Still, the Amelia was not, in fact, a French vessel, but the property of a neutral; and in taking her from the French, Talbot had, in reality, rescued the ship and rendered a benefit to her owners for which he was entitled to salvage. For a decree of the French Republic made it "extremely probable" that the Amelia would be condemned by the French courts in St. Domingo; and that decree, having been "promulgated" by the American Government, must be considered by American courts "as an authenticated copy of a public law of France interesting to all nations." This, said Marshall, was "the real and only question in the case." The first opinion delivered by Marshall as Chief Justice announced, therefore, an important rule of international law and is of permanent value.
Marshall's next case[58]involved complicated questions concerning lands in Kentucky. Like nearly all of his opinions, the one in this case is of no historical importance except that in it he announced for the second time the views of the court. In United Statesvs. Schooner Peggy,[59]Marshall declared that, since the Constitution makes a treaty a "supreme law of the land," courts are as much bound by it asby an act of Congress. This was the first time that principle was stated by the Supreme Court. Another case[60]concerned the law of practice and of evidence. This was the last case in which Marshall delivered an opinion before the Republican assault on the Judiciary was made—the causes of which assault we are now to examine.
At the time of his inauguration, Jefferson apparently meant to carry out the bargain[61]by which his election was made possible. "We are all Republicans, we are all Federalists," were the reassuring words with which he sought to quiet those who already were beginning to regret that they had yielded to his promises.[62]Even Marshall was almost favorably impressed by the inaugural address. "I have administered the oath to the Presdt.," he writes Pinckney immediately after Jefferson had been inducted into office. "His inauguration speech ... is in general well judged and conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of this political theory."[63]
It is likely that, for the moment, the President intended to keep faith with the Federalist leaders. But the Republican multitude demanded the spoils of victory; and the Republican leaders were not slow or soft-spoken in telling their chieftain that he must take those measures, the assurance of whichhad captivated the popular heart and given "the party of the people" a majority in both House and Senate.
Thus the Republican programme of demolition was begun. Federalist taxes were, of course, to be abolished; the Federalist mint dismantled; the Federalist army disbanded; the Federalist navy beached. Above all, the Federalist system of National courts was to be altered, the newly appointed Federalist National judges ousted and their places given to Republicans; and if this could not be accomplished, at least the National Judiciary must be humbled and cowed. Yet every step must be taken with circumspection—the cautious politician at the head of the Government would see to that. No atom of party popularity[64]must be jeopardized; on the contrary, Republican strength must be increased at any cost, even at the temporary sacrifice of principle.[65]Unless these facts are borne in mind, the curious blending of fury and moderation—of violent attack and sudden quiescence—in the Republican tactics during the first years of Jefferson's Administration are inexplicable.
Jefferson determined to strike first at the National Judiciary. He hated it more than any other of the "abominations" of Federalism. It was the only department of the Government not yet under his control. His early distrust of executive authority, his suspicion of legislative power when his political opponents held it, were now combined against the National courts which he did not control.
Impotent and little respected as the Supreme Court had been and still was, Jefferson nevertheless entertained an especial fear of it; and this feeling had been made personal by the thwarting of his cherished plan of appointing his lieutenant, Spencer Roane of Virginia, Chief Justice of the United States.[66]The elevation of his particular aversion, John Marshall, to that office, had, he felt, wickedly robbed him of the opportunity to make the new regime harmonious; and, what was far worse, it had placed in that station of potential, if as yet undeveloped, power, one who, as Jefferson had finally come to think, might make the high court of the Nation a mighty force in the Government, retard fundamental Republican reforms, and even bring to naught measures dear to the Republican heart.
It seems probable that, at this time, Jefferson was the only man who had taken Marshall's measure correctly. His gentle manner, his friendliness and conviviality, no longer concealed from Jefferson thecourage and determination of his great relative; and Jefferson doubtless saw that Marshall, with his universally conceded ability, would find means to vitalize the National Judiciary, and with his fearlessness, would employ those means.
"The Federalists," wrote Jefferson, "have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be beaten down and erased."[67]Therefore that stronghold must be taken. Never was a military plan more carefully devised than was the Republican method of capturing it. Jefferson would forthwith remove all Federalist United States marshals and attorneys;[68]he would get rid of the National judges whom Adams had appointed under the Judiciary Act of 1801.[69]If this did not make those who remained on the National Bench sufficiently tractable, the sword of impeachment would be held over their obstinate heads until terror of removal and disgrace should render them pliable to the dominant political will.Thus by progressive stages the Supreme Court would be brought beneath the blade of the executioner and the obnoxious Marshall decapitated or compelled to submit.
To this agreeable course, so well adapted to his purposes, the President was hotly urged by the foremost leaders of his party. Within two weeks after Jefferson's inauguration, the able and determined William Branch Giles of Virginia, faithfully interpreting the general Republican sentiment, demanded "the removal of all its [the Judiciary's] executive officers indiscriminately." This would get rid of the Federalist marshals and clerks of the National courts; they had been and were, avowed Giles, "the humble echoes" of the "vicious schemes" of the National judges, who had been "the most unblushing violators of constitutional restrictions."[70]Again Giles expressed the will of his party: "The revolution [Republican success in 1800] is incomplete so long as that strong fortress [the Judiciary] is in possession of the enemy." He therefore insisted upon "the absolute repeal of the whole judiciary system."[71]
The Federalist leaders quickly divined the first part of the Republican purpose: "There is nothing which the [Republican] party more anxiously wish than the destruction of the judicial arrangements made during the last session," wrote Sedgwick.[72]And Hale, with dreary sarcasm, observed that "the independence of our Judiciary is to be confirmedby being made wholly subservient to the will of the legislature & the caprice of Executive visions."[73]
The judges themselves had invited the attack so soon to be made upon them.[74]Immediately after the Government was established under the Constitution, they took a position which disturbed a large part of the general public, and also awakened apprehensions in many serious minds. Persons were haled before the National courts charged with offenses unknown to the National statutes and unnamed in the Constitution; nevertheless, the National judges held that these were indictable and punishable under the common law of England.[75]
This was a substantial assumption of power. The Judiciary avowed its right to pick and choose among the myriad of precedents which made up the common law, and to enforce such of them as, in the opinion of the National judges, ought to govern American citizens. In a manner that touched directly the lives and liberties of the people, therefore, the judgesbecame law-givers as well as law-expounders. Not without reason did the Republicans of Boston drink with loud cheers this toast: "The Common Law of England! May wholesome statutes soon root out this engine of oppression from America."[76]
The occasions that called forth this exercise of judicial authority were the violation of Washington's Neutrality Proclamation, the violation of the Treaty of Peace with Great Britain, and the numberless threats to disregard both. From a strictly legal point of view, these indeed furnished the National courts with plausible reasons for the position they took. Certainly the judges were earnestly patriotic and sincere in their belief that, although Congress had not authorized it, nevertheless, that accumulation of British decisions, usages, and customs called "the common law" was a part of American National jurisprudence; and that, of a surety, the assertion of it in the National tribunals was indispensable to the suppression of crimes against the United States. In charging the National grand jury at Richmond, May 22, 1793, Chief Justice John Jay first announced this doctrine, although not specifically naming the common law.[77]Two months later, Justice James Wilson claimed the same inclusive power in his address to the grand jury at Philadelphia.[78]
In 1793, Joseph Ravara, consul for Genoa, was indicted in the United States District Court of Pennsylvania for sending an anonymous and threatening letter to the British Minister and to other persons in order to extort money from them. There was not a word in any act of Congress that referred even indirectly to such a misdemeanor, yet Justices Wilson and Iredell of the Supreme Court, with Judge Peters of the District Court, held that the court had jurisdiction,[79]and at the trial Chief Justice Jay and District Judge Peters held that the rash Genoese could be tried and punished under the common law of England.[80]
Three months later Gideon Henfield was brought to trial for the violation of the Neutrality Proclamation. The accused, a sailor from Salem, Massachusetts, had enlisted at Charleston, South Carolina, on a French privateer and was given a commission as an officer of the French Republic. As such he preyed upon the vessels of the enemies of France. One morning in May, 1793, Captain Henfield sailed into the port of Philadelphia in charge of a British prize captured by the French privateer which he commanded.
Upon demand of the British Minister, Henfield was seized, indicted, and tried in the United States Circuit Court for the District of Pennsylvania.[81]In the absence of any National legislation covering thesubject, Justice Wilson instructed the grand jury that Henfield could, and should, be indicted and punished under British precedents.[82]When the case was heard the charge of the court to the trial jury was to the same effect.[83]
The jury refused to convict.[84]The verdict was "celebrated with extravagant marks of joy and exultation," records Marshall in his account of this memorable trial. "It was universally asked," he says, "what law had been offended, and under what statute was the indictment supported? Were the American people already prepared to give to a proclamation the force of a legislative act, and to subject themselves to the will of the executive? But if they were already sunk to such a state of degradation, were they to be punished for violating a proclamation which had not been published when the offense was committed, if indeed it could be termed an offense to engage with France, combating for liberty against the combined despots of Europe?"[85]
In this wise, political passions were made to strengthen the general protest against riveting the common law of England upon the American people by judicial fiat and without authorization by the National Legislature.
Isaac Williams was indicted and tried in 1799, in the United States Circuit Court for the District ofConnecticut, for violating our treaty with Great Britain by serving as a French naval officer. Williams proved that he had for years been a citizen of France, having been "duly naturalized" in France, "renouncing his allegiance to all other countries, particularly to America, and taking an oath of allegiance to the Republic of France." Although these facts were admitted by counsel for the Government, and although Congress had not passed any statute covering such cases, Chief Justice Oliver Ellsworth practically instructed the jury that under the British common law Williams must be found guilty.
No American could cease to be a citizen of his own country and become a citizen or subject of another country, he said, "without the consent ... of the community."[86]The Chief Justice announced as American law the doctrine then enforced by European nations—"born a subject, always a subject."[87]So the defendant was convicted and sentenced "to pay a fine of a thousand dollars and to suffer four months imprisonment."[88]
These are examples of the application by the National courts of the common law of England in caseswhere Congress had failed or refused to act. Crime must be punished, said the judges; if Congress would not make the necessary laws, the courts would act without statutory authority. Until 1812, when the Supreme Court put an end to this doctrine,[89]the National courts, with one exception,[90]continued to apply the common law to crimes and offenses which Congress had refused to recognize as such, and for which American statutes made no provision.
Practically all of the National and many of the State judges were highly learned in the law, and, of course, drew their inspiration from British precedents and the British bench. Indeed, some of them were more British than they were American.[91]"Let a stranger go into our courts," wrote Tyler, "and hewould almost believe himself in the Court of the King's Bench."[92]
This conduct of the National Judiciary furnished Jefferson with another of those "issues" of which that astute politician knew how to make such effective use. He quickly seized upon it, and with characteristic fervency of phrase used it as a powerful weapon against the Federalist Party. All the evil things accomplished by that organization of "monocrats," "aristocrats," and "monarchists"—the bank, the treaty, the Sedition Act, even the army and the navy—"have been solitary, inconsequential, timid things," avowed Jefferson, "in comparison with the audacious, barefaced and sweeping pretension to a system of law for the U.S. without the adoption of their legislature, and so infinitely beyond their power to adopt."[93]
But if the National judges had caused alarm by treating the common law as though it were a statute of the United States without waiting for an act of Congress to make it so, their manners and methods in the enforcement of the Sedition Act[94]aroused against them an ever-increasing hostility.
Stories of their performances on the bench in such cases—their tones when speaking to counsel, to accused persons, and even to witnesses, their immoderate language, their sympathy with one of the European nations then at war and their animositytoward the other, their partisanship in cases on trial before them—tales made up from such material flew from mouth to mouth, until finally the very name and sight of National judges became obnoxious to most Americans. In short, the assaults upon the National Judiciary were made possible chiefly by the conduct of the National judges themselves.[95]
The first man convicted under the Sedition Law was a Representative in Congress, the notorious Matthew Lyon of Vermont. He had charged President Adams with a "continual grasp for power ... an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice." Also, Lyon had permitted the publication of a letter to him from Joel Barlow, in which the President's address to the Senate and the Senate's response[96]were referred to as "the bullying speech of your President" and "the stupid answer of your Senate"; and expressed wonder "that the answer of both Houses had notbeen an order to send him [Adams] to the mad house."[97]
Lyon was indicted under the accusation that he had tried "to stir up sedition and to bring the President and Government of the United States into contempt." He declared that the jury was selected from his enemies.[98]Under the charge of Justice Paterson of the Supreme Court he was convicted. The court sentenced him to four months in jail and the payment of a fine of one thousand dollars.[99]
In the execution of the sentence, United States Marshal Jabez G. Fitch used the prisoner cruelly. On the way to the jail at Vergennes, Vermont, he was repeatedly insulted. He was finally thrown into a filthy, stench-filled cell without a fireplace and with nothing "but the iron bars to keep the cold out." It was "the common receptacle for horse-thieves ... runaway negroes, or any kind of felons." He was subjected to the same kind of treatment that was accorded in those days to the lowest criminals.[100]The people were deeply stirred by the fate of Matthew Lyon. Quick to realize and respond to public feeling, Jefferson wrote: "I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things."[101]
One Anthony Haswell, editor of theVermont Gazettepublished at Bennington, printed an advertisement of a lottery by which friends of Lyon, who was a poor man, hoped to raise enough money to pay his fine. This advertisement was addressed "to the enemies of political persecutions in the western district of Vermont." It was asserted that Lyon "is holden by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims."[102]The "savage" referred to was United States Marshal Fitch. In the same paper an excerpt was reprinted from theAurorawhich declared that "the administration publically notified that Tories ... were worthy of the confidence of the government."[103]
Haswell was indicted for sedition. In defense he established the brutality with which Lyon had been treated and proposed to prove by two witnesses not then present (General James Drake of Virginia, and James McHenry, President Adams's Secretary of War) that the Government favored the occasional appointment of Tories to office. Justice Paterson ruled that such evidence was inadmissible, and charged the jury that if Haswell's intent was defamatory, he should be found guilty. Thereupon he was convicted and sentenced to two months' imprisonment and the payment of a fine of two hundred dollars.[104]
Dr. Thomas Cooper, editor of theSunbury and Northumberland Gazettein Pennsylvania, in the course of a political controversy declared in his paper that when, in the beginning of Adams's Administration, he had asked the President for an office, Adams "was hardly in the infancy of political mistake; even those who doubted his capacity thought well of his intentions.... Nor were we yet saddled with the expense of a permanent navy, or threatened ... with the existence of a standing army.... Mr. Adams ... had not yet interfered ... to influence the decisions of a court of justice."[105]
For this "attack" upon the President, Cooper was indicted under the Sedition Law. Conducting his own defense, he pointed out the issues that divided the two great parties, and insisted upon the propriety of such political criticism as that for which he had been indicted.
Cooper was himself learned in the law,[106]and during the trial he applied for a subpœnaduces tecumto compel President Adams to attend as a witness, bringing with him certain documents which Cooper alleged to be necessary to his defense. In a rage Justice Samuel Chase of the Supreme Court, before whom, with Judge Richard Peters of the District Court, the case was tried, refused to issue the writ. For this he was denounced by the Republicans. In the trial of Aaron Burr, Marshall was to issue this very writ to President Thomas Jefferson and, for doing so, to be rebuked, denounced, and abused by the very partisans who now assailed Justice Chase for refusing to grant it.[107]
Justice Chase charged the jury at intolerable length: "If a man attempts to destroy the confidence of the people in their officers ... he effectually saps the foundation of the government." It was plain that Cooper "intended to provoke" the Administration, for had he not admitted that, although he did not arraign the motives, he did mean "to censure the conduct of the President"? The offending editor's statement that "our credit is so low that we are obliged to borrow money at 8 per cent. in time of peace," especially irritated the Justice. "I cannot," he cried, "suppress my feelings at this gross attack upon the President." Chase then told the jury that the conduct of France had "rendered a loan necessary"; that undoubtedly Cooper had intended "to mislead the ignorant ... and to influence their votes on the next election."
So Cooper was convicted and sentenced "to pay a fine of four hundred dollars, to be imprisoned for six months, and at the end of that period to find surety for his good behavior himself in a thousand, and two sureties in five hundred dollars each."[108]
"Almost every other country" had been "convulsed with ... war," desolated by "every species of vice and disorder" which left innocence without protection and encouraged "the basest crimes." Only in America there was no "grievance to complain of." Yet our Government had been "asgrossly abused as if it had been guilty of the vilest tyranny"—as if real "republicanism" could "only be found in the happy soil of France" where "Liberty, like the religion of Mahomet, is propagated by the sword." In the "bosom" of that nation "a dagger was concealed."[109]In these terms spoke James Iredell, Associate Justice of the Supreme Court, in addressing the grand jury for the District of Pennsylvania. He was delivering the charge that resulted in the indictment for treason of John Fries and others who had resisted the Federalist land tax.[110]
The triumph of France had, of course, nothing whatever to do with the forcible protest of the Pennsylvania farmers against what they felt to be Federalist extortion; nevertheless upon the charge of Justice Iredell as to the law of treason, they were indicted and convicted for that gravest of all offenses. A new trial was granted because one of the jury, John Rhoad, "had declared a prejudice against the prisoner after he was summoned as a juror."[111]On April 29, 1800, the second trial was held. This time Justice Chase presided. The facts were agreed to by counsel. Before the jury had been sworn, Chase threw on the table three papers in writing and announced that these contained the opinion of the judges upon the law of treason—one copy was for the counsel for the Government, one for the defendant's counsel, and one for the jury.
William Lewis, leading attorney for Fries, and oneof the ablest members of the Philadelphia bar,[112]was enraged. He looked upon the paper, flung it from him, declaring that "his hand never should be polluted by a prejudicated opinion," and withdrew from the case, although Chase tried to persuade him to "go on in any manner he liked." Alexander J. Dallas, the other counsel for Fries, also withdrew, and the terrified prisoner was left to defend himself. The court told him that the judges, personally, would see that justice was done him. Again Fries and his accomplices were convicted under the charge of the court. "In an aweful and affecting manner"[113]Chase pronounced the sentence, which was that the condemned men should be "hanged by the neckuntil dead."[114]
The Republicans furiously assailed this conviction and sentence. President Adams pardoned Fries and his associates, to the disgust and resentment of the Federalist leaders.[115]On both sides the entire proceeding was made a political issue.
On the heels of this "repetition of outrage," as the Republicans promptly labeled the condemnation of Fries, trod the trial of James Thompson Callender for sedition, over which it was again the fate of the unlucky Chase to preside.The Prospect Before Us, written by Callender under the encouragement of Jefferson,[116]contained a characteristically viciousscreed against Adams. His Administration had been "a tempest of malignant passions"; his system had been "a French war, an American navy, a large standing army, an additional load of taxes." He "was a professed aristocrat and he had proved faithful and serviceable to the British interest" by sending Marshall and his associates to France. In the President's speech to Congress,[117]"this hoary headed incendiary ... bawls to arms! then to arms!"
Callender was indicted for libel under the Sedition Law.
Before Judge Chase started for Virginia, Luther Martin had given him a copy of Callender's pamphlet, with the offensive passages underscored. During a session of the National court at Annapolis, Chase, in a "jocular conversation," had said that he would take Callender's book with him to Richmond, and that, "if Virginia was not too depraved" to furnish a jury of respectable men, he would certainly punish Callender. He would teach the lawyers of Virginia the difference between the liberty and the licentiousness of the press.[118]On the road to Richmond, James Triplett boarded the stage that carried the avenging Justice of the Supreme Court. He told Chase that Callender had once been arrested in Virginia as a vagrant. "It is a pity," replied Chase, "that they had not hanged the rascal."[119]
But the people of Virginia, because of their hatred of the Sedition Law, were ardent champions of Callender. Richmond lawyers were hostile to Chase and were the bitter enemies of the statute which they knew he would enforce. Jefferson was anxious that Callender "should be substantially defended, whether in the first stages by public interference or private contributors."[120]
One ambitious young attorney, George Hay, who seven years later was to act as prosecutor in the greatest trial at which John Marshall ever presided,[121]volunteered to defend Callender, animated to this course by devotion to "the cause of the Constitution," in spite of the fact that he "despised" his adopted client.[122]William Wirt was also inspired to offer his services in the interest of free speech. These Virginia attorneys would show this tyrant of the National Judiciary that the Virginia bar could not be borne down.[123]Of all this the hot-spirited Chasewas advised; and he resolved to forestall the passionate young defenders of liberty. He was as witty as he was fearless, and throughout the trial brought down on Hay and Wirt the laughter of the spectators.
But in the court-room there was one spectator who did not laugh. John Marshall, then Secretary of State, witnessed the proceedings[124]with grave misgivings.
Chase frequently interrupted the defendant's counsel. "What," said he, "must there be a departure from common sense to find out a construction favorable" to Callender? The Justice declared that a legal point which Hay attempted to make was "a wild notion."[125]When a juror said that he had never seen the indictment or heard it read, Chase declared that of course he could not have formed or delivered an opinion on the charges; and then denied the request that the indictment be read for the information of the juror. Chase would not permit that eminent patriot and publicist, Colonel John Taylor of Caroline, to testify that part of Callender's statement was true; "No evidence is admissible," said the Justice, "that does not ... justify the whole charge."[126]
William Wirt, in addressing the jury, was arguing that if the jury believed the Sedition Act to be unconstitutional, and yet found Callender guilty, they"would violate their oath." Chase ordered him to sit down. The jury had no right to pass upon the constitutionality of the law—"such a power would be extremely dangerous. Hear my words, I wish the world to know them." The Justice then read a long and very able opinion which he had carefully prepared in anticipation that this point would be raised by the defense.[127]After another interruption, in which Chase referred to Wirt as "theyoung gentleman" in a manner that vastly amused the audience, the discomfited lawyer, covered with confusion, abandoned the case.
When Hay, in his turn, was addressing the jury, Chase twice interrupted him, asserting that the beardless attorney was not stating the law correctly. The reporter notes that thereupon "Mr. Hay folded up and put away his papers ... and refused to proceed." The Justice begged him to go on, but Hay indignantly stalked from the room.
Acting under the instructions of Chase, Callender was convicted. The court sentenced him to imprisonment for nine months, and to pay a fine of two hundred dollars.[128]
The proceedings at this trial were widely published. The growing indignation of the people at the courts rose to a dangerous point. The force of popular wrath was increased by the alarm of the bar, which generally had been the stanch supporter of the bench.[129]
Hastening from Richmond to New Castle, Delaware, Justice Chase emphasized the opinion now current that he was an American Jeffreys and typical of the spirit of the whole National Judiciary. Upon opening court, he said that he had heard that there was a seditious newspaper in the State. He directed the United States Attorney to search the files of all the papers that could be found, and to report any abusive language discovered. It was the haying season, and the grand jury, most of whom were farmers, asked to be discharged, since there was no business for them to transact. Chase refused and held them until the next day, in order to have them return indictments against any printer that might have criticized the Administration.[130]But the prosecutor's investigation discovered nothing "treasonable" except a brief and unpleasant reference to Chase himself. So ended the Delaware visit of the ferret of the National Judiciary.
Thus a popular conviction grew up that no man was safe who assumed to criticize National officials. The persecution of Matthew Lyon was recalled, and the punishment of other citizens in cases less widely known[131]became the subject of common talk,—alladding to the growing popular wrath against the whole National Judiciary. The people regarded those brought under the lash of justice as martyrs to the cause of free speech; and so, indeed, they were.
The method of securing indictments and convictions also met with public condemnation. In many States the United States Marshals selected what persons they pleased as members of the grand juries and trial juries. These officers of the National courts were, without exception, Federalists; in many cases Federalist politicians. When making up juries they selected only persons of the same manner of thinking as that of the marshals and judges themselves.[132]So it was that the juries were nothing more than machines that registered the will, opinion, or even inclination of the National judges and the United States District Attorneys. In short, in these prosecutions, trial by jury in any real sense was not to be had.[133]
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]Bacon and Hill were supported by the solid Republican membership of the Massachusetts Legislature, which theColumbian Centinelof Boston, a Federalist organ, called a "contemptible minority," every member of which was "worse than an infidel."[135]
TheIndependent Chronicle, the Republican newspaper of Boston, observed that "It is difficult for thecommon capacities to conceive of a sovereignty so situated that theSovereign shall have no right to decide on any invasion of his constitutional powers." Bacon's speech, said theChronicle, "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 anAmericanBacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed adeath woundto the Constitution of the United States will rotabove groundand be unsavoury to the nostrils of every lover of Republican freedom."[136]
TheMassachusetts Mercuryof February 22, 1799, reports that "On Tuesday last ... Chief Justice Dana ... commented on the contents of theIndependent Chronicleof the preceding day. He properly stated to the Jury that though he was not a subscriber to the paper, he obtainedthat oneby 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 ofpervertingpublic opinion, and threatened to undermine the whole fabric of government." The irate judge declared that theChronicle'scriticism 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]
In view of the fact that Abijah Adams was not the author of the libel, nor even the publisher or editor of theChronicle, 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]
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]
His manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. In one case,[140]Addison forbade the Associate Judge to address the jury, and prevented him from doing so.[141]
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]
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 theNational system of justice, which the Federalists had made so completely their own.[143]
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]the echoes of which loudly sound in our ears even to the present day, probably never would have been made.
But for these things, Marburyvs.Madison[145]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.