John Marshall

by Harlow Giles Unger

  When Jefferson assumed the presidency, Napoléon Bonaparte and his advisers assumed that the new President’s witless reverence for all things French would permit swift, unimpeded French occupation of Louisiana. At first Jefferson did little to make Bonaparte question his evaluation. Indeed, more than 30 of the 150 guests he invited to his inauguration dinner in 1801 were French. When, however, Jefferson learned of Spain’s retrocession of Louisiana, he suddenly abandoned his romance with Gaul.

  “Every eye in the U.S.,” Jefferson declared, “is now fixed on this affair of Louisiana. Perhaps nothing since the revolution has produced more uneasy sensations through the body of the nation.”9 Jefferson warned that “the produce of three-eighths of our territory must pass to market” through New Orleans and that the United States would go to war if France took possession of that city.10

  The French ambassador sent word to Paris that “I am afraid they [the Americans] may strike at Louisiana before we can take it over.”11

  In the fall of 1802 President Jefferson ordered his secretary of war to prepare an assault on New Orleans, sending three artillery and four infantry companies to Fort Adams, near the Spanish border, about forty miles south of Natchez. Before going to war, though, Jefferson decided to demonstrate America’s commitment to peace by sending his close friend and disciple James Monroe, the avowed Francophile, as special commissioner to France and Spain to try to settle the issue of Mississippi navigation amicably.12 Ignoring the Constitution, the President asked for—and obtained—50 million livres, or $9 million, from Congress for Monroe to spend to purchase New Orleans from the French. Jefferson recognized that the purchase was “an act beyond the Constitution” and that the Constitution “made no provision for our holding foreign territory, still less for incorporating foreign territory into our Union.”13

  He nonetheless ordered congressional leaders to approve it “with as little debate as possible. The less we say about constitutional difficulties respecting Louisiana the better. . . . What is necessary for surmounting them must be done sub-silentio [under silence].”14

  Even a few Federalists praised the mission, with Jefferson’s longtime foe Alexander Hamilton declaring, “It belongs of right to the United States to regulate the future destiny of North America. The country is ours; ours is the right to its rivers and to all the sources of future opulence, power and happiness.”15 Senator James Ross of Pennsylvania was less patient. “Why not seize what is so essential to us as a nation? When in possession, you will negotiate with more advantage.”16

  Not everyone favored the acquisition, however. “Presently we shall be told we must have Louisiana,” said Virginia’s Senator S. T. Mason, “then the gold mines of Mexico . . . then Potosi—then Santo Domingo, with their sugar and coffee and all the rest. . . . But what have we to do with the territories of other people? Have we not enough of our own?”17

  Just as opposition to acquisition of New Orleans seemed to gain momentum, news from France suddenly silenced it: James Monroe had engineered the purchase of the Louisiana territory from France, doubling the size of the nation with some 828,000 additional square miles of land for $15 million, or four cents an acre. At the time the US government was selling federal lands in the wilderness to settlers for an average price of $2 an acre.

  As would-be settlers roared their approval, Federalists decried it as unconstitutional—a usurpation of power that would give southern slave states control of the federal government at the expense of commercial interests in the Northeast. Former Secretary of State Timothy Pickering of Massachusetts renewed his call for secession of New England. “The principles of our Revolution point to the remedy. . . . I do not believe in the practicability of a long-continued union.”18

  Senator Uriah Tracy of Connecticut agreed: “I am convinced that the accession of Louisiana will accelerate a division of these states,” he wrote to former Secretary of War James McHenry.19 Tracy’s close friend Tapping Reeve, the renowned Connecticut lawyer who had trained Noah Webster and Aaron Burr Jr., among others, had polled area Federalists and found that “all believe we must separate and that this is the most favorable moment.”20

  Chief Justice Marshall purposely remained aloof from the debate over Louisiana to prevent any suspicion of bias ever coloring decisions on the issue that he might have to make in the Supreme Court.

  The outrage in the Northeast at the Louisiana Purchase stemmed from evidence that a handful of powerful Virginia planters had already staked out large fertile tracts. With New Orleans as their outlet to world markets, they would work the land with slave labor and have a competitive advantage that would turn the entire Northeast and its small, family-run farms into an economic backwater. Vice President Burr threw his lot in with the northerners. President Jefferson had already announced he would choose a new vice presidential running mate for his second term, and Burr had countered by announcing his candidacy for governor of his home state of New York. He now pledged that if elected, he would unite New York with the New England states to form a new northern confederacy.

  On October 20, 1803, Republicans silenced their opposition with a twenty-four-to-seven vote in favor of the Louisiana Purchase. Two months later, to the cheers of millions, the US government took possession of the territory, including the vital Mississippi River waterway and the gateway to world trade in the port of New Orleans.

  President Jefferson then turned his attention back to the Supreme Court, vowing to throw John Marshall and other Federalists off the bench and strip the court of powers of judicial review claimed in Marbury v. Madison. “Nothing in the Constitution has given them the right . . . to decide what laws are constitutional and what not,” Jefferson raged. Such powers “would make the judiciary a despotic branch.”21

  Jefferson’s legislative puppet, Senate Majority Leader William Branch Giles of Virginia, boasted openly of his party’s lust for control of the federal bench. “We want your offices for the purpose of giving them to men who will fill them better,” he told freshman Senator John Quincy Adams of Massachusetts, the son of former President John Adams. Giles then warned Marshall and other justices that if they “should dare, as they had, to declare acts of Congress unconstitutional . . . it was the undoubted right of the House to impeach them and of the Senate to remove them for giving such opinions.”22

  Giles called removal by impeachment “nothing more than a declaration by Congress to this effect: ‘You hold dangerous opinions, and if you are suffered to carry them into effect you will work destruction of the nation.’” An independent judiciary, he added scornfully, “is nothing more nor less than an attempt to establish an aristocratic despotism in themselves.”23

  Adams wrote warning his father that Jefferson would continue his campaign against the judiciary until the Republicans have “swept the supreme judicial bench clean at a stroke.”24

  To avoid inciting too many Federalists, however, Jefferson disguised his public remarks as “judiciary reform,” aimed only at ousting “incompetent” federal judges. To rally public opinion, Jefferson selected as his first target Judge John Pickering of New Hampshire, a chronically intoxicated Federalist whose often irrational decisions provoked charges by Federalists and Republicans alike that he was insane. Asked whether insanity was an adequate cause for impeachment and removal from office, Jefferson snapped, “If the facts . . . of his intoxication . . . are proven that will be sufficient cause for removal without further inquiry.”25

  Marching in lockstep under Jefferson’s orders, House Republicans impeached Pickering. Although the judge had plunged into insanity and could not appear at his Senate trial, the prosecution moved forward with its case. Massachusetts Senator John Quincy Adams protested, “The most persevering and determined opposition is made against hearing evidence to prove the man insane, only from fear that if insanity should be proved, he cannot be convicted of high crimes and misdemeanors by acts of decisive madness.”26

  The Senate’s Republican majority nonetheless convicted Pickering and ord
ered his removal from the bench. New Jersey’s Federalist Senator and former Speaker of the House Jonathan Dayton shouted in protest, denouncing the proceedings as “a mere mockery of a trial.” John Quincy Adams shot to his feet to agree—only to be called out of order. Adams threatened to continue speaking “until my mouth was stopped by force.”27

  Delaware Senator Samuel White then warned, “It will not hereafter be necessary that a man should be guilty of high crimes and misdemeanors to render him liable to removal from office by impeachment, but a conviction upon any facts stated in articles exhibited against him will be sufficient.”28

  As Jefferson’s program for “judicial reform” gained momentum, the President unleashed his political attack dogs on the Supreme Court. “The judges of the Supreme Court must fall,” declared New Hampshire Senator William Plumer, a Jefferson ally. “They are denounced by the Executive [President] as well as the House. They must be removed; they are obnoxious unyielding men; why should they remain to awe and embarrass the administration? Men of more flexible nerves can be found to succeed them.”29

  Delaware Representative James A. Bayard, whose vote (or nonvote) had ceded victory to Jefferson in the presidential election, agreed that removal of Federalist justices from the Supreme Court “has been an object on which Mr. Jefferson has long resolved . . . since he has been in office.”30 Jefferson and his aides left no doubts that Chief Justice John Marshall was their primary target for removal because of his audacious assumption of power in Marbury v. Madison.

  Before they could act, Associate Justice Alfred Moore resigned, giving Jefferson a chance to name a Republican to the court and influence its legal complexion without impeachment proceedings. He chose thirty-two-year-old South Carolina Judge William Johnson, a Princeton graduate who had studied law under South Carolina Federalist Charles Cotesworth Pinckney.

  To Jefferson’s dismay, Johnson immediately fell under the spell of Marshall’s personality and brilliant legal reasoning, and the South Carolinian quickly metamorphosed from “a zealous democrat” to a champion of union, voting with Marshall in all twenty-six cases they heard that winter.

  “Everyone who knew that great man [Marshall],” Federalist Oliver Wolcott laughed, “knew that he possessed to an extraordinary degree the faculty of putting his own ideas in the minds of others, unconsciously to them.”31

  Rather than risk political backlash by trying to impeach the enormously popular Chief Justice, Jefferson sent congressional Republicans after the controversial Associate Justice Samuel Chase of Maryland. A signer of the Declaration of Independence with Jefferson, Chase’s acerbic personality had earned him enemies across the entire political spectrum. As early as 1766 the Maryland Gazette Extraordinary called Chase—then only twenty-five years old—“a busy, reckless incendiary . . . a foulmouthed and inflaming son of discord and faction, a common disturber of the public tranquility.”32

  A member of the Continental Congress during the Revolution, Chase had invested in a scheme to corner the market on flour, and voters turned him out of office. A Federalist governor later appointed Chase to the Maryland judiciary, and he served as Chief Justice of the Maryland General Court for five years until President Washington appointed him to the US Supreme Court in 1796.

  An outspoken critic of Jeffersonian Republicans, Chase had been serving on a circuit court when he told a Baltimore grand jury that “the bulk of mankind are governed by their passions and not by reason.” He blasted repeal of the Judiciary Act of 1801, saying it would combine with proposals for universal (white) male suffrage in Maryland to “take away all security for property and personal liberty” and convert America into “a mobocracy, the worst of all popular governments.”33

  Chase went further, attacking the core principles of Jeffersonian republicanism and, indeed, the Declaration of Independence he himself had signed. “The declarations, respecting the natural rights of man—that men, in a state of society, are entitled to enjoy equal liberty and equal rights—have brought this mighty mischief on us,” Chase barked at the grand jury. “I fear that it will rapidly progress until peace and order, freedom and property shall be destroyed.”34

  Jefferson believed Chase’s statement warranted impeachment and trial for “high crimes and misdemeanors” under the Constitution, but he stepped carefully—to avoid grounds for his own impeachment. The Constitution gave the House of Representatives sole powers to impeach, and Jefferson chose his words and syntax cautiously in writing to Republican House Leader Joseph H. Nicholson of Maryland:

  You must have heard of the extraordinary charge of Chase to the grand jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution . . . go unpunished? And to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration. For myself, it is better that I should not interfere.35

  A gruff, outspoken Marylander, Associate Justice Samuel Chase was the first and last Supreme Court justice to face impeachment for his political views—a target of President Thomas Jefferson’s effort to dismantle the Supreme Court. (LIBRARY OF CONGRESS)

  On March 12, 1804, less than an hour after the US Senate had convicted Judge Pickering—and less than two months after Chief Justice John Marshall had handed down the Marbury v. Madison ruling—the House voted to impeach Justice Samuel Chase.

  “I have just received the articles of impeachment against Judge Chase,” the Chief Justice complained to his brother James Markham Marshall. “They are sufficient to alarm the friends of a pure and, of course, an independent judiciary, if among those who rule our land there are any of that description.”36

  Marshall sent word to Chase of his support, calling the House action “a very extraordinary ground for impeachment. . . . The present doctrine seems to be that a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.” Marshall argued that rather than try to remove judges who declare laws unconstitutional, the legislature should simply rewrite the laws to make them constitutional. Marshall knew, however, that the battle Chase and the federal judiciary now faced was not with the legislature—it was with Thomas Jefferson.

  “The simple truth is Mr. Jefferson has been determined from the first to have a judiciary as well as a legislature that would second the views of the executive,” declared Alexander Hamilton’s New York-Evening Post under a headline INQUISITORIAL COMMITTEE AT WASHINGTON.

  Justice is not the object. Party rage is still unsatisfied. Our courts are filled by Federalist judges. Here is the mighty crime. Here the high misdemeanor. . . . The bench in short is to be cleared of its present incumbents, no matter by what means, and filled with men subservient to the views of the powers that be . . . at the expense of all that renders a court of justice respectable.37

  The Chase impeachment left Chief Justice John Marshall both outraged and despondent. Anticipating Jefferson’s assault on the judiciary, he wrote to Charles Cotesworth Pinckney, his friend from XYZ days: “There is so much in the political world to wound honest men who have honorable feelings that I am disgusted with it and begin to see things and indeed human nature through a much more gloomy medium than I once thought possible.”38

  Marshal had good reason to be gloomy. His arch enemy Thomas Jefferson was about to emasculate the nation’s Supreme Court and restore tyranny in the United States.

  _______________

  * Fauquier White Sulfur Springs was about thirty miles southwest of Washington in Fauquier County—as opposed to the more famous White Sulphur Springs resort on the eastern border of present-day West Virginia with Virginia.

  * A judicial writ commanding (mandating) a response by a public official.

  CHAPTER 12

  A Deadly Interview

  “OYEZ! OYEZ! OYEZ!”* A VOICE RANG OUT IN THE US SENATE ON the morning of February 9, 1805. “All persons are commanded to keep silence on pain of imprisonment, while the grand inquest of the nation is exhibiting to the Senate of the Unit
ed States, sitting as a court of impeachment against Samuel Chase, Associate Justice of the Supreme Court of the United States.”1

  Some 300 spectators had jammed the Senate chamber—Chief Justice John Marshall and 4 associate justices of the Supreme Court, all 34 senators, more than 100 members of the House, Jefferson’s cabinet, the diplomatic corps, newspaper reporters, publishers, and Washington’s social elite. Everyone but the President himself was there, although his brooding presence hovered over the assemblage.

  When all were seated, silence suddenly enveloped the hall. All heads turned as one to stare . . . wide-eyed . . . in disbelief . . .

  A short, nattily dressed man had entered and was striding down the aisle to the front bench: Aaron Burr Jr.

  Still vice president of the United States and President of the Senate, Burr had come to preside over the trial of an associate justice of the US Supreme Court for high crimes and misdemeanors. Wanted for murder in two states, Burr had shot and killed former US Treasury secretary Alexander Hamilton in a duel less than seven months earlier in Weehauken, New Jersey, across the Hudson River from New York City.

  Massachusetts Senator John Quincy Adams gasped as he watched Burr march down the aisle. “The coroner’s inquest found a verdict of willful murder,” Adams confided to his diary. “The grand jury . . . found a bill against him for murder. Under all these circumstances Mr. Burr appears and takes his seat as president of the Senate of the United States.”2

  Burr’s appearance stunned New Hampshire Senator William Plumer. “We are indeed fallen on evil times,” he lamented. “The high office of President is filled by an infidel, that of Vice President by a murderer.”3 A Federalist newspaper noted Plumer’s comments, adding that courts in earlier times would “arraign the murderer before the judge, but now we arraign the judge before the murderer.”4