That, replied the Federalists, was because the courts were too far away from the citizens. As for the National revenues, they could be collected only through National tribunals; for this purpose,[1298] two Federal Courts in Virginia, as provided by the bill, were essential. But, of course, sneered the Federalists, "Virginia would be well satisfied with one court in preference to two or with no court whatever in preference to one."[1299]
But there was a defect in the bill, intimated the Virginia Republicans, that affected tenants and landowners of the Northern Neck. A clause of section thirteen gave the newly established National Court jurisdiction of all causes arising under the Constitution where original or exclusive jurisdiction was not conferred upon the Supreme Court or Admiralty Courts.[1300] The National Court of the new Virginia District was to be held at Fredericksburg. Thus all suits for quitrents or other claims against those holding their lands under the Fairfax title could be brought in this near-by National Court, instead of in State Courts. This criticism was so attenuated and so plainly based on the assumption that the State Courts would not observe the law in such actions, that it was not pressed with ardor even by the impetuous and vindictive Giles.
But Nicholas went so far as to move that the jurisdiction of National Courts should be limited to causes exceeding five hundred dollars. This would cut out the great mass of claims which the present holders of the Fairfax title might lawfully have against tenants or owners. The Marshalls were the Fairfax assignees, as we have seen. No Republican, however, mentioned them in debate; but some one procured the insertion in the record of an insinuation which nobody made on the floor. In brackets, the "Annals," after the brief note of Nicholas's objection, states: "[It is understood that the present assignees of the claims of Lord Fairfax, are General Marshall, General Lee, and a third individual and that they maintain their claims under the British Treaty.]"[1301]
For three weeks the debate in the House dragged along. Republican opposition, though united, was languid.[1302] At last, without much Republican resistance, the bill passed the House on January 20, 1801, and reached the Senate the next day.[1303] Two weeks later the Senate Republicans moved a substitute providing for fewer circuits, fewer judges, and a larger Supreme Court, the members of which were to act as circuit judges as formerly.[1304] It was defeated by a vote of 17 to 13.[1305] The next day the bill was passed by a vote of 16 to 11.[1306]
When the debate began, the National Judiciary was without a head. Ellsworth, broken in health, had resigned. Adams turned to Jay, the first Chief Justice, and, without asking his consent, reappointed him. "I have nominated you to your old station,"[1307] wrote the President. "This is as independent of the inconstancy of the people, as it is of the will of a President." But Jay declined.[1308] Some of the Federalist leaders were disgruntled at Jay's appointment. "Either Judge Paterson [of New Jersey] or General Pinckney ought to have been appointed; but both these worthies were your friends,"[1309] Gunn reported to Hamilton. The Republicans were relieved by Jay's nomination—they "were afraid of something worse."[1310]
Then, on January 20, 1801, with no herald announcing the event, no trumpet sounding, suddenly, and without previous notification even to himself, John Marshall was nominated as Chief Justice of the United States a few weeks before the Federalists went out of power forever. His appointment was totally unexpected. It was generally thought that Judge Paterson was the logical successor to Ellsworth.[1311] Marshall, indeed, had recommended his selection.[1312] The letters of the Federalist leaders, who at this period were lynx-eyed for any office, do not so much as mention Marshall's name in connection with the position of Chief Justice.
Doubtless the President's choice of Marshall was influenced by the fact that his "new minister, Marshall, did all to" his "entire satisfaction."[1313] Federalist politicians afterward caviled at this statement of Adams. It was quite the other way around, they declared. "Every one who knew that great man [Marshall] knew that he possessed to an extraordinary degree the faculty of putting his own ideas into the minds of others, unconsciously to them. The secret of Mr. Adams's satisfaction [with Marshall] was, that he obeyed his Secretary of State without suspecting it."[1314]
The President gave Marshall's qualifications as the reason of his elevation. Boudinot reported to Adams that the New Jersey bar hailed with "the greatest pleasure" a rumor that "the office of Chief Justice ... may be filled by" Adams himself "after the month of March next." The President, who admitted that he was flattered, answered: "I have already, by the nomination of a gentleman in the full vigor of middle age, in the full habits of business, and whose reading of the science is fresh in his head,[1315] to this office, put it wholly out of my power as it never was in my hopes or wishes."[1316]
Marshall's appointment as Chief Justice was not greeted with applause from any quarter; there was even a hint of Federalist resentment because Paterson had not been chosen. "I see it denied in your paper that Mr. Marshall was nominated Chief Justice of the U.S. The fact is so and he will without doubt have the concurrence of the Senate, tho' some hesitation was at first expressed from respect for the pretensions of Mr. Paterson."[1317] The Republican politicians were utterly indifferent; and the masses of both parties neither knew nor cared about Marshall's elevation.
The Republican press, of course, criticized the appointment, as it felt bound to attack any and every thing, good or bad, that the Federalists did. But its protests against Marshall were so mild that, in view of the recklessness of the period, this was a notable compliment. "The vacant Chief Justiceship is to be conferred on John Marshall, one time General, afterwards ambassador to X. Y. and Z., and for a short time incumbent of the office of Secretary of State.... Who is to receive the salary of the Secretary of State, after Mr. Marshall's resignation, we cannot foretell, because the wisdom of our wise men surpasseth understanding."[1318] Some days later the "Aurora," in a long article, denounced the Judiciary Law as a device for furnishing defeated Federalist politicians with offices,[1319] and declared that the act would never be "carried into execution, ... unless" the Federalists still meant to usurp the Presidency. But it goes on to say:—