John Marshall

by Harlow Giles Unger

  Before the President returned to Washington in the fall, Hamilton retaliated for the President’s dismissal of Pickering by publishing a vicious fifty-four-page Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq., President of the United States. With it Hamilton sabotaged his own as well as the President’s political career.

  In language that bordered on hysteria, Hamilton accused the President of “vanity without bounds . . . ungovernable temper . . . [and] paroxysms of anger which deprive him of self-command. . . . Mr. Adams has repeatedly indulged himself in virulent and indecent abuse of me. . . . Great and intrinsic defects in his character . . . unfit him for the office of Chief Magistrate.”24

  Hamilton’s cruel attack stunned the President’s wife, Abigail, who all but cried at “the shafts and arrows of disappointed ambition” that Hamilton—she called him “the little Gen’ll,”—had hurled at her husband.25 Adams, in turn, called Hamilton “the most treacherous, malicious, insolent, and revengeful enemy of the First Magistrate.”26

  Hamilton’s pamphlet even shocked Adams’s enemies in the Republican Party. Lawyer St. George Tucker, who had studied with Marshall under George Wythe at College of William and Mary and had replaced Wythe as law professor there, expressed indignation: “If there is anything . . . more virulent, more bitter, more injurious to Mr. Adams’s feelings as a man or more derogatory to his character as chief magistrate of the Union . . . I have not been able to find the passages.”27

  Confident he had cleansed his administration of Hamiltonian influences and assuaged by a flood of supporting letters, the President dismissed Hamilton’s pamphlet and prepared to return to his presidential duties.

  During the President’s absence John Marshall had indeed administered the entire government. Under normal circumstances the secretary of state’s responsibilities reached far beyond foreign affairs to cover functions that would be handled two centuries later by the secretaries of commerce, interior, agriculture, energy, transportation, and homeland security as well as the director of intelligence and other agency heads. But the President had also charged Marshall with supervising construction work in the new capital city, even attending to furnishing the future presidential residence.

  With $15,000 allocated for the purpose, Marshall commissioned Thomas Claxton, a well-known purchasing agent for furniture, to find appropriate pieces for the new mansion. “Two rooms, that is, the oval room on the second floor intended for the drawing room for Mrs. Adams and the northwest room on the first floor intended as the drawing room of the President, may be richly furnished. We wish the other rooms to be furnished in a plain and elegant manner.”28

  With only five assistants, however, Marshall was unable to work miracles.

  Events overseas were simply beyond his control. With the Anglo-French war raging, the British continued seizing American ships and cargoes bound for France and impressing captured American seamen into the British navy. The French did much the same, although they imprisoned most captured seamen because of language barriers that made it too difficult to integrate Americans into French crews. Marshall warned both the British and French that their aggressive acts had forced the United States to gear for war.

  “We have repelled and we will continue to repel injuries . . . and hostility,” Marshall told the English and French, “but this is a situation of necessity not of choice.”29

  It has been the object of the American government from the commencement of the present war to preserve between the belligerent powers an exact neutrality. Separated far from Europe, we mean not to mingle in their quarrels. This determination was early declared, and has never been changed. In pursuance of it, we have avoided and we shall continue to avoid any political connections which might engage us further than is compatible with the neutrality we profess.30

  When John Adams returned to Washington in November, he found the exterior of the executive mansion transformed into a palatial structure, but the interior a vast unfinished space, sustained by stark bearing walls devoid of plaster. Workers had yet to finish a single room in the President’s private quarters, and the President’s household staff had to appropriate the East Room for hanging laundry. But Adams was too moved by what he sensed as an important moment in American history:

  “I pray heaven to bestow the best of blessings on this House and all that shall hereafter inhabit it,” he wrote to his wife Abigail. “May none but wise and honest men ever rule under this roof.” He assured her that “the building is in a state to be habitable” and told her he intended spending the remaining days and nights of his presidential term as the first resident President in what Americans would later call the White House.

  “I shall say nothing of public affairs,” he told Abigail. “I have seen only Mr. Marshall. . . . And now I wish for your company. It is fit and proper that you and I should retire together.” She joined him a few days later.31

  As one of the few people whom the beleaguered President trusted completely, Marshall took Adams on a whirlwind tour of the capital to display the summer’s meager improvements—along with a stack of ledger sheets accounting for every penny of government funds he had spent. Workers had completed the North Wing (now the Senate) of the Capitol, and more than a half-dozen boarding houses had sprouted on Capitol Hill to receive the new Congress. A few new shops housed a tailor, shoemaker, printer, laundry, grocery, stationery, and restaurant. In an expansive mood after his jaunt, Adams asked the secretary of state to prepare the annual presidential address to Congress.

  Marshall prepared an optimistic address that described substantial growth in government revenues and domestic commerce. Abroad, America seemed at peace with almost all the world’s nations but France and Britain, but peace with France seemed imminent, and talks aimed at reconciliation with Britain were well under way in London. The President’s diplomat-son John Quincy Adams had negotiated a new treaty of friendship and commerce with Prussia, foreign trade was booming, and the Alien Act had expired quietly, eliminating a continuing source of voter bitterness toward Adams and the Federalists.

  “The secret of Mr. Adams’s satisfaction [with Marshall],” former Treasury Secretary Oliver Wolcott chortled sarcastically, “was that he obeyed his Secretary of State without suspecting it.”32

  All the good news, however, came too late to affect the election. A week after delivering his annual address to Congress, John Adams learned he had probably lost the presidency—that Vice President Thomas Jefferson was likely to be the new President. Adding to President Adams’s woes, his youngest son, thirty-year-old Charles, died from the effects of alcoholism.

  With Republicans all but certain to take control of both houses of Congress, Marshall warned the President that Jefferson planned establishing a “popular” dictatorship similar to the one Robespierre’s Jacobins had established in France before his assassination. The Jacobins had replaced the National Assembly with the Convention Nationale, and assigned legislative, executive, and judicial powers to the majority. Vested with absolute powers over all phases of government, majority leaders routinely ignored or ran roughshod over minority rights and objections.

  “Mr. Jefferson,” Marshall charged, “appears to me to be a man who will . . . sap the fundamental principles of government.”33

  Marshall urged Adams to reinforce and expand the judiciary, which remained the weakest of the three federal branches. With power concentrated in only two branches of government, he reasoned, collusion between them—as between Parliament and the British king—was inevitable, and tyranny the likely result. “We the people” had no protection against oppressive laws that Congress deemed “necessary and proper,” as stated in the Constitution.

  “It is believed and feared,” Marshall warned, “that the tendency of the [Jefferson] administration will be to strengthen state governments at the expense of that of the Union and to transfer as much as possible the powers remaining to the floor of the House of Representatives.”34

  Wit
h each of three branches commanding equal power, he argued, collusion would be more difficult, if not impossible—especially if a powerful judiciary voided laws and presidential proclamations it deemed unconstitutional.

  The framers of the Constitution, however, had failed to enumerate powers of the federal judiciary and left it all but impotent. The nation’s geography weakened it still more. Established as an appeals court with almost no original jurisdiction, the Supreme Court meant nothing to most Americans. More than 90 percent lived and worked on farms scattered across the vast American wilderness. Few had time, means, or money to appeal local court decisions to a Supreme Court in a far-off national capital. Indeed, the original plans for the new city of Washington had not even designated a location for the Supreme Court.

  Three Supreme Court Chief Justices had come and gone during the first decade of constitutional rule without leaving a trace of their presence. Although George Washington called the Court a “keystone of our political fabric [sic],”35 Congress had passed so few federal laws that his first appointee, John Jay, heard only five cases during the nearly six years he served as Chief Justice. With so little to do, he grew bored and decided to become governor of New York state. Jay’s successor, John Rutledge of South Carolina, heard only two cases during his single year on the bench, and his successor, Oliver Ellsworth of Connecticut, heard only four cases in four years as Chief Justice. In all, the High Court had heard a total of eleven cases in the eleven years of its existence—one a year.

  In its waning days of power the Federalist majority in Congress responded to Marshall’s and Adams’s calls for an expanded federal judiciary by passing the Judiciary Act of 1801. The Act expanded the number of circuit courts to sixteen, added twenty-three district judgeships, reduced the number of Supreme Court justices from six to five, and eliminated the need for Supreme Court justices to “ride the circuit.”

  At the time federal court cases originated in district courts, with decisions appealed in the nearest circuit court, where one or, if possible, two Supreme Court justices would “ride” into town to join a district court judge in hearing the appeal. Apart from the small number of appeals such courts could hear, the courts were so far from each other that travel was an enormous hardship for appellants and judges alike.

  The Judiciary Act of 1801 not only expanded opportunities for appeals, it relieved justices of arduous travel and freed them to focus solely on Supreme Court cases. It also eliminated conflicts of interest that arose when they heard appeals of decisions to the Supreme Court that they themselves had rendered while serving in circuit courts. Freed from circuit court duty, Supreme Court justices would meet twice a year for two-week sessions in December and June and would hear all cases for the first time.

  America’s first Chief Justice, John Jay, heard only five cases during nearly six years of his tenure and grew so bored with the post that he quit. Jay wears the traditionally ornate robes of British jurists that Marshall discarded in favor of politically neutral black robes. (LIBRARY OF CONGRESS)

  With no Republicans in the federal judiciary, Adams counted on the army of Federalist judges serving lifetime appointments to turn the judiciary into a Federalist bulwark against absolute Republican rule.

  “I dread this above all the measures meditated,” Jefferson complained of the Judiciary Act of 1801, “because appointments . . . render it difficult to undo what is done.” For Jefferson and the Republicans, the expansion and reach of the Federal judiciary threatened the jurisdiction of state courts, whose judges were elected by local freeholders and responsible to the people. But Federalists argued that the expanded network of federal courts would expand individual rights, giving farmers, artisans, and ordinary citizens in distant parts of the country easier access to the federal court system and broader protection against tyranny by local and state officials and courts.

  President Adams spent his remaining weeks in office packing the expanded judiciary with Federalist judges committed to strong central government and protection of property rights—the very opposite of Jefferson’s stated political goals. As Jefferson howled in protest, Adams kept appointing new judges, the Federalist Senate continued confirming them, and Secretary of State John Marshall kept signing their commissions—until 11:59 p.m. on the eve of Jefferson’s inauguration.

  Adams left office at midnight, having filled every seat in the federal judiciary with Federalists, earning them the collective epithet of “Midnight Judges.” Not a single Republican sat on the federal bench anywhere in the nation the next day, when Jefferson assumed the presidency.

  “The Federalists have retired into the judiciary as a stronghold,” Jefferson wailed, “and from that battery all the works of republicanism are to be beaten down and erased.”36 Intensifying Jefferson’s anger at the Midnight Judges was their identity: one was President Adams’s brother-in-law, another was John Marshall’s brother, James Markham, and two were John Marshall’s brothers-in-law.

  “Mr. John Marshall has taken particular care of his family,” editor James Callender remarked in the Richmond Examiner of March 13, 1801.

  Just before Adams’s term ended, Oliver Ellsworth resigned as Chief Justice, and the President asked his old friend, New York’s Federalist Governor John Jay, to return to the court. Jay had planned to retire, however, and declined. With his term near its end, Adams was left with but one choice for Chief Justice. “When I waited on the President with Mr. Jay’s letter declining the appointment,” Marshall recalled, “the President asked thoughtfully, ‘Whom shall I nominate now?’”

  I replied that I could not tell.

  After a moment’s hesitation he said, “I believe I must nominate you.”

  I had never before heard myself named for the office and had not even thought of it. I was pleased as well as surprised and bowed in silence. Next day I was nominated.37

  President John Adams’s simple letter to the Senate nominating John Marshall as the nation’s fourth chief justice of the Supreme Court. Twenty-five years later, Adams would call his “gift of John Marshall to the people of the United States . . . the proudest act of my life.” (NATIONAL ARCHIVES AND RECORDS ADMINISTRATION)

  On February 4, 1801, as the nation waited for the official count of Electoral College votes in the presidential election, forty-five-year-old John Marshall took the oath of office as Chief Justice of the US Supreme Court in an anteroom of the Capitol north wing and began what would be a historic—and turbulent—thirty-five-year tenure in the US Supreme Court.

  The official portrait of Chief Justice John Marshall after his appointment by President John Adams. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. II: FRONTISPIECE)

  “I pray you,” he wrote to President Adams, “to accept my grateful acknowledgment 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.38

  With the initial rap of his gavel, Marshall sounded the opening volley in a brutal political war with Thomas Jefferson over the meaning and interpretation of the Constitution—a war that would shape American government, provoke civil war, and determine the nation’s course for centuries to follow.

  CHAPTER 10

  Mr. Chief Justice

  “HE HIT THE CONSTITUTION MUCH AS THE LORD HIT THE CHAOS, AT A TIME when everything needed creating,” declared constitutional scholar John Paul Frank, describing John Marshall’s accession to the Chief Justiceship. “Only a first-class creative genius could have risen so magnificently . . . to uphold the power of the federal government . . . and to restrict the power of the states.”1

  Britain’s legal authority Lord Bryce agreed that Marshall’s “legal judgments . . . have never been surpassed and rarely equaled by the most famous jurists of modern Europe or ancient Rome.”2


  With only the Senate wing of the Capitol completed when Marshall took his oath of office, the House and Senate took turns using the Senate chamber, stuffing congressional offices and the Library of Congress into any remaining spaces while awaiting completion of the other wing and the connecting midsection of the Capitol. Congress relegated the Supreme Court to “a half-finished committee room meanly furnished and very inconvenient” on the Capitol ground floor. The Court had no space for its own library or offices, no clerks or secretaries—not even a bench. Justices sat at individual desks, along with the Reporter of Decisions*—and they had to share their meager space with district and circuit courts.

  Marshall surprised his colleagues when he arrived to take his oath in an austere black robe—in stark contrast to the ermine-fringed robes of scarlet silks and rich purple velvets that other justices wore, in the traditional dress of London’s King’s Bench.

  Their dress was understandable, of course: the oldest members had been raised as British subjects. Sixty-eight-year-old Associate Justice William Cushing of Massachusetts—President Washington’s first appointee to the Supreme Court—had won admission to the bar in 1755, the year John Marshall was born and George II ruled North America and the British empire. Maryland’s Samuel Chase, fourteen years older than Marshall, was a gruff, outspoken giant of a man, well over six feet, fiercely conservative, steeped in English law, and thoroughly intimidating. New Jersey’s William Patterson was ten years older than Marshall and had been a delegate to the Constitutional Convention, a US senator, and governor of his state.