The Life of John Marshall Volume III Part 13

[286] March 23, 1802.

[287] March 15, 1802.

[288] Vans Murray to King, April 5, 1802, King, IV, 95.

[289] Sedgwick to King, Feb. 20, 1802, _ib._ 73.

[290] Ames to Dwight, April 16, 1802, Ames, I, 297.

[291] _Annals_, 7th Cong. 1st Sess. 201.

[292] _Ib._ 205.

[293] _Ib._ 257.

[294] They never occupied the bench under the Federalist Act of 1801.

They were appointed, but the swift action of Jefferson and the Republicans prevented them from entering upon the discharge of their duties.

[295] This case was before the Supreme Court in December, 1801, and, ordinarily, would have been decided at the next term, June, 1802.

[296] _Annals_, 7th Cong. 1st Sess. 1228-29.

[297] _Annals_, 7th Cong. 1st Sess. 1229.

[298] _Ib._ 1229-30.

[299] _Annals_, 7th Cong. 1st Sess. 1235-36.

[300] _Ib._ 1236. See also Channing, _U.S._ IV, 280-81.

[301] See vol. II, 62, of this work.

[302] Ames to Gore, Dec. 13, 1802, Ames, I, 310.

[303] _Ib._ Here is another characteristic pa.s.sage from Ames, who accurately expressed New England Federalist sentiment: "The second French and first American Revolution is now commencing.... The extinction of Federalism would be followed by the ruin of the wise, rich, and good." (Ames to Smith, Dec. 14, 1802, _ib._ 313-16.)

[304] Pickering to Peters, Dec. 24, 1803, _New-England Federalism_: Adams, 338.

[305] Cabot to King, March 27, 1802, King, IV, 94.

[306] _Columbian Centinel_, April 7, 1802.

[307] "Bowling" in the _Independent Chronicle_ of April 26, 1802. An example of Jefferson's amazing skill in directing public opinion is found in the fact that the people were made to feel that the President was following in Washington's footsteps.

CHAPTER III

MARBURY VERSUS MADISON

To consider the judges as the ultimate arbiters of all const.i.tutional questions would place us under the despotism of an oligarchy. (Jefferson.)

The const.i.tution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty. (Marshall.)

To have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it--this is an achievement of statesmanship which a thousand years may not exhaust or reveal all that is good. (Rufus Choate.)

"RAWLEIGH, Jan^{y:} 2^{d.} 1803

"MY DEAREST POLLY

"You will laugh at my vexation when you hear the various calamaties that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained & sought their liberty in the sands of Carolina.

"I determined not to vex myself with what coud not be remedied & orderd Peter to take out my cloaths that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, staring at vacancy, & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of inteligence was not very graciously receivd; however, after a little scolding I determined to make the best of my situation & immediately set out to get a pair made.

"I thought I should be a sans culotte only one day & that for the residue of the term I might be well enough dressd for the appearance on the first day to be forgotten. But, the greatest of evils, I found, was followed by still greater! Not a taylor in town coud be prevaild on to work for me. They were all so busy that it was impossible to attend to my wants however pressing they might be, & I have the extreme mortification to pa.s.s the whole time without that important article of dress I have mentiond. I have no alleviation for this misfortune but the hope that I shall be enabled in four or five days to commence my journey homeward & that I shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches you.

"In the meantime I flatter myself that you are well & happy.

"Adieu my dearest Polly I am your ever affectionate J MARSHALL."[308]

With the same unfailing light-heartedness which, nearly a quarter of a century before, had cheered his comrades at Valley Forge, John Marshall, Chief Justice of the United States, thus went about his duties and bore his troubles. Making his circuit in a battered gig or sulky, which he himself usually drove, absent-minded and laughing at himself for the mishaps that his forgetfulness and negligence continually brought upon him, he was seemingly unperturbed in the midst of the political upheaval.

Yet he was not at ease. Rufus King, still the American Minister to Great Britain, had finally settled the controversy over the British debts, upon the very basis laid down by Marshall when Secretary of State.[309]

But Jefferson's Administration now did not hesitate to a.s.sert that this removal of one cause of conflict with Great Britain was the triumph of Republican diplomacy. Marshall, with unreserve so unlike him, reveals to King his disgust and sense of injury, and in doing so portrays the development of political conditions.

"The advocates of the present administration ascribe to it great praise," wrote Marshall to our Minister in London, "for having, with so much dexterity & so little loss, extricated our country from a debt of twenty-four million of dollars in which a former administration had involved it.... The mortifying reflection obtrudes itself, that the reputation of the most wise & skilful conduct depends, in this our capricious world, so much on accident. Had Mr. Adams been reelected President of the United States, or had his successor been [a Federalist] ... a very different reception ... would have been given to the same measure.

"The payment of a specific sum would then have been p.r.o.nounced, by those who now take merit to themselves for it, a humiliating national degradation, an abandonment of national interest, a free will offering of millions to Britain for her grace & favor, by those who sought to engage in a war with France, rather than repay, in part, by a small loan to that republic, the immense debt of grat.i.tude we owe her."

So speaks with bitter sarcasm the new Chief Justice, and pessimistically continues: "Such is, & such I fear will ever be human justice!" He tells King that the Federalist "disposition to coalesce" with the Republicans, which seemed to be developing during the first few months after Jefferson's inauguration, had disappeared; "but," he adds, "the minority [Federalist Party] is only recovering its strength & firmness. It acquires nothing." Then, with the characteristic misgivings of a Federalist, he prophesies: "Our political tempests will long, very long, exist, after those who are now toss'd about by them shall be at rest."[310]

For more than five years[311] Marshall had foreseen the complicated and dangerous situation in which the country now found itself; and for more than a year[312] he had, in his ample, leisurely, simple manner of thinking, been framing the constructive answer which he was at last forced to give to the grave question: Who shall say with final authority what is and what is not law throughout the Republic? In his opinion in the case of Marbury _vs._ Madison, to which this chapter is devoted, we shall see how John Marshall answered this vital question.

The philosophy of the Virginia and Kentucky Resolutions had now become the ruling doctrine of the Republican Party. The writer of the creed of State Rights sat in the Executive chair, while in House and Senate Virginia and her daughter Kentucky ruled the Republican majority. The two States that had declared the right and power of any member of the Union to p.r.o.nounce a National law unconst.i.tutional, and that had actually a.s.serted a National statute to be null and void, had become the dominant force in the National Government.

The Federalist majority in the legislatures of ten States,[313] it is true, had pa.s.sed resolutions denouncing that anti-National theory, and had vigorously a.s.serted that the National Judiciary alone had the power to invalidate acts of Congress.[314] _But in none of these States had the Republican minority concurred_. In all of them the Republicans had vigorously fought the Federalist denial of the right and power of the States to nullify National laws, and had especially resisted the Federalist a.s.sertion that this power was in the National Judiciary.

In the New York Legislature, forty-three Republicans voted solidly against the Federalist reply to Virginia and Kentucky, while the Federalists were able to muster but fifty votes in its favor. In Ma.s.sachusetts, Pennsylvania, and Maryland, the Republican opposition was determined and outspoken.

The thirty-three Republicans of the Vermont Legislature cited, in their protest, the position which Marshall had taken on the Sedition Law in his campaign for Congress:[315] "We have ever been of an opinion, with that much and deservedly respected statesman, Mr. Marshall, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's rights, has been universally admired)[316] that 'it was calculated to create _unnecessarily_, discontents and jealousies, at a time, when our very existence as a nation may depend on our union.'"[317]

In Southern States, where the Federalists were dominant when Kentucky and Virginia adopted their famous Resolutions, the Republicans were, nevertheless, so strong that the Federalist majority in the Legislatures of those States dared not attempt to deny formally the new Republican gospel.[318]

So stood the formal record; but, since it had been written, the Jeffersonian propaganda had drawn scores of thousands of voters into the Republican ranks. The whole South had now decisively repudiated Federalism. Maryland had been captured; Pennsylvania had become as emphatically Republican as Virginia herself; New York had joined her forces to the Republican legions. The Federalists still held New England and the States of Delaware and New Jersey, but even there the incessant Republican a.s.saults, delivered with ever-increasing strength, were weakening the Federalist power. Nothing was plainer than that, if the Kentucky and Virginia Resolutions had been submitted to the Legislatures of the various States in 1801-1803, most of them would have enthusiastically endorsed them.

Thus the one subject most discussed, from the campaign of 1800 to the time when Marshall delivered his opinion in Marbury _vs._ Madison, was the all-important question as to what power, if any, could annul acts of Congress.[319] During these years popular opinion became ever stronger that the Judiciary could not do so, that Congress had a free hand so far as courts were concerned, and that the individual States might ignore National laws whenever those States deemed them to be infractions of the Const.i.tution. As we have seen, the Republican vote in Senate and House, by which the Judiciary Act of 1801 was repealed, was also a vote against the theory of the supervisory power of the National Judiciary over National legislation.