Despite Marshall’s heavy investment in the electoral campaign, the outcome remained in doubt until the state’s patriot-relic Patrick Henry declared for Marshall. Henry’s endorsement proved decisive, and as Federalists whispered Marshall’s name as a future presidential prospect, he went to Washington in early December to take his oath of office in the House of Representatives. This time Polly went with him. She was six months pregnant and terrified by the prospects of having to suffer the loneliness and anguish she experienced during her husband’s extended absence in Paris.
And she was unwilling to risk his encountering another Marquise de Villette.
Polly proved too shy and moody for the capital’s social swirl, however, and stayed at home most of the time, paying few visits, receiving even fewer, and planting fears for her safety in her husband’s mind.
As Washington had hoped, Marshall led a surge of popular support for Federalists in the South that gave them a twenty-seat majority in the House, and with a solid majority in the Senate and a Federalist President, they seemed to enjoy a firm grip on American government policies. The only Republican victory of note in the South was James Monroe’s election as governor of Virginia.
Although Republicans had lost nominal control of Congress, Alexander Hamilton’s political maneuvers divided the Federalist majority into what amounted to two new minority parties—moderate Federalists, who supported President Adams’s policy of strict neutrality in Europe’s military conflicts, and Hamilton’s pro-British ultra-Federalists, who decried any negotiations with France.
Ultra-Federalist leader Robert Troup of New York said the President’s decision to negotiate with the French had provoked “universal disgust.” A heroic officer in the Revolutionary War, Troup had been Alexander Hamilton’s roommate at King’s College (now Columbia) in New York before entering the law and becoming a judge. “There certainly will be serious difficulty in supporting Mr. Adams at the next election, if he should be a candidate,” Troup warned.
Two months later, as Davie and Ellsworth prepared to sail for Europe to join William Vans Murray, Hamilton—still inspector general of the army—appeared at the President’s house. In an outburst that warranted a court martial, Hamilton berated the President that the peace mission to France would provoke war with Britain. Taking Hamilton’s heroism in the Revolutionary War into account, the President simply dismissed Hamilton without demanding his resignation as army commander. Instead, Adams sublimated his anger in a private letter that described the former Treasury secretary as an “overwrought little man” with a “total ignorance of . . . Europe, England and elsewhere.”16
Infuriated by the President’s curt rebuff, Hamilton scurried to the home of the Chief Justice to try to talk him into quitting the peace mission but met the same cold rejection from Ellsworth that he had from the President.
The Federalist Party divisions provoked a vicious floor fight between northerners and southerners over the choice of Speaker in the House of Representatives, with the crusty ultra-Federalist Theodore Sedgwick of Massachusetts winning the post. A devoted Anglophile, Sedgwick had faced President Adams a few weeks earlier in a near-violent shouting match over sending the peace commission to France.
Alarmed at the bitterness infecting the union, Marshall sidled in and out of various groups in the House, inserting warmth and joviality into enough arguments to earn friendships with a diverse number of House members—from Swiss-born Republican Albert Gallatin, on the one hand, to former South Carolina Governor John Rutledge, on the other. Rutledge was a moderate Federalist who had served on the Supreme Court for a while and remained one of the South’s staunchest defenders of slavery. Marshall even drew close to the stern-faced Speaker Sedgwick, who always looked angry—even when he laughed.
Marshall got to know them all, made friends with all, steered clear of political ties to any, and won election as Federalist floor leader. “I hope,” he responded, “a mutual spirit of tolerance and forbearance will succeed the violence which seemed in too great a degree to govern last year. I wish most devoutly that the prevalence of moderation here may diffuse the same spirit among our fellow citizens at large.”17
As floor leader, Marshall wrote and delivered the customary congressional response to the President’s annual State of the Union address. Given House Speaker Sedgwick’s fierce encounter with the President and Marshall’s friendship with Sedgwick, both Congress and the President expected Marshall to fire a barrage of criticism at Adams.
To the President’s delight—and the distress of ultra-Federalist war hawks—Marshall declared Congress in total accord with the President’s “pacific and humane policy.” After praising the character of Adams’s envoys to France, Marshall offered “our fervent prayers to the Supreme Ruler of the Universe for the success of their embassy and that it may be productive of peace and happiness.”
The uniform tenure of your conduct through a life useful to your fellow citizens and honorable to yourself gives a sure pledge of the sincerity with which the vowed objects of the negotiation will be pursued on your part, and we earnestly pray that similar dispositions may be displayed on the part of France. To produce this end . . . firmness, moderation, and union at home constitute, we are persuaded, the surest means.18
A week after Marshall’s surprisingly conciliatory address to the President, a courier rushed onto the floor of the House to hand him a message. Marshall stood to interrupt the proceedings:
“Mr. Speaker!” his voice broke, and he paused before continuing.
Information has just been received that our illustrious fellow citizen, the Commander in Chief of the American Army and the late President of the United States is no more. . . . After receiving information of this national calamity, so heavy and so afflicting, the House of Representatives can be but ill fitted for public business. I move you, therefore, to adjourn.19
Under the rules of order, Marshall still had the floor the following day when the House reconvened. Knowing this, Henry “Light-Horse Harry” Lee, the Revolutionary War hero and former Virginia governor who had been a close friend of Washington, had prepared a set of resolutions for Marshall to read.
“Mr. Speaker,” Marshall began to read what was to be the most memorable eulogy in American history:
Our Washington is no more! The hero, the sage, the patriot of America—the man on whom in times of danger every eye was turned and all hopes were placed, lives now only in his own great actions and in the hearts of an affectionate and afflicted people.
Calling the public sorrow “deep” and “universal,” Marshall went on to call Washington responsible “more than any other individual” for founding “our widespread empire.” Marshall hailed Washington as having so often “quit the retirement he loved” to serve the nation—first, at the Constitutional Convention, then two terms as President, and again, as commander-in-chief of the army to confront the French in the quasi-war.
“Let us then, Mr. Speaker, pay the last tribute of respect and affection to our departed friend. Let the grand council of the nation display those sentiments which the nation feels.” Marshall then presented three resolutions, the last of which called for a committee to join with a comparable Senate committee to consider “the most suitable manner of paying honor to the memory of the man, first in war, first in peace, and first in the hearts of his countrymen.”20
Congress set aside December 26 as a day of national mourning. Although Washington’s family had placed his casket in the family vault at Mount Vernon a week earlier, tens of thousands of mourners poured into the capital at Philadelphia for what would be the largest funeral procession in American history. Marshall headed the committees that made the funeral arrangements and later planned the great Washington monument Americans revere today on the Mall in Washington, DC.
Among the mourners, besides Marshall himself, were President and Mrs. Adams, Alexander Hamilton, and Henry Lee, who repeated the eulogy that he had written for Congress that Marshall had delivered.* Conspicuously
absent was Vice President Thomas Jefferson, who remained in his aerie at Monticello, near Charlottesville, Virginia, although he returned a few days later to preside over the Senate. His seat had been draped in black, but he failed to utter or write a word about George Washington or his passing—not even sending a note of condolence to Martha Washington.
Apart from freeing his slaves after Martha Washington’s death, Washington’s long and detailed will left his public and private papers to his favorite nephew, Associate Justice Bushrod Washington. Bushrod, in turn, convinced John Marshall to collaborate on writing the first definitive biography of Washington. A year after Washington’s death, Tobias Lear, Washington’s longtime private secretary, sent the first of five trunks of Washington’s personal and public papers, which Marshall and Bushrod Washington began converting into a monumental five-volume Life of George Washington. It was published from 1804 to 1807 and, until the Civil War, remained the definitive history of eighteenth-century America, including the history of the American Revolution, the evolution of American government and the Constitution, and the life of Washington as a military and political leader.
“He was a real republican,” Marshall wrote of Washington, “devoted to the constitution of his country, and to that system of equal political rights on which it is founded.
Real liberty, he thought, was to be preserved, only by preserving the authority of the laws, and maintaining the energy of government. . . . No man has ever appeared upon the theatre of public action, whose integrity was more incorruptible, or whose principles were more perfectly free from the contamination of those selfish and unworthy passions, which find their nourishment in the conflicts of party. No truth can be uttered with more confidence than that his ends were always upright, and his means always pure.21
_______________
* The Judiciary Act of 1789 extended the reach of federal laws and the federal judiciary across the nation by creating a federal district court with a single judge in each state and three circuit courts of appeal, with Supreme Court justices “riding the circuit” and two of the justices periodically joining each district court judge to hear cases in each state.
* Marshall never claimed the eulogy as his own composition and, indeed, always emphasized that “General Lee immediately called on me and showed me his resolutions. He said it had now become improper for him to offer them [because the House had risen on Marshall’s motion] and wished me to take them.” (JM to Charles W. Hanson, March 29, 1832, in JM Papers, 12:189–190). Marshall also credits Lee in his Life of Washington.
CHAPTER 9
Midnight Judges
ON JANUARY 1, 1800, THE PASSING OF WASHINGTON COMBINED WITH French peace overtures to provoke demands from House Republicans to disband the standing army. Still under the command of Inspector General Alexander Hamilton, the army had produced a federal deficit of $5 million and forced Congress to impose burdensome property taxes.
Like the Whiskey Tax in 1794, the property taxes provoked widespread protests and at least one small rebellion, when Pennsylvania auctioneer John Fries roused neighbors to resist federal tax assessors. Pennsylvania militiamen crushed the rebellion, capturing thirty and charging Fries and two others with treason. Associate Justice Samuel Chase, then serving in circuit court, sentenced all three to death, outraging Jefferson’s Republicans. To a man, they called on the President to pardon Fries, disband the army, and end the hated tax.
President Adams favored disbanding the army—if only to strip Alexander Hamilton of military power—but he felt unsure about doing so before the French signed a peace agreement and ended their threat to the nation. Marshall agreed. As much as anyone, Marshall opposed the principle of a standing army in a free republic but knew “the cloven-footed devil Talleyrand”1 well enough to fear that the Frenchman would interpret relaxation of America’s military posture as a sign of indecision and weakness.
“The whole world is in arms,” Marshall reasoned, “and no rights are respected but those that are maintained by force. In such a state of things we dare not be . . . totally neglectful of that military position to which . . . we may be driven for the preservation of our liberty and national independence.”2
While Republicans besieged him with demands to release Fries, President Adams added to their outrage by signing an extradition order that sent a seaman to his death on the gallows in Jamaica for mutiny and murder.
Thomas Nash had been in the crew that mutinied and slayed the officers on the Royal navy frigate HMS Hermione in 1797. After sailing to a Spanish port and selling the ship, they scattered, with Nash turning up two years later in a bar in Charleston, South Carolina—drunk and boasting of his exploits. The British consul demanded his arrest and extradition. After rejecting Nash’s claims that he was an American named Jonathan Robbins, a court issued—and President Adams signed—an extradition order.
All but wearing his presidential ambitions on his jacket, Vice President Jefferson led a chorus of Republicans accusing the President of conspiring with the British to murder an impressed American seaman. Concealing clear evidence to the contrary, Jefferson enlisted New York Congressman Edward Livingston in a cruel scheme to impeach President Adams and force a father of American independence into retirement and disgrace for high crimes and misdemeanors.
The “mutual toleration and forbearance” that Marshall had hoped to promote in Congress was fast slipping away. Knowing full well that Thomas Nash was a British citizen, the young New York Congressman Edward Livingston wisely withdrew from Jefferson’s scheme to impeach John Adams and moved instead to censure the President for “dangerous interference . . . with judicial decisions . . . [and] the constitutional independence of the judiciary.”3
Infuriated by the slanderous attack on the President and the vice president’s behind-the-scene manipulations of Congress, Marshall sprang to Adams’s defense like a wounded wolverine:
“The people of the United States,” Marshall glared at Livingston, “have no jurisdiction over offenses committed on board a foreign ship against a foreign nation.”
The President is the sole organ of the nation in its external relations and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made to him. He possesses the whole executive power. . . . He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty.4
Marshall went on for three hours, crushing every one of Livingston’s arguments with citations from tomes of law that many members of Congress had never heard of, let alone read or studied: from ancient Greece and Rome, from England—Coke, Grotius, Hawkins—and on and on.
Nash was not an American, Marshall all but shouted—and congressional Republicans had the proof in their hands. Not only did Nash lack the papers American seamen routinely carried as proof of their citizenship, but he also spoke with a thick Irish brogue and had bragged of his Irish birthright to at least two shipmates who testified under oath to his participation in the mutiny and murder of the ship’s officers.
Marshall cited and read provisions of the Jay Treaty with England that required each country to extradite accused murderers to the other country. The Thomas Nash case was not a case of law and equity, Marshall went on, but a political issue. Nash had never stood trial in the United States; no American court had issued a ruling in his case.
Infuriated at Livingston’s ignorance of the law, Marshall raged that the constitutional right to trial by jury did not apply to alien fugitives accused of crimes that occurred outside the United States on foreign territory. A crime on a British ship in waters outside the United States fell within the jurisdiction of British—not American—courts.
“The [American] Constitution,” Marshall lectured Livingston, “is not designed to secure the rights of the people of Europe or Asia, or to direct and control proceedings against criminals throughout the universe.” American courts have no jurisdiction in extradition matters. The President’s action in signing extradition papers did n
ot involve a legal matter. His decision dealt exclusively with relations between the United States and Britain as defined by treaty.5
In oratory that seemed more appropriate for the Supreme Court than the House of Representatives, Marshall destroyed every argument for censure, humiliated Livingston, and sent the New York congressman’s motion crashing to defeat.
Marshall’s reasoning became and remains a centerpiece of American constitutional law, drawing a clear line between legal and political issues. In simplest terms, if it goes to court, it is legal; if not, it is political. The Nash case involved the exercise of treaty rights and obligations and was, therefore, strictly political.6
Although he had not sought the role, Marshall emerged from the Nash case as the most respected mediator and jurist in Congress as well as a staunch defender of the President, the presidency, and presidential authority as defined by the Constitution. Despite the accolades, Marshall was, at heart, quite an ordinary man, but a straight-thinking one, governed solely by logic and a love of justice—undeterred by flattery or verbal ornamentation unrelated to the matter at hand. Indeed, Treasury Secretary Oliver Wolcott inadvertently complimented Marshall in a criticism that characterized him as “too much disposed to govern the world according to the rules of logic.”7
Speaker Sedgwick—as fervent a Hamiltonian ultra-Federalist as Wolcott—was more generous, calling Marshall a “great and commanding genius,” a beacon to “enlighten and direct national councils.”
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