The Life of John Marshall
Chapter 116 : Two weeks after Congress convened, Roger Griswold of Connecticut reported the eventful

Two weeks after Congress convened, Roger Griswold of Connecticut reported the eventful bill to carry out this Federalist plan.[1292] It was carefully and ably drawn and greatly widened the practical effectiveness of the National Courts. The Supreme Court was reduced, after the next vacancy, to five members--to prevent, said the Republicans, the appointment of one of their party to the Nation's highest tribunal.[1293] Many new judges.h.i.+ps were created. The Justices of the Supreme Court, who had sat as circuit judges, were relieved of this itinerant labor and three circuit judges for each circuit were to a.s.sume these duties. At first, even the watchful and suspicious Jefferson thought that "the judiciary system will not be pushed, as the appointments, if made, by the present administration, could not fall on those who create them."[1294]

But Jefferson underestimated the determination of the Federalists.

Because they felt that the bill would "greatly extend the judiciary power and of course widen the basis of government," they were resolved, writes Rutledge, to "profit of our shortlived majority, and do as much good as we can before the end of this session"[1295] by pa.s.sing the Judiciary Bill.

In a single week Jefferson changed from confidence to alarm. After all, he reflected, Adams could fill the new judges.h.i.+ps, and these were life appointments. "I dread this above all the measures meditated, because appointments in the nature of freehold render it difficult to undo what is done,"[1296] was Jefferson's second thought.

The Republicans fought the measure, though not with the vigor or animosity justified by the political importance they afterwards attached to it. Among the many new districts created was an additional one in Virginia. The representatives from that State dissented; but, in the terms of that period, even their opposition was not strenuous. They said that, in Virginia, litigation was declining instead of increasing. "At the last term the docket was so completely cleared in ... ten days ...

that the court ... had actually decided on several [suits] returnable to the ensuing term."[1297]

That, replied the Federalists, was because the courts were too far away from the citizens. As for the National revenues, they could be collected only through National tribunals; for this purpose,[1298] two Federal Courts in Virginia, as provided by the bill, were essential. But, of course, sneered the Federalists, "Virginia would be well satisfied with one court in preference to two or with no court whatever in preference to one."[1299]

But there was a defect in the bill, intimated the Virginia Republicans, that affected tenants and landowners of the Northern Neck. A clause of section thirteen gave the newly established National Court jurisdiction of all causes arising under the Const.i.tution where original or exclusive jurisdiction was not conferred upon the Supreme Court or Admiralty Courts.[1300] The National Court of the new Virginia District was to be held at Fredericksburg. Thus all suits for quitrents or other claims against those holding their lands under the Fairfax t.i.tle could be brought in this near-by National Court, instead of in State Courts. This criticism was so attenuated and so plainly based on the a.s.sumption that the State Courts would not observe the law in such actions, that it was not pressed with ardor even by the impetuous and vindictive Giles.

But Nicholas went so far as to move that the jurisdiction of National Courts should be limited to causes exceeding five hundred dollars. This would cut out the great ma.s.s of claims which the present holders of the Fairfax t.i.tle might lawfully have against tenants or owners. The Marshalls were the Fairfax a.s.signees, as we have seen. No Republican, however, mentioned them in debate; but some one procured the insertion in the record of an insinuation which n.o.body made on the floor. In brackets, the "Annals," after the brief note of Nicholas's objection, states: "[It is understood that the present a.s.signees of the claims of Lord Fairfax, are General Marshall, General Lee, and a third individual and that they maintain their claims under the British Treaty.]"[1301]

For three weeks the debate in the House dragged along. Republican opposition, though united, was languid.[1302] At last, without much Republican resistance, the bill pa.s.sed the House on January 20, 1801, and reached the Senate the next day.[1303] Two weeks later the Senate Republicans moved a subst.i.tute providing for fewer circuits, fewer judges, and a larger Supreme Court, the members of which were to act as circuit judges as formerly.[1304] It was defeated by a vote of 17 to 13.[1305] The next day the bill was pa.s.sed by a vote of 16 to 11.[1306]

When the debate began, the National Judiciary was without a head.

Ellsworth, broken in health, had resigned. Adams turned to Jay, the first Chief Justice, and, without asking his consent, reappointed him.

"I have nominated you to your old station,"[1307] wrote the President.

"This is as independent of the inconstancy of the people, as it is of the will of a President." But Jay declined.[1308] Some of the Federalist leaders were disgruntled at Jay's appointment. "Either Judge Paterson [of New Jersey] or General Pinckney ought to have been appointed; but both these worthies were your friends,"[1309] Gunn reported to Hamilton.

The Republicans were relieved by Jay's nomination--they "were afraid of something worse."[1310]

Then, on January 20, 1801, with no herald announcing the event, no trumpet sounding, suddenly, and without previous notification even to himself, John Marshall was nominated as Chief Justice of the United States a few weeks before the Federalists went out of power forever. His appointment was totally unexpected. It was generally thought that Judge Paterson was the logical successor to Ellsworth.[1311] Marshall, indeed, had recommended his selection.[1312] The letters of the Federalist leaders, who at this period were lynx-eyed for any office, do not so much as mention Marshall's name in connection with the position of Chief Justice.

Doubtless the President's choice of Marshall was influenced by the fact that his "new minister, Marshall, did all to" his "entire satisfaction."[1313] Federalist politicians afterward caviled at this statement of Adams. It was quite the other way around, they declared.

"Every one who knew that great man [Marshall] knew that he possessed to an extraordinary degree the faculty of putting his own ideas into the minds of others, unconsciously to them. The secret of Mr. Adams's satisfaction [with Marshall] was, that he obeyed his Secretary of State without suspecting it."[1314]

The President gave Marshall's qualifications as the reason of his elevation. Boudinot reported to Adams that the New Jersey bar hailed with "the greatest pleasure" a rumor that "the office of Chief Justice ... may be filled by" Adams himself "after the month of March next." The President, who admitted that he was flattered, answered: "I have already, by the nomination of a gentleman in the full vigor of middle age, in the full habits of business, and whose reading of the science is fresh in his head,[1315] to this office, put it wholly out of my power as it never was in my hopes or wishes."[1316]

Marshall's appointment as Chief Justice was not greeted with applause from any quarter; there was even a hint of Federalist resentment because Paterson had not been chosen. "I see it denied in your paper that Mr.

Marshall was nominated Chief Justice of the U.S. The fact is so and he will without doubt have the concurrence of the Senate, tho' some hesitation was at first expressed from respect for the pretensions of Mr. Paterson."[1317] The Republican politicians were utterly indifferent; and the ma.s.ses of both parties neither knew nor cared about Marshall's elevation.

The Republican press, of course, criticized the appointment, as it felt bound to attack any and every thing, good or bad, that the Federalists did. But its protests against Marshall were so mild that, in view of the recklessness of the period, this was a notable compliment. "The vacant Chief Justices.h.i.+p is to be conferred on John Marshall, one time General, afterwards amba.s.sador to X. Y. and Z., and for a short time inc.u.mbent of the office of Secretary of State.... Who is to receive the salary of the Secretary of State, after Mr. Marshall's resignation, we cannot foretell, because the wisdom of our wise men surpa.s.seth understanding."[1318] Some days later the "Aurora," in a long article, denounced the Judiciary Law as a device for furnis.h.i.+ng defeated Federalist politicians with offices,[1319] and declared that the act would never be "carried into execution, ... unless" the Federalists still meant to usurp the Presidency. But it goes on to say:--

"We cannot permit ourselves to believe that _John Marshall_ has been called to the bench to foster such a plot.... Still, how can we account for the strange mutations which have pa.s.sed before us--Marshall for a few weeks Secretary of State ascends the bench of the Chief Justice."[1320] The princ.i.p.al objection of the Republican newspapers to Marshall, however, was that he, "before he left the office [of Secretary of State], made provision for all the Federal printers to the extent of his power.... He employed the _aristocratic presses alone_ to publish laws ... for ... one year."[1321]

Only the dissipated and venomous Callender, from his cell in prison, displayed that virulent hatred of Marshall with which an increasing number of Jefferson's followers were now obsessed. "We are to have that precious acquisition John Marshall as Chief Justice.... The very sound of this man's name is an insult upon truth and justice"; and the dissolute scribbler then pours the contents of his ink-pot over Marshall's X. Y. Z. dispatches, bespatters his campaign for election to Congress, and continues thus:--

"John Adams first appointed John Jay in the room of Ellsworth. A strong suspicion exists that John did this with the previous certainty that John Jay would refuse the nomination. It was then in view to name John Marshall: first, because President Jefferson will not be able to turn him out of office, unless by impeachment; and in the second place that the faction [Federalist Party] who burnt the war office might, with better grace, attempt, forsooth, to set him up as a sort of president himself. _Sus ad Minervam!_"[1322]

That the voice of this depraved man, so soon to be turned against his patron Jefferson, who had not yet cast him off, was the only one raised against Marshall's appointment to the highest judicial office in the Nation, is a striking tribute, when we consider the extreme partisans.h.i.+p and unrestrained abuse common to the times.

Marshall himself, it appears, was none too eager to accept the position which Ellsworth had resigned and Jay refused; the Senate delayed the confirmation of his nomination;[1323] and it was not until the last day of the month that his commission was executed.

On January 31, 1801, the President directed Dexter "to execute the office of Secretary of State so far as to affix the seal of the United States to the inclosed commission to the present Secretary of State, John Marshall, of Virginia, to be Chief Justice of the United States, and to certify in your own name on the commission as executing the office of Secretary of State _pro hac vice_."[1324]

It was almost a week before Marshall formally acknowledged and accepted the appointment. "I pray you to accept my grateful acknowledgments for the honor conferred on me in appointing me Chief Justice of the United States. This additional and flattering mark of your good opinion has made an impression on my mind which time will not efface. I shall enter immediately on the duties of the office, and hope never to give you occasion to regret having made this appointment."[1325] Marshall's acceptance greatly relieved the President, who instantly acknowledged his letter: "I have this moment received your letter of this morning, and am happy in your acceptance of the office of Chief Justice."[1326]

Who should be Secretary of State for the remaining fateful four weeks?

Adams could think of no one but Marshall, who still held that office although he had been appointed, confirmed, and commissioned as Chief Justice. Therefore, wrote Adams, "the circ.u.mstances of the times ...

render it necessary that I should request and authorize you, as I do by this letter, to continue to discharge all the duties of Secretary of State until ulterior arrangements can be made."[1327]

Thus Marshall was at the same time Chief Justice of the Supreme Court and Secretary of State. Thus for the second time these two highest appointive offices of the National Government were held simultaneously by the same man.[1328] He drew but one salary, of course, during this period, that of Chief Justice,[1329] the salary of Secretary of State remaining unpaid.

The President rapidly filled the newly created places on the Federal Bench. Marshall, it appears, was influential in deciding these appointments. "I wrote for you to Dexter, requesting him to show it to Marshall,"[1330] was Ames's rea.s.suring message to an aspirant to the Federal Bench. With astounding magnanimity or blindness, Adams bestowed one of these judicial positions upon Wolcott, and Marshall "transmits ... the commission ... with peculiar pleasure. Permit me," he adds, "to express my sincere wish that it may be acceptable to you." His anxiety to make peace between Adams and Wolcott suggests that he induced the President to make this appointment. For, says Marshall, "I will allow myself the hope that this high and public evidence, given by the President, of his respect for your services and character, will efface every unpleasant sensation respecting the past, and smooth the way to a perfect reconciliation."[1331]

Wolcott "cordially thanks" Marshall for "the obliging expressions of"

his "friends.h.i.+p." He accepts the office "with sentiments of grat.i.tude and good will," and agrees to Marshall's wish for reconciliation with Adams, "not only without reluctance or reserve but with the highest satisfaction."[1332] Thus did Marshall end one of the feuds which so embarra.s.sed the Administration of John Adams.[1333]

Until nine o'clock[1334] of the night before Jefferson's inauguration, Adams continued to nominate officers, including judges, and the Senate to confirm them. Marshall, as Secretary of State, signed and sealed the commissions. Although Adams was legally within his rights, the only moral excuse for his conduct was that, if it was delayed, Jefferson would make the appointments, control the National Judiciary, and through it carry out his States' Rights doctrine which the Federalists believed would dissolve the Union; if Adams acted, the most the Republicans could do would be to oust his appointees by repealing the law.[1335]

The angry but victorious Republicans denounced Adams's appointees as "midnight judges." It was a catchy and clever phrase. It flew from tongue to tongue, and, as it traveled, it gathered force and volume.

Soon a story grew up around the expression. Levi Lincoln, the incoming Attorney-General, it was said, went, Jefferson's watch in his hand, to Marshall's room at midnight and found him signing and sealing commissions. Pointing to the timepiece, Lincoln told Marshall that, by the President's watch, the 4th of March had come, and bade him instantly lay down his nefarious pen; covered with humiliation, Marshall rose from his desk and departed.[1336]

This tale is, probably, a myth. Jefferson never spared an enemy, and Marshall was his especial aversion. Yet in his letters denouncing these appointments, while he savagely a.s.sails Adams, he does not mention Marshall.[1337] Jefferson's "Anas," inspired by Marshall's "Life of Was.h.i.+ngton," omits no circ.u.mstance, no rumor, no second, third, or fourth hand tale that could reflect upon an enemy. Yet he never once refers to the imaginary part played by Marshall in the "midnight judges"

legend.[1338]

Jefferson asked Marshall to administer to him the presidential oath of office on the following day. Considering his curiously vindictive nature, it is unthinkable that Jefferson would have done this had he sent his newly appointed Attorney-General, at the hour of midnight, to stop Marshall's consummation of Adams's "indecent"[1339] plot.

Indeed, in the flush of victory and the mult.i.tude of practical and weighty matters that immediately claimed his entire attention, it is probable that Jefferson never imagined that Marshall would prove to be anything more than the learned but gentle Jay or the able but innocuous Ellsworth had been. Also, as yet, the Supreme Court was, comparatively, powerless, and the Republican President had little cause to fear from it that stern and effective resistance to his anti-national principles, which he was so soon to experience. Nor did the Federalists themselves suspect that the Virginia lawyer and politician would reveal on the Supreme Bench the determination, courage, and constructive genius which was presently to endow that great tribunal with life and strength and give to it the place it deserved in our scheme of government.

In the opinions of those who thought they knew him, both friend and foe, Marshall's character was well understood. All were agreed as to his extraordinary ability. No respectable person, even among his enemies, questioned his uprightness. The charm of his personality was admitted by everybody. But no one had, as yet, been impressed by the fact that commanding will and unyielding purpose were Marshall's chief characteristics. His agreeable qualities tended to conceal his masterfulness. Who could discern in this kindly person, with "lax, lounging manners," indolent, and fond of jokes, the heart that dared all things? And all overlooked the influence of Marshall's youth, his determinative army life, his experience during the disintegrating years after Independence was achieved and before the Const.i.tution was adopted, the effect of the French Revolution on his naturally orderly mind, and the part he had taken and the ineffaceable impressions necessarily made upon him by the tremendous events of the first three Administrations of the National Government.

Thus it was that, un.o.btrusively and in modest guise, Marshall took that station which, as long as he lived, he was to make the chief of all among the high places in the Government of the American Nation.

FOOTNOTES:

[1093] Adams to McHenry, May 5, 1800; Steiner, 453.

[1094] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348.

[1095] According to McHenry, Adams's complaints were that the Secretary of War had opposed the sending of the second mission to France, had not appointed as captain a North Carolina elector who had voted for Adams, had "EULOGIZED GENERAL WAs.h.i.+NGTON ... attempted to praise Hamilton,"

etc. (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348; and see Hamilton's "Public Conduct, etc., of John Adams"; Hamilton: _Works_: Lodge, vii, 347-49.)

[1096] Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to Hamilton, May 7, 1800; _Works_: Hamilton, vi, 437-38.

[1097] Adams to Pickering, May 10, 1800; _Works_: Adams, ix, 53.

[1098] Pickering to Adams, May 11, 1800; _ib._, 54.

[1099] Pickering to Hamilton, May 15, 1800; _Works_: Hamilton, vi, 443.

[1100] Adams to Pickering, May 12, 1800; _Works_: Adams, ix, 55.

[1101] Sedgwick to Hamilton, May 13, 1800; _Works_: Hamilton, vi, 442.

[1102] Adams to Rush, March 4, 1809; _Old Family Letters_, 219.