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 thatJohn 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 partisanship 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 ownname on the commission as executing the office of Secretary of Statepro 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 circumstances 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 reassuring 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 "friendship." He accepts the office "with sentiments of gratitude 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 embarrassed 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 theUnion; 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 assails Adams, he does not mention Marshall.[1337]Jefferson's "Anas," inspired by Marshall's "Life of Washington," omits no circumstance, 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 multitude of practical and weighty matters that immediately claimed his entire attention, it is probable that Jefferson never imagined that Marshall would prove tobe 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 Constitution was adopted, the effect of the French Revolution on his naturally orderly mind, and the part he had taken and the ineffaceable impressionsnecessarily made upon him by the tremendous events of the first three Administrations of the National Government.
Thus it was that, unobtrusively 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.