Jefferson also sent to Hay the affidavit of one Jacob Dunbaugh, containing a mass of bizarre falsehoods, as was made plain during the trial. Dunbaugh was a sergeant who had been arrested for desertion and had been pardoned by Wilkinson on condition that he would give suitable testimony against Burr. "If," continues Jefferson, "General Wilkinson gets on in time,¹⁰¹² I expect he will bring Dunbaugh with him. At any rate it [Dunbaugh's affidavit] may be a ground for an arrest & committment for treason."

Vividly alive to the forces at work to doom him, Burr nevertheless was not dismayed. As a part of his preparation for defense he exercised on all whom he met the full power of his wonderful charm; and if ever a human being needed friends, Aaron Burr needed them in the Virginia Capital. As usual, most of those who conversed with him and looked into his deep, calm eyes became his partisans. Gradually, a circle of men and women of the leading families of Richmond gathered about him, supporting and comforting him throughout his desperate ordeal.

Burr's attorneys were no longer merely his counsel performing their professional duty; even before the preliminary hearing was over, they had become his personal friends and ardent champions. They were ready and eager to go into court and fight for their client with that aggressiveness and enthusiasm which comes only from affection for a man and a faith in his cause. Every one of them not only had developed a great fondness for Burr, but earnestly believed that his enterprise was praise-worthy rather than treasonable.

One of them, John Wickham, was a commanding figure in the society of Richmond, as well as the leader of the Virginia bar at that time.¹⁰¹³ He was a close friend of Marshall and lived in an imposing house near him. It was to Wickham that Marshall had left the conduct of his cases in court when he went to France on the X. Y. Z. mission.

Dinners were then the principal form of social intercourse in Richmond, and were constantly given. The more prominent lawyers were particularly devoted to this pleasing method of cheer and relaxation. This custom kept the brilliant bar of Richmond sweet and wholesome, and nourished among its members a mutual regard, while discouraging resentments and animosities. Much of that courtesy and deference shown to one another by the lawyers of that city, even in the most spirited encounters in court, was due to that esteem and fellowship which their practice of dining together created.

Of the dispensers of such hospitality, Marshall and Wickham were the most notable and popular. The "lawyer dinners" given by Marshall were famous; and the tradition of them still casts a warm and exhilarating glow. The dinners, too, of John Wickham were quite as alluring. The food was as plentiful and as well prepared, the wines as varied, select, and of as ancient vintage, the brandy as old and "sound," the juleps as fragrant and seductive; and the wit was as sparkling, the table talk as informing, the good humor as heartening. Nobody ever thought of declining an invitation to the house of John Wickham.

All these circumstances combined to create a situation for which Marshall was promptly denounced with that thoughtlessness and passion so characteristic of partisanship – a situation that has furnished a handle for malignant criticism of him to this day. During the interval between the preliminary hearing and the convening of court in May, Wickham gave one of his frequent and much-desired dinners. As a matter of course, Wickham's intimate friend and next-door neighbor was present – no dinner in Richmond ever was complete without the gentle-mannered, laughter-loving John Marshall, with his gift for making everybody happy and at ease. But Aaron Burr was also a guest.

Aaron Burr, "the traitor," held to make answer to charges for his infamous crimes, and John Marshall, the judge before whom the miscreant was to be tried, dining together! And at the house of Burr's chief counsel! Here was an event more valuable to the prosecution than any evidence or argument, in the effect it would have, if rightly employed, on public opinion, before which Burr had been and was arraigned far more than before the court of justice.

Full use was made of the incident. The Republican organ, the Richmond Enquirer, promptly exposed and denounced it. This was done by means of two letters signed "A Stranger from the Country," who "never had any, the least confidence in the political principles of the chief justice" – none in "that noble candor" and "those splendid … even god-like talents which many of all parties ascribe to him." Base as in reality he was, Marshall might have "spared his country" the "wanton insult" of having "feasted at the same convivial board with Aaron Burr." What excuse was there for "conduct so grossly indecent"? To what motive should Marshall's action be ascribed? "Is this charity, hypocracy, or federalism?" Doubtless he "was not actuated by any corrupt motive," and "was unapprised of the invitation of B."¹⁰¹⁴ However, the fact is, that the judge, the accused, and his attorney, were fellow guests at this "treason rejoicing dinner."¹⁰¹⁵

Thus the great opinions of John Marshall, delivered during the trial of Aaron Burr, were condemned before they were rendered or even formed. With that lack of consideration which even democracies sometimes display, the facts were not taken into account. That Marshall never knew, until he was among them, who his fellow guests were to be; that Wickham's dinner, except in the presence of Burr, differed in no respect from those constantly given in Richmond; that Marshall, having arrived, could do nothing except to leave and thus make the situation worse; – none of these simple and obvious facts seemed to have occurred to the eager critics of the Chief Justice.

That Marshall was keenly aware of his predicament there can be no doubt. He was too good a politician and understood too well public whimsies and the devices by which they are manipulated, not to see the consequences of the innocent but unfortunate evening at Wickham's house. But he did not explain; he uttered not a syllable of apology. With good-natured contempt for the maneuvers of the politicians and the rage of the public, yet carefully and coolly weighing every element of the situation, John Marshall, when the appointed day of May came around, was ready to take his seat upon the bench and to conduct the historic trial of Aaron Burr with that kindly forbearance which never deserted him, that canny understanding of men and motives which served him better than learning, and that placid fortitude that could not be shaken.

CHAPTER VIII
ADMINISTRATION VERSUS COURT

In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office. (Henry Adams.)

It becomes our duty to lay the evidence before the public. Go into any expense necessary for this purpose. (Jefferson.)

The President has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. (Luther Martin.)

If you cannot exorcise the demon of prejudice, you can chain him down to law and reason. (Edmund Randolph.)

On May 22, 1807, the hall of the House of Delegates at Richmond was densely crowded long before the hour of half-past twelve, when John Marshall took his seat upon the bench and opened court. So occupied was every foot of space that it was with difficulty that a passage was opened through which the tall, awkwardly moving, and negligently clad Chief Justice could make his way. By Marshall's side sat Cyrus Griffin, Judge of the District Court, who throughout the proceedings was negligible.

The closely packed spectators accurately portrayed the dress, manners, and trend of thought of the American people of that period. Gentlemen in elegant attire – hair powdered and queues tied in silk, knee breeches and silver buckles, long rich cloth coats cut half away at the waist, ruffled shirts and high stocks – were conspicuous against the background of the majority of the auditors, whose apparel, however, was no less picturesque.

This audience was largely made up of men from the smaller plantations, men from the mountains, men from the backwoods, men from the frontiers. Red woolen shirts; rough homespun or corduroy trousers, held up by "galluses"; fringed deerskin coats and "leggings" of the same material kept in place by leather belts; hair sometimes tied by strings in uncouth queues, but more often hanging long and unconfined – in such garb appeared the greater part of the attendance at the trial of Aaron Burr. In forty years there had been but little change in the general appearance of Virginians¹⁰¹⁶ except that fewer wore the old dignified and becoming attire of well-dressed men.

Nearly all of them were Republicans, plain men, devoted to Jefferson as the exponent of democracy and the heaven-sent leader of the people. Among these Jeffersonians, however, were several who, quite as much as the stiffest Federalists, prided themselves upon membership in the "upper classes."

Nearly all of the Republicans present, whether of the commonalty or the gentry, were against Aaron Burr. Scattered here and there were a few Federalists – men who were convinced that democracy meant the ruin of the Republic, and who profoundly believed that Jefferson was nothing more than an intriguing, malicious demagogue – most of whom looked upon Burr with an indulgent eye. So did an occasional Republican, as now and then a lone Federalist denounced Burr's villainy.

The good-sized square boxes filled with sand that were placed at infrequent intervals upon the floor of the improvised court-room were too few to receive the tobacco juice that filled the mouths of most of the spectators before it was squirted freely upon the floor and wall. Those who did not chew the weed either smoked big cigars and fat pipes or contented themselves with taking snuff.¹⁰¹⁷ Upon recess or adjournment of court, all, regularly and without loss of time, repaired to the nearest saloons or taverns and strengthened themselves, with generous draughts of whiskey or brandy, taken "straight," for a firmer, clearer grasp of the points made by counsel.

Never, in its history, had Richmond been so crowded with strangers. Nearly five thousand people now dwelt in the Virginia Capital, the site of which was still "untamed and broken" by "inaccessible heights and deep ravines."¹⁰¹⁸ Thousands of visitors had come from all over the country to witness the prosecution of that fallen angel whose dark deeds, they had been made to believe, had been in a fair way to destroy the Nation. The inns could shelter but an insignificant fraction of them, and few were the private houses that did not take in men whom the taverns could not accommodate. Hundreds brought covered wagons or tents and camped under the trees or on the river-banks near the city. Correspondents of the press of the larger cities were present, among them the youthful¹⁰¹⁹ Washington Irving, who wrote one or two articles for a New York paper.

The Old State House. Richmond, Va.

Where Marshall presided at the Burr trial.

In the concourse thus drawn to Richmond, few there were who were not certain that Burr had planned and attempted to assassinate Jefferson, overthrow the Government, shatter the Nation, and destroy American "liberty"; and so vocal and belligerent was this patriotic majority that men who at first held opinions contrary to the prevailing sentiment, or who entertained doubts of Burr's guilt, kept discreetly silent. So aggressively hostile was public feeling that, weeks later, when the bearing and manners of Burr, and the devotion, skill, and boldness of his counsel had softened popular asperity, Marshall declared that, even then, "it would be difficult or dangerous for a jury to venture to acquit Burr, however innocent they might think him."¹⁰²⁰ The prosecution of Aaron Burr occurred when a tempest of popular prejudice and intolerance was blowing its hardest.

The provision concerning treason had been written into the American Constitution "to protect the people against that horrible and dangerous doctrine of constructive treason which had stained the English records with blood and filled the English valleys with innocent graves."¹⁰²¹

The punishment for treason in all countries had been brutal and savage in the extreme. In England, that crime had not perhaps been treated with such severity as elsewhere. Yet, even in England, so harsh had been the rulings of the courts against those charged with treason, so inhuman the execution of judgments upon persons found guilty under these rulings, so slight the pretexts that sent innocent men and women to their death,¹⁰²² that the framers of our fundamental law had been careful to define treason with utmost clearness, and to declare that proof of it could only be made by two witnesses to the same overt act or by confession of the accused in open court.¹⁰²³

That was one subject upon which the quarreling members of the Constitutional Convention of 1787 had been in accord, and their solution of the question had been the one and the only provision of which no complaint had been made during the struggle over ratification.

Every member of that Convention – every officer and soldier of the Revolution from Washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence – all such persons could have been prosecuted and might have been convicted as "traitors" under the British law of constructive treason.¹⁰²⁴ "None," said Justice James Iredell in 1792, "can so highly … prize these provisions [of the Constitution] as those who are best acquainted with the abuses which have been practised in other countries in prosecutions for this offence… We … hope that the page of American history will never be stained with prosecutions for treason, begun without cause, conducted without decency, and ending in iniquitous convictions, without the slightest feelings of remorse."¹⁰²⁵

Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.¹⁰²⁶ And in less than seventeen years from the time our National Government was established, the reasons for writing into the Constitution the rigid provision concerning treason were forgotten by the now thoroughly partisanized multitude, if, indeed, the people ever knew those reasons.

Moreover, every National judge who had passed upon the subject, with the exception of John Marshall, had asserted the British doctrine of constructive treason. Most of the small number who realized the cause and real meaning of the American Constitutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular passion of the hour or questioned the opinion of Thomas Jefferson, then at the summit of his popularity.¹⁰²⁷

One such dauntless man, however, there was among the surging throng that filled the Capitol Square at Richmond after the adjournment of court on May 22, and he was a vigorous Republican, too. "A tall, lank, uncouth-looking personage, with long locks of hair hanging over his face, and a queue down his back tied in an eel-skin, his dress singular, his manners and deportment that of a rough backwoodsman,"¹⁰²⁸ mounted the steps of a corner grocery and harangued the glowering assemblage that gathered in front of him.¹⁰²⁹ His daring, and an unmistakable air that advertised danger to any who disputed him, prevented that violent interruption certain to have been visited upon one less bold and formidable. He praised Burr as a brave man and a patriot who would have led Americans against the hated Spanish; he denounced Jefferson as a persecutor who sought the ruin of one he hated. Thus Andrew Jackson of Tennessee braved and cowed the hostile mob that was demanding and impatiently awaiting the condemnation and execution of the one who, for the moment, had been made the object of the country's execration.¹⁰³⁰

Jackson had recovered from his brief distrust of Burr, and the reaction had carried his tempestuous nature into extreme championship of his friend. "I am more convinced than ever," he wrote during the trial, "that treason was never intended by Burr."¹⁰³¹ Throughout the extended and acrimonious contest, Jackson's conviction grew stronger that Burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. And Jackson firmly believed that the leader of this cabal was Thomas Jefferson. "I am sorry to say," he wrote, "that this thing [the Burr trial] has … assumed the shape of a political persecution."¹⁰³²

The Administration retaliated by branding Andrew Jackson a "malcontent"; and Madison, because of Jackson's attitude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812.¹⁰³³ On the other hand, Burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made Andrew Jackson President of the United States.¹⁰³⁴

Nor was Jackson the only Republican who considered Jefferson as the contriving and energizing hand of the scheme to convict Burr. Almost riotous were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and "the ascent to the building was painfully laborious."¹⁰³⁵ Old and eminent lawyers of Richmond could not reach the bar of the court, so dense was the throng.

One youthful attorney, tall and powerful, "the most magnificent youth in Virginia," determined to witness the proceedings, shouldered his way within and "stood on the massive lock of the great door" of the chamber.¹⁰³⁶ Thus Winfield Scott got his first view of that striking scene, and beheld the man whose plans to invade Mexico he himself, more than a generation afterward, was to carry out as Commander of the American Army. Scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. "It was President Jefferson who directed and animated the prosecution," he declares in his "Memoirs." Scott records the political alignment that resulted: "Hence every Republican clamored for execution. Of course, the Federalists … compacted themselves on the other side."¹⁰³⁷

Of all within the Hall of Delegates, and, indeed, among the thousands then in Richmond, only two persons appeared to be perfectly at ease. One of them was John Marshall, the other was Aaron Burr. Winfield Scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of May: "There he stood, in the hands of power, on the brink of danger, as composed, as immovable, as one of Canova's living marbles." But, says Scott, "Marshall was the master spirit of the scene."¹⁰³⁸

Gathered about Burr were four of his counsel, the fifth and most powerful of his defenders, Luther Martin, not yet having arrived. The now elderly Edmund Randolph, bearing himself with "overawing dignity"; John Wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; Benjamin Botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, John Baker, a cripple, as well known for his wit as Botts for his fearlessness – this was the group of men that appeared for the defense.

For the prosecution came Jefferson's United States District Attorney, George Hay – eager, nervous, and not supremely equipped either in mind or attainments; William Wirt – as handsome and attractive as he was eloquent and accomplished, his extreme dissipation¹⁰³⁹ now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and Alexander MacRae, then Lieutenant-Governor of Virginia – a sour-tempered, aggressive, well-informed, and alert old Scotchman, pitiless in his use of sarcasm, caring not the least whom he offended if he thought that his affronts might help the cause for which he fought. David Robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.¹⁰⁴⁰

With all these men Marshall was intimately acquainted, and he was well assured that, in making up his mind in any question which arose, he would have that assistance upon which he so much relied – exhaustive argument and complete exposition of all the learning on the subject to be decided.

Marshall was liked and admired by the lawyers on both sides, except George Hay, who took Jefferson's view of the Chief Justice. Indeed, the ardent young Republican District Attorney passionately espoused any opinion the President expressed. The whole bar understood the strength and limitations of the Chief Justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. From these circumstances, and from Marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice.

The first step in the proceedings was the examination by the grand jury of the Government's witnesses, and its return, or refusal to return, bills of indictment against Burr. When the clerk had called the names of those summoned on the grand jury, Burr arose and addressed the court. Clad in black silk, hair powdered and queue tied in perfect fashion, the extreme pallor of his face in striking contrast to his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic assemblage.

The accused man spoke with a quiet dignity and an "impressive distinctness" which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.¹⁰⁴¹ Burr now objected to the panel of the grand jury. The law, he said, required the marshal to summon twenty-four freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.¹⁰⁴²

For an hour or more the opposing counsel wrangled over this point. Randolph hints at the strategy of the defense: "There never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold." Marshall sustained Burr's exception: undoubtedly the marshal had acted "with the most scrupulous regard to what he believed to be the law," but, if he had changed the original panel, he had transcended his authority.¹⁰⁴³ It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.¹⁰⁴⁴