FOOTNOTES:

The Presidential campaign was drawing near, and for the President openly to attack Marshall's position would create a political issue which could win none to the Republican cause not already fighting for it, and might keep recruits from joining the Republican colors. Jefferson was infinitely concerned about his reëlection and was giving practical attention to the strengthening of his party for the approaching contest.

"I am decidedly in favor of making all the banks Republican, by sharing deposits among them in proportion to the [political] dispositions they show," he wrote to his Secretary of the Treasury three months after Marshall's bold assertion of the dignity and power of the National courts. "It is," he continued, "material to the safety of Republicanism to detach the mercantile interests from its enemies and incorporate them into the body of its friends."[400]

Furthermore, Jefferson was, at that particular moment, profoundly troubled by intimate personalmatters and vast National complications. He had been trying, unsuccessfully, to adjust our dispute with France; the radical West was becoming clamorous for a forward and even a militant policy concerning the control of the Mississippi River, and especially of New Orleans, which commanded the mouth of that commercial waterway; while the Federalists, insisting upon bold measures, had a fair prospect of winning from Jefferson's support those aggressive and predatory frontiersmen who, until now, had stanchly upheld the Republican standard.

Spain had ceded Louisiana to France upon the condition that the territory never should be transferred to any other government; but neither New Orleans nor any part of Louisiana had actually been surrendered by the Spanish authorities. Great Britain informed the American Government that she would not consent to the occupation by the French of any part of Spain's possessions on the American continent.

Hating and distrusting the British, but also in terror of Napoleon, Jefferson, who was as weak in the conduct of foreign affairs as he was dexterous in the management of political parties, thought to escape the predicament by purchasing the island of Orleans and perhaps a strip on the east side of the Mississippi River.[401]

A series of events swiftly followed the decision of Marburyvs.Madison which enthralled the eager attention of the whole people and changed the destiny of the Republic. Three months after Marshalldelivered his opinion, Napoleon, yielding to "the empire of circumstances," as Talleyrand phrased it,[402]offered, and Livingston and Monroe accepted, the whole of Louisiana for less than fifteen million dollars. Of course France had no title to sell—Louisiana was still legally owned and actually occupied by Spain. The United States bought nothing more than a pretension; and, by force of propinquity and power, made it a fact.[403]

The President was amazed when the news reached him. He did not want Louisiana[404]—nothing was further from his mind than the purchase of it.[405]The immorality of the acquisition affected him not at all; but the inconvenience did. He did not know what to do with Louisiana. Worse still, the treaty of cession required that the people living in that territory should be admitted into the Union, "according to the principles of the Federal Constitution."

So, to his infinite disgust, Jefferson was forced to deal with the Louisiana Purchase by methods as vigorous as any ever advocated by the abhorred Hamilton—methods more autocratic than those which, when done by others, he had savagely denounced as unconstitutional and destructive of liberty.[406]The President doubted whether, under the Constitution, we could acquire, and was sure that wecould not govern, Louisiana, and he actually prepared amendments authorizing the incorporation into the Republic of the purchased territory.[407]No such legal mistiness dimmed the eyes of John Marshall who, in time, was to announce as the decision of the Supreme Court that the Republic could acquire territory with as much right as any monarchical government.[408]

To add to his perturbations, the high priest of popular rights found himself compelled to abandon his adored phrase, "the consent of the governed," upon which he had so carefully erected the structure of his popularity, and to drive through Congress a form of government over the people of Louisiana without consulting their wishes in the least.[409]

The Jeffersonian doctrine had been that the Union was merely a compact between sovereign States, and that new territory and alien peoples could not be added to it without the consent of all the partners. The Federalists now took their stand upon this indefensible ground,[410]and openly threatened the secession at which they had hinted when the Federalist Judiciary Act was repealed.

Jefferson was alive to the danger: "Whatever Congress shall think it necessary to do [about Louisiana]," he cautioned one of the Republican House leaders, "should be done with as little debate as possible."[411]A month earlier he wrote: "The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive ... have done an act beyond the Constitution."[412]

Therefore, he declared, "the less we say about constitutional difficulties respecting Louisiana the better ... What is necessary for surmounting them must be done sub-silentio."[413]The great radical favored publicity in affairs of state only when such a course was helpful to his political plans. On other occasions no autocrat was ever more secretive than Thomas Jefferson.[414]Seemingly, however, the President was concerned only with his influence on the destiny of the world.[415]

At first the Federalist leaders were too dazed to do more than grumble. "The cession of Louisiana ... is like selling us a Ship after she is surrounded by aBritish Fleet," shrewdly observed George Cabot, when the news was published in Boston.[416]Fisher Ames, of course, thought that "the acquiring of territory by money is mean and despicable," especially when done by Republicans. "The less of it [territory] the better.... By adding an unmeasured world beyond that river [Mississippi], we rush like a comet into infinite space."[417]

Soon, however, their dissatisfaction blew into flame the embers of secession which never had become cold in their bosoms. "I am convinced," wrote Uriah Tracy, "that the accession of Louisiana will accelerate a division of these States; whose whenabouts is uncertain, but somewhen is inevitable."[418]Senator Plumer thought that the Eastern States should form a new nation: "Adopt this western world into the Union," he said, "and you destroy at once the weight and importance of the Eastern States, and compel them to establish a separate and independent empire."[419]A few days' reflection brought Ames to the conclusion that "our country is too big for union, too sordid for patriotism, too democratic for liberty."[420]Tapping Reeve of Connecticut made careful inquiry among the Federalists in his vicinity and informed Tracy that "all ...believe that we must separate, and that this is the most favorable moment."[421]

Louisiana, however, was not the only motive of the foremost New England Federalists for their scheme of breaking up the Republic. As we have seen, the threat of secession was repeatedly made during the Republican assault on the Judiciary; and now, as a fundamental cause for disunion, the Northern Federalists speedily harked back to Jefferson's purpose of subverting the National courts. The Republicans were ruling the Nation, Virginia was ruling the Republicans, Jefferson was ruling all. Louisiana would permanently turn the balance against the Northern and Eastern States, already outweighed in the National scales; and the conquest of the National Judiciary would remove from that section its last protection against the pillaging hands of the Huns and Vandals of Republicanism. So reasoned the Federalists.

What could be done to save the rights and the property of "the wise, the rich and the good"? By what pathway could the chosen escape their doom? "The principles of our Revolution point to the remedy," declared the soured and flint-hearted Pickering. "The independence of the judges is now directly assailed.... I am not willing to be sacrificed by such popular tyrants.... I do not believe in the practicability of a long-continued union."[422]

For the same reasons, Roger Griswold of Connecticut avowed that "there can be no safety to the Northern Stateswithout a separation from the confederacy."[423]The Reverend Jedediah Morse of New Hampshire wrote Senator Plumer that "our empire ... must ... break in pieces. Some think the sooner the better."[424]And the New Hampshire Senator replied: "I hope the time is not far distant when ... the sound part will separate from the corrupt."[425]

With the exception of John Adams, only one eminent New England Federalist kept his head steady and his patriotism undefiled: George Cabot, while sympathizing with his ancient party friends, frankly opposed their mad project. Holding that secession was impracticable, he declared: "I am not satisfied that the thing itself is to be desired. My habitual opinions have been always strongly against it."[426]

But the expressions of such men as Pickering, Ames, and Griswold indicated the current of New England Federalist thought and comment. Their secession sentiment, however, did not appeal to the young men, who hailed with joy the opportunity to occupy these new, strange lands which accident, or Providence, or Jefferson had opened to them. Knowledge of this was indeed one cause of the anger of some Federalist managers who owned immense tracts in New England and in the Ohio Valley and wanted them purchased and settled by those nowturning their eyes to the alluring farther western country.[427]They saw with something like fury the shifting of political power to the South and West.

The management of the unwelcome Louisiana windfall, the conduct of the National campaign, the alarming reports from New England, left Jefferson no time to rail at Marshall or to attack that "subtle corps of sappers and miners" who were then beginning "to undermine ... our confederated fabric," as Jefferson declared seventeen years later.[428]For the present the great public duty of exposing Marshall's decision in Marburyvs.Madison must be deferred.

But the mills of democracy were grinding, and after he was reëlected certain impeachments would be found in the grist that would make all right. The defiant Marshall would at least be humbled, perhaps—probably—removed from office. But all in good time! For the present Jefferson had other work to do. He himself must now exercise powers which, according to his philosophy and declarations, were far beyond those conferred upon him by the Constitution.

So it came about that the first of Marshall's great Constitutional opinions received scant notice at the time of its delivery. The newspapers had little to say about it. Even the bench and the bar of the country, at least in the sections remote from Washington, appear not to have heard of it,[429]or, if theyhad, to have forgotten it amid the thrilling events that filled the times.

Because popular interest had veered toward and was concentrated upon the Louisiana Purchase and the renewal of war in Europe, Republican newspapers, until then so alert to discover and eager to attack every judicial "usurpation," had almost nothing to say of Marshall's daring assertion of judicial supremacy which later was execrated as the very parent of Constitutional evil. An empire had been won under Jefferson; therefore Jefferson had won it—another proof of the far-seeing statesmanship of "The Man of the People." Of consequencehe must be reëlected. Such was the popular logic; and reëlected Jefferson was—triumphantly, almost unanimously.

Circumstances which had shackled his hands now suddenly freed them. Henceforth the President could do as he liked, both personally and politically. No longer should John Marshall, the abominated head of the National Judiciary, rest easy on the bench which his audacity had elevated above President and Congress. The opinion of the "usurping" Chief Justice in Marburyvs.Madison should have answer at last. So on with the impeachment trial of Samuel Chase! Let him be deposed, and then, if Marshall would not bend the knee, that obdurate judicial defender of Nationalism should follow Chase into desuetude and disgrace.

The incessant clamor of the Federalist past-statesmen, unheard by the popular ear, had nevertheless done some good—all the good it ought to have done. It had aroused misgivings in the minds of certain Northern Republican Senators as to the expediency, wisdom, and justice of the Republican plan to shackle or overthrow the National Judiciary. This hesitation was, however, unknown to the masters of the Republican organization in Congress. The Federalists themselves were totally unaware of it. Only Jefferson, with his abnormal sensibility, had an indistinct impression that somewhere, in the apparently perfect alignment of the Republican forces, there was potential weakness.

Marshall was gifted with no such divination. He knew only the fate that had been prepared for him.A crisis was reached in his career and a determinative phase of American history entered upon. His place as Chief Justice was to be made secure and the stability of American institutions saved by as narrow a margin as that by which the National Constitution had been established.

FOOTNOTES:[308]Marshall to his wife, Jan. 2, 1803, MS.[309]See vol.ii, 502-05, of this work.[310]Marshall to King, May 5, 1802, King,iv, 116-18.[311]Since the adoption of the Kentucky and Virginia Resolutions in 1798. (See vol.ii, chaps.x,xi,xii, of this work.)[312]Since the Republican repeal of the Federalist Judiciary Act was proposed. Seesupra, 51.[313]Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island.[314]The Federalist majority in Vermont resolved that: "It belongs not toState Legislaturesto decide on the constitutionality of laws made by the general government; this power being exclusively vested in theJudiciary Courts of the Union." (Records of Governor and Council of Vermont,iv, 529.)The Federalist majority in the Maryland Legislature asserted that "no state government ... is competent to declare an act of the federal government unconstitutional, ... that jurisdiction ... is exclusively vested in the courts of the United States." (Anderson, inAm. Hist. Rev.v, 248.)The New York Federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by Congress ... appertains to the judiciary department." (Ib.248-49.)Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." (Ib.247.)In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration. (Ib.246.)The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (Anderson, inAm. Hist. Rev.v, 245.)On February 8, 1799, Massachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." (Mass. Senate Journal, 1798-99,xix, 238, MS. volume Mass. State Library.)Such was the general tenor of the Federalists' pronouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown.The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic assertions that any State might declare an act of Congress unconstitutional and disregard it, andthat the National Judiciary did not have supervisory power over legislation.[315]See vol.ii, 387-89, of this work.[316]Referring to Marshall's conduct in the French Mission. (See vol.ii, chaps.vii,viii,ix, of this work.)[317]Anderson, inAm. Hist. Rev.v, 249.[318]Ib.235-37.[319]The questions raised by the Kentucky and Virginia Resolutions were principal themes of debate in State Legislatures, in the press, in Congressional campaigns, and in the Presidential contest of 1800. The Judiciary debate of 1802 was, in part, a continuance of these popular discussions.[320]Seesupra, 52.[321]Within a year after Marburyvs.Madison was decided, Albert Moore, one of the Federalist Associate Justices of the Supreme Court, resigned because of ill health and his place was filled by William Johnson, a Republican of South Carolina.[322]See vol.i, 410, of this work.[323]March 2, 1801.[324]Journal of the Executive Proceedings of the Senate,i, 388.[325]Ib.390.[326]Ib.404. Jefferson did this because, as he said, the appointees of Adams were too numerous.[327]Journal, Exec. Proc. Senate,i, 417.[328]Seesupra, 94-97.[329]Seeinfra, chap.iv.[330]This belief is strikingly shown by the comment of the Republican press. For example, just before Marshall delivered his opinion, a correspondent of theIndependent Chronicleof Boston sent from Washington this article:"The efforts offederalismto exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the Judiciary."Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party passions and prejudices."Theattemptof the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments."The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But ourRepublicanframe of Government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments."The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions offederalmonarchists and aristocrats to the contrary notwithstanding." (Independent Chronicle, March 10, 1803.)Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in theChroniclewas probably sent while Marburyvs.Madison was being argued.[331]Dodd, inAm. Hist. Rev.xii, 776. Under the law Marshall's successor must come from Virginia or North Carolina.[332]As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assailed Marshall and his principles of Nationalism with unsparing rigor. (See vol.iv, chaps.iii, andvi, of this work.)[333]For example, in Fletchervs.Peck, Roane would have held that the National Courts could not annul a State statute; in Martinvs.Hunter's Lessees and in Cohenvs.Virginia, that the Supreme Court could not review the judgment of a State court; in McCullochvs.Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Constitution, etc. All this we know positively from Roane's own writings. (See vol.iv, chaps.iii,vi, andvii, of this work.)[334]It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin:Doctrine of Judicial Review, 10-11; Beard:Supreme Court and the Constitution, 16-18; McLaughlin:The Courts, the Constitution and Parties, 32-35.)In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand,i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib.109.)On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib.ii, 93.)George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib.78.)Gouverneur Morris of Pennsylvania—afterwards of New York—dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (Ib.299.)Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (Ib.i, 100-01.)James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough"—the judges should also have "Revisionary power" to pass on bills in the process of enactment. (Ib.ii, 73.)Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. (Ib.76.)John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." (Records, Fed. Conv.: Farrand, 298.)John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (Ib.299.)Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (Ib.298.)The above is a condensedprécisof all that was said in the Constitutional Convention on this vital matter.[335]See vol.i, 452, of this work.[336]The Virginia Resolutions.[337]Address of the Minority, Jan. 22, 1799,Journal of the House of Delegates of Virginia, 1798-99, 90-95.[338]Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington,Iredell: McRee, 293-96; and see letter of Jay to Washington, Aug. 8, 1793,Jay: Johnston,iii, 488-89.[339]Seesupra, 40, footnote 1.[340]Wharton:State Trials, 715-18.[341]Jefferson to Meusnier, Jan. 24, 1786,Works: Ford,v, 31-32.[342]Jefferson to Meusnier, Jan. 24, 1786,Works: Ford,v, 14-15. (Italics the author's.)[343]For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.[344]For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.[345]See vol.i, 323, of this work.[346]SeeRecords Fed. Conv.: Farrand,i, Introduction,xii.[347]Elliot'sDebateswere not published until 1827-30.[348]Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.[349]The Federalist: Lodge, 485-86. Madison also upheld the same doctrine. Later he opposed it, but toward the end of his life returned to his first position. (See vol.iv, chap.x, of this work.)[350]John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (Seesupra, 55.) The first Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife,Jay: Johnston,iii, 420.) Jay had hesitated to accept the office as Chief Justice when Washington tendered it to him in 1789, and he had resigned it gladly in 1795 to become the Federalist candidate for Governor of New York.Washington offered the place to Patrick Henry, who refused it. (See Henry:Patrick Henry—Life, Correspondence and Speeches,ii, 562-63; also Tyler,i, 183.) The office was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton:State Trials, 33.) So little was a place on the Supreme Bench esteemed that John Rutledge resigned as Associate Justice to accept the office of Chief Justice of the Supreme Court of South Carolina. (Ib.35.)Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal,iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams,i, 290.) Edmund Randolph, when Attorney-General, deplored the weakening of the Supreme Court, and looked forward to the time when it should be strengthened. (Randolph to Washington, Aug. 5, 1792,Writings of George Washington: Sparks,x, 513.)The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton inJohn Marshall—Life, Character and Judicial Services: Dillon,i, 198-99.) When the seat of government was transferred to Washington, the court crept into an humble apartment in the basement beneath the Senate Chamber.[351]New York Review,iii, 347. The article on Chief Justice Marshall in this periodical was written by Chancellor James Kent, although his name does not appear.[352]See vol.iv, chap.ix.[353]See Tilghman to Smith, May 22, 1802, Morison:Smith, 148-49."A general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. It is not descrete to say more at present." (Bayard to Bassett, April 19, 1802,Bayard Papers: Donnan, 153.)[354]See "Protest of Judges,"American State Papers, Miscellaneous,i, 340.Writing to Wolcott, now one of the displaced National circuit judges (Wolcott's appointment was secured by Marshall; see vol.ii, 559, of this work), concerning "the outrage committed by Congress on the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge:Cabot, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to Congress." He considered this to be "a manifest duty" of the judges, and gave Wolcott the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802,ib.327-28.)A proposition to submit to the Supreme Court the constitutionality of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 2d Sess. 439.)[355]Seeinfra, 130, 131.[356]Seesupra, 110.[357]Marshall to James M. Marshall, March 18, 1801, MS.[358]February, 1803.[359]Jefferson to Johnson, June 12, 1823,Works: Ford,xii, footnote to 256.[360]See 1 Cranch, 137-80.[361]Section 13 provided, among other things, that "the Supreme Court ... shall have power to issue writs of prohibition to the district courts ... and writs ofmandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." (U.S. Statutes at Large,i, 73;Annals, 1st Cong. 2d Sess. 2245.)[362]Seesupra, 53-54.[363]See Dougherty:Power of the Federal Judiciary over Legislation, 82.Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by analogy, recognized the validity of it. (Corwin, 8-9.)[364]U.S.vs.Ravara, 2 Dallas, 297.[365]U.S.vs.Lawrence, 3 Dallas, 42.[366]U.S.vs.Peters,ib.121.[367]In the argument of Marburyvs.Madison, Charles Lee called Marshall's attention to the case of U.S.vs.Hopkins, in the February term, 1794, in which a motion was made for a mandamus to Hopkins as loan officer for the District of Virginia, and to the case of one John Chandler of Connecticut, also in February, 1794, in which a motion was made in behalf of Chandler for a mandamus to the Secretary of War. These cases do not seem to have been reported, and Lee must have referred to manuscript records of them. (See 1 Cranch, 148-49.)Samuel W. Dana of Connecticut also referred to the Chandler case during the Judiciary debate in the House, March, 1802. (SeeAnnals, 7th Cong. 1st Sess. 903-04.)[368]1 Cranch, 308.[369]Stuartvs.Laird, 1 Cranch, 309.[370]The next case in which the Supreme Court overthrew an act of Congress was that of Scottvs.Sandford—the famous Dred Scott case, decided in 1857. In this case the Supreme Court held that Congress had no power to prohibit slavery in the territory purchased from France in 1803 (the Louisiana Purchase), and that the Act of March 6, 1820, known as the Missouri Compromise, was unconstitutional, null, and void. (See Scottvs.Sandford, 19 Howard, 393et seq.)[371]The President can veto a bill, of course, on the ground of unconstitutionally; but, by a two thirds vote, Congress can pass it over the Executive's disapproval.[372]Carson,i, 203; and see especially Adams:U.S.i, 192.[373]1 Cranch, 154.[374]This seems to have been inaccurate. Compare Lee's argument with Marshall's opinion.[375]1 Cranch, 158.[376]1 Cranch, 160.[377]Ib.162.[378]Ib.163.[379]Ib.164.[380]Ib.165.[381]1 Cranch, 166-68.[382]Ib.169.[383]1 Cranch, 170.[384]Ib.173.[385]1 Cranch, 174.[386]In all "other cases ... the Supreme Court shall have appellate jurisdiction ... with such exceptions ... as the Congress shall make."[387]Ib.174. (Italics the author's.)[388]1 Cranch, 176. This particular part of the text adopts Professor Edward S. Corwin's careful and accurate analysis of Marshall's opinion on this point. (See Corwin, 4-10.)[389]1 Cranch, 176.[390]Ib.176-77.[391]1 Cranch, 177.[392]Ib.178.[393]1 Cranch, 178-80.[394]See vol.i, 323, of this work.[395]It must be borne in mind that the American Constitution declares that, in and of itself, it is law—the supreme law of the land; and that no other written constitution makes any such assertion.[396]Seeinfra, chap.iv.[397]Jefferson to Mrs. Adams, Sept. 11, 1804,Works: Ford,x, footnote to 89.[398]Seeinfra, chap.viii.[399]Jefferson to Jarvis, Sept. 28, 1820,Works: Ford,xii, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798,ib.viii, 448.)[400]Jefferson to Gallatin, July 12, 1803,Works: Ford,x, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.[401]See Channing:U.S.iv, 313-14.[402]Talleyrand to Decrès, May 24, 1803, as quoted in Adams:U.S.ii, 55.[403]Morison:Otis,i, 262; see also Adams:U.S.ii, 56.[404]See instructions to Livingston and Monroe,Am. State Papers, Foreign Relations,ii, 540.[405]Adams:U.S.i, 442-43.[406]Ib.ii, 120-28.[407]Works: Ford,x, 3-12.[408]American Insurance Companyet al. vs.Canter, 1 Peters, 511-46, and see vol.iv, chap.iii, of this work.[409]SeeU.S. Statutes at Large,ii, 283; andAnnals, 8th Cong. 2d Sess. 1597.[410]For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)[411]Jefferson to Nicholas, Sept. 7, 1803,Works: Ford,x, 10.[412]Jefferson to Breckenridge, Aug. 12, 1803,ib.7.[413]Jefferson to Madison, Aug. 18, 1803,ib.8.[414]"The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800,ib.ix, 129; and see Adams:U.S.iii, 147.)[415]"The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803,Life of the Late Gen. William Eaton: Prentiss, 263; also quoted in Adams:U.S.ii, 431.)[416]Cabot to King, July 1, 1803, King,iv, 279. The Louisiana Purchase was first publicly announced through the press by theIndependent Chronicleof Boston, June 30, 1803. (Adams:U.S.ii, 82-83.)[417]Ames to Gore, Oct. 3, 1803, Ames,i, 323-24.[418]Tracy to McHenry, Oct. 19, 1803, Steiner:Life and Correspondence of James McHenry, 522.[419]Oct. 20, 1803, Plumer, 285.[420]Ames to Dwight, Oct. 26, 1803, Ames,i, 328.[421]Reeve to Tracy, Feb. 7, 1804,N.E. Federalism: Adams, 342; and see Adams:U.S.ii, 160.Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)[422]Pickering to Cabot, Jan. 29, 1804, Lodge:Cabot, 338.[423]Griswold to Wolcott, March 11, 1804,N.E. Federalism: Adams, 356.[424]Morse to Plumer, Feb. 3, 1804, Plumer, 289.[425]Plumer to Morse, March 10, 1804,ib.[426]Cabot to King, March 17, 1804, Lodge:Cabot, 345.[427]See Morison:Otis,i, 262.[428]Jefferson to Ritchie, Dec. 25, 1820,Works: Ford,xii, 177.[429]For instance, in 1808, the United States District Court of Massachusetts, in the decision of a case requiring all possible precedents like that of Marburyvs.Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marburyvs.Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citingAm. Law Journal, old series,ii, 255-64.)Marshall's opinion in Marburyvs.Madison was first referred to by counsel in a legal controversy inEx ParteBurford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and seeinfra, chap.vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.A year later Marshall's opinion in Marburyvs.Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the caseEx ParteGilchristet al. vs.The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marburyvs.Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (seeinfra, chaps.vii,viii,ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marburyvs.Madison. He did not even answer Rodney's letter.

[308]Marshall to his wife, Jan. 2, 1803, MS.

[309]See vol.ii, 502-05, of this work.

[310]Marshall to King, May 5, 1802, King,iv, 116-18.

[311]Since the adoption of the Kentucky and Virginia Resolutions in 1798. (See vol.ii, chaps.x,xi,xii, of this work.)

[312]Since the Republican repeal of the Federalist Judiciary Act was proposed. Seesupra, 51.

[313]Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island.

[314]The Federalist majority in Vermont resolved that: "It belongs not toState Legislaturesto decide on the constitutionality of laws made by the general government; this power being exclusively vested in theJudiciary Courts of the Union." (Records of Governor and Council of Vermont,iv, 529.)The Federalist majority in the Maryland Legislature asserted that "no state government ... is competent to declare an act of the federal government unconstitutional, ... that jurisdiction ... is exclusively vested in the courts of the United States." (Anderson, inAm. Hist. Rev.v, 248.)The New York Federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by Congress ... appertains to the judiciary department." (Ib.248-49.)Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." (Ib.247.)In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration. (Ib.246.)The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (Anderson, inAm. Hist. Rev.v, 245.)On February 8, 1799, Massachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." (Mass. Senate Journal, 1798-99,xix, 238, MS. volume Mass. State Library.)Such was the general tenor of the Federalists' pronouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown.The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic assertions that any State might declare an act of Congress unconstitutional and disregard it, andthat the National Judiciary did not have supervisory power over legislation.

The Federalist majority in the Maryland Legislature asserted that "no state government ... is competent to declare an act of the federal government unconstitutional, ... that jurisdiction ... is exclusively vested in the courts of the United States." (Anderson, inAm. Hist. Rev.v, 248.)

The New York Federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by Congress ... appertains to the judiciary department." (Ib.248-49.)

Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." (Ib.247.)

In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration. (Ib.246.)

The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (Anderson, inAm. Hist. Rev.v, 245.)

On February 8, 1799, Massachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." (Mass. Senate Journal, 1798-99,xix, 238, MS. volume Mass. State Library.)

Such was the general tenor of the Federalists' pronouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown.

The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic assertions that any State might declare an act of Congress unconstitutional and disregard it, andthat the National Judiciary did not have supervisory power over legislation.

[315]See vol.ii, 387-89, of this work.

[316]Referring to Marshall's conduct in the French Mission. (See vol.ii, chaps.vii,viii,ix, of this work.)

[317]Anderson, inAm. Hist. Rev.v, 249.

[318]Ib.235-37.

[319]The questions raised by the Kentucky and Virginia Resolutions were principal themes of debate in State Legislatures, in the press, in Congressional campaigns, and in the Presidential contest of 1800. The Judiciary debate of 1802 was, in part, a continuance of these popular discussions.

[320]Seesupra, 52.

[321]Within a year after Marburyvs.Madison was decided, Albert Moore, one of the Federalist Associate Justices of the Supreme Court, resigned because of ill health and his place was filled by William Johnson, a Republican of South Carolina.

[322]See vol.i, 410, of this work.

[323]March 2, 1801.

[324]Journal of the Executive Proceedings of the Senate,i, 388.

[325]Ib.390.

[326]Ib.404. Jefferson did this because, as he said, the appointees of Adams were too numerous.

[327]Journal, Exec. Proc. Senate,i, 417.

[328]Seesupra, 94-97.

[329]Seeinfra, chap.iv.

[330]This belief is strikingly shown by the comment of the Republican press. For example, just before Marshall delivered his opinion, a correspondent of theIndependent Chronicleof Boston sent from Washington this article:"The efforts offederalismto exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the Judiciary."Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party passions and prejudices."Theattemptof the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments."The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But ourRepublicanframe of Government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments."The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions offederalmonarchists and aristocrats to the contrary notwithstanding." (Independent Chronicle, March 10, 1803.)Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in theChroniclewas probably sent while Marburyvs.Madison was being argued.

"The efforts offederalismto exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the Judiciary.

"Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party passions and prejudices.

"Theattemptof the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments.

"The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But ourRepublicanframe of Government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments.

"The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions offederalmonarchists and aristocrats to the contrary notwithstanding." (Independent Chronicle, March 10, 1803.)

Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in theChroniclewas probably sent while Marburyvs.Madison was being argued.

[331]Dodd, inAm. Hist. Rev.xii, 776. Under the law Marshall's successor must come from Virginia or North Carolina.

[332]As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assailed Marshall and his principles of Nationalism with unsparing rigor. (See vol.iv, chaps.iii, andvi, of this work.)

[333]For example, in Fletchervs.Peck, Roane would have held that the National Courts could not annul a State statute; in Martinvs.Hunter's Lessees and in Cohenvs.Virginia, that the Supreme Court could not review the judgment of a State court; in McCullochvs.Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Constitution, etc. All this we know positively from Roane's own writings. (See vol.iv, chaps.iii,vi, andvii, of this work.)

[334]It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin:Doctrine of Judicial Review, 10-11; Beard:Supreme Court and the Constitution, 16-18; McLaughlin:The Courts, the Constitution and Parties, 32-35.)In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand,i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib.109.)On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib.ii, 93.)George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib.78.)Gouverneur Morris of Pennsylvania—afterwards of New York—dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (Ib.299.)Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (Ib.i, 100-01.)James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough"—the judges should also have "Revisionary power" to pass on bills in the process of enactment. (Ib.ii, 73.)Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. (Ib.76.)John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." (Records, Fed. Conv.: Farrand, 298.)John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (Ib.299.)Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (Ib.298.)The above is a condensedprécisof all that was said in the Constitutional Convention on this vital matter.

In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand,i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib.109.)

On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)

Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib.ii, 93.)

George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib.78.)

Gouverneur Morris of Pennsylvania—afterwards of New York—dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (Ib.299.)

Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (Ib.i, 100-01.)

James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough"—the judges should also have "Revisionary power" to pass on bills in the process of enactment. (Ib.ii, 73.)

Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. (Ib.76.)

John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." (Records, Fed. Conv.: Farrand, 298.)

John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (Ib.299.)

Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (Ib.298.)

The above is a condensedprécisof all that was said in the Constitutional Convention on this vital matter.

[335]See vol.i, 452, of this work.

[336]The Virginia Resolutions.

[337]Address of the Minority, Jan. 22, 1799,Journal of the House of Delegates of Virginia, 1798-99, 90-95.

[338]Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington,Iredell: McRee, 293-96; and see letter of Jay to Washington, Aug. 8, 1793,Jay: Johnston,iii, 488-89.

[339]Seesupra, 40, footnote 1.

[340]Wharton:State Trials, 715-18.

[341]Jefferson to Meusnier, Jan. 24, 1786,Works: Ford,v, 31-32.

[342]Jefferson to Meusnier, Jan. 24, 1786,Works: Ford,v, 14-15. (Italics the author's.)

[343]For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.

[344]For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.

[345]See vol.i, 323, of this work.

[346]SeeRecords Fed. Conv.: Farrand,i, Introduction,xii.

[347]Elliot'sDebateswere not published until 1827-30.

[348]Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.

[349]The Federalist: Lodge, 485-86. Madison also upheld the same doctrine. Later he opposed it, but toward the end of his life returned to his first position. (See vol.iv, chap.x, of this work.)

[350]John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (Seesupra, 55.) The first Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife,Jay: Johnston,iii, 420.) Jay had hesitated to accept the office as Chief Justice when Washington tendered it to him in 1789, and he had resigned it gladly in 1795 to become the Federalist candidate for Governor of New York.Washington offered the place to Patrick Henry, who refused it. (See Henry:Patrick Henry—Life, Correspondence and Speeches,ii, 562-63; also Tyler,i, 183.) The office was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton:State Trials, 33.) So little was a place on the Supreme Bench esteemed that John Rutledge resigned as Associate Justice to accept the office of Chief Justice of the Supreme Court of South Carolina. (Ib.35.)Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal,iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams,i, 290.) Edmund Randolph, when Attorney-General, deplored the weakening of the Supreme Court, and looked forward to the time when it should be strengthened. (Randolph to Washington, Aug. 5, 1792,Writings of George Washington: Sparks,x, 513.)The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton inJohn Marshall—Life, Character and Judicial Services: Dillon,i, 198-99.) When the seat of government was transferred to Washington, the court crept into an humble apartment in the basement beneath the Senate Chamber.

Washington offered the place to Patrick Henry, who refused it. (See Henry:Patrick Henry—Life, Correspondence and Speeches,ii, 562-63; also Tyler,i, 183.) The office was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton:State Trials, 33.) So little was a place on the Supreme Bench esteemed that John Rutledge resigned as Associate Justice to accept the office of Chief Justice of the Supreme Court of South Carolina. (Ib.35.)

Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal,iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams,i, 290.) Edmund Randolph, when Attorney-General, deplored the weakening of the Supreme Court, and looked forward to the time when it should be strengthened. (Randolph to Washington, Aug. 5, 1792,Writings of George Washington: Sparks,x, 513.)

The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton inJohn Marshall—Life, Character and Judicial Services: Dillon,i, 198-99.) When the seat of government was transferred to Washington, the court crept into an humble apartment in the basement beneath the Senate Chamber.

[351]New York Review,iii, 347. The article on Chief Justice Marshall in this periodical was written by Chancellor James Kent, although his name does not appear.

[352]See vol.iv, chap.ix.

[353]See Tilghman to Smith, May 22, 1802, Morison:Smith, 148-49."A general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. It is not descrete to say more at present." (Bayard to Bassett, April 19, 1802,Bayard Papers: Donnan, 153.)

[353]See Tilghman to Smith, May 22, 1802, Morison:Smith, 148-49.

"A general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. It is not descrete to say more at present." (Bayard to Bassett, April 19, 1802,Bayard Papers: Donnan, 153.)

[354]See "Protest of Judges,"American State Papers, Miscellaneous,i, 340.Writing to Wolcott, now one of the displaced National circuit judges (Wolcott's appointment was secured by Marshall; see vol.ii, 559, of this work), concerning "the outrage committed by Congress on the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge:Cabot, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to Congress." He considered this to be "a manifest duty" of the judges, and gave Wolcott the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802,ib.327-28.)A proposition to submit to the Supreme Court the constitutionality of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 2d Sess. 439.)

[354]See "Protest of Judges,"American State Papers, Miscellaneous,i, 340.

Writing to Wolcott, now one of the displaced National circuit judges (Wolcott's appointment was secured by Marshall; see vol.ii, 559, of this work), concerning "the outrage committed by Congress on the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge:Cabot, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to Congress." He considered this to be "a manifest duty" of the judges, and gave Wolcott the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802,ib.327-28.)

A proposition to submit to the Supreme Court the constitutionality of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 2d Sess. 439.)

[355]Seeinfra, 130, 131.

[356]Seesupra, 110.

[357]Marshall to James M. Marshall, March 18, 1801, MS.

[358]February, 1803.

[359]Jefferson to Johnson, June 12, 1823,Works: Ford,xii, footnote to 256.

[360]See 1 Cranch, 137-80.

[361]Section 13 provided, among other things, that "the Supreme Court ... shall have power to issue writs of prohibition to the district courts ... and writs ofmandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." (U.S. Statutes at Large,i, 73;Annals, 1st Cong. 2d Sess. 2245.)

[362]Seesupra, 53-54.

[363]See Dougherty:Power of the Federal Judiciary over Legislation, 82.Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by analogy, recognized the validity of it. (Corwin, 8-9.)

[363]See Dougherty:Power of the Federal Judiciary over Legislation, 82.

Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by analogy, recognized the validity of it. (Corwin, 8-9.)

[364]U.S.vs.Ravara, 2 Dallas, 297.

[365]U.S.vs.Lawrence, 3 Dallas, 42.

[366]U.S.vs.Peters,ib.121.

[367]In the argument of Marburyvs.Madison, Charles Lee called Marshall's attention to the case of U.S.vs.Hopkins, in the February term, 1794, in which a motion was made for a mandamus to Hopkins as loan officer for the District of Virginia, and to the case of one John Chandler of Connecticut, also in February, 1794, in which a motion was made in behalf of Chandler for a mandamus to the Secretary of War. These cases do not seem to have been reported, and Lee must have referred to manuscript records of them. (See 1 Cranch, 148-49.)Samuel W. Dana of Connecticut also referred to the Chandler case during the Judiciary debate in the House, March, 1802. (SeeAnnals, 7th Cong. 1st Sess. 903-04.)

Samuel W. Dana of Connecticut also referred to the Chandler case during the Judiciary debate in the House, March, 1802. (SeeAnnals, 7th Cong. 1st Sess. 903-04.)

[368]1 Cranch, 308.

[369]Stuartvs.Laird, 1 Cranch, 309.

[370]The next case in which the Supreme Court overthrew an act of Congress was that of Scottvs.Sandford—the famous Dred Scott case, decided in 1857. In this case the Supreme Court held that Congress had no power to prohibit slavery in the territory purchased from France in 1803 (the Louisiana Purchase), and that the Act of March 6, 1820, known as the Missouri Compromise, was unconstitutional, null, and void. (See Scottvs.Sandford, 19 Howard, 393et seq.)

[371]The President can veto a bill, of course, on the ground of unconstitutionally; but, by a two thirds vote, Congress can pass it over the Executive's disapproval.

[372]Carson,i, 203; and see especially Adams:U.S.i, 192.

[373]1 Cranch, 154.

[374]This seems to have been inaccurate. Compare Lee's argument with Marshall's opinion.

[375]1 Cranch, 158.

[376]1 Cranch, 160.

[377]Ib.162.

[378]Ib.163.

[379]Ib.164.

[380]Ib.165.

[381]1 Cranch, 166-68.

[382]Ib.169.

[383]1 Cranch, 170.

[384]Ib.173.

[385]1 Cranch, 174.

[386]In all "other cases ... the Supreme Court shall have appellate jurisdiction ... with such exceptions ... as the Congress shall make."

[387]Ib.174. (Italics the author's.)

[388]1 Cranch, 176. This particular part of the text adopts Professor Edward S. Corwin's careful and accurate analysis of Marshall's opinion on this point. (See Corwin, 4-10.)

[389]1 Cranch, 176.

[390]Ib.176-77.

[391]1 Cranch, 177.

[392]Ib.178.

[393]1 Cranch, 178-80.

[394]See vol.i, 323, of this work.

[395]It must be borne in mind that the American Constitution declares that, in and of itself, it is law—the supreme law of the land; and that no other written constitution makes any such assertion.

[396]Seeinfra, chap.iv.

[397]Jefferson to Mrs. Adams, Sept. 11, 1804,Works: Ford,x, footnote to 89.

[398]Seeinfra, chap.viii.

[399]Jefferson to Jarvis, Sept. 28, 1820,Works: Ford,xii, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798,ib.viii, 448.)

[400]Jefferson to Gallatin, July 12, 1803,Works: Ford,x, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.

[401]See Channing:U.S.iv, 313-14.

[402]Talleyrand to Decrès, May 24, 1803, as quoted in Adams:U.S.ii, 55.

[403]Morison:Otis,i, 262; see also Adams:U.S.ii, 56.

[404]See instructions to Livingston and Monroe,Am. State Papers, Foreign Relations,ii, 540.

[405]Adams:U.S.i, 442-43.

[406]Ib.ii, 120-28.

[407]Works: Ford,x, 3-12.

[408]American Insurance Companyet al. vs.Canter, 1 Peters, 511-46, and see vol.iv, chap.iii, of this work.

[409]SeeU.S. Statutes at Large,ii, 283; andAnnals, 8th Cong. 2d Sess. 1597.

[410]For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)

[411]Jefferson to Nicholas, Sept. 7, 1803,Works: Ford,x, 10.

[412]Jefferson to Breckenridge, Aug. 12, 1803,ib.7.

[413]Jefferson to Madison, Aug. 18, 1803,ib.8.

[414]"The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800,ib.ix, 129; and see Adams:U.S.iii, 147.)

[415]"The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803,Life of the Late Gen. William Eaton: Prentiss, 263; also quoted in Adams:U.S.ii, 431.)

[416]Cabot to King, July 1, 1803, King,iv, 279. The Louisiana Purchase was first publicly announced through the press by theIndependent Chronicleof Boston, June 30, 1803. (Adams:U.S.ii, 82-83.)

[417]Ames to Gore, Oct. 3, 1803, Ames,i, 323-24.

[418]Tracy to McHenry, Oct. 19, 1803, Steiner:Life and Correspondence of James McHenry, 522.

[419]Oct. 20, 1803, Plumer, 285.

[420]Ames to Dwight, Oct. 26, 1803, Ames,i, 328.

[421]Reeve to Tracy, Feb. 7, 1804,N.E. Federalism: Adams, 342; and see Adams:U.S.ii, 160.Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)

[421]Reeve to Tracy, Feb. 7, 1804,N.E. Federalism: Adams, 342; and see Adams:U.S.ii, 160.

Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)

[422]Pickering to Cabot, Jan. 29, 1804, Lodge:Cabot, 338.

[423]Griswold to Wolcott, March 11, 1804,N.E. Federalism: Adams, 356.

[424]Morse to Plumer, Feb. 3, 1804, Plumer, 289.

[425]Plumer to Morse, March 10, 1804,ib.

[426]Cabot to King, March 17, 1804, Lodge:Cabot, 345.

[427]See Morison:Otis,i, 262.

[428]Jefferson to Ritchie, Dec. 25, 1820,Works: Ford,xii, 177.

[429]For instance, in 1808, the United States District Court of Massachusetts, in the decision of a case requiring all possible precedents like that of Marburyvs.Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marburyvs.Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citingAm. Law Journal, old series,ii, 255-64.)Marshall's opinion in Marburyvs.Madison was first referred to by counsel in a legal controversy inEx ParteBurford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and seeinfra, chap.vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.A year later Marshall's opinion in Marburyvs.Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the caseEx ParteGilchristet al. vs.The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marburyvs.Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (seeinfra, chaps.vii,viii,ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marburyvs.Madison. He did not even answer Rodney's letter.

Marshall's opinion in Marburyvs.Madison was first referred to by counsel in a legal controversy inEx ParteBurford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and seeinfra, chap.vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.

A year later Marshall's opinion in Marburyvs.Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the caseEx ParteGilchristet al. vs.The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.

Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marburyvs.Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (seeinfra, chaps.vii,viii,ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marburyvs.Madison. He did not even answer Rodney's letter.

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