might in this way be excluded from the opportunity of
making any appointments to the Supreme Bench, the number of district
judgeships was enlarged by five, and six Circuit Courts were created
which furnished places for sixteen more new judges. When John Adams, the
retiring President, proceeded with the aid of the Federalist majority in
the Senate and of his Secretary of State, John Marshall, to fill up
the new posts with the so-called "midnight judges," * the rage and
consternation of the Republican leaders broke all bounds. The Federal
Judiciary, declared John Randolph, had become "an hospital of decayed
politicians." Others pictured the country as reduced, under the weight
of "supernumerary judges" and hosts of attendant lawyers, to the
condition of Egypt under the Mamelukes. Jefferson's concern went
deeper. "They have retired into the judiciary as a stronghold," he wrote
Dickinson. "There the remains of Federalism are to be preserved and fed
from the Treasury, and from that battery all the works of Republicanism
are to be beaten down and destroyed." The Federal Judiciary, as a
coordinate and independent branch of the Government, was confronted with
a fight for life!

* So called because the appointment of some of them was supposed
to have taken place as late as midnight, or later, of March 3-4, 1801.
The supposition, however, was without foundation.

Meanwhile, late in November, 1800, Ellsworth had resigned, and Adams
had begun casting about for his successor. First he turned to Jay, who
declined on the ground that the Court, "under a system so defective,"
would never "obtain the energy, weight, and dignity which were essential
to its affording due support to the National Government, nor acquire the
public confidence and respect which, as the last resort of the justice
of the nation, it should possess." Adams now bethought himself of his
Secretary of State and, without previously consulting him, on January
20, 1801, sent his name to the Senate. A week later the Senate ratified
the nomination, and on the 4th of February Marshall accepted the
appointment. The task despaired of by Jay and abandoned by Ellsworth was
at last in capable hands.

CHAPTER II. Marshall's Early Years

John Marshall was born on September 24, 1755, in Fauquier County,
Virginia. Though like Jefferson he was descended on his mother's side
from the Randolphs of Turkey Island, colonial grandees who were also
progenitors of John Randolph,