The Life of John Marshall Volume 3 of 4

g haste. Our judges are to be as in

without appeal, on the validity of your

as about to begin and the Federalists in Congress had nerved themselves for their last great fight. The impending debate was to prove one of the permanently notable engagements in American legislative history and

re now to listen. Marshall's course, and, indeed, his opinion in this famous case, cannot be underst

he President himself gave the signal for attack, but with such skill that while his lieutenants in House and Senate understood their orders and were eager to execute them, the rank and file of the

ose to subjugate the National Judiciary. To assist Senators and Representatives in determining "the proportion which the institution bears to the business it has to perform" Jefferson had "procured from the several states ... an exa

sted Congressional inquiry as to whether jury trials had not been withheld in ma

ned him from avowing it. Indeed, he had actually written into the message words as daring as those of his cherished Kentucky Resolutions; had boldly declared that the right existed in each department "to decide on the validity of an act according to its own judgment and uncontrolled by the opinions

was ready for transmission to the National Legislature. But just before sending the Message to the Capitol, he struck out this passage,[150] and thus notes on the margin of the draft his reason for doing so: "This whole paragr

who saw the real purpose back of the President's colorless words. Fisher Ames, that delightful reactionary, thus interpreted it: "The message announces the downfall of the late revision of the Judiciary;

y.[152] Almost from the time of the organization of the National Judiciary the National judges had complained of the inadequacy and positive evils of the law under which they performed their duties. The famous Judiciary Act

New Hampshire called it "this new fangled system" which "would ... swallow up the State Courts."[155] James Jackson of Georgia declared that National courts would cruelly harass "th

think it will be felo-de-se in the execution.... Whenever the Federal Judiciary comes into operation, ... the pride of the states ... will in the e

and people. William R. Davie of North Carolina, a member of the Convention that framed the Constitution and one of the most eminent lawyers of hi

wrote Adams, "perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due

essions annually in Washington.[163] So great were the distances between places where courts were held, so laborious, slow, and dangerous was all travel,[164] that the Justices-men of ripe age and studious habits-spent a large part of each year u

the Circuit Bench. Thus, in effect, they were trial and appellate judges in identical controversies. Moreover, by the rotation in riding circuits d

re confined exclusively to the Supreme Bench. The country was divided into sixteen circuits, and the office of circuit judge was created for each of these. The Circuit Judge, sitting with the District Judge, was to hold circuit court, as the Justices of the Supr

ralist partisans. Indeed, this was one motive for the enactment of the law. The salaries of the new circuit judges, together with other necessary expenses of the remodeled syst

imidate the entire National Judiciary, the Republicans, led by Jefferson, determined to repeal the Federalist Judiciary A

cracy. He moved the repeal of the Federalist National Judiciary Act of 1801.[170] Every member of Senate and House-Republican and Federalist-was uplifted or depressed by the vi

ever will arrive when America will stand in need of thirty-eight Federal Judges."[172] The Federalist Judiciary Law was "a wanton waste of the public treasure."[173] Moreover, the fathers never intended to commit to National judges "subjects of litigation which ... could be left to State Courts." Answering the

ess purpose of dismissing the judges when they cease to possess the public confidence?" If so, "the people have no check whatever on them ... but impeachment." Monroe hoped that "the period is not distant" when any opposition to "the sovereignty of the people" by the courts, such as "the a

e, "was one of the most important questions that ever came before a Legislature." Why had the Judiciary been made "as independent of the Legislature as of the Executive?" Because it was their

the President, "in selecting a character for the bench, must seek less the learning of a judge than the agility of a post boy." Moreover, to repeal the Federal Judiciary Law would b

n of power among those who are to exercise it for the benefit of the people." The most efficient of these checks was the power given the National Judiciary-"a check of the first nec

ublic? The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save t

ts of Turkey, or the deserts of Siberia.[181]... I am more afraid of an army of judges, ... than of an army of soldiers.... Have we not seen sedition laws?" The Georgia Senator "thanked God"

he asked, if the Legislature of the Union or any particular State, should pass an ex post facto law? "None in the world" but revolution or

Party, and was as impressive in physical appearance as he was dominant in character. He was just under six feet in height, yet heavy with fat; he had extraordinarily large eyes, gray in color, a

on hotly attacked the Federalist position that a National judge, once appointed, was in office permanently; and thus, for the second time, Marbury vs. Madison was brought into the debate. "Have we not heard this doctrine supported in the memorable case

of the individual who administers them." Even Judges of the Supreme Court should do something to earn their salaries; but under the

that the Justices of the Supreme Court "will be induced, from want of employment, to do that which they ought not to do.... They may ... hold the Constitution in one hand, and the law in t

, had abolished two district courts-the very thing for which the Republicans were now assailed by the Federalists as destroyers of the Constitution. Where was Morris, asked Mason, when his friends had committed th

popular passion." Yet "'tis for these purposes that all our Constitutional checks are devised." Otherwise "the Constitution is all nonsense." He enumerated the Constitutional limitat

ow citizens, by passing an unconstitutional law ... will stop you short." Preserve the Judiciary in its vigor, and in great controver

or Executive departments in any wanton invasion of our rights.... I know this doctrine is unpleasant; I know it is more popular to appeal to public opinion-that equivocal, transient b

ely on that popular will, which has brought us frail beings into political existence. That opinion is but a changeable thing. It will soon change. This very measure will change it. You will be deceived. Do not ... commit the dignity, the h

he presence of Almighty God, and of the world; and I declare to you, that if you lose this charter, never, no, never will you get another! W

n those regions of fancy and of terror, to which they [have] led us." He now insisted that the Senate return to the real subject, and in a speech which is a model of compact reasoning, sharpened by sarcas

he Senate.[195] Within two weeks[196] an incident happened which, though seemingly trivial, was powerfully and dramatically

tem of the United States."[197] On this motion the Senate tied; and Vice-President Burr, by his deciding vote, referred the bill to the select committee. In doing this he explained that he believed the Federalists sincere in their wish "to ameliorate the pr

enridge; and the debate continued, the Federalists constantly accusing the Republicans of a purpose to destroy the independence of the National Judiciary, and

to rise again, he said, but "an argument had been so much pressed" that he felt it must be answered. "I did not expect, sir, to find the doctrine of the power of the courts to

which grants to the National Judiciary the power to overthrow legislation. "Is it not extraordinary," said he, "that if this high power was intended, it should nowhere appear?... Neve

ration of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it.... Those who made the laws are presumed to have an equal attachment to, and interest in the Constitution

decisions of the courts, founded on their construction of the Constitution, as the courts would have to annul the acts of the Legislature, founded on their construction.[201]... In case the courts were to declare your revenue, impost and appropriatio

e of Gouverneur Morris. Getting to his feet as quickly as his wooden leg would permit, his features beaming with triumph, the New York Sen

e nature of things, from the necessary progress of human affairs,"[205] he asserted. In a cause on trial before them, it becomes necessary for the ju

ongress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." According to the Republican doctrine, "the moment the Legislature ... declare themselves supreme, they become so ... and the Constitution is whatever they choose to make it."[206

subject. Why do not those who are opposed to the project, express in the public papers or by petitions their disapprobation?... It is likely that a public movement would have great

arty vote[209] of 16 to 15, passed the bill to r

id, to test public opinion, because "few occasions have occurred so important as this."[211] But in vain did the Federalists plead and threaten. Postponement was refused by a vote of 61

ill eventually be the issue of the present high-handed, overbearing proceedings of Congress it is impossible to determine," but fear was expressed by this paper that conditions would be c

among the ablest lawyers of his day" and "one of the great lawyers of the Nation."[216] "The monstrous and unheard of doctrine ... lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared Henderson, "the ve

far had carefully been concealed:[218] "Agreeably to our Constitution a judge may be impeached," said he, but this punishment would be minimiz

r laws null and void, ... and in vain have the people placed you upon this floor to legislate.[220]... This is the tree where despotism lies concealed.... Nurture it with y

ky Representative "trembled" at such ideas. "The sooner we put men out of power, who [sic] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages

s directly or by inference had held legislative acts invalid were cited;[224] and all the arguments that ever had

tive struggle now in progress and the result of it, created conditions which forced Marshall to execute that judicial coup d'état. It should be repeated that an

member. "This measure," said John Stanley of North Carolina, "will be the first link in that chain o

er.[226] He was Jefferson's lieutenant in the House.[227] When the Federalists tried to postpone the consideration of the bill,[228] Giles admitted that it presented a question "more important

d a very dark complexion, black hair worn long, and intense, "retreating" brown eyes. His dress was "remarkably plain,

ill they had neglected their own affairs. So it was, he said, that the Federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic Alien and Sedition Laws. But at last, when, as the result of their maladminis

t because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people

considered their own internal concerns in a secondary point of view," Giles swiftly portrayed those measures used by the Federalists as a pretext. They had, jeered the sharp-tongued Virgini

from their internal concerns; arguments of the highest consideration for the safety of the Constitution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacob

ed the Federalists with the conduct of Federalist judges in the sedition cases,[235] and denounced the attempt to fasten British l

ns."[236] The real issue between Federalists and Republicans, declared Giles, was "the doctrine of irresponsibility against the doctrine of responsibility.... The d

on and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things Republican mark

charge of the National Administration they struggled "to maintain the Constitutional powers of the Executive" because "the wild principles of French liberty were scattered through the country. We had our

mes, were denounced as monarchists. A line was drawn between the Government and the people, and the friends of the Government [Federalists] were marked as the enemies of the people."[238] This was the spirit that was

ean that the dispatches ... were impostures?" Though Giles "felt no respect" for Marshall or Pinckney-"two characters as pure, as honorable, and ex

rows" was the National Judiciary. "If ... they [the judges] have offended against the Constitution or laws of the country, why are they not i

nto the Executive cabinet"[242] was, said he, "a strong proof of the value of that Constitutional provision which makes them independent. They

tter?[244] The truth was that the Republicans were "to give notice to the judges of the Supreme Court of their fate, and to bid them to prepare for thei

had done that very thing.[247] He then spoke at great length on the nature of the American Judiciary as distinguished from that of British courts, gave a vivid account of the passage of the

dared to carry out their plans against the National Judiciary. "There are many now willing to spill their blood to defend that Constitution. Are gentlemen disposed to risk the consequences?... Let them con

either house and will have, indeed ... has already had more effect and influence on the public mind than all other publications on the subject."[250] The Washington Federalist pronou

is intense black eyes flaming with the passion of combat, his high and shrilling voice suggesting the scream of an eagle, John Randolph of Roanoke-that haughty, passionate, eccentric genius-personified the aggressive and ruthless Republicanism of the hour. He was clad in riding-coat and breeches, wore long ri

feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-a-pie as he was." Randolph sneered, as only he could sneer, at the unctu

course, be settled by reference to common-law definitions, but "does it follow that that indefinite and undefinable body of law is the irrepealable law of the land? The sense of a most important phrase, 'direct tax,' a

of Sir Walter Raleigh and Captain Smith, or that which was imported by Governor Oglethorpe?" Or was it that of some intermediate period? "I wish especially to know," asked Randolph, "whether the common law of libels which attaches to this

"apply the Constitutional corrective. That is the true check; every other is at variance with the principle that a free people are capable of self-government." Then the imperious

immediately responsible to the people, or to those who are irresponsible?... From whom is a corrupt decision most to be feared?... The power which has the right of passing, without appeal, on the validity of your laws, is your sovereign.... Are we not as deeply interested i

under criminal prosecution ... a subp?na to be served on the President, as a witness on the part of the prisoner.[257]... This court, which it seems,

soned and amerced, the courts will take care to see it executed; the helpless foreigner may, contrary to the express letter of your Constitution, b

ce the President himself to discharge his executive functions "in what mode" the omnipotent judges might choose to direct. And Congress! "For the amusement of th

ich judges of various courts had asserted the Federalist doctrine of the judicial power to decide statutes unc

stitution forbids, "who are to decide between the Constitution and the acts of Congress?... If the people ... [are] not shielded by some Constitutional checks" their liberties will be "destroyed .

mediately depreciate the value of public property. Who will buy your lands? Who will open your Western forests? Who will build upon the hills and cultivate the valleys which here surround us?" The fina

sold made null and void? Their nullifying law would have been declared void, had they had an independent Judici

eir sabres never to abandon it. But, sir, this constitution has vanished; the swords which were to have formed a rampart around it, are now worn by the Consular janissaries, and the Republican standards are among the trophies which decorate the vaulted roof

s common talk among the Federalists;[269] but now one of the boldest and frankest of their number broadly hinted it to be the Federalist purpose, should the Republicans persist in carrying out their purpose of demolishing the Nationa

y the Judiciary. "Have they ever sanctioned the principle that the judges should make laws for them instead of their Representatives?"[272] Tiresome as he was, h

e discussion. Samuel W. Dana of Connecticut examined it minutely, citing the action of the Supreme Court in the case of the application for a mandamus to the Secretary of War upon which the court acted February 14, 1794: "There does not appear to have been any question respecting the general power of the Supreme Court, to issue a ma

eme Court would annul it; for, said he, the Judiciary were sworn to support the Constitution, and when they find that instrument on one side and an act of Congress on the other, "what is their duty? Are they not to obey their oath, and judge accordingly? If so, they necessarily decide, that your act is o

right to prescribe, direct or control the acts of the other departments of the Government, than

he measure.[280] "Thus ended this gigantic debate," chronicles the historian of that event.[281] No discussion in Congress had hitherto been so widely reported in the press or excited such general comment. By the great majority of the people the repeal was received with enthusiasm, although some Republic

ution is no more," exclaimed the Washin

g Farewell, to a

if the bill had not passed. 'Tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it. By the judges this bill will be declared null and void.... And we now ask the mighty victors, what is your triumph?... What is the triumph of the President? He ha

nridge now bring forward a resolution to repeal the law establishing the Supreme Court of the United States, we should only co

hat the passage of the Republican Repeal Bill and

es are to be aliens and our Judges as independent as spaniels. In this way we are to save everything, but our

riumph of Republicanism, in the repeal of the late obnoxious judiciary law."[287] The

nternal Taxes-Judicial Sanctity-all are to be overset."[288] Sedgwick was sure that no defense was left agai

uld declare unconstitutional the Republican Repeal Act, a Senate committee was appointed to examine further the National Judiciary establishment and report a bill f

in December and June instead of February and August. This new bill, plainly an afterthought, abolished the June session of the Supreme Court, dir

n in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.[294] John Marshall shoul

s just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard. "The effect of the present bill

rise from any design ... to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to sup

anders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supre

ial system," he asserted; "that is but pretense.... It is to prevent that court from expressing their opinion upon the validity of the act lately passed ... until the act has gone into

Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Cou

Union. It is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extre

many expressions in Federalist papers such as this from the Boston Palladium of March 2, 1802: "Whether the rights and interests of the Eastern States would be perfectly s

, and rich, from the wild destroying rage of the southern Jacobins."[302] He thought the Federalists had neglected the press. "It is practicable," said he, "to rouse our sleepi

e will be-and our children at farthest will see it-a separation.... The British Province

he National courts. "The very able discussions of the Judiciary Question," he wrote, "& great superiority of the Federalists in all the debates & public writings have manife

es in Congress, with a passage here and there of the usual Federalist denunciation. For instance, the Columbian Centinel, after restating the argument against the Repeal Act, thought that this "refutes all the absurd doctrines of the Jacobins upo

thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing by the grace of God in the Washington Frigate-our judges are as at first and Mr. Jefferson has thought fit to practice the old navigation and steer with the same compass by which Admiral Washington regulate

ll John Marshall to the perf

TNO

in the chamber now occup

infra, c

rks: Ford, ix, 321 et seq.; also Messages and

ng., partly quoted in Beard: Economic O

xposition of Constitutional l

ng, Dec. 20, 180

Ames was soon to abandon his Nationalism and become one of the leaders of

, 531, 547-48, 55

f Samuel Maclay

, 1st Cong.

] Ib

Ib.

Ib.

lay's Jou

nry, Sept. 29, 1789

1791, Life and Correspondence

i, 552-53, o

Jan. 2, 1801, Jay:

st Cong. 2d and

Jackson and Mathews with great difficulty landed at Cape May and traveled one hundred and sixty miles in a wagon to the city; Burke got here in the same way. Gerry and Partridge were overset in the stage; the fir

Senator Giles was thrown from a carriage, his leg f

ent of requiring only one Justice of the Supreme Court to hold circuit court with the District Judge; but th

the defects of the original Judiciary Act, and of

1st Sess. 172; of Chipman, ib. 123; of Tracy,

in the appeals to the Circuit Bench; but the ultimate ap

every essential feature of it. (See "Act to establish circuit courts of appeals and to define and regulate in certain cases the j

e to be $137,000. (Annals, 7th Cong. 1st. Sess. 30.) See especial

slature of that State. It was Breckenridge who had led the fight for them. At the time of the judiciary debate he was Jeffer

the newly established National courts would conflict with the system of State courts which t

; Works: Ford, ix, 247), Breckenridge relied upon that most fruitful of Republican intellects, John Taylor "of Caroline," the originator of

ng. 1st Sess. 31-46,

, 7th Cong.

] Ib

] Ib

idge, Jan. 15, 1802, Bre

nfra, chaps

7th Cong. 1s

, 7th Cong.

e the Republicans an opportunity of unlimited de

7th Cong. 1s

s not common for that House." He prepared his speech for the p

, 7th Cong.

eral times during the debate. It is plain that the Republicans expected Marshall to award the mandamus, and if he did, to charge this as another act of judicial aggression

ut by -- you have made me your friend." Colhoun said that he "had been told a thousand lies" about the Federalist Judiciary Act, particularly the manner of passing it, and he had, therefore, been in favor of repealing it. But Tracy had convinced him, and Colhoun declared: "I shall be with you on the ques

Colhoun, and not Calhoun, as given in so many biographical s

irginia Convention o

the Senate was then considering. The publication of the treaty raised a storm of public wrath against that compact. (Se

, 7th Cong.

damus should not be issued by the court ordering him to deliver to Marbury and his associates commissio

, 7th Cong.

, 7th Cong.

inia Senator elicited the admiration of even the rabidly Federa

] Ib

] Ib

, 7th Cong.

Ib.

, 7th Cong.

Senate resolved "to admit a short-hand writer to their floo

anuary

, 7th Cong.

, 7th Cong.

tion. (Dallas to Burr, Feb. 3, 1802, Davis: Memoirs of Aaron Burr, ii, 82.) Nathaniel Niles, a rampant Republican, sent Burr a letter thanking him for his vote. As a Republican, he wanted his party to be fair, he said. (Niles to Bu

7th Cong. 1s

pendix A to

, 7th Cong.

] Ib

reckenridge began to speak; it must have been well

] Ib

] Ib

, 7th Cong.

ing, April 9, 18

n. 25, 1802, Papers of Jame

South Carolina, converte

, 7th Cong.

al Senators have made to preserve the Constitution, has been manly and glorious. They have immortalized their names, wh

7th Cong. 1s

Ib.

vol. ii,

on Federalist,

n North Carolina

7th Cong. 1s

e infra,

, 7th Cong.

7th Cong. 1s

] Ib

] Ib

e infra,

Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut (ib. 727-34); John Sta

, 7th Cong.

t debater of the age." His speech on the Repeal Act, Grigsby declares to have been "b

nderson

See su

ry debate was of greater consequence than those historic controversies over Assumption, the Whiskey Rebellion, the Bank, Neutrality, the Jay Trea

, 7th Cong.

ater: Story to Fay, Feb. 13, 1808, Story, i, 1

. It is an interesting though trivial incident that Giles bore to Madison a letter of introduction from Marshall. Evidently the circumspect Richmo

7th Cong. 1s

, 7th Cong.

] Ib

e supra,

chap. iii). For Giles's great speech s

a man of integrity and honor.... He is very fond of pleasure ... a married man but fond of wine, women and cards. He drinks more than a bottle of wine each day.... He lives too

, 7th Cong.

] Ib

] Ib

] Ib

] Ib

, 7th Cong.

f 1789 and the excellence of the Judiciary Act of 1801 (Annals, 7

] Ib

e infra,

e high degree of Governor of the Mississippi Territory"; that Mr. Linn of New Jersey, upon whom both parties depended, finally cast his deciding vote in favor of Jefferson and "Mr. Linn has since had the profitable office of supervisor of his district conferred upon him"; and that Mr. Lyon of Vermont

7th Cong. 1s

rit that led the New England Federalist leaders into their futile secession

April 10, 1802; Bayar

on Federalist,

alents than any other member of his party." (Plumer to Emery, Plumer, 248.) See also Plumer's letter to his son, Feb. 22, 1803, in which the New Hampshire Senator says that "Randolph goes to the House booted and spurred, with his whip in his hand, in im

e infra, chaps. iv and x), is difficult to realize at the present day. Nothing like it has since been experienced, excepting only

on Federalist,

7th Cong. 1s

, 7th Cong.

Randolph was now denouncing the National court before which Cooper was tried, because it refused to grant the very writ for the is

n he apparently had no idea that Section 13 of the Ellswo

7th Cong. 1s

. "The speech of Mr. Randolph was a jumble of disconnected declamation.... He was horribly

, 7th Cong.

ee also vol. i,

7th Cong. 1s

] Ib

] Ib

e infra,

, 7th Cong.

] Ib

nfra, chaps

7th Cong. 1s

] Ib

Ib.

self-respect, and at headquarters [White House] there is such an abandonment of manner and such a pruriency

, 7th Cong.

to issue writs of mandamus. Neither Federalists nor Republicans had ever questioned the Constitutional right of the Supreme Court to entertain original

, 7th Cong.

Ib.

supra, c

, 7th Cong.

ildreth

n, 150; and see Annals, 7th Cong. 1st Sess. 982. One Republi

Commenced 7th Dec. 1801 (taken fr

fe of Thomas Jef

urately the views of Federalist public men in the Capital, including Marshall, whose partisan views and feelings were intense. It

m, March 1, 1802, Pl

arch 12

arch 23

arch 15

to King, April 5,

to King, Feb. 2

ght, April 16, 18

, 7th Cong.

] Ib

] Ib

They were appointed, but the swift action of Jefferson and the Repub

in December, 1801, and, ordinarily, would h

7th Cong. 1st

7th Cong. 1s

Ib. 12

7th Cong. 1st

ee also Channing,

l. ii, 62, o

re, Dec. 13, 180

sentiment: "The second French and first American Revolution is now commencing.... The extinction of Federa

, Dec. 24, 1803, New-Engl

ing, March 27, 1

an Centinel,

erson's amazing skill in directing public opinion is found in the fact that the pe