The Life of John Marshall
Chapter 122 : [1288] Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams MSS.[1289] Gunn

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

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

[1290] The Federalist att.i.tude is perfectly expressed in the following toast drunk at a banquet to Wolcott, attended by "the heads of departments" and the Justices of the Supreme Court: "_The Judiciary of the United States! Independent of party, independent of power and independent of popularity._" (_Gazette of the United States_, Feb. 7, 1801.)

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

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

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

[1294] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. The Republicans were chiefly alarmed because, in the extension of the National Judiciary, offices would be provided for Federalists. Even Jefferson then saw nothing but patronage in the Judiciary Act.

The "evident" purpose of the bill, said the _Aurora_, Feb. 4, 1801, was to "increase the influence of the present Executive and provide a _comfortable retreat_ for some of those _good federalists_ who have found it convenient to resign from their offices or been dismissed from them by the people."

In comparison to this objection little attention was paid to the more solid ground that the National Judiciary would be used to "force the introduction of the common law of England as a part of the law of the United States"; or even to the objection that, if the Judiciary was extended, it would "strengthen the system of terror by the increase of prosecutions under the Sedition law"; or to the increase of the "enormous influence" given the National Courts by the Bankruptcy Law.

The _Aurora_, March 18, 1801, sounded the alarm on these and other points in a clanging editorial, bidding "_the people beware_," for "the h.e.l.l hounds of persecution may be let loose ... and the people be ROASTED into implicit acquiescence with every measure of the 'powers that be.'" But at this time it was the creation of offices that the Federalists would fill to which the Republicans chiefly objected.

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

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

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

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

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

[1300] _Ib._, 896.

[1301] _Annals_, 6th Cong., 1st Sess., 897. This curious entry is, plainly, the work of some person who wished to injure Marshall and Lee.

Nicholas's motion was lost, but only by the deciding vote of the Speaker. (_Ib._) The bill, as finally pa.s.sed, limited the jurisdiction of the National Courts to causes exceeding four hundred dollars. (_Ib._)

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

[1303] _Ib._, 734.

[1304] _Ib._, 740-41.

[1305] _Ib._, 741.

[1306] _Ib._, 742.

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

[1308] Jay to Adams, Jan. 2, 1801; _Jay_: Johnston, iv, 284. Jay refused the reappointment because he believed the Supreme Court to be fatally lacking in power. See chap. I, vol. III, of this work.

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

[1310] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. It is impossible to imagine what this "something worse" was. It surely was not Marshall, who was in n.o.body's mind for the Chief Justices.h.i.+p when Jay was named.

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

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

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

[1314] Gibbs, ii, 349, 350.

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

[1316] Adams to Boudinot, Jan. 26, 1801; _Works_: Adams, ix, 93-94.

Adams's description of Marshall's qualifications for the Chief Justices.h.i.+p is by way of contrast to his own. "The office of Chief Justice is too important for any man to hold of sixty-five years of age who has wholly neglected the study of the law for six and twenty years."

(_Ib._) Boudinot's "rumor" presupposes an understanding between Jefferson and Adams.

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

[1318] _Aurora_, Jan. 22, 1801.

[1319] It is worthy of repet.i.tion that practically all the emphasis in their attacks on this act was laid by the Republicans on the point that offices were provided for Federalists whose characters were bitterly a.s.sailed. The question of the law's enlargement of National power was, comparatively, but little mentioned; and the objections enlarged upon in recent years were not noticed by the fierce partisans of the time.

[1320] _Aurora_, Feb. 3, 1801.

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

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

[1323] Marshall's nomination was confirmed January 27, 1801, a week after the Senate received it. Compare with the Senate's quick action on the nomination of Marshall as Secretary of State, May 12, 1800, confirmed May 13. (Executive Journal of the Senate, iii.)

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

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

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

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

[1328] Jay held both offices for six months.

[1329] Auditor's Files, Treasury Department, no. 12, 166. This fact is worthy of mention only because Marshall's implacable enemies intimated that he drew both salaries. He could have done so, as a legal matter, and would have been entirely justified in doing so for services actually rendered. But he refused to take the salary of Secretary of State.

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

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

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

[1333] The irresponsible and scurrilous Callender, hard-pressed for some pretext to a.s.sail Marshall, complained of his having procured the appointment of relatives to the Judiciary establishment. "Mr. John Marshall has taken particular care of his family," writes Jefferson's newspaper hack, in a characteristically partisan attack upon Adams's judicial appointments. (Scots Correspondent, in _Richmond Examiner_, March 13, 1801.)