Chapter 25

[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 passed, 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 nobody's mind for the Chief Justiceship 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 Justiceship 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 repetition 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 assailed. 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 theAurora, 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 assail 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, inRichmond Examiner, March 13, 1801.)Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed United States Attorney for the District of Kentucky; George Keith Taylor, another brother-in-law, was appointed United States Judge of the Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed Assistant Judge of the Territory (District) of Columbia. These appointments were made, however, before the new Judiciary Act was passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender appears to have been the only person to criticize these appointments. Even Jefferson did not complain of them or blame Marshall for them. The three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all.[1334]Jefferson to Rush, March 24, 1801;Works: Ford, ix, 231.[1335]The Republicans did so later. "This outrage on decency should not have its effect, except in life appointments [judges] which are irremovable." (Jefferson to Knox, March 27, 1801;Works: Ford, ix, 237.)[1336]Parton:Jefferson, 585-86. Parton relates this absurd tale on the authority of Jefferson's great-granddaughter. Yet this third-hand household gossip has been perpetuated by serious historians. The only contemporary reference is in the address of John Fowler of Kentucky to his constituents published in theAuroraof April 9, 1801: "This disgraceful abuse was continued to the latest hour of the President's holding his office." The "shameful abuse" was thus set forth: "It [Judiciary Law of 1801] creates a host of judges, marshalls, attorneys, clerks, &c., &c., and is calculated, if it could endure, to unhinge the state governments and render the state courts contemptible, while it places the courts of law in the hands of creatures of those who have lost the confidence of the people by their misconduct. The insidiousness of its design has been equalled only by the shameless manner of its being carried into execution. The Constitution disables any member of Congress from filling an office created during his period of service. The late President [Adams] removed persons from other branches of the Judiciary, to the offices created by this law & then put members of Congress into the thus vacated offices.... This law can be considered in no other light than as providing pensions for the principals and adherents of a party [Federalist]. The evil however will not I trust be durable and as it was founded in fraud the return of a wiser system will release the country from the shame and imposition." (Fowler to his constituents in theAurora, April 9, 1801.)[1337]Jefferson to Rush, March 24, 1801;Works: Ford, ix, 230-31; to Knox, March 27, 1801;ib., 237; to Mrs. Adams, June 13, 1804;ib., x, 85.[1338]Neither Randall nor Tucker, Jefferson's most complete and detailed biographers, both partisans of the great Republican, mentions the Lincoln-Marshall story, although, if it had even been current at the time they wrote, it is likely that they would have noticed it.[1339]Jefferson to Knox,supra.

[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 passed, 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 nobody's mind for the Chief Justiceship 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 Justiceship 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 repetition 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 assailed. 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 theAurora, 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 assail 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, inRichmond Examiner, March 13, 1801.)Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed United States Attorney for the District of Kentucky; George Keith Taylor, another brother-in-law, was appointed United States Judge of the Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed Assistant Judge of the Territory (District) of Columbia. These appointments were made, however, before the new Judiciary Act was passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender appears to have been the only person to criticize these appointments. Even Jefferson did not complain of them or blame Marshall for them. The three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all.

Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed United States Attorney for the District of Kentucky; George Keith Taylor, another brother-in-law, was appointed United States Judge of the Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed Assistant Judge of the Territory (District) of Columbia. These appointments were made, however, before the new Judiciary Act was passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender appears to have been the only person to criticize these appointments. Even Jefferson did not complain of them or blame Marshall for them. The three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all.

[1334]Jefferson to Rush, March 24, 1801;Works: Ford, ix, 231.

[1335]The Republicans did so later. "This outrage on decency should not have its effect, except in life appointments [judges] which are irremovable." (Jefferson to Knox, March 27, 1801;Works: Ford, ix, 237.)

[1336]Parton:Jefferson, 585-86. Parton relates this absurd tale on the authority of Jefferson's great-granddaughter. Yet this third-hand household gossip has been perpetuated by serious historians. The only contemporary reference is in the address of John Fowler of Kentucky to his constituents published in theAuroraof April 9, 1801: "This disgraceful abuse was continued to the latest hour of the President's holding his office." The "shameful abuse" was thus set forth: "It [Judiciary Law of 1801] creates a host of judges, marshalls, attorneys, clerks, &c., &c., and is calculated, if it could endure, to unhinge the state governments and render the state courts contemptible, while it places the courts of law in the hands of creatures of those who have lost the confidence of the people by their misconduct. The insidiousness of its design has been equalled only by the shameless manner of its being carried into execution. The Constitution disables any member of Congress from filling an office created during his period of service. The late President [Adams] removed persons from other branches of the Judiciary, to the offices created by this law & then put members of Congress into the thus vacated offices.... This law can be considered in no other light than as providing pensions for the principals and adherents of a party [Federalist]. The evil however will not I trust be durable and as it was founded in fraud the return of a wiser system will release the country from the shame and imposition." (Fowler to his constituents in theAurora, April 9, 1801.)

[1337]Jefferson to Rush, March 24, 1801;Works: Ford, ix, 230-31; to Knox, March 27, 1801;ib., 237; to Mrs. Adams, June 13, 1804;ib., x, 85.

[1338]Neither Randall nor Tucker, Jefferson's most complete and detailed biographers, both partisans of the great Republican, mentions the Lincoln-Marshall story, although, if it had even been current at the time they wrote, it is likely that they would have noticed it.

[1339]Jefferson to Knox,supra.

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