The Activist
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3 J. Smith, pp. 185–86.
4 The eccentric, idiosyncratic Gerry has been roundly vilified for his behavior in Paris, but he proved every bit as frustrating to Talleyrand as Talleyrand had been to the delegation. See Elkins and McKitrick, pp. 537–79.
5 Ibid., p. 570.
THIRTEEN: FIRST IN QUASI-WAR: ADAMS ON A TIGHTROPE
1 There were other reasons for the rift as well, of course, but the Sedition Act does seem to have pushed many Republicans over the edge. As to marching on Washington, see Ackerman, Chapter 4.
2 Quoted in J. Smith, p. 245.
3 Smith, p. 242.
4 Statutes at Large, 5th Congress, 2nd Session, p. 572.
5 Ibid., p. 574.
6 Ibid., 5th Congress, 3rd Session, p. 716.
7 4 US 39. This was to be Moore’s only written opinion as a member of the Court.
8 Ibid., p. 40.
9 Ibid., pp. 41–43.
10 Since Section 1 of the Judiciary Act of 1789 required the presence of four justices for a quorum, Chase was forced to file an opinion.
11 He didn’t own up to the real reason, of course, but said instead, “The Judges agreeing unanimously in their opinion, I presumed that the sense of the Court would have been delivered by the president; and therefore, I have not prepared a formal argument on the occasion” (4 US 44).
12 Ibid., p. 45.
FOURTEEN: DEFAULT JUDGMENT: MARSHALL TO THE BENCH
1 Bills and Resolutions, 6th Congress, 33:1–44.
2 Ibid., 6th Congress, 53.
3 Quoted in Dewey, p. 52.
4 Chernow, p. 608.
5 For the best discussions, see Ferling and Chernow.
6 Quoted in Chernow, p. 609.
7 Ibid. Had Jay done so, Adams would have been reelected, as it turned out.
8 Hamilton, born in the West Indies, could not be president.
9 Elkins and McKitrick, pp. 735–36.
10 Grant, p. 424. Lack of moral principle might be subjective, but as to the second epithet there could be no doubt.
11 Senate Executive Journal. 1st Congress, 2nd Session, May 7, 1800.
12 Ibid., May 12, 1800.
13 Ibid.
14 Papers of Alexander Hamilton, v. 24, p. 573, quoted in Chernow, p. 615.
15 Ferling, p. 137.
16 It is a testament to a simpler time that the entire store of government documents and records fit into seven packing cases (Ferling, p. 137).
17 Quoted in Ketchum, p. 408. Only the towns of Georgetown, on the Maryland side of the Potomac, and Alexandria, across the river, had been settled previously.
18 Senate Journal, 6th Congress, 2nd Session, November 22, 1800.
19 Ibid.
20 Jefferson to Madison, December 19, 1800. http://memory.loc.gov/cgi-bin/am-page?collId=mjm&fileName=25/mjm25.db&recNum=622&itemLink=D?mjm:3:./temp/~ammem_FCOh::
21 Ferling, p. 171.
22 Ibid., p. 172.
23 Civil war is not an overstatement. Later in the crisis, troops actually massed to thwart any attempt by Federalists to remain in power. See Ackerman, Chapter 4.
24 Ackerman, p. 122.
25 Quoted in Stahr, p. 363.
26 Jefferson to Madison, December 19, 1800. op cit.
27 http://memory.loc.gov/master/mss/mjm/25/0600/0627d.jpg.
28 Stahr, p. 364.
29 Dewey, p. 51.
30 Marshall had earlier suggested Associate Justice William Paterson for the post, but Adams had categorically refused to consider a man he viewed as a political enemy.
31 Marshall, p. 29.
32 House Journal, January 20, 1801.
33 Ibid.
34 Quoted in J. Smith, p. 285. John Randolph later referred to the chamber as “the cave of Trophonius.”
35 J. Smith, p. 283.
FIFTEEN: TWO BILLS: ADAMS’S LAST STAND
1 Annals, 6th Congress, House, January 5, 1801. The House stayed with two districts, but divided them by latitude instead of longitude.
2 Ibid., January 7, 1801.
3 Ibid., January 5, 1801.
4 Lewis Morris, Federalist of Vermont.
5 Annals, 6th Congress, House, February 10, 1801.
6 As Bruce Ackerman points out in his excellent Failure of the Founding Fathers, during the reading, an additional unforeseen scenario was manifested when, due to technical irregularities with the signatures, Georgia’s ballot was found not to conform to constitutional standards. The ballot could—and probably should—have therefore been disallowed, thus denying Jefferson and Burr a majority and most likely the election. (If no candidate received a majority, Adams, Pinckney, and even Jay would have joined Jefferson and Burr as the top five vote-getters and been thrown back in the mix. The Federalist House could have then chosen a Federalist President.) Jefferson, however, conveniently ignoring the phrase “conflict of interest,” chose to accept the ballot, thereby allowing the subsequent drama to play out (pp. 59–74).
7 Annals, 6th Congress, House, February 11, 1801.
8 Ibid.
9 Ibid.
10 2 Statutes 89–100.
11 Annals, 6th Congress, House, February 17, 1801.
12 For an excellent and compelling account, see Ferling, pp. 187–93, although his record of the votes does not always agree with the House record, and Ackerman, pp. 80–108.
13 Ferling, pp. 194–96. Jefferson later claimed to have turned down any quid pro quo, although recent scholarship has cast doubt on his claim of innocence.
14 Ferling reports that his fellows screamed “Traitor, traitor” (p. 191).
15 Forte, p. 353.
16 2 Statutes 103–8.
17 James Madison to Thomas Jefferson, February 28, 1801. Library of Congress, James Madison Papers.
18 As Dewey pointed out, there were only 15,265 residents of the District, about one fifth of whom were slaves, so “President Adams was thoughtfully providing these counties with a justice of the peace for every 363–1.2 persons, irrespective of age, sex, color, or condition of servitude” (p. 76).
19 Thus, for all the mischief that the Judiciary Act of 1801 was to engender, it was not, contrary to popular conception, in any way responsible for judicial review. William Marbury had no connection with that piece of legislation. He received his appointment under the District of Columbia Act.
20 Stoddert was considered one of the most able men in Adams’s administration, and his presence on the list of appointees belies the accepted myth that Adams had appointed a bunch of nonentities to the posts. Laird would later figure in a crucial constitutional case of his own.
21 Forte, p. 353.
SIXTEEN: SUNSET AT MIDNIGHT
1 They were circuit court judges George Keith Taylor and William McClung and United States attorney Joseph Hamilton Daveiss.
2 The testimony was by clerks Jacob Wagner and Daniel Brent during the Marbury case, and there are, as will be seen, solid reasons for skepticism. Also, if Wagner and Brent were correct, there would have been a good deal of shuttling back and forth, for which no solid evidence exists.
3 Quoted in Dewey, p. 58.
4 Thomas Jefferson to Archibald Stuart, April 8, 1801. The Works of Thomas Jefferson in Twelve Volumes. Federal Edition. Collected and edited by Paul Leicester Ford.
5 Sharing the carriage was Adams’s High Federalist nemesis, Theodore Sedgwick.
6 Quoted in Dewey, pp. 79–80.
7 Forte, pp. 357–58.
8 Standard, at least, for Federalists. Agrarian Republicans, who held little in paper assets, loathed the practice.
9 Forte, p. 363.
SEVENTEEN: THE NEW DAY
1 His conciliation was more public than private. That very day, after swearing in the new president, Marshall went home and wrote to Pinckney. Although conceding that Jefferson’s inaugural was “well-judged and conciliatory,” he added, “The Democrats are divided into speculative theorists & absolute terrorists. With the latter I am disposed to class Mr. Jefferson” (Beveridge, v. 3, pp. 11, 18)
.
2 Senate Journal, 4 March 1801.
3 Ibid., pp. 148–49. For a fuller analysis of Jefferson’s inaugural, see Elkins and McKitrick.
4 While technically the 7th Congress, many of the new electees did not have time to make it to Washington City after Adams belatedly called a special session of the outgoing Congress to greet the new president. As a result, many of the deposed 6th congressmen sat in instead. Speculation that they would give Jefferson trouble with confirmations proved incorrect.
5 Jefferson to William B. Giles, March 23, 1801. The Works of Thomas Jefferson in Twelve Volumes. Federal Edition. Collected and edited by Paul Leicester Ford. Emphasis in original.
6 Ibid.
7 Thomas Jefferson to Archibald Stuart, April 8, 1801. Library of Congress, Thomas Jefferson Papers.
8 Thomas Jefferson to William Johnson, June 12, 1823. Library of Congress, Thomas Jefferson Papers.
9 Ibid.
EIGHTEEN: “BEYOND COMPARISON THE WEAKEST OF THE THREE”: MARSHALL TAKES THE COURT
1 J. Smith, pp. 288–290.
2 4 US 1, p. 42.
3 4 US 1, p. 28.
4 5 US 1, p. 43.
5 For example, Talbot was cited in Holtzman v. Schlesinger, a Vietnam War case.
6 Thomas Jefferson to William Johnson, June 12, 1823. Library of Congress, Thomas Jefferson Papers.
NINETEEN: REPEAL: THE SEVENTH CONGRESS
1 Thomas Jefferson to Benjamin Rush, December 20, 1801. Library of Congress, Thomas Jefferson Papers.
2 Senate Journal, December 8, 1801.
3 Ex post facto, Latin for “from a thing done afterward,” is a law that applies retroactively. The Constitution specifically bans ex post facto laws by Congress (Article I, Section 9) and the states (Article I, Section 10). Marshall’s reasoning was, in fact, a justification of the very type of situation that the Constitution prohibited. So, once again, Marshall was not so much interpreting the Constitution as rewriting it.
4 Although Adams had signed the ratified treaty in February, Napoleon objected to the clause that seemed to promise reparations. Agreement had subsequently been reached, and Jefferson submitted the revised treaty to the Senate, where it had been ratified on December 19. Jefferson’s signature on December 21 finally closed the book on the Convention of 1800.
5 J. Smith, p. 298.
6 Senate Journal, January 6, 1802.
7 Thomas Jefferson to Benjamin Rush, December 20, 1801. Library of Congress, Thomas Jefferson Papers.
8 Thomas Jefferson to John Dickinson, December 19, 1801. Library of Congress, Thomas Jefferson Papers.
9 Annals, 7th Congress, Senate, January 8, 1802, p. 28.
10 Ibid., p. 30.
11 Ibid., p. 39.
12 Ibid.
13 Ibid., p. 31.
14 Ibid., p. 25.
15 Ibid.
16 Ibid., January 12, 1802, p. 55.
17 Ibid., p. 56.
18 Ibid., p. 57.
19 Ibid., House, February 20, 1802, p. 659.
20 Quoted in Malone, p. 123.
21 Annals, 7th Congress, p. 145. States’ Rights firebrand John C. Calhoun was Col-houn’s cousin.
22 Ibid.
23 Colhoun’s indecision is not surprising. Of all the states that had sent Republicans to the Senate for the first time in 1801, South Carolina had perhaps both the strongest Federalist tradition and the most active Federalist opposition.
24 Annals, 7th Congress, Senate, February 2, 1802, p. 148. Once again, congressional reporters transcribed in the third person.
25 Ibid., pp. 148–49.
26 Ibid., p. 150.
27 Ibid., p. 160. As it turned out, Bradley’s vote was unnecessary, as one Federalist senator, John Howard of Maryland, was absent. Colhoun again voted with the Federalists.
28 Ibid., 178–79.
29 Ibid., p. 179.
30 Ibid., p. 180.
31 The importance of this exchange cannot be overstated. It is a clear rebuttal of McDonald, Beveridge, and the myriad other historians who have claimed that, during the constitutional debates, judicial review was a tacitly understood power of the courts. Morris’s failure to cite that fact, or even to refer to the Convention, is clear evidence that there was no such agreement in Philadelphia, but rather that judicial review was either a conscious omission by a group of delegates who expected to control the legislature in perpetuity or an issue they considered too hot to handle one way or another.
32 The District of Columbia circuit court, established under a different law, remained unaffected.
33 Beveridge claims that the entire debate was really about just this question; but, as an overt Federalist cheerleader, his opinions must be taken with many grains of salt (v. 3, pp. 102–10).
34 Hamilton had written to Bayard immediately after the repeal, suggesting that the legislation be tested in the Supreme Court as soon as possible (J. Smith, p. 305).
35 Annals, 7th Congress, p. 257; 2 Statutes 156.
36 Colhoun was absent for much of his remaining tenure, which ended prematurely on October 26, 1802, when he died at his home in South Carolina.
37 A motion in the House to add a Kentucky–Tennessee seventh circuit was defeated (Annals, 7th Congress, p. 1215).
38 It is impossible not to wonder how much of Bayard’s passion was engendered by guilt over breaking the electoral deadlock thirteen months before.
39 Annals, 7th Congress, 1st Session, pp. 1235–1236.
40 He would consider circuitriding an unconstitutional provision for the remainder of his life (Ackerman, p. 164).
41 J. Smith, p. 306.
42 As contrasted with his assertion in Marbury that “it is emphatically the province and duty of the judicial department to say what the law is.”
43 J. Smith, p. 307. One reason for Morris’s reaction was his belief that Marshall had previously voiced the exact opposite opinion, but whether Marshall had actually done so or Morris had simply been told he had is unclear.
44 According to Jean Smith, Marshall did this in a spirit of statesmanship, taking no position himself on whether the justices should effectively go on strike. Ackerman violently disagrees, citing compelling evidence that Marshall favored a refusal to ride circuit and transmitted those sentiments to his fellow Federalists, thus accounting in part for Morris’s disgust with his later acquiescence (pp. 342–43). Bev-eridge acknowledged Marshall’s desire to refuse the circuitriding chore, calling it “heroic,” but asserted that his fellows—doubtlessly excluding Chase—lacked the backbone to join him (v. 3, p. 122).
45 Warren, v. 1, p. 271.
46 Whatever sentiments Marshall had first expressed were now moot. Practical politics had, as they always would with Marshall, superseded ideology.
47 Roane, an outstanding legal theoretician and a bitter Marshall enemy, was at the time a member of the Virginia Supreme Court of Appeals. His Republican credentials had been made all the stronger by his marriage to Patrick Henry’s daughter, Anne.
48 J. Smith, p. 307. The most substantial improvement in the more limited circuitriding obligation then had existed under the 1789 act.
TWENTY: SUICIDE SQUEEZE: HAMILTON V. MARSHALL
1 A number of historians have referred to High Federalists as “irreconcilables.” The word “obstructionist” has also been employed.
2 Richard Bassett, Bayard’s father-in-law, penned a long and erudite protest to the new law which, if he chose, Marshall could have used as a model for a demurral on solid constitutional grounds (Ackerman, pp. 276–97). Marshall, however, was not in the least interested in raising constitutional issues that not only would be ignored by Republicans but might also cost him his job.
3 The other combatant was the arch-Republican Matthew Lyon, who had begun the battle by publicly insulting Griswold two weeks earlier. Griswold responded by calling Lyon a coward. Lyon, a notoriously disreputable character, then publicly spit in Griswold’s face, earning him the sobriquet of “Spitting Lyon.” On February 15, 1798, after G
riswold launched his attack without warning, Lyon gathered himself at the water table, then counterattacked with a pair of fire tongs. Griswold pulled the tongs from Lyon’s hands and beat him further. Lyon was later expelled from the House and jailed for violating the Sedition Act.
4 Laird sued in federal court because he was a resident of Maryland suing in Virginia.
5 Annals, 7th Congress, 2nd Session, p. 427.
6 Ibid., p. 431.
7 Ibid., p. 438.
8 Ibid., p. 32. Harper seems to have dropped out.
9 Ibid., p. 34.
10 Ibid., p. 50.
11 Ibid., pp. 52–77.
12 Of course, historians, including this one, have little choice in the matter. Compare that with, say, the O. J. Simpson case, in which virtually every American had an opportunity to evaluate the defendant, the prosecutors, the defense team, the evidence, the jury, and, therefore, the decision.
13 Since, unlike most Court cases, this was an original action and not an appeal, the justices were, in fact, trial judges. If Marshall had wished, he could have ruled summarily for the plaintiffs since the defendants had not shown up.
14 Moore may have missed either the second day or the first two days (Dewey, p. 98; J. Smith, p. 624).
15 The degree to which historians dance around this obvious contrivance by Lee and Marshall is astonishing. Jean Smith, for example, says simply “Lee chose not to call the chief justice” (p. 316), while Warren and Beveridge ignore the omission entirely.
16 Lincoln, who only became secretary of state when Marshall vacated the office, could not testify as to any other stage in the process. The only issue that mattered to Lee was proving that the commissions had existed in the first place.
17 United States v. Judge Lawrence; United States v. Hopkins.
18 J. Smith, p. 316.
19 Commenting on the decision, Jean Smith noted: “A less astute, or a more partisan, judge might have ruled for Marbury by default (p. 319).
20 Subsequent to the trial, but before Marshall issued his ruling, Lee presented an affidavit from another clerk at the Department of State, one Hazen Kimball, which stated that he had been present in the offices in March 1801 and had seen the signed and sealed commissions of Marbury and Hooe. Kimball was never formally examined, however (1 Cranch 153).