The Life of John Marshall Volume III Part 72

[1495] Harden: _Life of George M. Troup_, 9.

[1496] _Annals_, 11th Cong. 2d. Sess. 1882.

[1497] _Ib._

[1498] _Annals_, 11th Cong. 3d Sess. 415.

[1499] _Annals_, 12th Cong. 2d Sess. 856-59.

[1500] _Annals_, 12th Cong. 2d Sess. 860.

[1501] _Annals_, 13th Cong. 2d Sess. 1697.

[1502] _Ib._ 1840-42.

[1503] _Annals_, 13th Cong. 2d Sess. 1848.

[1504] _Ib._ 1850.

[1505] _Ib._ 1855.

[1506] _Ib._ 1858-59.

[1507] _Ib._ 1873-75.

[1508] _Annals_, 13th Cong. 2d Sess. 1925; see also Sess. I, chap. 39, March 31, 1814, _U.S. Statutes at Large_, III, 117.

[1509] Daniel to Ezekiel Webster, March 28, 1814, _Private Correspondence of Daniel Webster_: Webster, 244.

END OF VOLUME III

APPENDIX

APPENDIX A

THE PARAGRAPH OMITTED FROM THE FINAL DRAFT OF JEFFERSON'S MESSAGE TO CONGRESS, DECEMBER 8, 1801[1510]

Applications from different persons suffering prosecution under the act usually called the Sedition act, claimed my early attention to that instrument. our country has thought proper to distribute the powers of it's government among three equal & independent authorities, const.i.tuting each a check on one or both of the others, in all attempts to impair it's const.i.tution. to make each an effectual check, it must have a right in cases which arise within the line of it's proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it's own judgment, & uncontrouled by the opinions of any other department. we have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, & no ill ensue. the const.i.tution moreover, as a further security for itself, against violation even by a concurrence of all the departments, has provided for it's own reintegration by a change of the persons exercising the functions of those department. Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the const.i.tution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. On my accession to the administration, reclamations against the Sedition act were laid before me by individual citizens, claiming the protection of the const.i.tution against the Sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, I took the act into consideration, compared it with the const.i.tution, viewed it under every aspect of which I thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them & to my duty, I do declare that I hold that act to be in palpable & unqualified contradiction to the const.i.tution. considering it then as a nullity, I have relieved from oppression under it those of my fellow-citizens who were within the reach of the functions confided to me. in recalling our footsteps within the limits of the Const.i.tution, I have been actuated by a zealous devotion to that instrument. it is the ligament which binds us into one nation. It is, to the national government, the law of it's existence, with which it began, and with which it is to end. infractions of it may sometimes be committed from inadvertence, sometimes from the panic, or pa.s.sions of a moment. to correct these with good faith, as soon as discovered, will be an a.s.surance to the states that, far from meaning to impair that sacred charter of it's authorities, the General government views it as the principle of it's own life.[1511]

FOOTNOTES:

[1510] See 51-53 of this volume.

[1511] Jefferson MSS. Lib. Cong.

APPENDIX B

LETTER OF JOHN TAYLOR "OF CAROLINE" TO JOHN BRECKENRIDGE CONTAINING ARGUMENTS FOR THE REPEAL OF THE FEDERALIST NATIONAL JUDICIARY ACT OF 1801[1512]

VIRGINIA--CAROLINE--Dec^r 22^{d.} 1801

DEAR SIR

An absence from home, when your letter arrived, has been the cause which delayed this answer.

I confess that I have not abstracted myself from the political world, but I must at the same time acknowledge, that this kind of world, of which I am a member, is quite distinct from that in which your country has placed you. Mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited--yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & th.o.r.n.y. And a most prosperous traveller into the political world which I inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. Yet, as a solicitation for the continuance of your correspondence, I will venture upon a short excursion out of my own atmosphere, in relation to the subject you state.

By way of bringing the point into plain view, I will suppose some cases.

Suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes.

Or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. Are all these evils originating either in fraud or error, remediless under the principles of your const.i.tution?

The first question is, whether the _office_ thus established, is to continue.

The second, whether the officer is to continue, after the office is abolished, as being unnecessary.

Congress are empowered "from _time to time_ to ordain & establish inferior courts."

The law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress may _abolish_ as well as create these _judicial offices_; because it does expressly _abolish_ the then existing inferior courts, for the purpose of making way for the present.

It is probable that this construction is correct, but it is equally pertinent to our object, whether it is or not. If it is, then the present inferior courts may be abolished, as const.i.tutionally as the last; if it is not, then the law for abolishing the former courts, and establishing the present, was unconst.i.tutional, and being so, is undoubtedly repealable.

Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.

The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.

The const.i.tution declares "that the judge shall hold his _office_ during good behavior." Could it mean, that he should hold this _office_ after it was _abolished_? Could it mean that his tenure should be limited by behaving well in an office, which did not exist?

It must either have intended these absurdities, or admit of a construction which will avoid them. This construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the const.i.tution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.

The article of the const.i.tution under consideration closes with an idea, which strongly supports my construction.

The salary is to be paid "during their continuance in office." This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. There must have been some other mode by which the officer should cease to be in office, than that of _bad behaviour_, because, if this had not been the case, the const.i.tution would have directed "that the judges should hold their offices _and salaries_ during good behaviour," instead of directing "that they should" hold the salaries during _their continuance_ in office. This could only be an abolition of the office itself, by which the salary would cease with the office, tho'

the judge might have conducted himself unexceptionably.

This construction certainly coincides with the public opinion, and the principles of the const.i.tution. By neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.