"Another circumstance of congratulation is the death of Cushing," which "gives an opportunity of closing the reformation [the Republican triumph of 1800] by a successor of unquestionable republican principles." Jefferson suggests Lincoln. "Were he out of the way," then Gideon Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph] has been able to lessen the confidence of many in him.[283]... As the choice must be of a New Englander, ... I confess I know of none but these two characters." Of course there was Joseph Story, but he is "unquestionably a tory," and "too young."[284]
Madison strove to follow Jefferson's desires. Cushing's place was promptly offered to Lincoln, who declined it because of approaching blindness. Granger, of course, was impossible—the Senate would not have confirmed him. So Alexander Wolcott, "an active Democratic politician of Connecticut," of mediocre ability and "rather dubious ... character,"[285] was nominated; but the Senate rejected him. It seemed impossible to find a competent lawyer in New England who would satisfy Jefferson's requirements. John Quincy Adams, who had deserted the Federalist Party and acted with the Republicans, and who was then Minister to Russia, was appointed and promptly confirmed. Jefferson himself had not denounced Marshall so scathingly as had Adams in his report to the Senate on the proposed expulsion of Senator John Smith of Ohio.[286] It was certain that he would not, as Associate Justice, be controlled by the Chief Justice. But Adams preferred to continue in his diplomatic post, and refused the appointment.
Thus Story became the only possible choice. After all, he was still believed to be a Republican by everybody except Jefferson and the few Federalist leaders who had been discreetly cultivating him. At least his appointment would not be so bad as the selection of an out-and-out Federalist. On November 18, 1811, therefore, Joseph Story was made an Associate Justice of the Supreme Court of the United States. In Massachusetts his appointment "was ridiculed and condemned."[287]
Although Jefferson afterward declared that he "had a strong desire that the public should have been satisfied by a trial on the merits,"[288] he was willing that his counsel should prevent the case from coming to trial if they could. Fearing, however, that they would not succeed, Jefferson had prepared, for the use of his attorneys, an exhaustive brief covering his version of the facts and his views of the law. Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a partisan of Jefferson as he was an implacable enemy of Marshall, read this manuscript and gave Tyler "some of the outlines of it." Tyler explains this to Jefferson after the decision in his favor, and adds that, much as Tyler wanted to get hold of Jefferson's brief, still, "as soon as I had received the appointment ... (which I owe to your favor in great measure), it became my duty to shut the door against every observation which might in any way be derived from either side, lest the impudent British faction, who had enlisted on Livingston's side, might suppose an undue influence had seized upon me."[289]
The case aroused keen interest in Virginia and, indeed, throughout the country. Jefferson was still the leader of the Republican Party and was as much beloved and revered as ever by the great majority of the people. When, therefore, he was sued for so large a sum of money, the fact excited wide and lively attention. That the plaintiff was such a man as Edward Livingston gave sharper edge to the general interest. Especially among lawyers, curiosity as to the outcome was keen. In Richmond, of course, "great expectation was excited."
When the case came on for hearing, Tyler was so ill from a very painful affliction that he could scarcely sit through the hearing; but he persisted because he had "determined to give an opinion." The question of jurisdiction alone was argued and only this was decided. Both judges agreed that the court had no jurisdiction, though Marshall did so with great reluctance. He wished "to carry the cause to the Supreme Court, by adjournment or somehow or other; but," says Tyler in his report to Jefferson, "I pressed the propriety of [its] being decided."[290]
Marshall, however, delivered a written opinion in which he gravely reflected on Jefferson's good faith in avoiding a trial on the merits. If the court, upon mere technicality, were prevented from trying and deciding the case, "the injured party may have a clear right without a remedy"; and that, too, "in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court." The situation created by Jefferson's objection to the court's jurisdiction was unfortunate: "Where the remedy is against the person, and is within the power of the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment" why the case should not be tried and justice done.
"If, however," continues Marshall, "this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it," no matter how wrong in principle and injurious to Livingston the Chief Justice might think it. If Lord Mansfield, "one of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which ... too long continued to obstruct the course of substantial justice," had vainly attempted to remove the very "technical impediments" which Jefferson had thrown in Livingston's way, Marshall would not make the same fruitless effort.
To be sure, the technical point raised by Jefferson's counsel was a legal fiction derived from "the common law of England"; but "this common law has been adopted by the legislature of Virginia"; and "had it not been adopted, I should have thought it in force." Thus Marshall, by innuendo, blames Jefferson for invoking, for his own protection, a technicality of that very common law which the latter had so often and so violently denounced. For the third time Marshall deplores the use of a technicality "which produces the inconvenience of a clear right without a remedy." "Other judges have felt the weight of this argument, and have struggled ineffectually against" it; so, he concluded, "I must submit to it."[291]
Thus it was that Jefferson at last escaped; for it was nothing less than an escape. What a decision on the merits of the case would have been is shown by the opinion of Chancellor Kent, stated with his characteristic emphasis. Jefferson was anxious that the public should think that he was in the right. "Mr. Livingston's suit having gone off on the plea to the jurisdiction, it's foundation remains of course unexplained to the public. I have therefore concluded to make it public thro' the ... press.... I am well satisfied to be relieved from it, altho' I had a strong desire that the public should have been satisfied by a trial on the merits."[292] Accordingly, Jefferson prepared his statement of the controversy and, curiously enough, published it just before Livingston's suit against the United States Marshal in New Orleans was approaching decision. To no other of his documents did he give more patient and laborious care. Livingston replied in an article[293] which justified the great reputation for ability and learning he was soon to acquire in both Europe and America.[294] Kent followed this written debate carefully. When Livingston's answer appeared, Kent wrote him: "I read it eagerly and studied it thoroughly, with a re-examination of Jefferson as I went along; and I should now be as willing to subscribe my name to the validity of your title and to the atrocious injustice you have received as to any opinion contained in Johnson's Reports."[295]