The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

Certain State judges of the rabid Federalist type, apostles of "the wise, the rich, and the good" political religion, were as insulting in their bearing, as immoderate in their speech, and as intolerant in their conduct as some of the National judges; and prosecutions in some State courts were as bad as the worst of those in the National tribunals.

In Boston, when the Legislature of Massachusetts was considering the Kentucky and Virginia Resolutions, John Bacon of Berkshire, a Republican State Senator, and Dr. Aaron Hill of Cambridge, the leader of the Republicans in the House, resisted the proposed answer of the Federalist majority. Both maintained the ground upon which Republicans everywhere now stood – that any State might disregard an act of Congress which it deemed unconstitutional.[134 - See speech of Bacon in the Independent Chronicle, Feb. 11-14, 1799; and of Hill, ib. Feb. 25, 1799.] Bacon and Hill were supported by the solid Republican membership of the Massachusetts Legislature, which the Columbian Centinel of Boston, a Federalist organ, called a "contemptible minority," every member of which was "worse than an infidel."[135 - Columbian Centinel, Feb. 16, 1799; also see issue of Jan. 23, 1799. For condensed account of this incident see Anderson in Am. Hist. Rev. v, 60-62, quoting the Centinel as cited. A Federalist mob stoned the house of Dr. Hill the night after he made this speech. (Ib.) See also infra, chap. iii.]

The Independent Chronicle, the Republican newspaper of Boston, observed that "It is difficult for the common capacities to conceive of a sovereignty so situated that the Sovereign shall have no right to decide on any invasion of his constitutional powers." Bacon's speech, said the Chronicle, "has been read with delight by all true Republicans, and will always stand as a monument of his firmness, patriotism, and integrity… The name of an American Bacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed a death wound to the Constitution of the United States will rot above ground and be unsavoury to the nostrils of every lover of Republican freedom."[136 - Independent Chronicle, Feb. 18, 1799.]

The Massachusetts Mercury of February 22, 1799, reports that "On Tuesday last … Chief Justice Dana … commented on the contents of the Independent Chronicle of the preceding day. He properly stated to the Jury that though he was not a subscriber to the paper, he obtained that one by accident, that if he was, his conscience would charge him with assisting to support a traitorous enmity to the Government of his Country."

Thereupon Thomas Adams, the publisher, and Abijah Adams, a younger brother employed in the office, were indicted under the common law for attempting "to bring the government into disrespect, hatred, and contempt," and for encouraging sedition. Thomas Adams was fatally ill and Abijah only was brought to trial. Under the instructions of the court he was convicted. In pronouncing sentence Chief Justice Dana delivered a political lecture.

The Virginia and Kentucky Resolutions, he said, had attempted "to establish the monstrous position" that the individual States had the right to pass upon the constitutionality of acts of Congress. He then gave a résumé of the reply of the majority of the Massachusetts Legislature to the Virginia Resolutions. This reply asserted that the decisions of all questions arising under the Constitution and laws of the United States "are exclusively vested in the Judicial Courts of the United States," and that the Sedition Act was "wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine the whole fabric of government." The irate judge declared that the Chronicle's criticism of this action of the majority of the Legislature and its praise of the Republican minority of that body was an "indecent and outrageous calumny."

"Censurable as the libel may be in itself," Dana continued, the principles stated by Adams's counsel in conducting his defense were equally "dangerous to public tranquility." These daring lawyers had actually maintained the principle of the liberty of the press. They had denied that an American citizen could be punished under the common law of England. "Novel and disorganizing doctrines," exclaimed Dana in the midst of a long argument to prove that the common law was operative in the United States.[137 - Columbian Centinel, March 30, 1799. The attorneys for Adams also advanced the doctrines of the Kentucky and Virginia Resolutions, so far, at least, as to assert that any State ought to protest against and resist any act of Congress that the Commonwealth believed to be in violation of the National Constitution. (Anderson, in Am. Hist. Rev. v, 226-27.)]

In view of the fact that Abijah Adams was not the author of the libel, nor even the publisher or editor of the Chronicle, but was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month's imprisonment, but required him to find sureties for his good behavior for a year, and to pay the costs of the trial.[138 - Columbian Centinel, March 27, 1799.Another instance of intolerant and partisan prosecutions in State courts was the case of Duane and others, indicted and tried for getting signatures to a petition in Congress against the Alien and Sedition Laws. They were acquitted, however. (Wharton: State Trials, 345-89.)]

Alexander Addison, the presiding judge of one of the Pennsylvania State courts, was another Federalist State judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into disrepute. Some of his charges to grand juries were nothing but denunciations of Republican principles.[139 - These charges of Judge Addison were, in reality, political pamphlets. They had not the least reference to any business before the court, and were no more appropriate than sermons. They were, however, written with uncommon ability. It is doubtful whether any arguments more weighty have since been produced against what George Cabot called "excessive democracy." These grand jury charges of Addison were entitled: "Causes and Error of Complaints and Jealousy of the Administration of the Government"; "Charges to the Grand Juries of the County Court of the Fifth Circuit of the State of Pennsylvania, at December Session, 1798"; "The Liberty of Speech and of the Press"; "Charge to Grand Juries, 1798"; "Rise and Progress of Revolution," and "A Charge to the Grand Juries of the State of Pennsylvania, at December Session, 1800."]

His manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. In one case,[140 - Coulter vs. Moore, for defamation. Coulter, a justice of the peace, sued Moore for having declared, in effect, that Coulter "kept a house of ill fame." (Trial of Alexander Addison, Esq.: Lloyd, stenographer, 38; also Wharton: State Trials, 32 et seq.)] Addison forbade the Associate Judge to address the jury, and prevented him from doing so.[141 - This judge was John C. B. Lucas. He was a Frenchman speaking broken English, and, judging from the record, was a person of very inferior ability. There seems to be no doubt that he was the mere tool of another judge, Hugh H. Brackenridge, who hated Addison virulently. From a study of the case, one cannot be surprised that the able and erudite Addison held in greatest contempt the fussy and ignorant Lucas.]

Nor did the judges stop with lecturing everybody from the bench. Carrying with them the authority of their exalted positions, more than one of them, notably Justice Chase and Judge Addison, took the stump in political campaigns and made partisan speeches.[142 - Wharton: State Trials, 45; Carson: Supreme Court of the United States, Its History, i, 193.]

So it fell out that the manners, language, and conduct of the judges themselves, together with their use of the bench as a political rostrum, their partisanship as to the European belligerents, their merciless enforcement of the common law – aroused that public fear and hatred of the courts which gave Jefferson and the Republicans their opportunity. The questions which lay at the root of the Republican assault upon the Judiciary would not of themselves, and without the human and dramatic incidents of which the cases mentioned are examples, have wrought up among citizens that fighting spirit essential to a successful onslaught upon the National system of justice, which the Federalists had made so completely their own.[143 - The uprising against the Judiciary naturally began in Pennsylvania where the extravagance of the judges had been carried to the most picturesque as well as obnoxious extremes. For a faithful narrative of these see McMaster: U.S. iii, 153-55.On the other hand, wherever Republicans occupied judicial positions, the voice from the bench, while contrary to that of the Federalist judges, was no less harsh and absolute.For instance, the judges of the Supreme Court of New Hampshire refused to listen to the reading of British law reports, because they were from "musty, old, worm-eaten books." One of the judges declared that "not Common Law – not the quirks of Coke and Blackstone – but common sense" controlled American judges. (Warren, 227.)]

Those basic questions thus brought theatrically before the people's eyes, had been created by the Alien and Sedition Laws, and by the Virginia and Kentucky Resolutions which those undemocratic statutes called forth. Freedom of speech on the one hand and Nationalism on the other hand, the crushing of "sedition" as against that license which Localism permitted – such were the issues which the imprudence and hot-headedness of the Federalist judges had brought up for settlement. Thus, unhappily, democracy marched arm in arm with State Rights, while Nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism.

Had not the Federalists, arrogant with power and frantic with hatred of France and fast becoming zealots in their championship of Great Britain, passed the drastic laws against liberty of the press and freedom of speech; had not the Republican protest against these statutes taken the form of the assertion that individual States might declare unconstitutional and disregard the acts of the National Legislature; and finally, had not National tribunals and some judges of State courts been so harsh and insolent, the Republican assault upon the National Judiciary,[144 - See next chapter.] the echoes of which loudly sound in our ears even to the present day, probably never would have been made.

But for these things, Marbury vs. Madison[145 - See infra, chap. iii, for a résumé of the conditions that forced Marshall to pronounce his famous opinion in the case of Marbury vs. Madison, as well as for a full discussion of that controversy.] might never have been written; the Supreme Court might have remained nothing more than the comparatively powerless institution that ultimate appellate judicial establishments are in other countries; and the career of John Marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. But the Republican condemnations of the severe punishment that the Federalists inflicted upon anybody who criticized the Government, raised fundamental issues and created conditions that forced action on those issues.

CHAPTER II

THE ASSAULT ON THE JUDICIARY

The angels of destruction are making haste. Our judges are to be as independent as spaniels. (Fisher Ames.)

The power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. (John Randolph.)

On January 6, 1802, an atmosphere of intense but suppressed excitement pervaded the little semi-circular room where the Senate of the United States was in session.[146 - The Senate then met in the chamber now occupied by the Supreme Court.] The Republican assault upon the Judiciary was 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 was to create a situation which, in a few months, forced John Marshall to pronounce the first of those fundamental opinions which have helped to shape and which still influence the destiny of the American Nation.

The decision of Marbury vs. Madison was to be made inevitable by the great controversy to which we are now to listen. Marshall's course, and, indeed, his opinion in this famous case, cannot be understood without a thorough knowledge of the notable debate in Congress which immediately preceded it.[147 - See infra, chap. iii.]

Never was the effect of the long years of party training which Jefferson had given the Republicans better manifested than now. There was unsparing party discipline, perfect harmony of party plan. The 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 Federalist voters, whom Jefferson hoped to win to the Republican cause in the years to come, were soothed rather than irritated by the seeming moderation and reasonableness of the President's words.

"The Judiciary system … and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress," was the almost casual reference in the President's first Message to the Republican purpose 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 exact statement of all the causes decided since the first establishment of the courts and of the causes which were pending when additional courts and judges were brought to their aid." This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the President suggested Congressional inquiry as to whether jury trials had not been withheld in many cases, and advised the investigation of the manner of impaneling juries.[148 - Jefferson to Congress, Dec. 8, 1801, Works: Ford, ix, 321 et seq.; also Messages and Papers of the Presidents: Richardson, i, 331.]

Thus far and no farther went the comments on the National Judiciary which the President laid before Congress. The status of the courts – a question that filled the minds of all, both Federalists and Republicans – was not referred to. But the thought of it thrilled Jefferson, and only his caution restrained 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 of any other department"; had asserted that he himself, as President, had the authority and power to decide the constitutionality of National laws; and had, as President, actually pronounced, in official form, the Sedition Act to be "in palpable and unqualified contradiction to the Constitution."[149 - Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: Economic Origins of Jeffersonian Democracy, 454-55.]

This was not merely a part of a first rough draft of this Presidential document, nor was it lightly cast aside. It was the most important paragraph of the completed Message. Jefferson had signed it on December 8, 1801, and it was ready for transmission to the National Legislature. But just before sending the Message to the Capitol, he struck out this passage,[150 - For full text of this exposition of Constitutional law by Jefferson see Appendix A.] and thus notes on the margin of the draft his reason for doing so: "This whole paragraph was omitted as capable of being chicaned, and furnishing something to the opposition to make a handle of. It was thought better that the message should be clear of everything which the public might be made to misunderstand."

Although Jefferson's programme, as stated in the altered message which he finally sent to Congress, did not arouse the rank and file of Federalist voters, it did alarm and anger the Federalist chieftains, 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; economy, the patriotism of the shallow and the trick of the ambitious… The U. S. Gov't … is to be dismantled like an old ship… The state gov'ts are to be exhibited as alone safe and salutary."[151 - Ames to King, Dec. 20, 1801, King, iv, 40.Like most eminent Federalists, except Marshall, Hamilton, and Cabot, Fisher Ames was soon to abandon his Nationalism and become one of the leaders of the secession movement in New England. (See vol. iv, chap. i, of this work.)]

The Judiciary Law of 1801, which the Federalist majority enacted before their power over legislation passed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party.[152 - See vol. ii, 531, 547-48, 550-52, of this work.] 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 of 1789, which has received so much undeserved praise, did not entirely satisfy anybody except its author, Oliver Ellsworth. "It is a child of his and he defends it … with wrath and anger," wrote Maclay in his diary.[153 - Journal of Samuel Maclay: Meginness, 90.]

In the first Congress opposition to the Ellsworth Act had been sharp and determined. Elbridge Gerry denounced the proposed National Judiciary as "a tyranny."[154 - Annals, 1st Cong. 1st Sess. 862.] Samuel Livermore of New Hampshire called it "this new fangled system" which "would … swallow up the State Courts."[155 - Ib. 852.] James Jackson of Georgia declared that National courts would cruelly harass "the poor man."[156 - Ib. 833-34.] Thomas Sumter of South Carolina saw in the Judiciary Bill "the iron hand of power."[157 - Ib. 864-65.] Maclay feared that it would be "the gunpowder plot of the Constitution."[158 - Maclay's Journal, 98.]

When the Ellsworth Bill had become a law, Senator William Grayson of Virginia advised Patrick Henry that it "wears so monstrous an appearance that I 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 end procure its destruction"[159 - Grayson to Henry, Sept. 29, 1789, Tyler, i, 170-71.]– a prediction that came near fulfillment and probably would have been realized but for the courage of John Marshall.

While Grayson's eager prophecy did not come to pass, the Judiciary Act of 1789 worked so badly that it was a source of discontent to bench, bar, 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 his time, condemned the Ellsworth Act as "so defective … that … it would disgrace the composition of the meanest legislature of the States."[160 - Davie to Iredell, Aug. 2, 1791, Life and Correspondence of James Iredell: McRee, ii, 335.]

It was, as we have seen,[161 - Vol. ii, 552-53, of this work.] because of the deficiencies of the original Judiciary Law that Jay refused reappointment as Chief Justice. "I left the bench," he 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 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."[162 - Jay to Adams, Jan. 2, 1801, Jay: Johnston, iv, 285.]

The six Justices of the Supreme Court were required to hold circuit courts in pairs, together with the judge of the district in which the court was held. Each circuit was to be thus served twice every year, and the Supreme Court was to hold two sessions annually in Washington.[163 - Annals, 1st Cong. 2d and 3d Sess. 2239.] So great were the distances between places where courts were held, so laborious, slow, and dangerous was all travel,[164 - See vol. i, chap. vi, of this work. The conditions of travel are well illustrated by the experiences of six members of Congress, when journeying to Philadelphia in 1790. "Burke was shipwrecked off the Capes; 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 first had his head broke, … the other had his ribs sadly bruised… Tucker had a dreadful passage of sixteen days with perpetual storms." (Letter of William Smith, as quoted by Johnson: Union and Democracy, 105-06.)On his way to Washington from Amelia County in 1805, Senator Giles was thrown from a carriage, his leg fractured and his knee badly injured. (Anderson, 101.)] that the Justices – men of ripe age and studious habits – spent a large part of each year upon the road.[165 - This arrangement proved to be so difficult and vexatious that in 1792 Congress corrected it to the extent of requiring only one Justice of the Supreme Court to hold circuit court with the District Judge; but this slight relief did not reach the serious shortcomings of the law. (Annals, 2d Cong. 1st and 2d Sess. 1447.)See Adams: U.S. i, 274 et seq., for good summary of the defects of the original Judiciary Act, and of the improvements made by the Federalist Law of 1801.] Sometimes a storm would delay them, and litigants with their assembled lawyers and witnesses would have to postpone the trial for another year or await, at the expense of time and money, the arrival of the belated Justices.[166 - See statement of Ogden, Annals, 7th Cong. 1st Sess. 172; of Chipman, ib. 123; of Tracy, ib. 52; of Griswold, ib. 768; of Huger, ib. 672.]

A graver defect of the act was that the Justices, sitting together as the Supreme Court, heard on appeal the same causes which they had decided on the Circuit Bench. Thus, in effect, they were trial and appellate judges in identical controversies. Moreover, by the rotation in riding circuits different judges frequently heard the same causes in their various stages, so that uniformity of practice, and even of decisions, was made impossible.

The admirable Judiciary Act, passed by the Federalists in 1801, corrected these defects. The membership of the Supreme Court was reduced to five after the next vacancy, the Justices were relieved of the heavy burden of holding circuit courts, and their duties were 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 Supreme Court had formerly done. Thus the prompt and regular sessions of the circuit courts were assured. The appeal from decisions rendered by the Supreme Court Justices, sitting as circuit judges, to the same men sitting as appellate judges, was done away with.[167 - Of course, to some extent this evil still continued in the appeals to the Circuit Bench; but the ultimate appeal was before judges who had taken no part in the cause.The soundness of the Federalist Judiciary Act of 1801 was demonstrated almost a century later, in 1891-95, when Congress reënacted every essential feature of it. (See "Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," March 3, 1891, chap. 517, amended Feb. 18, 1895, chap. 96.)]

In establishing these new circuits and creating these circuit judges, this excellent Federalist law gave Adams the opportunity to fill the offices thus created with stanch Federalist 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 system, amounted to more than fifty thousand dollars every year – a sum which the Republicans exaggerated in their appeals to the people and even in their arguments in Congress.[168 - For example, Senator Cocke of Tennessee asserted the expense to be $137,000. (Annals, 7th Cong. 1st. Sess. 30.) See especially Prof. Farrand's conclusive article in Am. Hist. Rev. v, 682-86.]

Chiefly on the pretext of this alleged extravagance, but in reality to oust the newly appointed Federalist judges and intimidate the entire National Judiciary, the Republicans, led by Jefferson, determined to repeal the Federalist Judiciary Act of 1801, upon the faith in the passage of which John Marshall, with misgiving, had accepted the office of Chief Justice.

On January 6, 1802, Senator John Breckenridge of Kentucky pulled the lanyard that fired the opening gun.[169 - It was to Breckenridge that Jefferson had entrusted the introduction of the Kentucky Resolutions of 1798 into the Legislature of that State. It was Breckenridge who had led the fight for them. At the time of the judiciary debate he was Jefferson's spokesman in the Senate; and later, at the President's earnest request, resigned as Senator to become Attorney-General.] He was the personification of anti-Nationalism and aggressive democracy. He moved the repeal of the Federalist National Judiciary Act of 1801.[170 - Breckenridge's constituents insisted that the law be repealed, because they feared that the newly established National courts would conflict with the system of State courts which the Legislature of Kentucky had just established. (See Carpenter, Am. Pol. Sci. Rev. ix, 523.)Although the repeal had been determined upon by Jefferson almost immediately after his inauguration (see Jefferson to Stuart, April 8, 1801; Works: Ford, ix, 247), Breckenridge relied upon that most fruitful of Republican intellects, John Taylor "of Caroline," the originator of the Kentucky Resolutions (see vol. ii, 397, of this work) for his arguments. See Taylor to Breckenridge, Dec. 22, 1801, infra, Appendix B.] Every member of Senate and House – Republican and Federalist – was uplifted or depressed by the vital importance of the issue thus brought to a head; and in the debate which followed no words were too extreme to express their consciousness of the gravity of the occasion.[171 - Annals, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530.]

In opening the debate, Senator Breckenridge confined himself closely to the point that the new Federalist judges were superfluous. "Could it be necessary," he challenged the Federalists, "to increase courts when suits were decreasing? … to multiply judges, when their duties were diminishing?" No! "The time never will arrive when America will stand in need of thirty-eight Federal Judges."[172 - Annals, 7th Cong. 1st Sess. 26.] The Federalist Judiciary Law was "a wanton waste of the public treasure."[173 - Ib. 25.] Moreover, the fathers never intended to commit to National judges "subjects of litigation which … could be left to State Courts." Answering the Federalist contention that the Constitution guaranteed to National judges tenure of office during "good behavior" and that, therefore, the offices once established could not be destroyed by Congress, the Kentucky Senator observed that "sinecure offices, … are not permitted by our laws or Constitution."[174 - Ib. 28.]

James Monroe, then in Richmond, hastened to inform Breckenridge that "your argument … is highly approved here." But, anxiously inquired that foggy Republican, "Do you mean to admit that the legislature [Congress] has not a right to repeal the law organizing the supreme court for the express 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 application of the principles of the English common law to our constitution," would be considered "good cause for impeachment."[175 - Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib. Cong.] Thus early was expressed the Republican plan to impeach and remove Marshall and the entire Federal membership of the Supreme Court so soon to be attempted.[176 - See infra, chaps. iii and iv.]

In reply to Breckenridge, Senator Jonathan Mason of Massachusetts, an accomplished Boston lawyer, promptly brought forward the question in the minds of Congress and the country. "This," said he, "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 duty "to expound not only the laws, but the Constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the Constitution."[177 - Annals, 7th Cong. 1st Sess. 31-32.]

The old system which the Republicans would now revive was intolerable, declared Senator Gouverneur Morris of New York. "Cast an eye over the extent of our country" and reflect that 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 be "a declaration to the remaining judges that they hold their offices subject to your [Congress's] will and pleasure." Thus "the check established by the Constitution is destroyed."

Morris expounded the conservative Federalist philosophy thus: "Governments are made to provide against the follies and vices of men… Hence, checks are required in the distribution 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 necessity, to prevent an invasion of the Constitution by unconstitutional laws – a check which might prevent any faction from intimidating or annihilating the tribunals themselves."[178 - Annals, 7th Cong. 1st Sess. 38.]

Let the Republican Senators consider where their course would end, he warned. "What has been the ruin of every Republic? The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save them from themselves."[179 - This unfortunate declaration of Morris gave the Republicans an opportunity of unlimited demagogic appeal. See infra. (Italics the author's.)] Do not, he besought, "commit the fate of America to the mercy of time and chance."[180 - Annals, 7th Cong. 1st Sess. 40-41.Morris spoke for an hour. There was a "large audience, which is not common for that House." He prepared his speech for the press. (Diary and Letters of Gouverneur Morris: Morris, ii, 417.)]

"Good God!" exclaimed Senator James Jackson of Georgia, "is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia.[181 - Annals, 7th Cong. 1st Sess. 49.]… 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" that the terrorism of the National Judiciary was, at last, overthrown. "That we are not under dread of the patronage of judges, is manifest, from their attack on the Secretary of State."[182 - Ib. 47-48. Senator Jackson here refers to the case of Marbury vs. Madison, then pending before the Supreme Court. (See infra, chap. iii.) This case was mentioned several 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 for which, if the plans already decided upon did not miscarry, they would make the new Chief Justice suffer removal from his office by impeachment. (See infra, chap. iv.)]

Senator Uriah Tracy of Connecticut was so concerned that he spoke in spite of serious illness. "What security is there to an individual," 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 "an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void."[183 - Annals, 7th Cong. 1st Sess. 58. Tracy's speech performed the miracle of making one convert. After he closed he was standing before the glowing fireplace, "half dead with his exertions." Senator Colhoun of South Carolina came to Tracy, and giving him his hand, said: "You are a stranger to me, sir, but 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 question." "May we depend upon you?" asked Tracy, wringing the South Carolina Senator's hand. "By – you may," was the response. (Morison: Life of the Hon. Jeremiah Smith, footnote to 147.) Colhoun kept his word and voted with the Federalists against his party's pet measure. (Annals, 7th Cong. 1st Sess. 185.)The correct spelling of this South Carolina Senator's name is Colhoun, and not Calhoun, as given in so many biographical sketches of him. (See South Carolina Magazine for July, 1906.)]

That typical Virginian, Senator Stevens Thompson Mason, able, bold, and impetuous, now took up Gouverneur Morris's gage of battle. He was one of the most fearless and capable men in the Republican 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 wide mouth with lips sternly compressed, high, broad forehead, and dark hair, thrown back from his brow. Mason had "wonderful powers of sarcasm" which he employed to the utmost in this debate.[184 - See Grigsby: Virginia Convention of 1788, ii, 260-262.This was the same Senator who, in violation of the rules of the Senate, gave to the press a copy of the Jay Treaty which the Senate was then considering. The publication of the treaty raised a storm of public wrath against that compact. (See vol. ii, 115, of this work.) Senator Mason's action was the first occurrence in our history of a treaty thus divulged.]

It was true, he said, in beginning his address, that the Judiciary should be independent, but not "independent of the nation itself." Certainly the Judiciary had not Constitutional authority "to control the other departments of the Government."[185 - Annals, 7th Cong. 1st Sess. 59.] Mason 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 mandamus, lately[186 - In that case Marshall had issued a rule to the Secretary of State to show cause why a writ of mandamus should not be issued by the court ordering him to deliver to Marbury and his associates commissions as justices of the peace, to which offices President Adams had appointed them. (See infra, chap. iii.)] before the Supreme Court? Was it not there said [in argument of counsel] that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years?"[187 - Annals, 7th Cong. 1st Sess. 61.]

The true principle, Mason declared, was that judicial offices like all others "are made for the good of the people and not for that of the individual who administers them." Even Judges of the Supreme Court should do something to earn their salaries; but under the Federalist Judiciary Act of 1801 "what have they got to do? To try ten suits, [annually] for such is the number now on their docket."

Mason now departed slightly from the Republican programme of ignoring the favorite Federalist theory that the Judiciary has the power to decide the constitutionality of statutes. He fears 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 the other, and say to the departments of Government, so far shall you go and no farther." He is alarmed lest "this independence of the Judiciary" shall become "something like supremacy."[188 - Annals, 7th Cong. 1st Sess. 63.]