The Life of John Marshall Volume II Part 66

Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed United States Attorney for the District of Kentucky; George Keith Taylor, another brother-in-law, was appointed United States Judge of the Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed a.s.sistant Judge of the Territory (District) of Columbia. These appointments were made, however, before the new Judiciary Act was pa.s.sed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender appears to have been the only person to criticize these appointments.

Even Jefferson did not complain of them or blame Marshall for them. The three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all.

[1334] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 231.

[1335] The Republicans did so later. "This outrage on decency should not have its effect, except in life appointments [judges] which are irremovable." (Jefferson to Knox, March 27, 1801; _Works_: Ford, ix, 237.)

[1336] Parton: _Jefferson_, 585-86. Parton relates this absurd tale on the authority of Jefferson's great-granddaughter. Yet this third-hand household gossip has been perpetuated by serious historians. The only contemporary reference is in the address of John Fowler of Kentucky to his const.i.tuents published in the _Aurora_ of April 9, 1801: "This disgraceful abuse was continued to the latest hour of the President's holding his office." The "shameful abuse" was thus set forth: "It [Judiciary Law of 1801] creates a host of judges, marshalls, attorneys, clerks, &c, &c, and is calculated, if it could endure, to unhinge the state governments and render the state courts contemptible, while it places the courts of law in the hands of creatures of those who have lost the confidence of the people by their misconduct. The insidiousness of its design has been equalled only by the shameless manner of its being carried into execution. The Const.i.tution disables any member of Congress from filling an office created during his period of service.

The late President [Adams] removed persons from other branches of the Judiciary, to the offices created by this law & then put members of Congress into the thus vacated offices.... This law can be considered in no other light than as providing pensions for the princ.i.p.als and adherents of a party [Federalist]. The evil however will not I trust be durable and as it was founded in fraud the return of a wiser system will release the country from the shame and imposition." (Fowler to his const.i.tuents in the _Aurora_, April 9, 1801.)

[1337] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 230-31; to Knox, March 27, 1801; _ib._, 237; to Mrs. Adams, June 13, 1804; _ib._, x, 85.

[1338] Neither Randall nor Tucker, Jefferson's most complete and detailed biographers, both partisans of the great Republican, mentions the Lincoln-Marshall story, although, if it had even been current at the time they wrote, it is likely that they would have noticed it.

[1339] Jefferson to Knox, _supra_.

END OF VOLUME II

APPENDIX

I. LIST OF CASES

ARGUED BY MARSHALL BEFORE THE COURT OF APPEALS OF VIRGINIA

_Case_ _Date_ _Reported_

Joseph Cutchin _v._ William Wilkinson Spring Term, 1797 1 Call, 1

William Fairclaim, lessee, _v._ Richardand Elizabeth Guthrie Spring Term, 1797 1 Call, 5

Cabell _et al._ _v._ Hardwick Fall Term, 1798 1 Call, 301

Hopkins _v._ Blane Fall Term, 1798 1 Call, 315

Pryor _v._ Adams Fall Term, 1798 1 Call, 332

Proudfit _v._ Murray Fall Term, 1798 1 Call, 343

Harrison _v._ Harrison, _et al._ Fall Term, 1798 1 Call, 364

Shaw _et al._ _v._ Clements Fall Term, 1798 1 Call, 373

Graves _v._ Webb Fall Term, 1798 1 Call, 385

Jones _v._ Jones Fall Term, 1798 1 Call, 396

Auditor of Public Accounts _v._ Graham Fall Term, 1798 1 Call, 411

Beverley _v._ Fogg Spring Term, 1799 1 Call, 421

Rowe _et al._ _v._ Smith Spring Term, 1799 1 Call, 423

Ritchie & Co. _v._ Lyne Spring Term, 1799 1 Call, 425

Eckhols _v._ Graham, _et al._ Spring Term, 1799 1 Call, 428

Noel _v._ Sale Spring Term, 1799 1 Call, 431

Lee _v._ Love & Co. Spring Term, 1799 1 Call, 432

Wilson _v._ Rucker Spring Term, 1799 1 Call, 435

Garlington _v._ Clutton Spring Term, 1799 1 Call, 452

Taliaferro _v._ Minor Spring Term, 1799 1 Call, 456

Hacket _v._ Alc.o.c.k Spring Term, 1799 1 Call, 463

Rose _v._ Sh.o.r.e Spring Term, 1799 1 Call, 469

Smith _v._ Dyer Spring Term, 1799 1 Call, 488

Macon _v._ Crump Spring Term, 1799 1 Call, 500

Flemings _v._ Willis _et ux._ Fall Term, 1799 2 Call, 5

Eppes, Ex'r, _v._ DeMoville, Adm'r Fall Term, 1799 2 Call, 19

Cooke _v._ Simms Fall Term, 1799 2 Call, 33

Lawrason, Adm'r _v._ Davenport _et al._ Fall Term, 1799 2 Call, 79

Price _et al._ _v._ Campbell Fall Term, 1799 2 Call, 92

Eppes _et al._, Ex'rs, _v._ Randolph Fall Term, 1799 2 Call, 103

Taliaferro _v._ Minor Fall Term, 1799 2 Call, 156

Anderson _v._ Anderson Fall Term, 1799 2 Call, 163

Crump _et al._ _v._ Dudley _et ux._ June, 1790 3 Call, 439