To Thomas Jefferson and John Marshall history has assigned positions in the first rank of the nation’s great men. Their backgrounds show a remarkable similarity. Both were Virginians, Jefferson being twelve years senior to Marshall. Both were the sons of frontiersmen, Peter Jefferson having established himself in Albemarle County and Thomas Marshall in Fauquier County, a short distance to the north, when those counties were still outposts of the Virginia colony. Both were tall and loose-jointed, but where Marshall was dark, Jefferson was sandy-haired and freckled. Jefferson’s indifference to dress matched that of Marshall.

They were, according to Virginia’s intricate way of determining relationship, “third cousins once removed,” being descended through their mothers from the famous William Randolph and Mary Isham. Both were educated to the law and both were students of Virginia’s most distinguished law teacher, Chancellor George Wythe, though Marshall’s instruction under him was only for a few weeks. In short there was every reason why these two highly gifted Virginia cousins should share the same attitudes and prejudices and hold the same opinions on the great issues of the day.

But fate had decreed otherwise. Early in their relationship distrust and antagonism developed. Marshall’s biographer Beveridge traces it to the harsh days of the American Revolution. The Marshalls, father and son, were warriors who volunteered their services on the outbreak of hostilities. They fought at Great Bridge, the first engagement of the Revolution on Virginia soil. They later were present at the battles of Brandywine and Germantown. John was at Valley Forge and by then promoted to captain. According to all accounts he was a shining light in that winter of gloom, spreading good cheer through the camp and idolized by his men. In the next campaign he fought at Monmouth and Stony Point.

During the ordeal of Valley Forge General Washington is said once to have inquired, “Where is Jefferson?” Jefferson had, of course, been serving his country in a different way as a member of the Continental Congress. In retrospect it is obvious that he served it better as author of the Declaration of Independence than he might have as a mediocre soldier. Allowances for Jefferson’s military ineptitude are easy to make now in the light of his other great accomplishments; they were not so easily made by those of his contemporaries who had to do the fighting.

Whatever prejudices the Revolution may have sparked between the two cousins were fanned into flame by the subsequent events which shaped their careers. Jefferson went to France as American Minister where his theory of the liberty and equality of men pronounced in the Declaration found startling application in the revolution taking place there. Very naturally Jefferson’s sympathy was with the revolutionists.

Meanwhile at home the masses of the people were reveling in their new-found freedom, ignoring their responsibilities as citizens, disregarding property rights, refusing to meet their debts, and showing so little willingness to join in united action that many thoughtful men feared for the survival of the new nation.

Among the latter was John Marshall. By now he was married to Mary Ambler, daughter of Jacquelin Ambler, state treasurer, who had moved with the capital when in 1779 Governor Jefferson transferred it from Williamsburg to Richmond. The elder Ambler died some years before 1807 but the fashionable quarter of Shockoe Hill was dominated by his children and relatives. The Marshalls occupied a charming brick house which John Marshall built for his wife in 1788. He enjoyed a lucrative law practice, his clients being for the most part the well-to-do merchants and members of the creditor class. Marshall’s interests and his sympathies turned in their direction. He himself came to the conclusion that the country’s only salvation rested in a strong central government. He shared this opinion with Washington and Alexander Hamilton and the other conservatives who sought to replace the loose and ineffective confederation with a compact and articulate union. These men and others with kindred ideas evolved as Federalists.

Jefferson returned home from France to join Washington’s Cabinet as Secretary of State. It soon became apparent that an ideological gulf separated him from his colleagues. There had been political factions before but now for the first time the two divergent attitudes toward government became so clear-cut that two political parties were the inevitable outcome. Jefferson assumed the leadership of the party of revolt against the Federalist domination that had developed during Washington’s administration and continued under that of John Adams. The issue reached a climax with the victory of the Jeffersonian Republicans in the presidential election of 1800 and Jefferson’s elevation to the presidency.

Defeat threw the Federalists into a panic. Already the civilized world was shaken to its depths by the events in France where the original respectable movement to suppress tyranny and substitute for it democratic institutions had degenerated into a reign of terror, culminating in the execution of the king and queen. And now the government of the United States, insecure at best, was about to be placed in the hands of a man who approved the French Revolution and in other ways had revealed his indifference to established institutions. As the Federalists saw it, in a few weeks the House of Representatives would be “Jacobin” while in a few years the Senate too would be in the hands of the radicals.

From the Federalist point of view one hope remained. Thus far not a single Republican tainted the national judiciary. In his message to the expiring Congress on December 3, 1800, President Adams urged its expansion. The message, incidentally, though bearing the signature of the President had been written by Secretary of State Marshall. The Federalist Congress, following the advice of the President, passed the bill which increased the number of district judges and created an entirely new system of circuit courts with three judges to each circuit. The Republicans, perhaps because they thought the Federalists would not have time to make use of the measure before leaving office, put up only a mild opposition. They reckoned without the fierce determination of the rival party to seize this last opportunity to curb the Republican President and Congress.

Meanwhile Marshall had been named Chief Justice, and until the Federalists went out of power he was to have the distinction of holding at one and the same time the offices of Chief Justice and Secretary of State. So it came about that far into the night on the eve of Jefferson’s inauguration President Adams nominated from his own party judges and other court officers created under the new law, the judges to hold their seats for life. As fast as he nominated them the Senate confirmed them. Then John Marshall, in his capacity as Secretary of State, signed and sealed the commissions of the Federalists who were to form the officers and rank and file of the judiciary army which he in his capacity as Chief Justice was to lead!

Marshall’s law practice and his political prejudices might throw him with the wealthy elements of Richmond society, but neither these nor his growing importance in the world relieved him of the common touch. His simplicity of manner, his carelessness about dress that bordered on slovenliness, his humor and good fellowship appealed to all classes. It was the custom in those days for the man of the household to do the marketing. Mr. Marshall was a familiar figure in the early morning at the market at 17th and Main streets where he bartered with the country folk who brought in their fresh vegetables, meats, and other supplies. His market basket filled, he would, like other gentlemen, stop in at the booth of Joseph Darmstadt, the Hessian, who kept boiling hot coffee on the stove to which customers were free to help themselves, and there gossip over the affairs of the day. Darmstadt had valuable connections with the Pennsylvania Dutch farmers who had drifted into the Valley of Virginia and brought choice provisions to market, making the long trip in Conestoga wagons. Or Mr. Marshall might be seen on horseback, a bag of clover resting on the pommel of his saddle, setting out for a farm he owned on the outskirts of the town.

Many of his political opponents—among them Patrick Henry and George Mason—held him in deep affection. The sad exception was Jefferson. With all his democratic principles, Jefferson was not a good mixer. He had an innate reserve that made ordinary men self-conscious in his company. When reports reached him that John Marshall was the most popular man in Richmond, he could not contain himself. Was not Marshall, by thus cultivating the good will of the masses, poaching on territory Jefferson regarded as peculiarly his own? In the autumn of 1795 he wrote to his friend Madison: “His lax lounging manners have made him popular with the bulk of the people in Richmond; and a profound hypocrisy with many thinking men of our own country. But having come forth in the plenitude of his English principles the latter will see to it that it is high time to make him known.” Anger did not help Jefferson’s clarity of expression but his meaning is obvious. Marshall, as Jefferson saw him, was a hypocrite.

Yet in spite of his dislike for Marshall, Jefferson was careful to observe the amenities. When Marshall returned from a mission to France in 1797, unsuccessful as the mission had been, he was given an ovation on his arrival in Philadelphia, then the seat of government, and a public dinner was arranged in his honor. Jefferson was in Philadelphia at the time and promptly called on Marshall. Not finding him at home he left a note expressing disappointment at not seeing him and regret that a previous engagement would prevent his attending the dinner. Marshall, not to be outdone in courtesy, sat down next day and penned a reply stating that “J. Marshall begs leave to accompany his respectful compliments to Mr. Jefferson with assurance of the regret he feels at being absent when Mr. Jefferson did him the honor to call on him. J. Marshall is extremely sensible of the obliging expression contained in the polite billet of yesterday.”

These sentiments were hardly in keeping with “J. Marshall’s” true feelings. For once he was not exercising that candor which his friends considered his strongest attribute. For if Jefferson distrusted Marshall, that distrust was in no measure greater than Marshall’s distrust of Jefferson. When in the presidential election of 1800 Jefferson and Burr received an equal number of electoral votes and the election was thrown into the House of Representatives, Hamilton, displaying his usual animosity toward Burr, appealed to Marshall, then a member of the House from Virginia, to support Jefferson. To Hamilton’s appeal Marshall replied on New Year’s Day, 1801: “To Mr. Jefferson whose political character is better known to me than that of Mr. Burr, I have felt insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of the nation which cannot indulge those prejudices without sustaining deep and permanent injury. Your representation of Mr. Burr, with whom I am totally unacquainted, shows that from him still greater danger than even from Mr. Jefferson may be apprehended. But I can take no part in the business. I cannot bring myself to aid Mr. Jefferson.”

Here then was Jefferson, afraid that Marshall and his followers would turn the nation’s government into an hereditary monarchy; and Marshall equally afraid that Jefferson and his party, unless restrained, would soon reduce the nation to anarchy. To such absurd extremes can political partisanship drive otherwise highly intelligent men.

In spite of his anxieties and misgivings, Marshall, in his capacity as Chief Justice, performed his official duty in administering the oath of office to President Jefferson. How painful that duty must have been is revealed by a letter he wrote on the same day to his friend Charles Cotesworth Pinckney, of South Carolina: “The Democrats are divided into speculative theorists and absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is not difficult to foresee that much difficulty is in store for the country—if he does not, they will soon be his enemies and calumniators.” Strong words for the Chief Justice to use against the President of the United States so soon after the Chief Justice had administered the oath to the President.

During the first nine months of his administration Jefferson had sufficient evidence of the animosity of the Federal bench, largely directed by Marshall, to write to a friend: “The Federalists have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be broken down and erased.”

The Republicans were not slow in taking up the Federalist challenge. Their first major offensive was the impeachment of Justice Chase. The blustering, choleric Chase, with his violent partisan comments from the bench, had provided just cause for complaint, Heaven knows. Yet his trial by the Senate and his exoneration from the charges leveled at him by the House indicated that impeachment was a dull and unreliable weapon. The verdict left Jefferson more than ever convinced that a grave error had been committed in the Constitution by granting to the judiciary authority equal to that of the executive and legislative branches. Marshall’s epochal decision in the case of Marbury versus Madison, confirming the Supreme Court’s right to pass on the constitutionality of laws enacted by Congress, strengthened that belief. Nowhere was the presumption of the judiciary better exemplified than in the person and actions of John Marshall. Jefferson’s unerring political instinct told him that the quickest and surest way to cut the judiciary down to size was to get rid of Marshall, either by impeachment or by amending the Constitution to make Federal judges removable from office at the will of the President and Congress.

But a case must first be made against Marshall. The Burr trial presented a perfect opportunity. Of this the President and the Chief Justice were both well aware, and the party leaders no less than the President and the Chief Justice. So it was that, at Richmond in the spring of 1807, Aaron Burr did not stand at the bar alone. The Chief Justice also was on trial.

President Jefferson had taken his time in acting against the alleged conspirators. He had been waiting for tangible evidence that would stand up in a court of law. Once he was convinced that he had it he moved with dispatch and determination to find Burr guilty. Otherwise, after the unequivocal charge of “guilt beyond question” proclaimed to the nation in his special message to Congress, he and his administration would be made to look ridiculous. If the Chief Justice cooperated to this end, all well and good. If on the contrary, as Jefferson foresaw, the Chief Justice raised obstructions in favor of the prisoner, he would do well to look to his own head. It was already being rumored that the President was so set on getting rid of Marshall, and so confident that doing so was a mere matter of time, that he had already chosen a successor in Spencer Roane, another Virginian, but one consecrated to the cause of Republicanism.

And here at the very outset of the trial the Chief Justice was prejudging the charge of treason by stating that if there had been treason there must by now be evidence of it. But no evidence had been produced before the court. In a letter to his friend Senator Giles, the President unbosomed himself on the unreasonableness of the decision.

“In what terms of decency can we speak of this?” he asked. “As if an express could go to Natchez, or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!... But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!... The nation will judge both the offender and the judges for themselves. If a member of the Executive or Legislative does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation.... If their protection of Burr produces this amendment, it will do more good than condemnation would have done ... and if his punishment can be commuted now for a useful amendment of the Constitution, I shall rejoice in it.”

If letting Burr go scot free resulted in checkmating Marshall and putting the judiciary in its place, Mr. Jefferson was willing to pay even that price. As for the lack of witnesses the Government, if the Chief Justice would only give it reasonable time, would take care of that. From Washington, Attorney General Rodney sent out printed circulars for wide distribution throughout the western country urging every good citizen to step up and communicate to the Government any information which might “contribute to the general welfare.” The allusion was obvious. A deputy marshal and special messenger were dispatched to Wood County, Virginia, to round up witnesses from the vicinity of Blennerhassett Island where the overt act of treason was alleged to have occurred.

Secretary of State Madison and the Attorney General solicited the help of General Andrew Jackson to the same end in Tennessee. Wilkinson, in New Orleans, sent agents in search of information through Louisiana and Mississippi. This governmental dragnet brought results. Witnesses and depositions combined reached an impressive total of close to 150.

Whether they would all be heard was a different matter. They still had to pass an exacting test contrived by counsel for the defense, sufficient to convince the Chief Justice that the admission of their evidence was strictly within the letter of the law. Let the public make whatever deductions it pleased about the trial at Richmond, John Marshall did not intend to deviate one inch from what he considered to be the sacred duties of a judge in the execution of justice.