| [I.] | DEMOCRACY JUDICIARY | [1] |
| | The National Capital an unsightly "village in the woods"—Difficultyand danger of driving through the streets—Habits of the population—Taverns,shops, and dwellings—Warring interests—Aminiature of the country—Meaning of the Republican victory of1800—Anger, chagrin, and despair of the Federalists—Marshall'sviews of the political situation—He begins to strengthen the SupremeCourt—The Republican programme of demolition—Jefferson'sfear and hatred of the National Judiciary—The conduct ofthe National Judges gives Jefferson his opportunity—Their arrogance,harshness, and partisanship—Political charges to grandjuries—Arbitrary application of the common law—Jeffersonmakes it a political issue—Rigorous execution of the Sedition Lawbecomes hateful to the people—The picturesque and historic trialsthat made the National Judiciary unpopular—The trial and convictionof Matthew Lyon; of Thomas Cooper; of John Fries; ofIsaac Williams; of James T. Callender; of Thomas and Abijah Adams—Lawyersfor Fries and Callender abandon the cases and leave thecourt-rooms—The famous Virginia and Kentucky Resolutionsraise the fundamental question as to the power that can interpretthe Constitution—Jefferson plans the assault on the National Judiciary. |
| [II.] | THE ASSAULT ON THE JUDICIARY | [50] |
| | The assault on the Judiciary begins—Intense excitement of politicalparties—Message on the Judiciary that Jefferson sent toCongress—Message he did not send—The Federalists fear the destructionof the National Judiciary—The grave defects of the EllsworthJudiciary Act of 1789—The excellent Federalist JudiciaryAct of 1801—The Republicans determined to repeal it—Thegreat Judiciary debate begins in the Senate—The Federalists assertthe exclusive power of the Supreme Court to decide on the constitutionalityof acts of Congress—The dramatic language of SenatorGouverneur Morris—The Republican Senators evade the issue—TheFederalist Senators press it—Aaron Burr takes his seat as Vice-President—Hisfateful Judiciary vote—Senator John Breckenridgedenies the supervisory power of the Supreme Court overlegislation—The debate in the House—Comments of the press—Extravagantspeeches—Appearance and characteristics of JohnRandolph of Roanoke—The Federalists hint resistance—The lamentationsof the Federalist newspapers—The Republicans repealthe Federalist Judiciary act—They also suspend the sessions ofthe Supreme Court for fourteen months—This done to preventMarshall from overthrowing the Republican repeal of the FederalistJudiciary Act of 1801—Marshall proposes to his colleagues on thebench that they refuse to sit as Circuit Judges—They reject hisproposal—The New England Federalist leaders begin to talk secession—Thejubilation of the Republican press: "Huzza for theWashington Judiciary!" |
| [III.] | MARBURY VERSUS MADISON | [101] |
| | Power of the Judiciary over legislation the supreme issue—Federalistmajorities in State Legislatures assert that Supreme Court canannul acts of Congress—Republican minorities vigorously resist thedoctrine of Judiciary supremacy—Republican strength grows rapidly—Criticalsituation before the decision of Marbury vs. Madison—Powerof the Supreme Court must be promptly asserted orpermanently abandoned—Marshall confronts a serious dilemma—Escapefrom it apparently impossible—Republicans expect himto decide against Madison—They threaten impeachment—Marshalldelivers his celebrated opinion—His reasoning on the powerof the Judiciary merely repeats Federalist arguments in the Judiciarydebate—He persuades his associates on the Supreme Bench thatSection 13 of the Ellsworth Judiciary Act is unconstitutional—Startlingboldness of his conception—History of Section 13—Drawnby framers of the Constitution and never before questioned—Marshall'sopinion excites no immediate comment—Jeffersondoes not attack it until after his reëlection—Republican oppositionto the Judiciary apparently subsides—Cause of this—Purchase ofLouisiana—Jefferson compelled to take "unconstitutional" action—Hecounsels secrecy—The New England Federalist secessionmovement gains strength—Jefferson reëlected—Impeachmentthe next move. |
| [IV.] | IMPEACHMENT | [157] |
| | Republicans plan to subjugate the Judiciary—Federalist Judgesto be ousted and Republicans put in their places—Marshall's decisionin United States vs. Fisher—The Republican impeachment programmecarried out—The trial and the conviction of Judge Addison—Theremoval of Judge Pickering—The House impeachesJustice Chase of the Supreme Court—Republicans manipulatepublic opinion—The articles of impeachment—Federalists convincedthat Chase is doomed—Marshall the chief object of attack—Hisalarm—He proposes radical method of reviewing decisions ofthe Supreme Court—Reason for Marshall's trepidation—The impeachmenttrial—Burr presides—He is showered with favors bythe Administration—Appearance of Chase—His brilliant arrayof counsel—Luther Martin of Maryland—Examination of witnesses—Marshalltestifies—He makes an unfavorable impression:"too much caution; too much fear; too much cunning"—Argumentsof counsel—Weakness of the House managers—They areoverwhelmed by counsel for Chase—Joseph Hopkinson's brilliantappeal—He captivates the Senate—Nicholson's fatal admission—Rodney'sabsurd speech—Luther Martin's great argument—Randolphcloses for the managers—He apostrophizes Marshall—Hispathetic breakdown—The Senate votes—Tense excitement in theChamber—Chase acquitted—A determinative event in Americanhistory—Independence of the National Judiciary saved—Marshallfor the first time secure in the office of Chief Justice. |
| [V.] | BIOGRAPHER | [223] |
| | Marshall agrees to write the "Life of Washington"—He is unequippedfor the task—His grotesque estimate of time, labor, andprofits—Jefferson is alarmed—Declares that Marshall is writingfor "electioneering purposes"—Postmasters as book agents—Theytake their cue from Jefferson—Rumor spreads that Marshall'sbook is to be partisan—Postmasters take few subscriptions—ParsonWeems becomes chief solicitor for Marshall's book—Hisamusing canvass—Marshall is exasperatingly slow—Subscribersare disgusted at delay—First two volumes appear—Publicis dissatisfied—Marshall is worried—He writes agitatedletters—His publisher becomes disheartened—Marshall resentscriticism—The lamentable inadequacy of the first three volumes—Fourthvolume an improvement—Marshall's heavy task in thewriting of the last volume—He performs it skillfully—Descriptionof the foundation of political parties—Treatment of thepolicies of Washington's administrations—Jefferson calls Marshall'sbiography a "five-volume libel" and "a party diatribe"—Heseeks an author to answer Marshall—He resolves to publishhis "Anas" chiefly as a reply to Marshall—He bitterly attackshim and the biography—Other criticisms of Marshall's work—Hislifelong worry over the imperfections of the first edition—Hedecides to revise it—He devotes nearly twenty years to the task—Workon the Supreme Bench while writing the first edition. |
| [VI.] | THE BURR CONSPIRACY | [274] |
| | Remarkable effect on the Senate of Burr's farewell speech—Hisdesperate plight—Stanchness of friends—Jefferson's animosity—Unparalleledcombination against Burr—He runs for Governor ofNew York and is defeated—Hamilton's lifelong pursuit of Burr—Thehistoric duel—Dismemberment of the Union long andgenerally discussed—Washington's apprehensions in 1784—Jeffersonin 1803 approves separation of Western country "if itbe for their good"—The New England secessionists ask BritishMinister for support—He promises his aid—Loyalty of the West—Warwith Spain imminent—People anxious to "liberate"Mexico—Invasion of that country Burr's long-cherished dream—Hetries to get money from Great Britain—He promises BritishMinister to divide the Republic—His first Western journey—Thepeople receive him cordially—He is given remarkable ovationat Nashville—Andrew Jackson's ardent friendship—Burr enthusiasticallywelcomed at New Orleans—War with Spain seeminglyinevitable—Burr plans to lead attack upon Mexico when hostilitiesbegin—Spanish agents start rumors against him—Easternpapers print sensational stories—Burr returns to the Capital—Universaldemand for war with Spain—Burr intrigues in Washington—Heagain starts for the West—He sends his famouscipher dispatch to Wilkinson—Blennerhassett joins Burr—Theypurchase four hundred thousand acres of land on the Washita River—Planto settle this land if war not declared—Wilkinson's eagernessfor war—Burr arraigned in the Kentucky courts—He is discharged—Cheeredby the people—Wilkinson determines tobetray Burr—He writes mysterious letters to the President—Jeffersonissues his Proclamation—Wilkinson's reign of militarylawlessness in New Orleans—Arrest of Burr's agents, Bollmannand Swartwout—Arrest of Adair—Prisoners sent under guard byship to Washington—The capital filled with wild rumors—Jefferson'sslight mention of the Burr conspiracy in his Annual Message—Congressdemands explanation—Jefferson sends SpecialMessage denouncing Burr: his "guilt is placed beyond question"—Effectupon the public mind—Burr already convicted in popularopinion. |
| [VII.] | THE CAPTURE AND ARRAIGNMENT | [343] |
| | Bollmann and Swartwout arrive at Washington and are imprisoned—Adairand Alexander released by the court at Baltimorefor want of proof—Eaton's affidavit against Burr—Bollmann andSwartwout apply to Supreme Court for writ of habeas corpus—Senatepasses bill suspending the privilege of that writ—TheHouse indignantly rejects the Senate Bill—Marshall delivers thefirst of his series of opinions on treason—No evidence against Bollmannand Swartwout, and Marshall discharges them—Violentdebate in the House—Burr, ignorant of all, starts down theCumberland and Mississippi with nine boats and a hundred men—Firstlearns in Mississippi of the proceedings against him—Voluntarilysurrenders to the civil authorities—The Mississippigrand jury refuses to indict Burr, asserting that he is guilty of nooffense—Court refuses to discharge him—Wilkinson's franticefforts to seize or kill him—He goes into hiding—Court forfeitshis bond—He escapes—He is captured in Alabama and confinedto Fort Stoddert—Becomes popular with both officers and men—Takenunder military guard for a thousand miles through the wilderness—Arrivesat Richmond—Marshall issues warrant for hisdelivery to the civil authorities—The first hearing before theChief Justice—Shall Burr be committed for treason—The argument—Marshall'sopinion—Probable cause to suspect Burrguilty of attempt to attack Mexico; no evidence upon which tocommit Burr for treason—Marshall indirectly criticizes Jefferson—Burr'sletters to his daughter—Popular demand for Burr's convictionand execution—Jefferson writes bitterly ofMarshall—Administrationscours country for evidence against Burr—Expenditureof public money for this purpose—Burr gains friendsin Richmond—His attorneys become devoted to him—Marshallattends the famous dinner at the house of John Wickham,not knowing that Burr is to be a guest—He is denounced fordoing so—His state of mind. |
| [VIII.] | ADMINISTRATION VERSUS COURT | [398] |
| | Richmond thronged with visitors—Court opens in the House ofDelegates—The hall packed—Dress, appearance, and mannerof spectators—Dangerous state of the public temper—AndrewJackson arrives and publicly denounces Jefferson—He declarestrial a "political persecution"—Winfield Scott's opinion: thePresident the real prosecutor—Grand jury formed and instructed—BelieveBurr guilty—Burr's passionate reply to George Hay,the District Attorney—Hay reports to Jefferson—Burr's counseldenounce the Administration's efforts to excite the public againsthim—Attorneys on both sides speak to the public—Hay movesto commit Burr for treason—Marshall's difficult and dangeroussituation—Jefferson instructs Hay—Government offers testimonyto support its motion—Luther Martin arrives—Hayagain reports to Jefferson, who showers the District Attorney withorders—Burr asks that the court grant a writ of subpœna ducestecum directed to Jefferson—Martin boldly attacks the President—Wirt'sclever rejoinder—Jefferson calls Martin that "Federalbulldog"—Wants Martin indicted—Marshall's opinion on Burr'smotion for a subpœna duces tecum—He grants the writ—Haywrites Jefferson, who makes able and dignified reply—Wilkinsonarrives—Washington Irving's description of him—Testimony beforethe grand jury—Burr and Blennerhassett indicted for treasonand misdemeanor—Violent altercations between counsel. |
| [IX.] | WHAT IS TREASON? | [470] |
| | Burr becomes popular with Richmond society—Swartwout challengesWilkinson to a duel—Marshall sets the trial for August 3—Theprisoner's life in the penitentiary—Burr's letters to hisdaughter—Marshall asks his associates on the Supreme Bench for theiropinions—Trial begins—Difficulty of selecting a jury—Everybodyconvinced of Burr's guilt—Hay writes Jefferson that Marshallfavors Burr—At last jury is formed—The testimony—No overtact proven—Burr's counsel move that collateral testimony shallnot be received—Counsel on both sides make powerful and brilliantarguments—Marshall delivers his famous opinion on the lawof constructive treason—Jury returns verdict of not guilty—Jeffersondeclares Marshall is trying to keep evidence from the public—Hedirects Hay to press trial on indictment for misdemeanor—Burrdemands letters called for in the subpœna duces tecum to Jefferson—Presidentattempts to arrange a truce with the Chief Justice—Haydespairs of convicting Burr for misdemeanor—Trial onthis charge begins—Many witnesses examined—Prosecution collapses—Juryreturns a verdict of not guilty—Hay moves to holdBurr and his associates for treason committed in Ohio—On thismotion Marshall throws the door wide open to all testimony—Hedelivers his last opinion in the Burr trials—Refuses to hold Burrfor treason, but commits him for misdemeanor alleged to havebeen committed in Ohio—Marshall adjourns court and hurries tothe Blue Ridge—He writes Judge Peters of his situation duringthe trial—Jefferson denounces Marshall in Message he preparesfor Congress—Cabinet induces him to strike out the most emphaticlanguage—Marshall scathingly assailed in the press—Themob at Baltimore—Marshall is hanged in effigy—The attempt toexpel Senator John Smith of Ohio from the Senate—In his reporton Smith case, John Quincy Adams attacks Marshall's rulings andopinion in the Burr trials—Grave foreign complications probablysave Marshall from impeachment. |
| [X.] | FRAUD AND CONTRACT | [546] |
| | The corrupting of the Georgia Legislature in the winter of 1794-95—Themethods of bribery—Prominent men involved—Lawpassed selling thirty-five million acres of land for less than one andone half cents an acre—Land companies pay purchase price and receivedeeds—Merits of the transaction—Poverty of Georgia andpower of the Indians—Invention of the cotton gin increases landvalues—Period of mad land speculation—The origin of the contractclause in the Constitution—Wrath of the people of Georgiaon learning of the corrupt land legislation—They demand that thevenal act be repealed—James Jackson leads the revolt—A new Legislatureelected—It "rescinds" the land sale law—Records of thetransaction publicly burned—John Randolph visits Georgia—Landcompanies sell millions of acres to innocent purchasers—Citizensof Boston purchase heavily—The news of Georgia's repeal ofthe land sale act reaches New England—War of the pamphlets—Georgiacedes to the Nation her claims to the disputed domain—Fivemillion acres are reserved to satisfy claimants—The New Englandinvestors petition Congress for relief—Jefferson's commissionersreport in favor of the investors—John Randolph's furious assaulton the relief bill—He attacks Gideon Granger, Jefferson's Postmaster-General,for lobbying on the floor of the House—Theorigin of the suit Fletcher vs. Peck—The nature of this litigation—Thecase is taken to the Supreme Court—Marshall delivers hisopinion—Legislation cannot be annulled merely because legislatorsvoting for it were corrupted—"Great principles of justice protectinnocent purchasers"—The Georgia land sale act, having beenaccepted, is a contract—The repeal of that act by the Georgia Legislatureis a violation of the contract clause of the Constitution—JusticeJohnson dissents—He intimates that Fletcher vs. Peck "isa mere feigned case"—Meaning, purpose, and effect of Marshall'sopinion—In Congress, Randolph and Troup of Georgia mercilesslyassail Marshall and the Supreme Court—The fight for thepassage of a bill to relieve the New England investors is renewed—Marshall'sopinion and the decision of the court influential in securingthe final passage of the measure. |
| [APPENDIX] |
| [A.] | The Paragraph Omitted from the Final Draft ofJefferson's Message to Congress, December 8, 1801 | [605] |
| [B.] | Letter of John Taylor "of Caroline" to John Breckenridgecontaining Arguments for the Repeal of the Federalist National Judiciary Act of 1801 | [607] |
| [C.] | Cases of which Chief Justice Marshall may haveheard before he delivered his Opinion in Marburyvs. Madison | [611] |
| [D.] | Text, as generally accepted, of the Cipher Letterof Aaron Burr to James Wilkinson, dated July 29, 1806 | [614] |
| [E.] | Excerpt from Speech of William Wirt at the Trial ofAaron Burr | [616] |
| [F.] | Essential Part of Marshall's Opinion on ConstructiveTreason delivered at the Trial of AaronBurr, on Monday, August 31, 1807 | [619] |
| [WORKS CITED IN THIS VOLUME] | [627] |