Chief Justice by General Washington in the place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an envoy to France to try to negotiate a treaty which should reëstablish peace between the two countries. Ellsworth succeeded in his mission, but the hardships of his journey injured his health, and he, in turn, resigned in the autumn of 1800. Then Adams offered the Chief Justiceship to Jay, but Jay would not return to office, and after this the President selected his Secretary of State, John Marshall, one of the greatest of the great Virginians, but one of Jefferson's most irreconcilable enemies. Perhaps at no moment in his life did John Adams demonstrate his legal genius more convincingly than in this remarkable nomination. Yet it must be conceded that, in making John Marshall Chief Justice, John Adams deliberately chose the man whom, of all his countrymen, he thought to be the most formidable champion of those views which he himself entertained, and which he conceived that he had been elected President to advance. Nor was John Adams deceived. For thirty-four years John Marshall labored ceaselessly to counteract Jefferson's constitutional principles, while Jefferson always denounced the political partiality of the federal courts, and above all the "rancorous hatred which Marshall bears to the government of his country, and ... the cunning and sophistry within which he is able to enshroud himself."^[11]

No one, at this day, would be disposed to dispute that the Constitution, as a device to postpone war among the states, at least for a period, was successful, and that, as I have already pointed out, during the tentative interval which extended until Appomattox, the Supreme Court served perhaps as well, in ordinary times, as an arbiter between the states and the general government, as any which could have been suggested. So much may be conceded, and yet it remains true, as the record will show, that when it passed this point and entered into factional strife, the Supreme Court somewhat lamentably failed, probably injuring itself and popular respect for law, far more by its errors, than it aided the Union by its political adjudications.

Although John Marshall, by common consent, ranks as one of the greatest and purest of Americans, yet even Marshall had human weaknesses, one of which was a really unreasonable antipathy to Thomas Jefferson; an antipathy which, I surmise, must, when Jefferson was inaugurated, have verged upon contempt. At least Marshall did what cautious men seldom do when they respect an adversary, he took the first opportunity to pick a quarrel with a man who had the advantage of him in position.

In the last days of his presidency John Adams appointed one William Marbury a justice of the peace for the District of Columbia. The Senate confirmed the appointment, and the President signed, and John Marshall, as Secretary of State, sealed Marbury's commission; but in the hurry of surrendering office the commission was not delivered, and Jefferson found it in the State Department when he took possession. Resenting violently these "midnight" appointments, as he called them, Jefferson directed Mr. Madison, his Secretary of State, to withhold the commission; and, at the next December term of the Supreme Court, Marbury moved for a rule to Madison to show cause why he should not be commanded to deliver to the plaintiff the property to which Marbury pretended to be entitled. Of course Jefferson declined to appear before Marshall, through his Secretary of State, and finally, in February, 1803, Marshall gave judgment, in what was, without any doubt, the most anomalous opinion he ever delivered, in that it violated all judicial conventions, for, apparently, no object, save to humiliate a political opponent.