The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

Works: Colton. See Clay, Henry. Works.

Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited by Paul Leicester Ford.

Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. Edited by Worthington Chauncey Ford.

THE LIFE OF JOHN MARSHALL

CHAPTER I

DEMOCRACY: JUDICIARY

Rigorous law is often rigorous injustice. (Terence.)

The Federalists have retired into the Judiciary as a stronghold, and from that battery all the works of republicanism are to be battered down. (Jefferson.)

There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control. (George Cabot.)

A strange sight met the eye of the traveler who, aboard one of the little river sailboats of the time, reached the stretches of the sleepy Potomac separating Alexandria and Georgetown. A wide swamp extended inland from a modest hill on the east to a still lower elevation of land about a mile to the west.[1 - Gallatin to his wife, Jan. 15, 1801, Adams: Life of Albert Gallatin, 252; also Bryan: History of the National Capital, i, 357-58.] Between the river and morass a long flat tract bore clumps of great trees, mostly tulip poplars, giving, when seen from a distance, the appearance of "a fine park."[2 - First Forty Years of Washington Society: Hunt, 11.]

Upon the hill stood a partly constructed white stone building, mammoth in plan. The slight elevation north of the wide slough was the site of an apparently finished edifice of the same material, noble in its dimensions and with beautiful, simple lines,[3 - Ib.; and see Wolcott to his wife, July 4, 1800, Gibbs: Administrations of Washington and John Adams, ii, 377.] but "surrounded with a rough rail fence 5 or 6 feet high unfit for a decent barnyard."[4 - Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.] From the river nothing could be seen beyond the groves near the banks of the stream except the two great buildings and the splendid trees which thickened into a seemingly dense forest upon the higher ground to the northward.[5 - Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 252-53.]

On landing and making one's way through the underbrush to the foot of the eastern hill, and up the gullies that seamed its sides thick with trees and tangled wild grapevines,[6 - Hunt, 10.] one finally reached the immense unfinished structure that attracted attention from the river. Upon its walls laborers were languidly at work.

Clustered around it were fifteen or sixteen wooden houses. Seven or eight of these were boarding-houses, each having as many as ten or a dozen rooms all told. The others were little affairs of rough lumber, some of them hardly better than shanties. One was a tailor shop; in another a shoemaker plied his trade; a third contained a printer with his hand press and types, while a washerwoman occupied another; and in the others there was a grocery shop, a pamphlets-and-stationery shop, a little dry-goods shop, and an oyster shop. No other human habitation of any kind appeared for three quarters of a mile.[7 - Gallatin to his wife, supra.]

A broad and perfectly straight clearing had been made across the swamp between the eastern hill and the big white house more than a mile away to the westward. In the middle of this long opening ran a roadway, full of stumps, broken by deep mud holes in the rainy season, and almost equally deep with dust when the days were dry. On either border was a path or "walk" made firm at places by pieces of stone; though even this "extended but a little way." Alder bushes grew in the unused spaces of this thoroughfare, and in the depressions stagnant water stood in malarial pools, breeding myriads of mosquitoes. A sluggish stream meandered across this avenue and broadened into the marsh.[8 - Bryan, i, 357-58.]

A few small houses, some of brick and some of wood, stood on the edge of this long, broad embryo street. Near the large stone building at its western end were four or five structures of red brick, looking much like ungainly warehouses. Farther westward on the Potomac hills was a small but pretentious town with its many capacious brick and stone residences, some of them excellent in their architecture and erected solidly by skilled workmen.[9 - A few of these are still standing and occupied.]

Other openings in the forest had been cut at various places in the wide area east of the main highway that connected the two principal structures already described. Along these forest avenues were scattered houses of various materials, some finished and some in the process of erection.[10 - Gallatin to his wife, supra; also Wharton: Social Life in the Early Republic, 58-59.] Here and there unsightly gravel pits and an occasional brick kiln added to the raw unloveliness of the whole.

Such was the City of Washington, with Georgetown near by, when Thomas Jefferson became President and John Marshall Chief Justice of the United States – the Capitol, Pennsylvania Avenue, the "Executive Mansion" or "President's Palace," the department buildings near it, the residences, shops, hostelries, and streets. It was a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort.

When considering the events that took place in the National Capital as narrated in these volumes, – the debates in Congress, the proclamations of Presidents, the opinions of judges, the intrigues of politicians, – when witnessing the scenes in which Marshall and Jefferson and Randolph and Burr and Pinckney and Webster were actors, we must think of Washington as a dismal place, where few and unattractive houses were scattered along muddy openings in the forests.

There was on paper a harmonious plan of a splendid city, but the realization of that plan had scarcely begun. As a situation for living, the Capital of the new Nation was, declared Gallatin, a "hateful place."[11 - Gallatin to his wife, Aug. 17, 1802, Adams: Gallatin, 304.] Most of the houses were "small miserable huts" which, as Wolcott informed his wife, "present an awful contrast to the public buildings."[12 - Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.]

Aside from an increase in the number of residences and shops, the "Federal City" remained in this state for many years. "The Chuck holes were not bad," wrote Otis of a journey out of Washington in 1815; "that is to say they were none of them much deeper than the Hubs of the hinder wheels. They were however exceedingly frequent."[13 - Otis to his wife, Feb. 28, 1815, Morison: Life and Letters of Harrison Gray Otis, ii, 170-71. This letter is accurately descriptive of travel from the National Capital to Baltimore as late as 1815 and many years afterward."The Bladensburg run, before we came to the bridge, was happily in no one place above the Horses bellies. – As we passed thro', the driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled us by shewing the tree, on which all the Passengers but one, were saved. Whether that one was gouty or not, I did not enquire…"We … arriv'd safe at our first stage, Ross's, having gone at a rate rather exceeding two miles & an half per hour… In case of a break Down or other accident, … I should be sorry to stick and freeze in over night (as I have seen happen to twenty waggons) for without an extraordinary thaw I could not be dug out in any reasonable dinner-time the next day."Of course conditions were much worse in all parts of the country, except the longest and most thickly settled sections.] Pennsylvania Avenue was, at this time, merely a stretch of "yellow, tenacious mud,"[14 - Parton: Life of Thomas Jefferson, 622.] or dust so deep and fine that, when stirred by the wind, it made near-by objects invisible.[15 - Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.] And so this street remained for decades. Long after the National Government was removed to Washington, the carriage of a diplomat became mired up to the axles in the sticky clay within four blocks of the President's residence and its occupant had to abandon the vehicle.

John Quincy Adams records in his diary, April 4, 1818, that on returning from a dinner the street was in such condition that "our carriage in coming for us … was overset, the harness broken. We got home with difficulty, twice being on the point of oversetting, and at the Treasury Office corner we were both obliged to get out … in the mud… It was a mercy that we all got home with whole bones."[16 - Memoirs of John Quincy Adams: Adams, iv, 74; and see Quincy: Life of Josiah Quincy, 186.Bayard wrote to Rodney: "four months [in Washington] almost killed me." (Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, iv, 230.)]

Fever and other malarial ills were universal at certain seasons of the year.[17 - Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs. Smith to her husband, July 8, 1803, ib. 41; and Gallatin to his wife, Aug. 17, 1802, Adams: Gallatin, 304-05.] "No one, from the North or from the high country of the South, can pass the months of August and September there without intermittent or bilious fever," records King in 1803.[18 - King to Gore, Aug. 20, 1803, Life and Correspondence of Rufus King: King, iv, 294; and see Adams: History of the United States, iv, 31.] Provisions were scarce and Alexandria, across the river, was the principal source of supplies.[19 - Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253.] "My God! What have I done to reside in such a city," exclaimed a French diplomat.[20 - Wharton: Social Life, 60.] Some months after the Chase impeachment[21 - See infra, chap. iv.] Senator Plumer described Washington as "a little village in the midst of the woods."[22 - Plumer to Lowndes, Dec. 30, 1805, Plumer: Life of William Plumer, 244."The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805, Plumer MSS. Lib. Cong.)] "Here I am in the wilderness of Washington," wrote Joseph Story in 1808.[23 - Story to Fay, Feb. 16, 1808, Life and Letters of Joseph Story: Story, i, 161.]

Except a small Catholic chapel there was only one church building in the entire city, and this tiny wooden sanctuary was attended by a congregation which seldom exceeded twenty persons.[24 - This was a little Presbyterian church building, which was abandoned after 1800. (Bryan, i, 232; and see Hunt, 13-14.)] This absence of churches was entirely in keeping with the inclination of people of fashion. The first Republican administration came, testifies Winfield Scott, in "the spring tide of infidelity… At school and college, most bright boys, of that day, affected to regard religion as base superstition or gross hypocricy."[25 - Memoirs of Lieut. – General Scott, 9-10. Among the masses of the people, however, a profound religious movement was beginning. (See Semple: History of the Rise and Progress of the Baptists in Virginia; and Cleveland: Great Revival in the West.)A year or two later, religious services were held every Sunday afternoon in the hall of the House of Representatives, which always was crowded on these occasions. The throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting-place for gossip, flirtation, and social gayety. The plan was soon abandoned and the hall left entirely to profane usages. (Bryan, i, 606-07.)]

Most of the Senators and Representatives of the early Congresses were crowded into the boarding-houses adjacent to the Capitol, two and sometimes more men sharing the same bedroom. At Conrad and McMunn's boarding-house, where Gallatin lived when he was in the House, and where Jefferson boarded up to the time of his inauguration, the charge was fifteen dollars a week, which included service, "wood, candles and liquors."[26 - Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253.] Board at the Indian Queen cost one dollar and fifty cents a day, "brandy and whisky being free."[27 - Wharton: Social Life, 72.] In some such inn the new Chief Justice of the United States, John Marshall, at first, found lodging.

Everybody ate at one long table. At Conrad and McMunn's more than thirty men would sit down at the same time, and Jefferson, who lived there while he was Vice-President, had the coldest and lowest place at the table; nor was a better seat offered him on the day when he took the oath of office as Chief Magistrate of the Republic.[28 - Hunt, 12.] Those who had to rent houses and maintain establishments were in distressing case.[29 - See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: U.S. ii, 362.Public men seldom brought their wives to Washington because of the absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec. 6, 1805, Hunt, 48.)"I do not perceive how the members of Congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, ii, 377.)] So lacking were the most ordinary conveniences of life that a proposal was made in Congress, toward the close of Jefferson's first administration, to remove the Capital to Baltimore.[30 - Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see Annals, 8th Cong. 1st Sess. 282-88. The debate is instructive. The bill was lost by 9 yeas to 19 nays.] An alternative suggestion was that the White House should be occupied by Congress and a cheaper building erected for the Presidential residence.[31 - Hildreth: History of the United States, v, 516-17.]

More than three thousand people drawn hither by the establishment of the seat of government managed to exist in "this desert city."[32 - Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.] One fifth of these were negro slaves.[33 - Channing: History of the United States, iv, 245.] The population was made up of people from distant States and foreign countries[34 - Bryan, i, 438.]– the adventurous, the curious, the restless, the improvident. The "city" had more than the usual proportion of the poor and vagrant who, "so far as I can judge," said Wolcott, "live like fishes by eating each other."[35 - Wolcott to his wife, July 4, 1800, Gibbs, ii, 377."The workmen are the refuse of that class and, nevertheless very high in their demands." (La Rochefoucauld-Liancourt: Travels Through the United States of North America, iii, 650.)] The sight of Washington filled Thomas Moore, the British poet, with contempt.

"This embryo capital, where Fancy sees
Squares in morasses, obelisks in trees;
Where second-sighted seers, even now, adorn
With shrines unbuilt and heroes yet unborn,
Though nought but woods and Jefferson they see,
Where streets should run and sages ought to be."[36 - "To Thomas Hume, Esq., M.D.," Moore: Poetical Works, ii, 83.]

Yet some officials managed to distill pleasure from materials which one would not expect to find in so crude a situation. Champagne, it appears, was plentiful. When Jefferson became President, that connoisseur of liquid delights[37 - See Jefferson to Short, Sept. 6, 1790, Works of Thomas Jefferson: Ford, vi, 146; same to Mrs. Adams, July 7, 1785, ib. iv, 432-33; same to Peters, June 30,1791, ib. vi, 276; same to Short, April 24, 1792, ib. 483; same to Monroe, May 26, 1795, ib. viii, 179; same to Jay, Oct. 8, 1787, Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson: Randolph, ii, 249; also see Chastellux: Travels in North America in the Years 1780-81-82, 299.] took good care that the "Executive Mansion" was well supplied with the choicest brands of this and many other wines.[38 - See Singleton: Story of the White House, i, 42-43.] Senator Plumer testifies that, at one of Jefferson's dinners, "the wine was the best I ever drank, particularly the champagne which was indeed delicious."[39 - Plumer to his wife, Dec. 25, 1802, Plumer, 246.] In fact, repasts where champagne was served seem to have been a favorite source of enjoyment and relaxation.[40 - "Mr. Granger [Jefferson's Postmaster-General] … after a few bottles of champagne were emptied, on the observation of Mr. Madison that it was the most delightful wine when drank in moderation, but that more than a few glasses always produced a headache the next day, remarked with point that this was the very time to try the experiment, as the next day being Sunday would allow time for a recovery from its effects. The point was not lost upon the host and bottle after bottle came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)]

Scattered, unformed, uncouth as Washington was, and unhappy and intolerable as were the conditions of living there, the government of the city was torn by warring interests. One would have thought that the very difficulties of their situation would have compelled some harmony of action to bring about needed improvements. Instead of this, each little section of the city fought for itself and was antagonistic to the others. That part which lay near the White House[41 - At that time it was called "The Executive Mansion" or "The President's Palace."] strove exclusively for its own advantage. The same was true of those who lived or owned property about Capitol Hill. There was, too, an "Alexandria interest" and a "Georgetown interest." These were constantly quarreling and each was irreconcilable with the other.[42 - Bryan, i, 44; also see La Rochefoucauld-Liancourt, iii, 642-51.]

In all respects the Capital during the first decades of the nineteenth century was a representation in miniature of the embryo Nation itself. Physical conditions throughout the country were practically the same as at the time of the adoption of the Constitution; and popular knowledge and habits of thought had improved but slightly.[43 - See vol. i, chaps. vi and vii, of this work.]

A greater number of newspapers, however, had profoundly affected public sentiment, and democratic views and conduct had become riotously dominant. The defeated and despairing Federalists viewed the situation with anger and foreboding. Of all Federalists John Marshall and George Cabot were the calmest and wisest. Yet even they looked with gloom upon the future. "There are some appearances which surprize me," wrote Marshall on the morning of Jefferson's inauguration to his intimate friend, Charles Cotesworth Pinckney.

"I wish, however, more than I hope that the public prosperity & happiness will sustain no diminution under Democratic guidance. The Democrats are divided into speculative theorists & absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is not difficult to foresee that much difficulty is in store for our country – if he does not, they will soon become his enemies and calumniators."[44 - Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S. Thayer of Baltimore.]

After Jefferson had been President for four months, Cabot thus interpreted the Republican victory of 1800: "We are doomed to suffer all the evils of excessive democracy through the United States… Maratists and Robespierrians everywhere raise their heads… There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control"[45 - Cabot to Wolcott, Aug. 3, 1801, Lodge: Life and Letters of George Cabot, 322.George Cabot was the ablest, most moderate and far-seeing of the New England Federalists. He feared and detested what he called "excessive democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. Cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like Madison, Gallatin, Hamilton, and Marshall.]– an opinion which Marshall, speaking for the Supreme Court of the Nation, was soon to announce.

Joseph Hale wrote to King that Jefferson's election meant the triumph of "the wild principles of uproar & misrule" which would produce "anarchy."[46 - Hale to King, Dec. 19, 1801, King, iv, 39.] Sedgwick advised our Minister at London: "The aristocracy of virtue is destroyed."[47 - Sedgwick to King, Dec. 14, 1801, ib. 34-35.] In the course of a characteristic Federalist speech Theodore Dwight exclaimed: "The great object of Jacobinism is … to force mankind back into a savage state… We have a country governed by blockheads and knaves; our wives and daughters are thrown into the stews… Can the imagination paint anything more dreadful this side of hell."[48 - Dwight's oration as quoted in Adams: U.S. i, 225.]

The keen-eyed and thoughtful John Quincy Adams was of the opinion that "the basis of it all is democratic popularity… There never was a system of measures [Federalist] more completely and irrevocably abandoned and rejected by the popular voice… Its restoration would be as absurd as to undertake the resurrection of a carcass seven years in its grave."[49 - J. Q. Adams to King, Oct. 8,1802, Writings of John Quincy Adams: Ford, iii, 8-9. Within six years Adams abandoned a party which offered such feeble hope to aspiring ambition. (See infra, chap, ix.)] A Federalist in the Commercial Gazette of Boston,[50 - J. Russell's Gazette-Commercial and Political, January 28, 1799.] in an article entitled "Calm Reflections," mildly stated that "democracy teems with fanaticism." Democrats "love liberty … and, like other lovers, they try their utmost to debauch … their mistress."

There was among the people a sort of diffused egotism which appears to have been the one characteristic common to Americans of that period. The most ignorant and degraded American felt himself far superior to the most enlightened European. "Behold the universe," wrote the chronicler of Congress in 1802. "See its four quarters filled with savages or slaves. Out of nine hundred millions of human beings but four millions [Americans] are free."[51 - History of the Last Session of Congress Which Commenced 7th Dec. 1801 (taken from the National Intelligencer). Yet at that time in America manhood suffrage did not exist excepting in three States, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. Hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned.]

William Wirt describes the contrast of fact to pretension: "Here and there a stately aristocratick palace, with all its appurtenances, strikes the view: while all around for many miles, no other buildings are to be seen but the little smoky huts and log cabins of poor, laborious, ignorant tenants. And what is very ridiculous, these tenants, while they approach the great house, cap in hand, with all the fearful trembling submission of the lowest feudal vassals, boast in their court-yards, with obstreperous exultation, that they live in a land of freemen, a land of equal liberty and equal rights."[52 - Wirt: Letters of the British Spy, 10-11.These brilliant articles, written by Wirt when he was about thirty years old, were published in the Richmond Argus during 1803. So well did they deceive the people that many in Gloucester and Norfolk declared that they had seen the British Spy. (Kennedy: Memoirs of the Life of William Wirt, i, 111, 113.)]

Conservatives believed that the youthful Republic was doomed; they could see only confusion, destruction, and decline. Nor did any nation of the Old World at that particular time present an example of composure and constructive organization. All Europe was in a state of strained suspense during the interval of the artificial peace so soon to end. "I consider the whole civilized world as metal thrown back into the furnace to be melted over again," wrote Fisher Ames after the inevitable resumption of the war between France and Great Britain.[53 - Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.] "Tremendous times in Europe!" exclaimed Jefferson when cannon again were thundering in every country of the Old World. "How mighty this battle of lions & tygers! With what sensations should the common herd of cattle look upon it? With no partialities, certainly!"[54 - Jefferson to Rush, Oct. 4, 1803, Works: Ford, x, 32.Immediately after his inauguration, Jefferson restated the American foreign policy announced by Washington. It was the only doctrine on which he agreed with Marshall."It ought to be the very first object of our pursuits to have nothing to do with European interests and politics. Let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form… To take part in their conflicts would be to divert our energies from creation to destruction." (Jefferson to Logan, March 21, 1801, Works: Ford, ix, 219-20.)]

Jefferson interpreted the black forebodings of the defeated conservatives as those of men who had been thwarted in the prosecution of evil designs: "The clergy, who have missed their union with the State, the Anglo men, who have missed their union with England, the political adventurers who have lost the chance of swindling & plunder in the waste of public money, will never cease to bawl, on the breaking up of their sanctuary."[55 - Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, Works: Ford, ix, 249.The democratic revolution that overthrew Federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. But in the first years of Republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of France.]

Of all the leading Federalists, John Marshall was the only one who refused to "bawl," at least in the public ear; and yet, as we have seen and shall again find, he entertained the gloomy views of his political associates. Also, he held more firmly than any prominent man in America to the old-time Federalist principle of Nationalism – a principle which with despair he watched his party abandon.[56 - See infra, chaps. iii and vi; also vol. iv, chap. i.] His whole being was fixed immovably upon the maintenance of order and constitutional authority. Except for his letter to Pinckney, Marshall was silent amidst the clamor. All that now went forward passed before his regretful vision, and much of it he was making ready to meet and overcome with the affirmative opinions of constructive judicial statesmanship.

Meanwhile he discharged his duties – then very light – as Chief Justice. But in doing so, he quietly began to strengthen the Supreme Court. He did this by one of those acts of audacity that later marked the assumptions of power which rendered his career historic. For the first time the Chief Justice disregarded the custom of the delivery of opinions by the Justices seriatim, and, instead, calmly assumed the function of announcing, himself, the views of that tribunal. Thus Marshall took the first step in impressing the country with the unity of the highest court of the Nation. He began this practice in Talbot vs. Seeman, familiarly known as the case of the Amelia,[57 - 1 Cranch, 1 et seq.] the first decided by the Supreme Court after he became Chief Justice.

During our naval war with France an armed merchant ship, the Amelia, owned by one Chapeau Rouge of Hamburg, while homeward bound from Calcutta, was taken by the French corvette, La Diligente. The Amelia's papers, officers, and crew were removed to the French vessel, a French crew placed in charge, and the captured ship was sent to St. Domingo as a prize. On the way to that French port, she was recaptured by the American frigate, Constitution, Captain Silas Talbot, and ordered to New York for adjudication. The owner demanded ship and cargo without payment of the salvage claimed by Talbot for his rescue. The case finally reached the Supreme Court.

In the course of a long and careful opinion the Chief Justice held that, although there had been no formal declaration of war on France, yet particular acts of Congress had authorized American warships to capture certain French vessels and had provided for the payment of salvage to the captors. Virtually, then, we were at war with France. While the Amelia was not a French craft, she was, when captured by Captain Talbot, "an armed vessel commanded and manned by Frenchmen," and there was "probable cause to believe" that she was French. So her capture was lawful.

Still, the Amelia was not, in fact, a French vessel, but the property of a neutral; and in taking her from the French, Talbot had, in reality, rescued the ship and rendered a benefit to her owners for which he was entitled to salvage. For a decree of the French Republic made it "extremely probable" that the Amelia would be condemned by the French courts in St. Domingo; and that decree, having been "promulgated" by the American Government, must be considered by American courts "as an authenticated copy of a public law of France interesting to all nations." This, said Marshall, was "the real and only question in the case." The first opinion delivered by Marshall as Chief Justice announced, therefore, an important rule of international law and is of permanent value.

Marshall's next case[58 - Wilson vs. Mason, 1 Cranch, 45-101.] involved complicated questions concerning lands in Kentucky. Like nearly all of his opinions, the one in this case is of no historical importance except that in it he announced for the second time the views of the court. In United States vs. Schooner Peggy,[59 - 1 Cranch, 102-10.] Marshall declared that, since the Constitution makes a treaty a "supreme law of the land," courts are as much bound by it as by an act of Congress. This was the first time that principle was stated by the Supreme Court. Another case[60 - Turner vs. Fendall, 1 Cranch, 115-30.] concerned the law of practice and of evidence. This was the last case in which Marshall delivered an opinion before the Republican assault on the Judiciary was made – the causes of which assault we are now to examine.

At the time of his inauguration, Jefferson apparently meant to carry out the bargain[61 - See vol. ii, 531-47, of this work.] by which his election was made possible. "We are all Republicans, we are all Federalists," were the reassuring words with which he sought to quiet those who already were beginning to regret that they had yielded to his promises.[62 - See Adams: U.S. i, chaps. ix and x, for account of the revolutionary measures which the Republicans proposed to take.] Even Marshall was almost favorably impressed by the inaugural address. "I have administered the oath to the Presdt.," he writes Pinckney immediately after Jefferson had been inducted into office. "His inauguration speech … is in general well judged and conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of this political theory."[63 - Marshall to Pinckney, March 4, 1801, "four o'clock," MS.]

It is likely that, for the moment, the President intended to keep faith with the Federalist leaders. But the Republican multitude demanded the spoils of victory; and the Republican leaders were not slow or soft-spoken in telling their chieftain that he must take those measures, the assurance of which had captivated the popular heart and given "the party of the people" a majority in both House and Senate.