The Life of John Marshall Volume III Part 5

[72] Sedgwick to King, Dec. 14, 1801, King, IV, 36.

[73] Hale to King, Dec. 19, 1801, King, IV, 39.

[74] It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. I, 297-99, of this work.)

Braintree, Ma.s.s., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws ... as may crush or, at least, put a proper check of restraint" upon them.

Dedham, Ma.s.s., instructed its members of the Legislature to secure the pa.s.sage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pa.s.s a bill declaring] that the order of Lawyers be totally abolished." (Warren: _History of the American Bar_, 215.) All this, of course, was the result of the bitter hards.h.i.+ps of debtors.

[75] For an able defense of the adoption by the National courts of the British common law, see _Works of the Honourable James Wilson_: Wilson, III, 384.

[76] _Columbian Centinel_, July 11, 1801, as quoted in Warren, 225-27.

[77] _Correspondence and Public Papers of John Jay_: Johnston, III, 478-85.

[78] Wharton: _State Trials of the U.S. during the Administrations of Was.h.i.+ngton and Adams_, 60 _et seq._; and see Wilson's law lecture on the subject, Wilson, III, 384.

[79] 2 Dallas, 297-99.

[80] _Ib._ Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: _State Trials_, 90-92.)

[81] For the doc.u.ments preceding the arrest and prosecution of Henfield, see Wharton: _State Trials_, footnotes to 49-52.

[82] See Wilson's charge, Wharton: _State Trials_, 59-66.

[83] See Wharton's summary of Wilson's second charge, _ib._ footnote to 85.

[84] _Ib._ 88.

[85] Marshall: _Life of George Was.h.i.+ngton_, 2d ed. II, 273-74. After the Henfield and Ravara cases, Congress pa.s.sed a law applicable to such offenses. (See Wharton: _State Trials_, 93-101.)

[86] Wharton: _State Trials_, 653-54.

[87] This was the British defense for impressment of seamen on American s.h.i.+ps. It was one of the chief points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of the many causes of the overthrow of that once great party. (See _infra_, vol. IV, chap. I, of this work.)

[88] Wharton: _State Trials_, 654. Upon another indictment for having captured a British s.h.i.+p and crew, Williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (_Ib._; see also vol II, 495, of this work.)

[89] U.S. _vs._ Hudson, 7 Cranch, 32-34. "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion.... The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (Justice William Johnson delivering the opinion of the majority of the court, _ib._)

Joseph Story was frantic because the National judges could not apply the common law during the War of 1812. (See his pa.s.sionate letters on the subject, vol. IV, chap. I, of this work; and see his argument for the common law, Story, I, 297-300; see also Peters to Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering MSS. Ma.s.s. Hist. Soc.)

[90] The opinion of Justice Chase, of the Supreme Court of Philadelphia, sitting with Peters, District Judge, in the case of the United States _vs._ Robert Worral, indicted under the common law for attempting to bribe a United States officer. Justice Chase held that English common law was not a part of the jurisprudence of the United States as a Nation. (Wharton: _State Trials_, 189-99.)

[91] This was notably true of Justice James Wilson, of the Supreme Court, and Alexander Addison, President Judge of the Fifth Pennsylvania (State) Circuit, both of whom were born and educated in the United Kingdom. They were two of the ablest and most learned men on the bench at that period.

[92] Message of Governor John Tyler, Dec. 3, 1810, Tyler: _Letters and Times of the Tylers_, I, 261; and see Tyler to Monroe, Dec. 4, 1809, _ib._ 232.

[93] Jefferson to Randolph, Aug. 18, 1799, _Works_: Ford, IX, 73.

[94] See vol. II, chaps. X and XI, of this work.

[95] The National judges, in their charges to grand juries, lectured and preached on religion, on morality, on partisan politics.

"On Monday last the Circuit Court of the United States was opened in this town. The Hon. Judge Patterson ... delivered a most elegant and appropriate charge.

"The _Law_ was laid down in a masterly manner: _Politics_ were set in their true light by holding up the Jacobins [Republicans] as the disorganizers of our happy country, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. _Religion & Morality_ were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws; for 'when the righteous [Federalists] are in authority, the people rejoice.'...

"After the charge was delivered the Rev. Mr. Alden addressed the Throne of Grace in an excellent and well adapted prayer." (_United States Oracle of the Day_, May 24, 1800, as quoted by Hackett, in _Green Bag_, II, 264.)

[96] Adams's War Speech of 1798; see vol. II, 351, of this work.

[97] Wharton: _State Trials_, 333-34.

[98] _Ib._ 339.

[99] _Ib._ 337. Paterson sat with District Judge Hitchc.o.c.k and delivered the charge in this case. Luther Martin in the trial of Justice Chase (see _infra_, chap. IV) said that Paterson was "mild and amiable," and noted for his "suavity of manners." (_Trial of the Hon. Samuel Chase_: Evans, stenographer, 187-88.)

[100] See Lyon to Mason, Oct. 14, 1798, Wharton: _State Trials_, 339-41.

[101] Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong.

[102] Wharton: _State Trials_, 684.

[103] _Ib._ 685.

[104] _Ib._ 685-86.

[105] Wharton: _State Trials_, 661-62. Cooper was referring to the case of Jonathan Robins. (See vol. II, 458-75, of this work.)

[106] Cooper afterward became a State judge.

[107] See _infra_, chap. VIII.

[108] Wharton: _State Trials_, 679. Stephen Girard paid Cooper's fine.

(McMaster: _Life and Times of Stephen Girard_, I, 397-98.)

[109] Wharton: _State Trials_, 466-69.

[110] See vol. II, 429 _et seq._ of this work.

[111] Wharton: _State Trials_, 598-609.

[112] For sketch of Lewis see Wharton: _State Trials_, 32-33.

[113] _Independent Chronicle_, Boston, May 12, 1800.

[114] Wharton: _State Trials_, 641 et seq.