The Life of John Marshall Volume III Part 7

To a.s.sist Senators and Representatives in determining "the proportion which the inst.i.tution 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]

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 a.s.serted that he himself, as President, had the authority and power to decide the const.i.tutionality of National laws; and had, as President, actually p.r.o.nounced, in official form, the Sedition Act to be "in palpable and unqualified contradiction to the Const.i.tution."[149]

This was not merely a part of a first rough draft of this Presidential doc.u.ment, 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 pa.s.sage,[150] 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]

The Judiciary Law of 1801, which the Federalist majority enacted before their power over legislation pa.s.sed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party.[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 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]

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] Samuel Livermore of 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 hara.s.s "the poor man."[156] Thomas Sumter of South Carolina saw in the Judiciary Bill "the iron hand of power."[157] Maclay feared that it would be "the gunpowder plot of the Const.i.tution."[158]

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]--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 pa.s.s, 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 Const.i.tution 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]

It was, as we have seen,[161] 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]

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]

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 upon the road.[165] Sometimes a storm would delay them, and litigants with their a.s.sembled 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]

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, pa.s.sed 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 a.s.sured.

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]

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]

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 pa.s.sage 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] He was the personification of anti-Nationalism and aggressive democracy. 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 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]

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] 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 Federalist contention that the Const.i.tution 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 Const.i.tution."[174]

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 const.i.tution," would be considered "good cause for impeachment."[175] 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]

In reply to Breckenridge, Senator Jonathan Mason of Ma.s.sachusetts, 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 Const.i.tution also; in which is involved the power of checking the Legislature in case it should pa.s.s any laws in violation of the Const.i.tution."[177]

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 Const.i.tution is destroyed."

[Ill.u.s.tration]

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 Const.i.tution by unconst.i.tutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves."[178]

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] Do not, he besought, "commit the fate of America to the mercy of time and chance."[180]

"Good G.o.d!" 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]... 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 G.o.d" 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]

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 pa.s.s 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 unconst.i.tutional and void."[183]

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]

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 Const.i.tutional authority "to control the other departments of the Government."[185] 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] 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]

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 const.i.tutionality 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 Const.i.tution 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]

Seldom in parliamentary contests has sarcasm, always a doubtful weapon, been employed with finer art than it was by Mason against Morris at this time. The Federalists, in the enactment of the Judiciary Act of 1801, had abolished two district courts--the very thing for which the Republicans were now a.s.sailed by the Federalists as destroyers of the Const.i.tution. Where was Morris, asked Mason, when his friends had committed that sacrilege? "Where was the _Ajax Telamon_ of his party" at that hour of fate? "Where was the hero with his seven-fold shield--not of bull's hide, but of bra.s.s--prepared to prevent or to punish this Trojan rape?"[189]

Morris replied lamely. He had been criticized, he complained, for pointing out "the dangers to which popular governments are exposed, from the influence of designing demagogues upon popular pa.s.sion." Yet "'tis for these purposes that all our Const.i.tutional checks are devised."

Otherwise "the Const.i.tution is all nonsense." He enumerated the Const.i.tutional limitations and exclaimed, "Why all these multiplied precautions, unless to check and control that impetuous spirit ... which has swept away every popular Government that ever existed?"[190]

Should all else fail, "the Const.i.tution has given us ... an independent judiciary" which, if "you trench upon the rights of your fellow citizens, by pa.s.sing an unconst.i.tutional law ... will stop you short."

Preserve the Judiciary in its vigor, and in great controversies where the pa.s.sions of the mult.i.tude are aroused, "instead of a resort to arms, there will be a happier appeal to argument."[191]

Answering Mason's fears that the Supreme Court, "having little else to do, would do mischief," Morris avowed that he should "rejoice in that mischief," if it checked "the Legislative 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 being, which exists nowhere and everywhere. But if ever the occasion calls for it, I trust the Supreme Court will not neglect doing the great mischief of saving this Const.i.tution."[192]

His emotions wrought to the point of oratorical ecstasy, Morris now made an appeal to "the good sense, patriotism, and ... virtue" of the Republic, in the course of which he became badly entangled in his metaphors. "Do not," he pleaded, "rely 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 harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compa.s.s and your charts into the ocean. Do not believe that its billows will waft you into port. Indeed, indeed, you will be deceived.

"Cast not away this only anchor of our safety. I have seen its progress.

I know the difficulties through which it was obtained. I stand in the presence of Almighty G.o.d, and of the world; and I declare to you, that if you lose this charter, never, no, never will you get another! We are now, perhaps, arrived at the parting point. Here, even here, we stand on the brink of fate. Pause--Pause! For Heaven's sake, pause!"[193]

Senator Breckenridge would not "pause." The "progress" of Senator Morris's "anchor," indeed, dragged him again to "the brink of fate." The Senate had "wandered long enough" with the Federalist Senators "in 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 sarcasm, discussed all the points raised by the Federalist Senators except their favorite one of the power of the National Judiciary to declare acts of Congress unconst.i.tutional. This he carefully avoided.[194]

On January 15, 1802, the new Vice-President of the United States, Aaron Burr, first took the chair as presiding officer of the Senate.[195]

Within two weeks[196] an incident happened which, though seemingly trivial, was powerfully and dramatically to affect the course of political events that finally encompa.s.sed the ruin of the reputation, career, and fortune of many men.

Senator Jonathan Dayton of New Jersey, in order, as he claimed, to make the measure less objectionable, moved that "the bill be referred to a select committee, with instructions to consider and report the alterations which may be proper in the judiciary system 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 provisions of the bill, that it might be rendered more acceptable to the Senate." But he was careful to warn them that he would "discountenance, by his vote, any attempt, if any such should be made, that might, in an indirect way, go to defeat the bill."[198]

Five days later, one more Republican Senator, being present, and one Federalist Senator, being absent, the committee was discharged on motion of Senator Breckenridge; and the debate continued, the Federalists constantly accusing the Republicans of a purpose to destroy the independence of the National Judiciary, and a.s.serting that National judges must be kept beyond the reach of either Congress or President in order to decide fearlessly upon the const.i.tutionality of laws.

At last the steady but spirited Breckenridge was so irritated that he broke away from the Republican plan to ignore this princ.i.p.al article of Federalist faith. He did not intend 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 annul the laws of Congress as unconst.i.tutional, so seriously insisted on.... I would ask where they got that power, and who checks the courts when they violate the Const.i.tution?"

The theory that courts may annul legislation would give them "the absolute direction of the Government." For, "to whom are they responsible?" He wished to have pointed out the clause 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?... Never were such high and transcendant powers in any Government (much less in one like ours, composed of powers specially given and defined) claimed or exercised by construction only."[199]

Breckenridge frankly stated the Republican philosophy, repeating sometimes word for word the pa.s.sage which Jefferson at the last moment had deleted from his Message to Congress.[200] "The Const.i.tution," he declared, "intended a separation 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 Const.i.tution; are equally bound by oath to support it, and have an equal right to give a construction to it.... The construction of one department of the powers vested in it, is of higher authority than the construction of any other department.