The Life of John Marshall Volume 3 of 4

ften rigorous inj

a stronghold, and from that battery all the works o

any system, if some material parts of it are no

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

al, 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

that seamed its sides thick with trees and tangled wild grapevines,[6] one finally reached the immense un

er, 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 anothe

en 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

n end were four or five structures of red brick, looking much like ungainly warehouses. Farther westward on the Potomac hills was a small but preten

l structures already described. Along these forest avenues were scattered houses of various materials, some finished and some in the

United States-the Capitol, Pennsylvania Avenue, the "Executive Mansion" or "President's Palace," the department buildings near it, the

s, the opinions of judges, the intrigues of politicians,-when witnessing the scenes in which Marshall and Jefferson and Randolph and Burr and Pinckney an

uation for living, the Capital of the new Nation was, declared Gallatin, a "hateful place."[11] Most of the houses wer

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

age in coming for us ... was overset, the harness broken. We got home with difficulty, twice being on the point of oversetting, and at

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 diplo

wenty persons.[24] This absence of churches was entirely in keeping with the inclination of people of fashion. The first Republican administration came, testifies Winfield

ing-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 liquo

n 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

lation 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 t

capital, wh

rasses, obeli

ighted seers,

nbuilt and her

ut woods and Je

uld run and sages

r 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,

ld 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 fo

of the embryo Nation itself. Physical conditions throughout the country were practically the same as at the tim

g 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

ivided into speculative theorists & absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is

ocracy through the United States.... Maratists and Robespierrians everywhere raise their heads.... There will be neither justice nor stability in any system, if s

he 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 sa

ndoned 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,

ignorant and degraded American felt himself far superior to the most enlightened European. "Behold the universe," wrote the chronicler of Congress in

gs 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 th

trained 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

s: "The clergy, who have missed their union with the State, the Anglo men, who have missed their union with England, the political adventurers wh

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 fo

er 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 fir

cers, 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, C

ican 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 c

ench 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 pu

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

re 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 of

ded the spoils of victory; and the Republican leaders were not slow or soft-spoken in telling their chieftain that he must take those m

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 cont

m. It was the only department of the Government not yet under his control. His early distrust of executive authority, his suspicio

nia, 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 p

nd conviviality, no longer concealed from Jefferson the courage and determination of his great relative; and Jefferson doubtless saw that Marshall

apturing 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 im

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 violato

an the destruction of the judicial arrangements made during the last session," wrote Sedgwick.[72] And Hale, with dreary sarcasm, observed that "the i

h 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 unknow

ion 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-expound

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 indispens

r 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 Di

t 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

[81] In the absence of any National legislation covering the subject, Justice Wilson instructed the grand jury that Henfield could, and should, be

atute 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 degrada

test against riveting the common law of England upon the American people

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 ad

... of the community."[86] The Chief Justice announced as American law the doctrine then enforced by European nations-"born a subject, always

; 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 cou

iration from British precedents and the British bench. Indeed, some of them were more British than they were American.[91] "

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, inc

e of the United States without waiting for an act of Congress to make it so, their manners and me

ropean 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 na

idiculous 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] wer

ed States into contempt." He declared that the jury was selected from his enemies.[98] Under the charge of Justice Paterson of the

ith 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.[10

mont." 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 h

d 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

ation, 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 saddl

ng his own defense, he pointed out the issues that divided the two great parties, and insi

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 th

ed 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

imprisoned for six months, and at the end of that period to find surety for his good

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

t 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

he 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

pardoned Fries and his associates, to the disgust and resentment of the Federal

allender 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 lo

cted for libel und

er'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

were hostile to Chase and were the bitter enemies of the statute which they knew he would enforce. Jefferson was anxious that

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 b

d not laugh. John Marshall, then Secretary of State,

"[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

ss 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

rney was not stating the law correctly. The reporter notes that thereupon "Mr. Hay folded up and put away his

nvicted. The court sentenced him to imprisonment for nin

ple at the courts rose to a dangerous point. The force of popular wrath was increased b

tates 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

he 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

l 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 jurie

, were as insulting in their bearing, as immoderate in their speech, and as intolerant in their conduct as some of t

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

l 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

ependent Chronicle of the preceding day. He properly stated to the Jury that though he was not a subscriber to the paper, he obtained that on

ng "to bring the government into disrespect, hatred, and contempt," and for encouraging sedition. Thomas Adams was fatally ill and Abijah only was

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 unremitting

ity." 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

ut was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month'

e judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into d

governed his associate judges, ruled juries. In one case,[140] Addison forbad

e authority of their exalted positions, more than one of them, notably Justice Chase a

used 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 dram

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 F

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 tribuna

blishments 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 t

TNO

ms: Life of Albert Gallatin, 252; also Bryan

ars of Washington

July 4, 1800, Gibbs: Administrations

on, Jan. 1, 1803, Pl

ife, Jan. 15, 1801, A

Hunt

in to his

an, i,

e are still stand

pra; also Wharton: Social Lif

wife, Aug. 17, 1802,

s wife, July 4, 18

Gray Otis, ii, 170-71. This letter is accurately descriptive of travel fro

driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled

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

all parts of the country, except the l

ife of Thomas

ife, Jan. 25, 1807,

ms: Adams, iv, 74; and see Quin

ngton] almost killed me." (Bayard to Rodney, F

also Mrs. Smith to her husband, July 8, 1803, ib. 41; and G

respondence of Rufus King: King, iv, 294; and

wife, Jan. 15, 1801,

on: Social

infra,

ec. 30, 1805, Plumer: Lif

al city." (Plumer to Tracy, May

1808, Life and Letters of

ch building, which was abandoned after 1

r, a profound religious movement was beginning. (See Semple: History of the Rise a

on these occasions. The throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting

wife, Jan. 15, 1801,

on: Social

Hun

d, Dec. 7, 1803, as quot

because of the absence of decent accommodations. (Mr

consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a

Cong. And see Annals, 8th Cong. 1st Sess. 282-88. The deb

tory of the United

wndes, Dec. 30, 1

story of the Unit

ryan,

s wife, July 4, 18

very high in their demands." (La Rochefoucauld-Liancourt: Tr

Esq., M.D.," Moore:

ne 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, Correspon

: Story of the Whi

s wife, Dec. 25,

k 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 bein

led "The Executive Mansion"

o see La Rochefoucauld

chaps. vi and v

rch 4, 1801, MS. furnished by

3, 1801, Lodge: Life and L

r 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 wa

ng, Dec. 19, 18

King, Dec. 14,

ion as quoted in A

s: Ford, iii, 8-9. Within six years Adams abandoned a party which o

te-Commercial and Polit

ng 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

ers of the Brit

ichmond Argus during 1803. So well did they deceive the people that many in Gloucester and Norfolk de

Feb. 4, 1807, Pickerin

ush, Oct. 4, 1803,

the American foreign policy announced by Washington. It

l, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form.... To take

General (Gideon Granger), May

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 ye

ps. iii and vi; als

ranch, 1

s. Mason, 1 C

Cranch,

. Fendall, 1 C

ii, 531-47,

for account of the revolutionary measur

ckney, March 4, 1801

tration to acquire popularity." (Wolcott t

rity." (J. Q. Adams to his father, Novembe

pularity are laying the foundation, are not immediately

er to pursue a measure if it becomes unpopular." (P

of a low demagogue seeking the gratification of the democracy on whose voices and

13, 1802, Works of Fis

storical Review, xii, 77

c. 19, 1801, Writings of Thomas

eralism of the courts is to have the attorneys & Marshals republi

pears 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 a

within six weeks after Jefferson's ina

Anderson: William Branch Giles-A Study

same, June 1,

King, Dec. 14, 18

ng, Dec. 19, 18

Revolution most of the people were antagonistic to courts of any kin

d demanded by formal resolution the enactment of "such laws ... as

f this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abo

tional courts of the British common law, see Works

l, July 11, 1801, as q

Public Papers of John Ja

istrations of Washington and Adams, 60 et seq.; and see

Dallas,

ons of the bench, "but he was afterward pardoned on condition that he s

rest and prosecution of Henfield, see W

charge, Wharton: S

ry of Wilson's second ch

Ib.

After the Henfield and Ravara cases, Congress passed a law ap

n: State Tr

ef points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of th

other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an addit

aving been long since settled in public opinion.... The legislative authority of the Union must first make an act a crime, affix a punishment to it

passionate letters on the subject, vol. iv, chap. i, of this work; and see his argument for the common law, Story,

United States vs. Robert Worral, indicted under the common law for attempting to bribe a United States officer. Justice Chase h

President Judge of the Fifth Pennsylvania (State) Circuit, both of whom were born and educated in

0, Tyler: Letters and Times of the Tylers, i, 26

dolph, Aug. 18, 1799,

, chaps. x and x

to grand juries, lectured and preached on r

es was opened in this town. The Hon. Judge Patterson

ry, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. Religion & Morality were pleasingly inculc

of Grace in an excellent and well adapted prayer." (United States Oracle

ch of 1798; see vol.

n: State Tr

Ib.

Martin in the trial of Justice Chase (see infra, chap. iv) said that Paterson was "mild and amiable,"

, Oct. 14, 1798, Wharto

lor, Nov. 26, 1798, Je

on: State T

] Ib

Ib.

r was referring to the case of Jonathan Ro

fterward becam

infra, c

Girard paid Cooper's fine. (McMaster: Li

n: State Tri

ii, 429 et se

n: State Tri

Lewis see Wharton:

t Chronicle, Bos

: State Trial

ii, 429 et se

Callender, Sept. 6, 1799, ib. ix, 81-82; same to same, Oct. 6, 1799, ib. 8

to Congress in 1798, see v

. 2d Sess. 246-47); of Luther Martin (ib. 245-46); an

t, Chase Trial, 44-45, and see A

ix, 136. By "public interference" Jefferson meant an

n Burr, see infra, chap

h Cong. 2d Sess. 203; and see especially Luth

that Hay and Wirt planned to make. For instance, the citizens of Caroli

laced, declared that Callender "has a cause closely allied to the preservation of the Constit

dren who live by his daily labor" the contributors freely gave the money "to be applied to the use of James T. Cal

e infra,

on: State T

see testimony of Taylo

could not be determined by a jury, but belonged exclusively to the Judicial Department. For a brief précis of this

ame President he immediately pard

State Trials, f

cholas Vandyke, Archibald Hamilton, John Hal

of enlisting in the army, and reflected upon the wisdom of the Administration's policy; for this he was indicted, convicted, and se

amed Baldwin, idly remarked that "he wished the wadding from the cannon had been lodged in the President's backside." For this se

dition was taken up by the United States District Attorney for New York, who procured the indictment of Peck; and upon bench warrant, the offender was arrested and taken to

the laws of the States where the courts were held. As a

s, ii, 473; and see speech of Charles Pinckney in the Sen

dependent Chronicle, Feb. 11-14, 17

his incident see Anderson in Am. Hist. Rev. v, 60-62, quoting the Centinel as cited. A Federalist mo

ent Chronicle,

nia Resolutions, so far, at least, as to assert that any State ought to protest against and resist any act of Congress

an Centinel,

ane and others, indicted and tried for getting signatures to a petition in Congress against

weighty have since been produced against what George Cabot called "excessive democracy." These grand jury charges of Addison were entitled: "Causes and Error of Complaints and Jealousy of the Administration of the Government"; "Charges to the Grand Juries of the County Court o

for having declared, in effect, that Coulter "kept a house of ill fame." (Trial of Al

rior ability. There seems to be no doubt that he was the mere tool of another judge, Hugh H. Brackenridge, who hated Addison virulently. F

Carson: Supreme Court of the Un

extravagance of the judges had been carried to the most picturesque as well as ob

positions, the voice from the bench, while contrary to tha

law reports, because they were from "musty, old, worm-eaten books." One of the judges declared that "not Co

ee next

ced Marshall to pronounce his famous opinion in the case of Marbury