The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah

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66

Dodd in American Historical Review, xii, 776; and see next chapter.

67

Jefferson to Dickinson, Dec. 19, 1801, Writings of Thomas Jefferson: Washington, iv, 424.

68

"The only shield for our Republican citizens against the federalism of the courts is to have the attorneys & Marshals republicans." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 248.)

69

"The judge of course stands until the law [Judiciary Act of 1801] shall be repealed which we trust will be at the next Congress." (Jefferson to Stuart, April 8, 1801, Works: Ford, ix, 247.) For two weeks Jefferson appears to have been confused as to the possibility of repealing the Judiciary Act of 1801. A fortnight before he informed Stuart that this course would be taken, he wrote Giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in American Political Science Review, ix, 522.)

But the repeal had been determined upon within six weeks after Jefferson's inauguration as his letter to Stuart shows.

70

Giles to Jefferson, March 16, 1801, Anderson: William Branch Giles – A Study in the Politics of Virginia 1790-1830, 77.

71

Same to same, June 1, 1801, ib. 80.

72

Sedgwick to King, Dec. 14, 1801, King, iv, 36.

73

Hale to King, Dec. 19, 1801, King, iv, 39.

74

It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. i, 297-99, of this work.)

Braintree, Mass., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws … as may crush or, at least, put a proper check of restraint" upon them.

Dedham, Mass., instructed its members of the Legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abolished." (Warren: History of the American Bar, 215.) All this, of course, was the result of the bitter hardships of debtors.

75

For an able defense of the adoption by the National courts of the British common law, see Works of the Honourable James Wilson: Wilson, iii, 384.

76

Columbian Centinel, July 11, 1801, as quoted in Warren, 225-27.

77

Correspondence and Public Papers of John Jay: Johnston, iii, 478-85.

78

Wharton: State Trials of the U.S. during the Administrations of Washington and Adams, 60 et seq.; and see Wilson's law lecture on the subject, Wilson, iii, 384.

79

2 Dallas, 297-99.

80

Ib. Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: State Trials, 90-92.)

81

For the documents preceding the arrest and prosecution of Henfield, see Wharton: State Trials, footnotes to 49-52.

82

See Wilson's charge, Wharton: State Trials, 59-66.

83

See Wharton's summary of Wilson's second charge, ib. footnote to 85.

84

Ib. 88.

85

Marshall: Life of George Washington, 2d ed. ii, 273-74. After the Henfield and Ravara cases, Congress passed a law applicable to such offenses. (See Wharton: State Trials, 93-101.)

86

Wharton: State Trials, 653-54.

87

This was the British defense for impressment of seamen on American ships. It was one of the chief points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of the many causes of the overthrow of that once great party. (See infra, vol. iv, chap. i, of this work.)

88

Wharton: State Trials, 654. Upon another indictment for having captured a British ship and crew, Williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (Ib.; see also vol. ii, 495, of this work.)

89

U.S. vs. Hudson, 7 Cranch, 32-34. "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion… The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (Justice William Johnson delivering the opinion of the majority of the court, ib.)

Joseph Story was frantic because the National judges could not apply the common law during the War of 1812. (See his passionate letters on the subject, vol. iv, chap. i, of this work; and see his argument for the common law, Story, i, 297-300; see also Peters to Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)

90

The opinion of Justice Chase, of the Supreme Court of Philadelphia, sitting with Peters, District Judge, in the case of the United States vs. Robert Worral, indicted under the common law for attempting to bribe a United States officer. Justice Chase held that English common law was not a part of the jurisprudence of the United States as a Nation. (Wharton: State Trials, 189-99.)

91

This was notably true of Justice James Wilson, of the Supreme Court, and Alexander Addison, President Judge of the Fifth Pennsylvania (State) Circuit, both of whom were born and educated in the United Kingdom. They were two of the ablest and most learned men on the bench at that period.

92

Message of Governor John Tyler, Dec. 3, 1810, Tyler: Letters and Times of the Tylers, i, 261; and see Tyler to Monroe, Dec. 4, 1809, ib. 232.

93

Jefferson to Randolph, Aug. 18, 1799, Works: Ford, ix, 73.

94

See vol. ii, chaps. x and xi, of this work.

95

The National judges, in their charges to grand juries, lectured and preached on religion, on morality, on partisan politics.

"On Monday last the Circuit Court of the United States was opened in this town. The Hon. Judge Patterson … delivered a most elegant and appropriate charge.

"The Law was laid down in a masterly manner: Politics were set in their true light by holding up the Jacobins [Republicans] as the disorganizers of our happy country, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. Religion & Morality were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws; for 'when the righteous [Federalists] are in authority, the people rejoice.'…

"After the charge was delivered the Rev. Mr. Alden addressed the Throne of Grace in an excellent and well adapted prayer." (United States Oracle of the Day, May 24, 1800, as quoted by Hackett, in Green Bag, ii, 264.)

96

Adams's War Speech of 1798; see vol. ii, 351, of this work.

97

Wharton: State Trials, 333-34.

98

Ib. 339.