THE LIFE OF JOHN MARSHALL

Standard Library Edition

IN FOUR VOLUMES

VOLUME III

JOHN MARSHALL
From the portrait by Chester Harding

THE LIFE
OF
JOHN MARSHALL

BY
ALBERT J. BEVERIDGE

Volume III

CONFLICT AND CONSTRUCTION

1800-1815

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge

COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE
ALL RIGHTS RESERVED

PREFACE

Marshall's great Constitutional opinions grew out of, or were addressed to, serious public conditions, national in extent. In these volumes the effort is made to relate the circumstances that required him to give to the country those marvelous state papers: for Marshall's opinions were nothing less than state papers and of the first rank. In order to understand the full meaning of his deliverances and to estimate the just value of his labors, it is necessary to know the historical sources of his foremost expositions of the Constitution, and the historical purposes they were intended to accomplish. Without such knowledge, Marshall's finest pronouncements become mere legal utterances, important, to be sure, but colorless and unattractive.

It is worthy of repetition, even in a preface, that the history of the times is a part of his greatest opinions; and that, in the treatment of them a résumé of the events that produced them must be given. For example, the decision of Marbury vs. Madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. The Judiciary Debate of 1802 in Congress—one of the most brilliant as well as most important legislative engagements in parliamentary history—can no more be overlooked by the student of American Constitutional development, than the opinion of Marshall in Marbury vs. Madison can be disregarded.

Again, in Cohens vs. Virginia, the Chief Justice rises to heights of exalted—almost emotional—eloquence. Yet the case itself was hardly more than a police court controversy. If the trivial fine of itinerant peddlars of lottery tickets were alone involved, Marshall's splendid passages become unnecessary and, indeed, pompous rhetoric. But when the curtains of history are raised, we see the heroic part that Marshall played and realize the meaning of his powerful language. While Marshall's opinion in M'Culloch vs. Maryland, even taken by itself, is a major treatise on constitutional government, it becomes a fascinating chapter in an engaging story, when read in connection with an account of the situation which compelled that outgiving.

The same thing is true of his other historic utterances. Indeed, it may be said that his weightiest opinions were interlocking parts of one great drama.

Much space has been given to the conspiracy and trials of Aaron Burr. The combined story of that adventure and of those prosecutions has not hitherto been told. In the conduct of the Burr trials, Marshall appears in a more intimate and personal fashion than in any other phase of his judicial career; the entire series of events that make up that page of our history is a striking example of the manipulation of public opinion by astute politicians, and is, therefore, useful for the self-guidance of American democracy. Most important of all, the culminating result of this dramatic episode was the definitive establishment of the American law of treason.

In narrating the work of a jurist, the temptation is very strong to engage in legal discussion, and to cite and comment upon the decisions of other courts and the opinions of other judges. This, however, would be the very negation of biography; nor would it add anything of interest or enlightenment to the reader. Such information and analysis are given fully in the various books on Constitutional law and history, in the annotated reports, and in the encyclopædias of law upon the shelves of every lawyer. Care, therefore, has been taken to avoid making any part of the Life of John Marshall a legal treatise.

The manuscript of these volumes has been read by Professor Edward Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S. Corwin of Princeton; Professor William E. Dodd of Chicago University; Professor Clarence W. Alvord of the University of Illinois; Professor James A. Woodburn of Indiana University; Professor Charles H. Ambler of the University of West Virginia; Professor Archibald Henderson of the University of North Carolina; Professor D. R. Anderson of Richmond (Va.) College; and Dr. H. J. Eckenrode of Richmond, Virginia.

The manuscript of the third volume has been read by Professor Charles A. Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold J. Laski of Harvard. The manuscript of both the third and fourth volumes has been read, from the lawyer's point of view, by Mr. Arthur Lord of Boston, President of the Massachusetts Bar Association, and by Mr. Charles Martindale of Indianapolis.

The chapters on the Burr conspiracy and trials have been read by Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin Cox of the University of Cincinnati; and Mr. Samuel H. Wandell of New York. Chapter Three of Volume Three (Marbury vs. Madison) has been read by the Honorable Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United States; by the Honorable Philander Chase Knox, United States Senator; and by Mr. James M. Beck of New York. Other special chapters have been read by the Honorable Henry Cabot Lodge, United States Senator; by Professor J. Franklin Jameson of the Department of Historical Research of the Carnegie Institution of Washington; by Professor Charles H. Haskins of Harvard; by Dr. William Draper Lewis of Philadelphia, former Dean of the Law School of the University of Pennsylvania; and by Mr. W. B. Bryan of Washington.

All of these gentlemen have made valuable suggestions of which I have availed myself, and I gratefully acknowledge my indebtedness to them. The responsibility for everything in these volumes, however, is, of course, exclusively mine; and, in stating my appreciation of the comment and criticism with which I have been favored, I do not wish to be relieved of my burden by allowing the inference that any part of it should be assigned to others.

I also owe it to myself again to express my heavy obligation to Mr. Worthington Chauncey Ford, Editor of the Massachusetts Historical Society. As was the case in the preparation of the first two volumes of this work, Mr. Ford has extended to me the resources of his ripe scholarship; while his wise counsel, steady encouragement, and unselfish assistance, have been invaluable in the prosecution of a long and exacting task.

I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of the Boston Public Library, who has read with critical care not only the many drafts of the manuscript, but also the proofs of the entire work. Mr. Swift has given, unstintedly, his rare literary taste and critical accomplishment to the examination of these pages.

I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who has generously directed the preparation of the bibliography and personally revised it.

Mr. David Maydole Matteson of Cambridge, Massachusetts, has made the index of these volumes as he made that of the first two volumes, and has combined both indexes into one. In rendering this service, Mr. Matteson has also searched for points where text and notes could be made more accurate; and I wish to express my appreciation of his kindness.

My thanks are also owing to the staff of The Riverside Press, and particularly to Mr. Lanius D. Evans, to whose keen interest and watchful care in the production of this work I am indebted for much of whatever exactitude it may possess.

The manuscript sources have been acknowledged, in all instances, in the footnotes where references to them have been made, except in the case of the letters of Marshall to his relatives, for which I again thank those descendants and connections of the Chief Justice named in the preface to Volumes One and Two. The Hopkinson manuscripts are in the possession of Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the privilege of inspecting this valuable source and for furnishing me with copies of important letters.

In preparing these volumes, Mr. A. P. C. Griffin, Assistant Librarian, and Mr. John Clement Fitzpatrick, of the Manuscript Division of the Library of Congress, have been even more obliging, if possible, than they were in the preparation of the first part of this work. The officers and their assistants of the Boston Public Library, the Boston Athenæum, the Massachusetts State Library, the Massachusetts Historical Society, the Pennsylvania Historical Society, the Virginia State Library, the Indiana State Library, and the Indianapolis City Library, have assisted whole-heartedly in the performance of my labors; and I am glad of the opportunity to thank all of them for their interest and help.

Albert J. Beveridge

CONTENTS

ILLUSTRATIONS

LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

All references here are to the List of Authorities at the end of this volume

Adams: U.S. See Adams, Henry. History of the United States.

Ames. See Ames, Fisher. Works.

Channing: Jeff. System. See Channing, Edward. Jeffersonian System, 1801-11.

Channing: U.S. See Channing, Edward. History of the United States.

Chase Trial. See Chase, Samuel. Trial.

Corwin. See Corwin, Edward Samuel. Doctrine of Judicial Review.

Cutler. See Cutler, William Parker, and Julia Perkins. Life, Journals, and Correspondence of Manasseh Cutler.

Dillon. See Marshall, John. Life, Character, and Judicial Services. Edited by John Forrest Dillon.

Eaton: Prentiss. See Eaton, William. Life.

Jay: Johnston. See Jay, John. Correspondence and Public Papers.

Jefferson Writings: Washington. See Jefferson, Thomas, Writings. Edited by Henry Augustine Washington.

King. See King, Rufus. Life and Correspondence.

McCaleb. See McCaleb, Walter Flavius. Aaron Burr Conspiracy.

McMaster: U.S. See McMaster, John Bach. History of the People of the United States.

Marshall. See Marshall, John. Life of George Washington.

Memoirs, J. Q. A.: Adams. See Adams, John Quincy. Memoirs.

Morris. See Morris, Gouverneur. Diary and Letters.

N.E. Federalism: Adams. See New-England Federalism, 1800-1815, Documents relating to. Edited by Henry Adams.

Plumer. See Plumer, William. Life.

Priv. Corres.: Colton. See Clay, Henry. Private Correspondence. Edited by Calvin Colton.

Records Fed. Conv.: Farrand. See Records of the Federal Convention of 1787.

Story. See Story, Joseph. Life and Letters.

Trials of Smith and Ogden. See Smith, William Steuben, and Ogden, Samuel Gouverneur. Trials for Misdemeanors.

Wharton: Social Life. See Wharton, Anne Hollingsworth. Social Life in the Early Republic.

Wharton: State Trials. See Wharton, Francis. State Trials of the United States during the Administrations of Washington and Adams.

Wilkinson: Memoirs. See Wilkinson, James. Memoirs of My Own Times.

Works: Colton. See Clay, Henry. Works.

Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited by Paul Leicester Ford.

Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. Edited by Worthington Chauncey Ford.

THE LIFE OF JOHN MARSHALL

THE LIFE OF JOHN MARSHALL

CHAPTER I

DEMOCRACY: JUDICIARY

Rigorous law is often rigorous injustice. (Terence.)

The Federalists have retired into the Judiciary as a stronghold, and from that battery all the works of republicanism are to be battered down. (Jefferson.)

There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control. (George Cabot.)

A strange sight met the eye of the traveler who, aboard one of the little river sailboats of the time, reached the stretches of the sleepy Potomac separating Alexandria and Georgetown. A wide swamp extended inland from a modest hill on the east to a still lower elevation of land about a mile to the west.[1] Between the river and morass a long flat tract bore clumps of great trees, mostly tulip poplars, giving, when seen from a distance, the appearance of "a fine park."[2]

Upon the hill stood a partly constructed white stone building, mammoth in plan. The slight elevation north of the wide slough was the site of an apparently finished edifice of the same material, noble in its dimensions and with beautiful, simple lines,[3] but "surrounded with a rough rail fence 5 or 6 feet high unfit for a decent barnyard."[4] From the river nothing could be seen beyond the groves near the banks of the stream except the two great buildings and the splendid trees which thickened into a seemingly dense forest upon the higher ground to the northward.[5]

On landing and making one's way through the underbrush to the foot of the eastern hill, and up the gullies that seamed its sides thick with trees and tangled wild grapevines,[6] one finally reached the immense unfinished structure that attracted attention from the river. Upon its walls laborers were languidly at work.

Clustered around it were fifteen or sixteen wooden houses. Seven or eight of these were boarding-houses, each having as many as ten or a dozen rooms all told. The others were little affairs of rough lumber, some of them hardly better than shanties. One was a tailor shop; in another a shoemaker plied his trade; a third contained a printer with his hand press and types, while a washerwoman occupied another; and in the others there was a grocery shop, a pamphlets-and-stationery shop, a little dry-goods shop, and an oyster shop. No other human habitation of any kind appeared for three quarters of a mile.[7]

A broad and perfectly straight clearing had been made across the swamp between the eastern hill and the big white house more than a mile away to the westward. In the middle of this long opening ran a roadway, full of stumps, broken by deep mud holes in the rainy season, and almost equally deep with dust when the days were dry. On either border was a path or "walk" made firm at places by pieces of stone; though even this "extended but a little way." Alder bushes grew in the unused spaces of this thoroughfare, and in the depressions stagnant water stood in malarial pools, breeding myriads of mosquitoes. A sluggish stream meandered across this avenue and broadened into the marsh.[8]

A few small houses, some of brick and some of wood, stood on the edge of this long, broad embryo street. Near the large stone building at its western end were four or five structures of red brick, looking much like ungainly warehouses. Farther westward on the Potomac hills was a small but pretentious town with its many capacious brick and stone residences, some of them excellent in their architecture and erected solidly by skilled workmen.[9]

Other openings in the forest had been cut at various places in the wide area east of the main highway that connected the two principal structures already described. Along these forest avenues were scattered houses of various materials, some finished and some in the process of erection.[10] Here and there unsightly gravel pits and an occasional brick kiln added to the raw unloveliness of the whole.

Such was the City of Washington, with Georgetown near by, when Thomas Jefferson became President and John Marshall Chief Justice of the United States—the Capitol, Pennsylvania Avenue, the "Executive Mansion" or "President's Palace," the department buildings near it, the residences, shops, hostelries, and streets. It was a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort.

When considering the events that took place in the National Capital as narrated in these volumes,—the debates in Congress, the proclamations of Presidents, the opinions of judges, the intrigues of politicians,—when witnessing the scenes in which Marshall and Jefferson and Randolph and Burr and Pinckney and Webster were actors, we must think of Washington as a dismal place, where few and unattractive houses were scattered along muddy openings in the forests.

There was on paper a harmonious plan of a splendid city, but the realization of that plan had scarcely begun. As a situation for living, the Capital of the new Nation was, declared Gallatin, a "hateful place."[11] Most of the houses were "small miserable huts" which, as Wolcott informed his wife, "present an awful contrast to the public buildings."[12]

Aside from an increase in the number of residences and shops, the "Federal City" remained in this state for many years. "The Chuck holes were not bad," wrote Otis of a journey out of Washington in 1815; "that is to say they were none of them much deeper than the Hubs of the hinder wheels. They were however exceedingly frequent."[13] Pennsylvania Avenue was, at this time, merely a stretch of "yellow, tenacious mud,"[14] or dust so deep and fine that, when stirred by the wind, it made near-by objects invisible.[15] And so this street remained for decades. Long after the National Government was removed to Washington, the carriage of a diplomat became mired up to the axles in the sticky clay within four blocks of the President's residence and its occupant had to abandon the vehicle.

John Quincy Adams records in his diary, April 4, 1818, that on returning from a dinner the street was in such condition that "our carriage in coming for us ... was overset, the harness broken. We got home with difficulty, twice being on the point of oversetting, and at the Treasury Office corner we were both obliged to get out ... in the mud.... It was a mercy that we all got home with whole bones."[16]

Fever and other malarial ills were universal at certain seasons of the year.[17] "No one, from the North or from the high country of the South, can pass the months of August and September there without intermittent or bilious fever," records King in 1803.[18] Provisions were scarce and Alexandria, across the river, was the principal source of supplies.[19] "My God! What have I done to reside in such a city," exclaimed a French diplomat.[20] Some months after the Chase impeachment[21] Senator Plumer described Washington as "a little village in the midst of the woods."[22] "Here I am in the wilderness of Washington," wrote Joseph Story in 1808.[23]

Except a small Catholic chapel there was only one church building in the entire city, and this tiny wooden sanctuary was attended by a congregation which seldom exceeded twenty persons.[24] This absence of churches was entirely in keeping with the inclination of people of fashion. The first Republican administration came, testifies Winfield Scott, in "the spring tide of infidelity.... At school and college, most bright boys, of that day, affected to regard religion as base superstition or gross hypocricy."[25]

Most of the Senators and Representatives of the early Congresses were crowded into the boarding-houses adjacent to the Capitol, two and sometimes more men sharing the same bedroom. At Conrad and McMunn's boarding-house, where Gallatin lived when he was in the House, and where Jefferson boarded up to the time of his inauguration, the charge was fifteen dollars a week, which included service, "wood, candles and liquors."[26] Board at the Indian Queen cost one dollar and fifty cents a day, "brandy and whisky being free."[27] In some such inn the new Chief Justice of the United States, John Marshall, at first, found lodging.

Everybody ate at one long table. At Conrad and McMunn's more than thirty men would sit down at the same time, and Jefferson, who lived there while he was Vice-President, had the coldest and lowest place at the table; nor was a better seat offered him on the day when he took the oath of office as Chief Magistrate of the Republic.[28] Those who had to rent houses and maintain establishments were in distressing case.[29] So lacking were the most ordinary conveniences of life that a proposal was made in Congress, toward the close of Jefferson's first administration, to remove the Capital to Baltimore.[30] An alternative suggestion was that the White House should be occupied by Congress and a cheaper building erected for the Presidential residence.[31]

More than three thousand people drawn hither by the establishment of the seat of government managed to exist in "this desert city."[32] One fifth of these were negro slaves.[33] The population was made up of people from distant States and foreign countries[34]—the adventurous, the curious, the restless, the improvident. The "city" had more than the usual proportion of the poor and vagrant who, "so far as I can judge," said Wolcott, "live like fishes by eating each other."[35] The sight of Washington filled Thomas Moore, the British poet, with contempt.

"This embryo capital, where Fancy sees
Squares in morasses, obelisks in trees;
Where second-sighted seers, even now, adorn
With shrines unbuilt and heroes yet unborn,
Though nought but woods and Jefferson they see,
Where streets should run and sages ought to be."[36]

Yet some officials managed to distill pleasure from materials which one would not expect to find in so crude a situation. Champagne, it appears, was plentiful. When Jefferson became President, that connoisseur of liquid delights[37] took good care that the "Executive Mansion" was well supplied with the choicest brands of this and many other wines.[38] Senator Plumer testifies that, at one of Jefferson's dinners, "the wine was the best I ever drank, particularly the champagne which was indeed delicious."[39] In fact, repasts where champagne was served seem to have been a favorite source of enjoyment and relaxation.[40]

Scattered, unformed, uncouth as Washington was, and unhappy and intolerable as were the conditions of living there, the government of the city was torn by warring interests. One would have thought that the very difficulties of their situation would have compelled some harmony of action to bring about needed improvements. Instead of this, each little section of the city fought for itself and was antagonistic to the others. That part which lay near the White House[41] strove exclusively for its own advantage. The same was true of those who lived or owned property about Capitol Hill. There was, too, an "Alexandria interest" and a "Georgetown interest." These were constantly quarreling and each was irreconcilable with the other.[42]

In all respects the Capital during the first decades of the nineteenth century was a representation in miniature of the embryo Nation itself. Physical conditions throughout the country were practically the same as at the time of the adoption of the Constitution; and popular knowledge and habits of thought had improved but slightly.[43]

A greater number of newspapers, however, had profoundly affected public sentiment, and democratic views and conduct had become riotously dominant. The defeated and despairing Federalists viewed the situation with anger and foreboding. Of all Federalists John Marshall and George Cabot were the calmest and wisest. Yet even they looked with gloom upon the future. "There are some appearances which surprize me," wrote Marshall on the morning of Jefferson's inauguration to his intimate friend, Charles Cotesworth Pinckney.

"I wish, however, more than I hope that the public prosperity & happiness will sustain no diminution under Democratic guidance. The Democrats are divided into speculative theorists & absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is not difficult to foresee that much difficulty is in store for our country—if he does not, they will soon become his enemies and calumniators."[44]

After Jefferson had been President for four months, Cabot thus interpreted the Republican victory of 1800: "We are doomed to suffer all the evils of excessive democracy through the United States.... Maratists and Robespierrians everywhere raise their heads.... There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control"[45]—an opinion which Marshall, speaking for the Supreme Court of the Nation, was soon to announce.

Joseph Hale wrote to King that Jefferson's election meant the triumph of "the wild principles of uproar & misrule" which would produce "anarchy."[46] Sedgwick advised our Minister at London: "The aristocracy of virtue is destroyed."[47] In the course of a characteristic Federalist speech Theodore Dwight exclaimed: "The great object of Jacobinism is ... to force mankind back into a savage state.... We have a country governed by blockheads and knaves; our wives and daughters are thrown into the stews.... Can the imagination paint anything more dreadful this side of hell."[48]

The keen-eyed and thoughtful John Quincy Adams was of the opinion that "the basis of it all is democratic popularity.... There never was a system of measures [Federalist] more completely and irrevocably abandoned and rejected by the popular voice.... Its restoration would be as absurd as to undertake the resurrection of a carcass seven years in its grave."[49] A Federalist in the Commercial Gazette of Boston,[50] in an article entitled "Calm Reflections," mildly stated that "democracy teems with fanaticism." Democrats "love liberty ... and, like other lovers, they try their utmost to debauch ... their mistress."

There was among the people a sort of diffused egotism which appears to have been the one characteristic common to Americans of that period. The most ignorant and degraded American felt himself far superior to the most enlightened European. "Behold the universe," wrote the chronicler of Congress in 1802. "See its four quarters filled with savages or slaves. Out of nine hundred millions of human beings but four millions [Americans] are free."[51]

William Wirt describes the contrast of fact to pretension: "Here and there a stately aristocratick palace, with all its appurtenances, strikes the view: while all around for many miles, no other buildings are to be seen but the little smoky huts and log cabins of poor, laborious, ignorant tenants. And what is very ridiculous, these tenants, while they approach the great house, cap in hand, with all the fearful trembling submission of the lowest feudal vassals, boast in their court-yards, with obstreperous exultation, that they live in a land of freemen, a land of equal liberty and equal rights."[52]

Conservatives believed that the youthful Republic was doomed; they could see only confusion, destruction, and decline. Nor did any nation of the Old World at that particular time present an example of composure and constructive organization. All Europe was in a state of strained suspense during the interval of the artificial peace so soon to end. "I consider the whole civilized world as metal thrown back into the furnace to be melted over again," wrote Fisher Ames after the inevitable resumption of the war between France and Great Britain.[53] "Tremendous times in Europe!" exclaimed Jefferson when cannon again were thundering in every country of the Old World. "How mighty this battle of lions & tygers! With what sensations should the common herd of cattle look upon it? With no partialities, certainly!"[54]

Jefferson interpreted the black forebodings of the defeated conservatives as those of men who had been thwarted in the prosecution of evil designs: "The clergy, who have missed their union with the State, the Anglo men, who have missed their union with England, the political adventurers who have lost the chance of swindling & plunder in the waste of public money, will never cease to bawl, on the breaking up of their sanctuary."[55]

Of all the leading Federalists, John Marshall was the only one who refused to "bawl," at least in the public ear; and yet, as we have seen and shall again find, he entertained the gloomy views of his political associates. Also, he held more firmly than any prominent man in America to the old-time Federalist principle of Nationalism—a principle which with despair he watched his party abandon.[56] His whole being was fixed immovably upon the maintenance of order and constitutional authority. Except for his letter to Pinckney, Marshall was silent amidst the clamor. All that now went forward passed before his regretful vision, and much of it he was making ready to meet and overcome with the affirmative opinions of constructive judicial statesmanship.

Meanwhile he discharged his duties—then very light—as Chief Justice. But in doing so, he quietly began to strengthen the Supreme Court. He did this by one of those acts of audacity that later marked the assumptions of power which rendered his career historic. For the first time the Chief Justice disregarded the custom of the delivery of opinions by the Justices seriatim, and, instead, calmly assumed the function of announcing, himself, the views of that tribunal. Thus Marshall took the first step in impressing the country with the unity of the highest court of the Nation. He began this practice in Talbot vs. Seeman, familiarly known as the case of the Amelia,[57] the first decided by the Supreme Court after he became Chief Justice.

During our naval war with France an armed merchant ship, the Amelia, owned by one Chapeau Rouge of Hamburg, while homeward bound from Calcutta, was taken by the French corvette, La Diligente. The Amelia's papers, officers, and crew were removed to the French vessel, a French crew placed in charge, and the captured ship was sent to St. Domingo as a prize. On the way to that French port, she was recaptured by the American frigate, Constitution, Captain Silas Talbot, and ordered to New York for adjudication. The owner demanded ship and cargo without payment of the salvage claimed by Talbot for his rescue. The case finally reached the Supreme Court.

In the course of a long and careful opinion the Chief Justice held that, although there had been no formal declaration of war on France, yet particular acts of Congress had authorized American warships to capture certain French vessels and had provided for the payment of salvage to the captors. Virtually, then, we were at war with France. While the Amelia was not a French craft, she was, when captured by Captain Talbot, "an armed vessel commanded and manned by Frenchmen," and there was "probable cause to believe" that she was French. So her capture was lawful.

Still, the Amelia was not, in fact, a French vessel, but the property of a neutral; and in taking her from the French, Talbot had, in reality, rescued the ship and rendered a benefit to her owners for which he was entitled to salvage. For a decree of the French Republic made it "extremely probable" that the Amelia would be condemned by the French courts in St. Domingo; and that decree, having been "promulgated" by the American Government, must be considered by American courts "as an authenticated copy of a public law of France interesting to all nations." This, said Marshall, was "the real and only question in the case." The first opinion delivered by Marshall as Chief Justice announced, therefore, an important rule of international law and is of permanent value.

Marshall's next case[58] involved complicated questions concerning lands in Kentucky. Like nearly all of his opinions, the one in this case is of no historical importance except that in it he announced for the second time the views of the court. In United States vs. Schooner Peggy,[59] Marshall declared that, since the Constitution makes a treaty a "supreme law of the land," courts are as much bound by it as by an act of Congress. This was the first time that principle was stated by the Supreme Court. Another case[60] concerned the law of practice and of evidence. This was the last case in which Marshall delivered an opinion before the Republican assault on the Judiciary was made—the causes of which assault we are now to examine.

At the time of his inauguration, Jefferson apparently meant to carry out the bargain[61] by which his election was made possible. "We are all Republicans, we are all Federalists," were the reassuring words with which he sought to quiet those who already were beginning to regret that they had yielded to his promises.[62] Even Marshall was almost favorably impressed by the inaugural address. "I have administered the oath to the Presdt.," he writes Pinckney immediately after Jefferson had been inducted into office. "His inauguration speech ... is in general well judged and conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of this political theory."[63]

It is likely that, for the moment, the President intended to keep faith with the Federalist leaders. But the Republican multitude demanded the spoils of victory; and the Republican leaders were not slow or soft-spoken in telling their chieftain that he must take those measures, the assurance of which had captivated the popular heart and given "the party of the people" a majority in both House and Senate.

Thus the Republican programme of demolition was begun. Federalist taxes were, of course, to be abolished; the Federalist mint dismantled; the Federalist army disbanded; the Federalist navy beached. Above all, the Federalist system of National courts was to be altered, the newly appointed Federalist National judges ousted and their places given to Republicans; and if this could not be accomplished, at least the National Judiciary must be humbled and cowed. Yet every step must be taken with circumspection—the cautious politician at the head of the Government would see to that. No atom of party popularity[64] must be jeopardized; on the contrary, Republican strength must be increased at any cost, even at the temporary sacrifice of principle.[65] Unless these facts are borne in mind, the curious blending of fury and moderation—of violent attack and sudden quiescence—in the Republican tactics during the first years of Jefferson's Administration are inexplicable.

Jefferson determined to strike first at the National Judiciary. He hated it more than any other of the "abominations" of Federalism. It was the only department of the Government not yet under his control. His early distrust of executive authority, his suspicion of legislative power when his political opponents held it, were now combined against the National courts which he did not control.

Impotent and little respected as the Supreme Court had been and still was, Jefferson nevertheless entertained an especial fear of it; and this feeling had been made personal by the thwarting of his cherished plan of appointing his lieutenant, Spencer Roane of Virginia, Chief Justice of the United States.[66] The elevation of his particular aversion, John Marshall, to that office, had, he felt, wickedly robbed him of the opportunity to make the new regime harmonious; and, what was far worse, it had placed in that station of potential, if as yet undeveloped, power, one who, as Jefferson had finally come to think, might make the high court of the Nation a mighty force in the Government, retard fundamental Republican reforms, and even bring to naught measures dear to the Republican heart.

It seems probable that, at this time, Jefferson was the only man who had taken Marshall's measure correctly. His gentle manner, his friendliness and conviviality, no longer concealed from Jefferson the courage and determination of his great relative; and Jefferson doubtless saw that Marshall, with his universally conceded ability, would find means to vitalize the National Judiciary, and with his fearlessness, would employ those means.

"The Federalists," wrote Jefferson, "have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be beaten down and erased."[67] Therefore that stronghold must be taken. Never was a military plan more carefully devised than was the Republican method of capturing it. Jefferson would forthwith remove all Federalist United States marshals and attorneys;[68] he would get rid of the National judges whom Adams had appointed under the Judiciary Act of 1801.[69] If this did not make those who remained on the National Bench sufficiently tractable, the sword of impeachment would be held over their obstinate heads until terror of removal and disgrace should render them pliable to the dominant political will. Thus by progressive stages the Supreme Court would be brought beneath the blade of the executioner and the obnoxious Marshall decapitated or compelled to submit.

To this agreeable course, so well adapted to his purposes, the President was hotly urged by the foremost leaders of his party. Within two weeks after Jefferson's inauguration, the able and determined William Branch Giles of Virginia, faithfully interpreting the general Republican sentiment, demanded "the removal of all its [the Judiciary's] executive officers indiscriminately." This would get rid of the Federalist marshals and clerks of the National courts; they had been and were, avowed Giles, "the humble echoes" of the "vicious schemes" of the National judges, who had been "the most unblushing violators of constitutional restrictions."[70] Again Giles expressed the will of his party: "The revolution [Republican success in 1800] is incomplete so long as that strong fortress [the Judiciary] is in possession of the enemy." He therefore insisted upon "the absolute repeal of the whole judiciary system."[71]

The Federalist leaders quickly divined the first part of the Republican purpose: "There is nothing which the [Republican] party more anxiously wish than the destruction of the judicial arrangements made during the last session," wrote Sedgwick.[72] And Hale, with dreary sarcasm, observed that "the independence of our Judiciary is to be confirmed by being made wholly subservient to the will of the legislature & the caprice of Executive visions."[73]

The judges themselves had invited the attack so soon to be made upon them.[74] Immediately after the Government was established under the Constitution, they took a position which disturbed a large part of the general public, and also awakened apprehensions in many serious minds. Persons were haled before the National courts charged with offenses unknown to the National statutes and unnamed in the Constitution; nevertheless, the National judges held that these were indictable and punishable under the common law of England.[75]

This was a substantial assumption of power. The Judiciary avowed its right to pick and choose among the myriad of precedents which made up the common law, and to enforce such of them as, in the opinion of the National judges, ought to govern American citizens. In a manner that touched directly the lives and liberties of the people, therefore, the judges became law-givers as well as law-expounders. Not without reason did the Republicans of Boston drink with loud cheers this toast: "The Common Law of England! May wholesome statutes soon root out this engine of oppression from America."[76]

The occasions that called forth this exercise of judicial authority were the violation of Washington's Neutrality Proclamation, the violation of the Treaty of Peace with Great Britain, and the numberless threats to disregard both. From a strictly legal point of view, these indeed furnished the National courts with plausible reasons for the position they took. Certainly the judges were earnestly patriotic and sincere in their belief that, although Congress had not authorized it, nevertheless, that accumulation of British decisions, usages, and customs called "the common law" was a part of American National jurisprudence; and that, of a surety, the assertion of it in the National tribunals was indispensable to the suppression of crimes against the United States. In charging the National grand jury at Richmond, May 22, 1793, Chief Justice John Jay first announced this doctrine, although not specifically naming the common law.[77] Two months later, Justice James Wilson claimed the same inclusive power in his address to the grand jury at Philadelphia.[78]

In 1793, Joseph Ravara, consul for Genoa, was indicted in the United States District Court of Pennsylvania for sending an anonymous and threatening letter to the British Minister and to other persons in order to extort money from them. There was not a word in any act of Congress that referred even indirectly to such a misdemeanor, yet Justices Wilson and Iredell of the Supreme Court, with Judge Peters of the District Court, held that the court had jurisdiction,[79] and at the trial Chief Justice Jay and District Judge Peters held that the rash Genoese could be tried and punished under the common law of England.[80]

Three months later Gideon Henfield was brought to trial for the violation of the Neutrality Proclamation. The accused, a sailor from Salem, Massachusetts, had enlisted at Charleston, South Carolina, on a French privateer and was given a commission as an officer of the French Republic. As such he preyed upon the vessels of the enemies of France. One morning in May, 1793, Captain Henfield sailed into the port of Philadelphia in charge of a British prize captured by the French privateer which he commanded.

Upon demand of the British Minister, Henfield was seized, indicted, and tried in the United States Circuit Court for the District of Pennsylvania.[81] In the absence of any National legislation covering the subject, Justice Wilson instructed the grand jury that Henfield could, and should, be indicted and punished under British precedents.[82] When the case was heard the charge of the court to the trial jury was to the same effect.[83]

The jury refused to convict.[84] The verdict was "celebrated with extravagant marks of joy and exultation," records Marshall in his account of this memorable trial. "It was universally asked," he says, "what law had been offended, and under what statute was the indictment supported? Were the American people already prepared to give to a proclamation the force of a legislative act, and to subject themselves to the will of the executive? But if they were already sunk to such a state of degradation, were they to be punished for violating a proclamation which had not been published when the offense was committed, if indeed it could be termed an offense to engage with France, combating for liberty against the combined despots of Europe?"[85]

In this wise, political passions were made to strengthen the general protest against riveting the common law of England upon the American people by judicial fiat and without authorization by the National Legislature.

Isaac Williams was indicted and tried in 1799, in the United States Circuit Court for the District of Connecticut, for violating our treaty with Great Britain by serving as a French naval officer. Williams proved that he had for years been a citizen of France, having been "duly naturalized" in France, "renouncing his allegiance to all other countries, particularly to America, and taking an oath of allegiance to the Republic of France." Although these facts were admitted by counsel for the Government, and although Congress had not passed any statute covering such cases, Chief Justice Oliver Ellsworth practically instructed the jury that under the British common law Williams must be found guilty.

No American could cease to be a citizen of his own country and become a citizen or subject of another country, he said, "without the consent ... of the community."[86] The Chief Justice announced as American law the doctrine then enforced by European nations—"born a subject, always a subject."[87] So the defendant was convicted and sentenced "to pay a fine of a thousand dollars and to suffer four months imprisonment."[88]

These are examples of the application by the National courts of the common law of England in cases where Congress had failed or refused to act. Crime must be punished, said the judges; if Congress would not make the necessary laws, the courts would act without statutory authority. Until 1812, when the Supreme Court put an end to this doctrine,[89] the National courts, with one exception,[90] continued to apply the common law to crimes and offenses which Congress had refused to recognize as such, and for which American statutes made no provision.

Practically all of the National and many of the State judges were highly learned in the law, and, of course, drew their inspiration from British precedents and the British bench. Indeed, some of them were more British than they were American.[91] "Let a stranger go into our courts," wrote Tyler, "and he would almost believe himself in the Court of the King's Bench."[92]

This conduct of the National Judiciary furnished Jefferson with another of those "issues" of which that astute politician knew how to make such effective use. He quickly seized upon it, and with characteristic fervency of phrase used it as a powerful weapon against the Federalist Party. All the evil things accomplished by that organization of "monocrats," "aristocrats," and "monarchists"—the bank, the treaty, the Sedition Act, even the army and the navy—"have been solitary, inconsequential, timid things," avowed Jefferson, "in comparison with the audacious, barefaced and sweeping pretension to a system of law for the U.S. without the adoption of their legislature, and so infinitely beyond their power to adopt."[93]

But if the National judges had caused alarm by treating the common law as though it were a statute of the United States without waiting for an act of Congress to make it so, their manners and methods in the enforcement of the Sedition Act[94] aroused against them an ever-increasing hostility.

Stories of their performances on the bench in such cases—their tones when speaking to counsel, to accused persons, and even to witnesses, their immoderate language, their sympathy with one of the European nations then at war and their animosity toward the other, their partisanship in cases on trial before them—tales made up from such material flew from mouth to mouth, until finally the very name and sight of National judges became obnoxious to most Americans. In short, the assaults upon the National Judiciary were made possible chiefly by the conduct of the National judges themselves.[95]

The first man convicted under the Sedition Law was a Representative in Congress, the notorious Matthew Lyon of Vermont. He had charged President Adams with a "continual grasp for power ... an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice." Also, Lyon had permitted the publication of a letter to him from Joel Barlow, in which the President's address to the Senate and the Senate's response[96] were referred to as "the bullying speech of your President" and "the stupid answer of your Senate"; and expressed wonder "that the answer of both Houses had not been an order to send him [Adams] to the mad house."[97]

Lyon was indicted under the accusation that he had tried "to stir up sedition and to bring the President and Government of the United States into contempt." He declared that the jury was selected from his enemies.[98] Under the charge of Justice Paterson of the Supreme Court he was convicted. The court sentenced him to four months in jail and the payment of a fine of one thousand dollars.[99]

In the execution of the sentence, United States Marshal Jabez G. Fitch used the prisoner cruelly. On the way to the jail at Vergennes, Vermont, he was repeatedly insulted. He was finally thrown into a filthy, stench-filled cell without a fireplace and with nothing "but the iron bars to keep the cold out." It was "the common receptacle for horse-thieves ... runaway negroes, or any kind of felons." He was subjected to the same kind of treatment that was accorded in those days to the lowest criminals.[100] The people were deeply stirred by the fate of Matthew Lyon. Quick to realize and respond to public feeling, Jefferson wrote: "I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things."[101]

One Anthony Haswell, editor of the Vermont Gazette published at Bennington, printed an advertisement of a lottery by which friends of Lyon, who was a poor man, hoped to raise enough money to pay his fine. This advertisement was addressed "to the enemies of political persecutions in the western district of Vermont." It was asserted that Lyon "is holden by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims."[102] The "savage" referred to was United States Marshal Fitch. In the same paper an excerpt was reprinted from the Aurora which declared that "the administration publically notified that Tories ... were worthy of the confidence of the government."[103]

Haswell was indicted for sedition. In defense he established the brutality with which Lyon had been treated and proposed to prove by two witnesses not then present (General James Drake of Virginia, and James McHenry, President Adams's Secretary of War) that the Government favored the occasional appointment of Tories to office. Justice Paterson ruled that such evidence was inadmissible, and charged the jury that if Haswell's intent was defamatory, he should be found guilty. Thereupon he was convicted and sentenced to two months' imprisonment and the payment of a fine of two hundred dollars.[104]

Dr. Thomas Cooper, editor of the Sunbury and Northumberland Gazette in Pennsylvania, in the course of a political controversy declared in his paper that when, in the beginning of Adams's Administration, he had asked the President for an office, Adams "was hardly in the infancy of political mistake; even those who doubted his capacity thought well of his intentions.... Nor were we yet saddled with the expense of a permanent navy, or threatened ... with the existence of a standing army.... Mr. Adams ... had not yet interfered ... to influence the decisions of a court of justice."[105]

For this "attack" upon the President, Cooper was indicted under the Sedition Law. Conducting his own defense, he pointed out the issues that divided the two great parties, and insisted upon the propriety of such political criticism as that for which he had been indicted.

Cooper was himself learned in the law,[106] and during the trial he applied for a subpœna duces tecum to compel President Adams to attend as a witness, bringing with him certain documents which Cooper alleged to be necessary to his defense. In a rage Justice Samuel Chase of the Supreme Court, before whom, with Judge Richard Peters of the District Court, the case was tried, refused to issue the writ. For this he was denounced by the Republicans. In the trial of Aaron Burr, Marshall was to issue this very writ to President Thomas Jefferson and, for doing so, to be rebuked, denounced, and abused by the very partisans who now assailed Justice Chase for refusing to grant it.[107]

Justice Chase charged the jury at intolerable length: "If a man attempts to destroy the confidence of the people in their officers ... he effectually saps the foundation of the government." It was plain that Cooper "intended to provoke" the Administration, for had he not admitted that, although he did not arraign the motives, he did mean "to censure the conduct of the President"? The offending editor's statement that "our credit is so low that we are obliged to borrow money at 8 per cent. in time of peace," especially irritated the Justice. "I cannot," he cried, "suppress my feelings at this gross attack upon the President." Chase then told the jury that the conduct of France had "rendered a loan necessary"; that undoubtedly Cooper had intended "to mislead the ignorant ... and to influence their votes on the next election."

So Cooper was convicted and sentenced "to pay a fine of four hundred dollars, to be imprisoned for six months, and at the end of that period to find surety for his good behavior himself in a thousand, and two sureties in five hundred dollars each."[108]

"Almost every other country" had been "convulsed with ... war," desolated by "every species of vice and disorder" which left innocence without protection and encouraged "the basest crimes." Only in America there was no "grievance to complain of." Yet our Government had been "as grossly abused as if it had been guilty of the vilest tyranny"—as if real "republicanism" could "only be found in the happy soil of France" where "Liberty, like the religion of Mahomet, is propagated by the sword." In the "bosom" of that nation "a dagger was concealed."[109] In these terms spoke James Iredell, Associate Justice of the Supreme Court, in addressing the grand jury for the District of Pennsylvania. He was delivering the charge that resulted in the indictment for treason of John Fries and others who had resisted the Federalist land tax.[110]

The triumph of France had, of course, nothing whatever to do with the forcible protest of the Pennsylvania farmers against what they felt to be Federalist extortion; nevertheless upon the charge of Justice Iredell as to the law of treason, they were indicted and convicted for that gravest of all offenses. A new trial was granted because one of the jury, John Rhoad, "had declared a prejudice against the prisoner after he was summoned as a juror."[111] On April 29, 1800, the second trial was held. This time Justice Chase presided. The facts were agreed to by counsel. Before the jury had been sworn, Chase threw on the table three papers in writing and announced that these contained the opinion of the judges upon the law of treason—one copy was for the counsel for the Government, one for the defendant's counsel, and one for the jury.

William Lewis, leading attorney for Fries, and one of the ablest members of the Philadelphia bar,[112] was enraged. He looked upon the paper, flung it from him, declaring that "his hand never should be polluted by a prejudicated opinion," and withdrew from the case, although Chase tried to persuade him to "go on in any manner he liked." Alexander J. Dallas, the other counsel for Fries, also withdrew, and the terrified prisoner was left to defend himself. The court told him that the judges, personally, would see that justice was done him. Again Fries and his accomplices were convicted under the charge of the court. "In an aweful and affecting manner"[113] Chase pronounced the sentence, which was that the condemned men should be "hanged by the neck until dead."[114]

The Republicans furiously assailed this conviction and sentence. President Adams pardoned Fries and his associates, to the disgust and resentment of the Federalist leaders.[115] On both sides the entire proceeding was made a political issue.

On the heels of this "repetition of outrage," as the Republicans promptly labeled the condemnation of Fries, trod the trial of James Thompson Callender for sedition, over which it was again the fate of the unlucky Chase to preside. The Prospect Before Us, written by Callender under the encouragement of Jefferson,[116] contained a characteristically vicious screed against Adams. His Administration had been "a tempest of malignant passions"; his system had been "a French war, an American navy, a large standing army, an additional load of taxes." He "was a professed aristocrat and he had proved faithful and serviceable to the British interest" by sending Marshall and his associates to France. In the President's speech to Congress,[117] "this hoary headed incendiary ... bawls to arms! then to arms!"

Callender was indicted for libel under the Sedition Law.

Before Judge Chase started for Virginia, Luther Martin had given him a copy of Callender's pamphlet, with the offensive passages underscored. During a session of the National court at Annapolis, Chase, in a "jocular conversation," had said that he would take Callender's book with him to Richmond, and that, "if Virginia was not too depraved" to furnish a jury of respectable men, he would certainly punish Callender. He would teach the lawyers of Virginia the difference between the liberty and the licentiousness of the press.[118] On the road to Richmond, James Triplett boarded the stage that carried the avenging Justice of the Supreme Court. He told Chase that Callender had once been arrested in Virginia as a vagrant. "It is a pity," replied Chase, "that they had not hanged the rascal."[119]

But the people of Virginia, because of their hatred of the Sedition Law, were ardent champions of Callender. Richmond lawyers were hostile to Chase and were the bitter enemies of the statute which they knew he would enforce. Jefferson was anxious that Callender "should be substantially defended, whether in the first stages by public interference or private contributors."[120]

One ambitious young attorney, George Hay, who seven years later was to act as prosecutor in the greatest trial at which John Marshall ever presided,[121] volunteered to defend Callender, animated to this course by devotion to "the cause of the Constitution," in spite of the fact that he "despised" his adopted client.[122] William Wirt was also inspired to offer his services in the interest of free speech. These Virginia attorneys would show this tyrant of the National Judiciary that the Virginia bar could not be borne down.[123] Of all this the hot-spirited Chase was advised; and he resolved to forestall the passionate young defenders of liberty. He was as witty as he was fearless, and throughout the trial brought down on Hay and Wirt the laughter of the spectators.

But in the court-room there was one spectator who did not laugh. John Marshall, then Secretary of State, witnessed the proceedings[124] with grave misgivings.

Chase frequently interrupted the defendant's counsel. "What," said he, "must there be a departure from common sense to find out a construction favorable" to Callender? The Justice declared that a legal point which Hay attempted to make was "a wild notion."[125] When a juror said that he had never seen the indictment or heard it read, Chase declared that of course he could not have formed or delivered an opinion on the charges; and then denied the request that the indictment be read for the information of the juror. Chase would not permit that eminent patriot and publicist, Colonel John Taylor of Caroline, to testify that part of Callender's statement was true; "No evidence is admissible," said the Justice, "that does not ... justify the whole charge."[126]

William Wirt, in addressing the jury, was arguing that if the jury believed the Sedition Act to be unconstitutional, and yet found Callender guilty, they "would violate their oath." Chase ordered him to sit down. The jury had no right to pass upon the constitutionality of the law—"such a power would be extremely dangerous. Hear my words, I wish the world to know them." The Justice then read a long and very able opinion which he had carefully prepared in anticipation that this point would be raised by the defense.[127] After another interruption, in which Chase referred to Wirt as "the young gentleman" in a manner that vastly amused the audience, the discomfited lawyer, covered with confusion, abandoned the case.

When Hay, in his turn, was addressing the jury, Chase twice interrupted him, asserting that the beardless attorney was not stating the law correctly. The reporter notes that thereupon "Mr. Hay folded up and put away his papers ... and refused to proceed." The Justice begged him to go on, but Hay indignantly stalked from the room.

Acting under the instructions of Chase, Callender was convicted. The court sentenced him to imprisonment for nine months, and to pay a fine of two hundred dollars.[128]

The proceedings at this trial were widely published. The growing indignation of the people at the courts rose to a dangerous point. The force of popular wrath was increased by the alarm of the bar, which generally had been the stanch supporter of the bench.[129]

Hastening from Richmond to New Castle, Delaware, Justice Chase emphasized the opinion now current that he was an American Jeffreys and typical of the spirit of the whole National Judiciary. Upon opening court, he said that he had heard that there was a seditious newspaper in the State. He directed the United States Attorney to search the files of all the papers that could be found, and to report any abusive language discovered. It was the haying season, and the grand jury, most of whom were farmers, asked to be discharged, since there was no business for them to transact. Chase refused and held them until the next day, in order to have them return indictments against any printer that might have criticized the Administration.[130] But the prosecutor's investigation discovered nothing "treasonable" except a brief and unpleasant reference to Chase himself. So ended the Delaware visit of the ferret of the National Judiciary.

Thus a popular conviction grew up that no man was safe who assumed to criticize National officials. The persecution of Matthew Lyon was recalled, and the punishment of other citizens in cases less widely known[131] became the subject of common talk,—all adding to the growing popular wrath against the whole National Judiciary. The people regarded those brought under the lash of justice as martyrs to the cause of free speech; and so, indeed, they were.

The method of securing indictments and convictions also met with public condemnation. In many States the United States Marshals selected what persons they pleased as members of the grand juries and trial juries. These officers of the National courts were, without exception, Federalists; in many cases Federalist politicians. When making up juries they selected only persons of the same manner of thinking as that of the marshals and judges themselves.[132] So it was that the juries were nothing more than machines that registered the will, opinion, or even inclination of the National judges and the United States District Attorneys. In short, in these prosecutions, trial by jury in any real sense was not to be had.[133]

Certain State judges of the rabid Federalist type, apostles of "the wise, the rich, and the good" political religion, were as insulting in their bearing, as immoderate in their speech, and as intolerant in their conduct as some of the National judges; and prosecutions in some State courts were as bad as the worst of those in the National tribunals.

In Boston, when the Legislature of Massachusetts was considering the Kentucky and Virginia Resolutions, John Bacon of Berkshire, a Republican State Senator, and Dr. Aaron Hill of Cambridge, the leader of the Republicans in the House, resisted the proposed answer of the Federalist majority. Both maintained the ground upon which Republicans everywhere now stood—that any State might disregard an act of Congress which it deemed unconstitutional.[134] Bacon and Hill were supported by the solid Republican membership of the Massachusetts Legislature, which the Columbian Centinel of Boston, a Federalist organ, called a "contemptible minority," every member of which was "worse than an infidel."[135]

The Independent Chronicle, the Republican newspaper of Boston, observed that "It is difficult for the common capacities to conceive of a sovereignty so situated that the Sovereign shall have no right to decide on any invasion of his constitutional powers." Bacon's speech, said the Chronicle, "has been read with delight by all true Republicans, and will always stand as a monument of his firmness, patriotism, and integrity.... The name of an American Bacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed a death wound to the Constitution of the United States will rot above ground and be unsavoury to the nostrils of every lover of Republican freedom."[136]

The Massachusetts Mercury of February 22, 1799, reports that "On Tuesday last ... Chief Justice Dana ... commented on the contents of the Independent Chronicle of the preceding day. He properly stated to the Jury that though he was not a subscriber to the paper, he obtained that one by accident, that if he was, his conscience would charge him with assisting to support a traitorous enmity to the Government of his Country."

Thereupon Thomas Adams, the publisher, and Abijah Adams, a younger brother employed in the office, were indicted under the common law for attempting "to bring the government into disrespect, hatred, and contempt," and for encouraging sedition. Thomas Adams was fatally ill and Abijah only was brought to trial. Under the instructions of the court he was convicted. In pronouncing sentence Chief Justice Dana delivered a political lecture.

The Virginia and Kentucky Resolutions, he said, had attempted "to establish the monstrous position" that the individual States had the right to pass upon the constitutionality of acts of Congress. He then gave a résumé of the reply of the majority of the Massachusetts Legislature to the Virginia Resolutions. This reply asserted that the decisions of all questions arising under the Constitution and laws of the United States "are exclusively vested in the Judicial Courts of the United States," and that the Sedition Act was "wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine the whole fabric of government." The irate judge declared that the Chronicle's criticism of this action of the majority of the Legislature and its praise of the Republican minority of that body was an "indecent and outrageous calumny."

"Censurable as the libel may be in itself," Dana continued, the principles stated by Adams's counsel in conducting his defense were equally "dangerous to public tranquility." These daring lawyers had actually maintained the principle of the liberty of the press. They had denied that an American citizen could be punished under the common law of England. "Novel and disorganizing doctrines," exclaimed Dana in the midst of a long argument to prove that the common law was operative in the United States.[137]

In view of the fact that Abijah Adams was not the author of the libel, nor even the publisher or editor of the Chronicle, but was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month's imprisonment, but required him to find sureties for his good behavior for a year, and to pay the costs of the trial.[138]

Alexander Addison, the presiding judge of one of the Pennsylvania State courts, was another Federalist State judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into disrepute. Some of his charges to grand juries were nothing but denunciations of Republican principles.[139]

His manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. In one case,[140] Addison forbade the Associate Judge to address the jury, and prevented him from doing so.[141]

Nor did the judges stop with lecturing everybody from the bench. Carrying with them the authority of their exalted positions, more than one of them, notably Justice Chase and Judge Addison, took the stump in political campaigns and made partisan speeches.[142]

So it fell out that the manners, language, and conduct of the judges themselves, together with their use of the bench as a political rostrum, their partisanship as to the European belligerents, their merciless enforcement of the common law—aroused that public fear and hatred of the courts which gave Jefferson and the Republicans their opportunity. The questions which lay at the root of the Republican assault upon the Judiciary would not of themselves, and without the human and dramatic incidents of which the cases mentioned are examples, have wrought up among citizens that fighting spirit essential to a successful onslaught upon the National system of justice, which the Federalists had made so completely their own.[143]

Those basic questions thus brought theatrically before the people's eyes, had been created by the Alien and Sedition Laws, and by the Virginia and Kentucky Resolutions which those undemocratic statutes called forth. Freedom of speech on the one hand and Nationalism on the other hand, the crushing of "sedition" as against that license which Localism permitted—such were the issues which the imprudence and hot-headedness of the Federalist judges had brought up for settlement. Thus, unhappily, democracy marched arm in arm with State Rights, while Nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism.

Had not the Federalists, arrogant with power and frantic with hatred of France and fast becoming zealots in their championship of Great Britain, passed the drastic laws against liberty of the press and freedom of speech; had not the Republican protest against these statutes taken the form of the assertion that individual States might declare unconstitutional and disregard the acts of the National Legislature; and finally, had not National tribunals and some judges of State courts been so harsh and insolent, the Republican assault upon the National Judiciary,[144] the echoes of which loudly sound in our ears even to the present day, probably never would have been made.

But for these things, Marbury vs. Madison[145] might never have been written; the Supreme Court might have remained nothing more than the comparatively powerless institution that ultimate appellate judicial establishments are in other countries; and the career of John Marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. But the Republican condemnations of the severe punishment that the Federalists inflicted upon anybody who criticized the Government, raised fundamental issues and created conditions that forced action on those issues.

FOOTNOTES:

[1] Gallatin to his wife, Jan. 15, 1801, Adams: Life of Albert Gallatin, 252; also Bryan: History of the National Capital, i, 357-58.

[2] First Forty Years of Washington Society: Hunt, 11.

[3] Ib.; and see Wolcott to his wife, July 4, 1800, Gibbs: Administrations of Washington and John Adams, ii, 377.

[4] Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.

[5] Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 252-53.

[6] Hunt, 10.

[7] Gallatin to his wife, supra.

[8] Bryan, i, 357-58.

[9] A few of these are still standing and occupied.

[10] Gallatin to his wife, supra; also Wharton: Social Life in the Early Republic, 58-59.

[11] Gallatin to his wife, Aug. 17, 1802, Adams: Gallatin, 304.

[12] Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.

[13] Otis to his wife, Feb. 28, 1815, Morison: Life and Letters of Harrison Gray Otis, ii, 170-71. This letter is accurately descriptive of travel from the National Capital to Baltimore as late as 1815 and many years afterward.

"The Bladensburg run, before we came to the bridge, was happily in no one place above the Horses bellies.—As we passed thro', the driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled us by shewing the tree, on which all the Passengers but one, were saved. Whether that one was gouty or not, I did not enquire....

"We ... arriv'd safe at our first stage, Ross's, having gone at a rate rather exceeding two miles & an half per hour.... In case of a break Down or other accident, ... I should be sorry to stick and freeze in over night (as I have seen happen to twenty waggons) for without an extraordinary thaw I could not be dug out in any reasonable dinner-time the next day."

Of course conditions were much worse in all parts of the country, except the longest and most thickly settled sections.

[14] Parton: Life of Thomas Jefferson, 622.

[15] Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.

[16] Memoirs of John Quincy Adams: Adams, iv, 74; and see Quincy: Life of Josiah Quincy, 186.

Bayard wrote to Rodney: "four months [in Washington] almost killed me." (Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, iv, 230.)

[17] Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs. Smith to her husband, July 8, 1803, ib. 41; and Gallatin to his wife, Aug. 17, 1802, Adams: Gallatin, 304-05.

[18] King to Gore, Aug. 20, 1803, Life and Correspondence of Rufus King: King, iv, 294; and see Adams: History of the United States, iv, 31.

[19] Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253.

[20] Wharton: Social Life, 60.

[21] See infra, chap. iv.

[22] Plumer to Lowndes, Dec. 30, 1805, Plumer: Life of William Plumer, 244.

"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805, Plumer MSS. Lib. Cong.)

[23] Story to Fay, Feb. 16, 1808, Life and Letters of Joseph Story: Story, i, 161.

[24] This was a little Presbyterian church building, which was abandoned after 1800. (Bryan, i, 232; and see Hunt, 13-14.)

[25] Memoirs of Lieut.-General Scott, 9-10. Among the masses of the people, however, a profound religious movement was beginning. (See Semple: History of the Rise and Progress of the Baptists in Virginia; and Cleveland: Great Revival in the West.)

A year or two later, religious services were held every Sunday afternoon in the hall of the House of Representatives, which always was crowded on these occasions. The throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting-place for gossip, flirtation, and social gayety. The plan was soon abandoned and the hall left entirely to profane usages. (Bryan, i, 606-07.)

[26] Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253.

[27] Wharton: Social Life, 72.

[28] Hunt, 12.

[29] See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: U.S. ii, 362.

Public men seldom brought their wives to Washington because of the absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec. 6, 1805, Hunt, 48.)

"I do not perceive how the members of Congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.)

[30] Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see Annals, 8th Cong. 1st Sess. 282-88. The debate is instructive. The bill was lost by 9 yeas to 19 nays.

[31] Hildreth: History of the United States, v, 516-17.

[32] Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.

[33] Channing: History of the United States, iv, 245.

[34] Bryan, i, 438.

[35] Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.

"The workmen are the refuse of that class and, nevertheless very high in their demands." (La Rochefoucauld-Liancourt: Travels Through the United States of North America, iii, 650.)

[36] "To Thomas Hume, Esq., M.D.," Moore: Poetical Works, ii, 83.

[37] See Jefferson to Short, Sept. 6, 1790, Works of Thomas Jefferson: Ford, vi, 146; same to Mrs. Adams, July 7, 1785, ib. iv, 432-33; same to Peters, June 30,1791, ib. vi, 276; same to Short, April 24, 1792, ib. 483; same to Monroe, May 26, 1795, ib. viii, 179; same to Jay, Oct. 8, 1787, Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson: Randolph, ii, 249; also see Chastellux: Travels in North America in the Years 1780-81-82, 299.

[38] See Singleton: Story of the White House, i, 42-43.

[39] Plumer to his wife, Dec. 25, 1802, Plumer, 246.

[40] "Mr. Granger [Jefferson's Postmaster-General] ... after a few bottles of champagne were emptied, on the observation of Mr. Madison that it was the most delightful wine when drank in moderation, but that more than a few glasses always produced a headache the next day, remarked with point that this was the very time to try the experiment, as the next day being Sunday would allow time for a recovery from its effects. The point was not lost upon the host and bottle after bottle came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)

[41] At that time it was called "The Executive Mansion" or "The President's Palace."

[42] Bryan, i, 44; also see La Rochefoucauld-Liancourt, iii, 642-51.

[43] See vol. i, chaps. vi and vii, of this work.

[44] Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S. Thayer of Baltimore.

[45] Cabot to Wolcott, Aug. 3, 1801, Lodge: Life and Letters of George Cabot, 322.

George Cabot was the ablest, most moderate and far-seeing of the New England Federalists. He feared and detested what he called "excessive democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. Cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like Madison, Gallatin, Hamilton, and Marshall.

[46] Hale to King, Dec. 19, 1801, King, iv, 39.

[47] Sedgwick to King, Dec. 14, 1801, ib. 34-35.

[48] Dwight's oration as quoted in Adams: U.S. i, 225.

[49] J. Q. Adams to King, Oct. 8,1802, Writings of John Quincy Adams: Ford, iii, 8-9. Within six years Adams abandoned a party which offered such feeble hope to aspiring ambition. (See infra, chap, ix.)

[50] J. Russell's Gazette-Commercial and Political, January 28, 1799.

[51] History of the Last Session of Congress Which Commenced 7th Dec. 1801 (taken from the National Intelligencer). Yet at that time in America manhood suffrage did not exist excepting in three States, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. Hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned.

[52] Wirt: Letters of the British Spy, 10-11.

These brilliant articles, written by Wirt when he was about thirty years old, were published in the Richmond Argus during 1803. So well did they deceive the people that many in Gloucester and Norfolk declared that they had seen the British Spy. (Kennedy: Memoirs of the Life of William Wirt, i, 111, 113.)

[53] Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.

[54] Jefferson to Rush, Oct. 4, 1803, Works: Ford, x, 32.

Immediately after his inauguration, Jefferson restated the American foreign policy announced by Washington. It was the only doctrine on which he agreed with Marshall.

"It ought to be the very first object of our pursuits to have nothing to do with European interests and politics. Let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form.... To take part in their conflicts would be to divert our energies from creation to destruction." (Jefferson to Logan, March 21, 1801, Works: Ford, ix, 219-20.)

[55] Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, Works: Ford, ix, 249.

The democratic revolution that overthrew Federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. But in the first years of Republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of France.

[56] See infra, chaps. iii and vi; also vol. iv, chap. i.

[57] 1 Cranch, 1 et seq.

[58] Wilson vs. Mason, 1 Cranch, 45-101.

[59] 1 Cranch, 102-10.

[60] Turner vs. Fendall, 1 Cranch, 115-30.

[61] See vol. ii, 531-47, of this work.

[62] See Adams: U.S. i, chaps. ix and x, for account of the revolutionary measures which the Republicans proposed to take.

[63] Marshall to Pinckney, March 4, 1801, "four o'clock," MS.

[64] "It is the sole object of the Administration to acquire popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: Cabot, 325.)

"The President has ... the itch for popularity." (J. Q. Adams to his father, November, 1804, Writings, J. Q. A.: Ford, iii, 81.)

"The mischiefs of which his immoderate thirst for ... popularity are laying the foundation, are not immediately perceived." (Adams to Quincy, Dec. 4, 1804, Quincy, 64.)

"It seems to be a great primary object with him never to pursue a measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer MSS. Lib. Cong.)

"In dress, conversation, and demeanor he studiously sought and displayed the arts of a low demagogue seeking the gratification of the democracy on whose voices and votes he laid the foundation of his power." (Quincy's Diary, Jan. 1806, Quincy, 93.)

[65] Ames to Gore, Dec. 13, 1802, Works of Fisher Ames: Ames, i, 309.

[66] Dodd in American Historical Review, xii, 776; and see next chapter.

[67] Jefferson to Dickinson, Dec. 19, 1801, Writings of Thomas Jefferson: Washington, iv, 424.

[68] "The only shield for our Republican citizens against the federalism of the courts is to have the attorneys & Marshals republicans." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 248.)

[69] "The judge of course stands until the law [Judiciary Act of 1801] shall be repealed which we trust will be at the next Congress." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 247.) For two weeks Jefferson appears to have been confused as to the possibility of repealing the Judiciary Act of 1801. A fortnight before he informed Stuart that this course would be taken, he wrote Giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in American Political Science Review, ix, 522.)

But the repeal had been determined upon within six weeks after Jefferson's inauguration as his letter to Stuart shows.

[70] Giles to Jefferson, March 16, 1801, Anderson: William Branch Giles—A Study in the Politics of Virginia 1790-1830, 77.

[71] Same to same, June 1, 1801, ib. 80.

[72] Sedgwick to King, Dec. 14, 1801, King, iv, 36.

[73] Hale to King, Dec. 19, 1801, King, iv, 39.

[74] It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. i, 297-99, of this work.)

Braintree, Mass., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws ... as may crush or, at least, put a proper check of restraint" upon them.

Dedham, Mass., instructed its members of the Legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abolished." (Warren: History of the American Bar, 215.) All this, of course, was the result of the bitter hardships of debtors.

[75] For an able defense of the adoption by the National courts of the British common law, see Works of the Honourable James Wilson: Wilson, iii, 384.

[76] Columbian Centinel, July 11, 1801, as quoted in Warren, 225-27.

[77] Correspondence and Public Papers of John Jay: Johnston, iii, 478-85.

[78] Wharton: State Trials of the U.S. during the Administrations of Washington and Adams, 60 et seq.; and see Wilson's law lecture on the subject, Wilson, iii, 384.

[79] 2 Dallas, 297-99.

[80] Ib. Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: State Trials, 90-92.)