That Story, while in Washington, had copiously expressed his changing opinions, as well as his disapproval of Jefferson"s Embargo, is certain; for he was "a very great talker,"[268] and stated his ideas with the volubility of his extremely exuberant nature. "At this time, as in after life," declares Story"s son, "he was remarkable for fulness and fluency of conversation. It poured out from his mind ... sparkling, and exhaustless. Language was as a wide open sluice, through which every feeling and thought rushed forth.... It would be impossible to give an idea of his conversational powers."[269]
It was not strange, then, that Jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in Washington, heard of Story"s a.s.sociation with the Federalists, his unguarded talk, and especially his admiration for the Chief Justice. It was plain to Jefferson that such a person would never resist Marshall"s influence.
In Jefferson"s mind existed another objection to Story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the Supreme Bench vacated by the death of Justice Cushing. Story had made a profound study of the law of real estate; and, young though he was, no lawyer in America equaled him, and few in England surpa.s.sed him, in the intricate learning of that branch of legal science. This fact was well known to the bar at Washington as well as to that of Ma.s.sachusetts. Therefore, the thought of Story on the Supreme Bench, and under Marshall"s influence, made Jefferson acutely uncomfortable; for the former President was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. This lawsuit was the famous Batture litigation. It was this predicament that led Jefferson to try to control the appointment of the successor to Cushing, whose death he declared to be "a G.o.dsend"[270] to him personally; and also to dictate the naming of the district judge at Richmond to the vacancy caused by the demise of Judge Cyrus Griffin.
In the spring of 1810, Edward Livingston, formerly of New York and then of New Orleans, brought suit in the United States Court for the District of Virginia against Thomas Jefferson for damages to the amount of one hundred thousand dollars. This was the same Livingston who in Congress had been the Republican leader in the House when Marshall was a member of that body.[271] Afterwards he was appointed United States Attorney for the District of New York and then became Mayor of that city. During the yellow fever epidemic that scourged New York in 1803, Livingston devoted himself to the care of the victims of the plague, leaving the administration of the Mayor"s office to a trusted clerk. In time Livingston, too, was stricken. During his illness his clerk embezzled large sums of the public money. The Mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. A heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of Livingston"s life until, twenty years afterward, he accomplished his object.
His health regained, Livingston went to New Orleans to seek fortune anew. There he soon became the leader of the bar. When Wilkinson set up his reign of terror in that city, it was Edward Livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed Wilkinson"s lawless and violent measures.[272] Jefferson had been displeased that Livingston had not shown more enthusiasm for him, when, in 1801, the Federalists had tried to elect Burr to the Presidency, and bitterly resented Livingston"s interference with Wilkinson"s plans to "suppress treason" in New Orleans.
One John Gravier, a lifelong resident of that city, had inherited from his brother Bertrand certain real estate ab.u.t.ting the river. Between this and the water the current had deposited an immense quant.i.ty of alluvium. The question of the t.i.tle to this river-made land had never been raised, and everybody used it as a sort of common wharf front.
Alert for opportunities to make money with which fully to discharge the defalcation in the New York Mayor"s office, Livingston investigated the rightful ownership of the batture, as the alluvial deposit was termed; satisfied himself that the t.i.tle was in Gravier; gave an opinion to that effect, and brought suit for the property as Gravier"s attorney.[273]
While the trial of Aaron Burr was in progress in Richmond, the Circuit Court in New Orleans rendered judgment in favor of Gravier,[274] who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture.
Livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. Governor Claiborne refused to protect him and referred the whole matter to Jefferson. The President did not direct the Attorney-General to bring suit for the possession of the batture--the obvious and the legal form of procedure.
Indeed, the t.i.tle to the property was not so much as examined.
Jefferson did not even take into consideration the fact that, if Livingston was not the rightful owner of the batture, it might belong to the City of New Orleans. He merely a.s.sumed that it was National property; and, hastily acting under a law against squatters on lands belonging to the United States, he directed Secretary of State Madison to have all persons removed from the disputed premises. Accordingly, the United States Marshal was ordered to eject the "intruder" and his laborers. This was done; but Livingston told his men to return to their work and secured an injunction against the Marshal from further molesting them. That official ignored the order of the court and again drove the laborers off the batture.
Livingston begged the President to submit the controversy to arbitration or to judicial decision, but Jefferson was deaf to his pleas. The distracted lawyer appealed to Congress for relief.[275] That body ignored his pet.i.tion.[276] He then brought suit against the Marshal in New Orleans for the recovery of his property. Soon afterward he brought another in Virginia against Jefferson for one hundred thousand dollars damages. Such, in brief outline, was the beginning of the famous "Batture Controversy," in which Jefferson and Livingston waged a war of pamphlets for years.
When he learned that Livingston had begun action against him in the Federal court at Richmond, Jefferson was much alarmed. In antic.i.p.ation of the death of Judge Cyrus Griffin, Governor John Tyler had written Jefferson that, while he "never did apply for an office," yet "Judge Griffin is in a low state of health, and holds my old office." Tyler continues: "I really hope the President will chance to think of me ...
in case of accidents, and if an opportunity offers, lay me down softly on a bed of _roses in my latter days_." He condemns Marshall for his opposition to the War of 1812, and especially for his reputed statement that Great Britain had done nothing to justify armed retaliation on our part.[277] "Is it possible," asks Tyler, "that a man who can a.s.sert this, can have any true sense of sound veracity? And yet these sort of folks retain their stations and consequence in life."[278]
Immediately Jefferson wrote to President Madison: "From what I can learn Griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall. Tyler, I am certain, would do it.... A milk & water character ... would be seen as a calamity.
Tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as Griffin,[279] has a kind of right of reclamation."
Jefferson gives other reasons for the appointment of Tyler, and then addresses Madison thus: "You have seen in the papers that Livingston has served a writ on me, stating damages at 100,000. D... I shall soon look into my papers to make a state of the case to enable them to plead."
Jefferson hints broadly that he may have to summon as witnesses his "a.s.sociates in the proceedings," one of whom was Madison himself.
He concludes this astounding letter in these words: "It is a little doubted that his [Livingston"s] knolege [_sic_] of Marshall"s character has induced him to bring this action. His twistifications of the law in the case of Marbury, in that of Burr, & the late Yazoo case shew how dexterously he can reconcile law to his personal bia.s.ses: and n.o.body seems to doubt that he is ready prepared to decide that Livingston"s right to the batture is unquestionable, and that I am bound to pay for it with my private fortune."[280]
The next day Jefferson wrote Tyler that he had "laid it down as a law"
to himself "never to embarra.s.s the President with any solicitations."
Yet, in Tyler"s case, says Jefferson, "I ... have done it with all my heart, and in the full belief that I serve him and the public in urging the appointment." For, Jefferson confides to the man who, in case Madison named him, would, with Marshall, hear the suit, "we have long enough suffered under the base prost.i.tution of the law to party pa.s.sions in one judge, and the imbecility of another.
"In the hands of one [Marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water a.s.sociate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... And where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment."[281]
Upon the death of Judge Griffin in the following December, John Tyler was appointed to succeed him.
On September 13, 1810, William Cushing, a.s.sociate Justice of the Supreme Court, died. Only three Federalists now remained on the Supreme Bench, Samuel Chase, Bushrod Washington, and John Marshall. The other Justices, William Johnson of South Carolina, Brockholst Livingston of New York, and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson.
The selection of Cushing"s successor would give the majority of the court to the Republican Party for the first time since its organization. That Madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy Jefferson, who wanted to make sure that the man selected was one who would not fall under Marshall"s baleful influence. If Griffin did not die in time, Jefferson"s fate in the batture litigation would be in Marshall"s hands.
Should Griffin be polite enough to breathe his last promptly and Tyler be appointed in season, still Jefferson would not feel safe--the case might go to the jury, and who could tell what their verdict would be under Marshall"s instructions? Even Tyler might not be able to "hinder"
Marshall "from wrong doing"; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the Supreme Court if any ground for appeal could be found. Certainly Jefferson would take it there if the case should go against him. It was vital, therefore, that the latest vacancy on the Supreme Bench should also be filled by a man on whom Jefferson could depend.
The new Justice must come from New England, Cushing having presided over that circuit. Republican lawyers there, fit for the place, were at that time extremely hard to find. Jefferson had been corresponding about the batture case with Gallatin, who had been his Secretary of the Treasury and continued in that office under Madison. The moment he learned of Cushing"s death, Jefferson wrote to Gallatin in answer to a letter from that able man, admitting that "the Batture ... could not be within the scope of the law ... against squatters," under color of which Livingston had been forcibly ousted from that property. Jefferson adds: "I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spada.s.sin it is lawful to use all weapons." The case is complex; still no unbiased man "can doubt what the issue of the case ought to be. What it will be, no one can tell.
"The judge"s [Marshall"s] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. His decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... And to whom is my appeal? From the judge in Burr"s case to himself and his a.s.sociate judges in the case of Marbury V. Madison.
"Not exactly, however. I observe old Cushing is dead.... The event is a fortunate one, and so timed as to be a G.o.dsend to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided Republican, with nothing equivocal about him.
But who will it be?"
Jefferson warmly recommends Levi Lincoln, his former Attorney-General.
Since the new Justice must come from New England, "can any other bring equal qualifications?... I know he was not deemed a profound common lawyer; but was there ever a profound common lawyer known in one of the Eastern States? There never was, nor never can be, one from those States.... Mr. Lincoln is ... as learned in their laws as any one they have."[282]
After allowing time for Gallatin to carry this message to the President, Jefferson wrote directly to Madison. He congratulates him on "the revocation of the French decrees"; abuses Great Britain for her "principle" of "the exclusive right to the sea by conquest"; and then comes to the matter of the vacancy on the Supreme Bench.
"Another circ.u.mstance 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 a.s.sociate 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 a.s.sociate Justice of the Supreme Court of the United States. In Ma.s.sachusetts 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 ma.n.u.script 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 doc.u.ments 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 t.i.tle and to the atrocious injustice you have received as to any opinion contained in Johnson"s Reports."[295]
Marshall"s att.i.tude in the Batture litigation intensified Jefferson"s hatred for the Chief Justice, while Jefferson"s conduct in the whole matter still further deepened Marshall"s already profound belief that the great exponent of popular government was dishonest and cowardly.
Story shared Marshall"s views; indeed, the Batture controversy may be said to have furnished that personal element which completed Story"s forming antagonism to Jefferson. "Who ... can remember, without regret, his conduct in relation to the batture of New Orleans?" wrote Story many years afterward.[296]
The Chief Justice attributed the attacks which Jefferson made upon him in later years to his opinion in Livingston _vs._ Jefferson, and to the views he was known to have held as to the merits of that case and Jefferson"s course in relation to it. "The Batture will never be forgotten," wrote the Chief Justice some years later when commenting on the attacks upon the National Judiciary which he attributed to Jefferson.[297] Again: "The case of the mandamus[298] may be the cloak, but the batture is recollected with still more resentment."[299]
Events thus sharpened the hostility of Jefferson and his following to Marshall, but drew closer the bonds between the Chief Justice and Joseph Story. Once under Marshall"s pleasing, steady, powerful influence, Story sped along the path of Nationalism until sometimes he was ahead of the great constructor who, as he advanced, was building an enduring and practicable highway.
FOOTNOTES:
[156] Jefferson to Madison, May 25,1810, _Works_: Ford, XI, 140.
"There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814, _Private Correspondence of Daniel Webster_: Webster, I, 244.)
[157] "In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story, II, 208.)