CHAPTER II

THE ASSAULT ON THE JUDICIARY

The angels of destruction are making haste. Our judges are to be

as independent as spaniels. (Fisher Ames.)

The power which has the right of passing, without appeal, on the

validity of your laws, is your sovereign. (John Randolph.)

On January 6, 1802, an atmosphere of intense but suppressed excitement

pervaded the little semi-circular room where the Senate of the United

States was in session.[146] The Republican assault upon the Judiciary

was about to begin and the Federalists in Congress had nerved themselves

for their last great fight. The impending debate was to prove one of the

permanently notable engagements in American legislative history and was

to create a situation which, in a few months, forced John Marshall to

pronounce the first of those fundamental opinions which have helped to

shape and which still influence the destiny of the American Nation.

The decision of Marbury _vs._ Madison was to be made inevitable by the

great controversy to which we are now to listen. Marshall's course, and,

indeed, his opinion in this famous case, cannot be understood without a

thorough knowledge of the notable debate in Congress which immediately

preceded it.[147]

Never was the effect of the long years of party training which

Jefferson had given the Republicans better manifested than now. There

was unsparing party discipline, perfect harmony of party plan. The

President himself gave the signal for attack, but with such skill that

while his lieutenants in House and Senate understood their orders and

were eager to execute them, the rank and file of the Federalist voters,

whom Jefferson hoped to win to the Republican cause in the years to

come, were soothed rather than irritated by the seeming moderation and

reasonableness of the President's words.

"The Judiciary system ... and especially that portion of it recently

enacted, will, of course, present itself to the contemplation of

Congress," was the almost casual reference in the President's first

Message to the Republican purpose to subjugate the National Judiciary.

To assist Senators and Representatives in determining "the proportion

which the institution bears to the business it has to perform" Jefferson

had "procured from the several states ... an exact statement of all the

causes decided since the first establishment of the courts and of the

causes which were pending when additional courts and judges were brought

to their aid." This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the

President suggested Congressional inquiry as to whether jury trials had

not been withheld in many cases, and advised the investigation of the

manner of impaneling juries.[148]

Thus far and no farther went the comments on the National Judiciary

which the President laid before Congress. The status of the courts--a

question that filled the minds of all, both Federalists and

Republicans--was not referred to. But the thought of it thrilled

Jefferson, and only his caution restrained him from avowing it. Indeed,

he had actually written into the message words as daring as those of his

cherished Kentucky Resolutions; had boldly declared that the right

existed in each department "to decide on the validity of an act

according to its own judgment and uncontrolled by the opinions of any

other department"; had asserted that he himself, as President, had the

authority and power to decide the constitutionality of National laws;

and had, as President, actually pronounced, in official form, the

Sedition Act to be "in palpable and unqualified contradiction to the

Constitution."[149]

This was not merely a part of a first rough draft of this Presidential

document, nor was it lightly cast aside. It was the most important

paragraph of the completed Message. Jefferson had signed it on December

8, 1801, and it was ready for transmission to the National Legislature.

But just before sending the Message to the Capitol, he struck out this

passage,[150] and thus notes on the margin of the draft his reason for

doing so: "This whole paragraph was omitted as capable of being

chicaned, and furnishing something to the opposition to make a handle

of. It was thought better that the message should be clear of

everything which the public might be made to misunderstand."

Although Jefferson's programme, as stated in the altered message which

he finally sent to Congress, did not arouse the rank and file of

Federalist voters, it did alarm and anger the Federalist chieftains, who

saw the real purpose back of the President's colorless words. Fisher

Ames, that delightful reactionary, thus interpreted it: "The message

announces the downfall of the late revision of the Judiciary; economy,

the patriotism of the shallow and the trick of the ambitious.... The U.

S. Gov't ... is to be dismantled like an old ship.... The state gov'ts

are to be exhibited as alone safe and salutary."[151]

The Judiciary Law of 1801, which the Federalist majority enacted before

their power over legislation passed forever from their hands, was one of

the best considered and ablest measures ever devised by that

constructive party.[152] Almost from the time of the organization of the

National Judiciary the National judges had complained of the inadequacy

and positive evils of the law under which they performed their duties.

The famous Judiciary Act of 1789, which has received so much undeserved

praise, did not entirely satisfy anybody except its author, Oliver

Ellsworth. "It is a child of his and he defends it ... with wrath and

anger," wrote Maclay in his diary.[153]

In the first Congress opposition to the Ellsworth Act had been sharp and

determined. Elbridge Gerry denounced the proposed National Judiciary as

"a tyranny."[154] Samuel Livermore of New Hampshire called it "this new

fangled system" which "would ... swallow up the State Courts."[155]

James Jackson of Georgia declared that National courts would cruelly

harass "the poor man."[156] Thomas Sumter of South Carolina saw in the

Judiciary Bill "the iron hand of power."[157] Maclay feared that it

would be "the gunpowder plot of the Constitution."[158]

When the Ellsworth Bill had become a law, Senator William Grayson of

Virginia advised Patrick Henry that it "wears so monstrous an appearance

that I think it will be _felo-de-se_ in the execution.... Whenever the

Federal Judiciary comes into operation, ... the pride of the states ...

will in the end procure its destruction"[159]--a prediction that came

near fulfillment and probably would have been realized but for the

courage of John Marshall.

While Grayson's eager prophecy did not come to pass, the Judiciary Act

of 1789 worked so badly that it was a source of discontent to bench,

bar, and people. William R. Davie of North Carolina, a member of the

Convention that framed the Constitution and one of the most eminent

lawyers of his time, condemned the Ellsworth Act as "so defective ...

that ... it would disgrace the composition of the meanest legislature of

the States."[160]

It was, as we have seen,[161] because of the deficiencies of the

original Judiciary Law that Jay refused reappointment as Chief Justice.

"I left the bench," he wrote Adams, "perfectly convinced that under a

system so defective it would not obtain the energy, weight, and dignity

which are essential to its affording due support to the national

government, nor acquire the public confidence and respect which, as the

last resort of the justice of the nation, it should possess."[162]

The six Justices of the Supreme Court were required to hold circuit

courts in pairs, together with the judge of the district in which the

court was held. Each circuit was to be thus served twice every year, and

the Supreme Court was to hold two sessions annually in Washington.[163]

So great were the distances between places where courts were held, so

laborious, slow, and dangerous was all travel,[164] that the

Justices--men of ripe age and studious habits--spent a large part of

each year upon the road.[165] Sometimes a storm would delay them, and

litigants with their assembled lawyers and witnesses would have to

postpone the trial for another year or await, at the expense of time and

money, the arrival of the belated Justices.[166]

A graver defect of the act was that the Justices, sitting together as

the Supreme Court, heard on appeal the same causes which they had

decided on the Circuit Bench. Thus, in effect, they were trial and

appellate judges in identical controversies. Moreover, by the rotation

in riding circuits different judges frequently heard the same causes in

their various stages, so that uniformity of practice, and even of

decisions, was made impossible.

The admirable Judiciary Act, passed by the Federalists in 1801,

corrected these defects. The membership of the Supreme Court was reduced

to five after the next vacancy, the Justices were relieved of the heavy

burden of holding circuit courts, and their duties were confined

exclusively to the Supreme Bench. The country was divided into sixteen

circuits, and the office of circuit judge was created for each of

these. The Circuit Judge, sitting with the District Judge, was to hold

circuit court, as the Justices of the Supreme Court had formerly done.

Thus the prompt and regular sessions of the circuit courts were assured.

The appeal from decisions rendered by the Supreme Court Justices,

sitting as circuit judges, to the same men sitting as appellate judges,

was done away with.[167]

In establishing these new circuits and creating these circuit judges,

this excellent Federalist law gave Adams the opportunity to fill the

offices thus created with stanch Federalist partisans. Indeed, this was

one motive for the enactment of the law. The salaries of the new circuit

judges, together with other necessary expenses of the remodeled system,

amounted to more than fifty thousand dollars every year--a sum which the

Republicans exaggerated in their appeals to the people and even in their

arguments in Congress.[168]

Chiefly on the pretext of this alleged extravagance, but in reality to

oust the newly appointed Federalist judges and intimidate the entire

National Judiciary, the Republicans, led by Jefferson, determined to

repeal the Federalist Judiciary Act of 1801, upon the faith in the

passage of which John Marshall, with misgiving, had accepted the office

of Chief Justice.

On January 6, 1802, Senator John Breckenridge of Kentucky pulled the

lanyard that fired the opening gun.[169] He was the personification of

anti-Nationalism and aggressive democracy. He moved the repeal of the

Federalist National Judiciary Act of 1801.[170] Every member of Senate

and House--Republican and Federalist--was uplifted or depressed by the

vital importance of the issue thus brought to a head; and in the debate

which followed no words were too extreme to express their consciousness

of the gravity of the occasion.[171]

In opening the debate, Senator Breckenridge confined himself closely to

the point that the new Federalist judges were superfluous. "Could it be

necessary," he challenged the Federalists, "to _increase_ courts when

suits were _decreasing_? ... to multiply judges, when their duties were

diminishing?" No! "The time never will arrive when America will stand in

need of thirty-eight Federal Judges."[172] The Federalist Judiciary Law

was "a wanton waste of the public treasure."[173] Moreover, the fathers

never intended to commit to National judges "subjects of litigation

which ... could be left to State Courts." Answering the Federalist

contention that the Constitution guaranteed to National judges tenure of

office during "good behavior" and that, therefore, the offices once

established could not be destroyed by Congress, the Kentucky Senator

observed that "sinecure offices, ... are not permitted by our laws or

Constitution."[174]

James Monroe, then in Richmond, hastened to inform Breckenridge that

"your argument ... is highly approved here." But, anxiously inquired

that foggy Republican, "Do you mean to admit that the legislature

[Congress] has not a right to repeal the law organizing the supreme

court for the express purpose of dismissing the judges when they cease

to possess the public confidence?" If so, "the people have no check

whatever on them ... but impeachment." Monroe hoped that "the period is

not distant" when any opposition to "the sovereignty of the people" by

the courts, such as "the application of the principles of the English

common law to our constitution," would be considered "good cause for

impeachment."[175] Thus early was expressed the Republican plan to

impeach and remove Marshall and the entire Federal membership of the

Supreme Court so soon to be attempted.[176]

In reply to Breckenridge, Senator Jonathan Mason of Massachusetts, an

accomplished Boston lawyer, promptly brought forward the question in the

minds of Congress and the country. "This," said he, "was one of the most

important questions that ever came before a Legislature." Why had the

Judiciary been made "as independent of the Legislature as of the

Executive?" Because it was their duty "to expound not only the laws, but

the Constitution also; in which is involved the power of checking the

Legislature in case it should pass any laws in violation of the

Constitution."[177]

The old system which the Republicans would now revive was intolerable,

declared Senator Gouverneur Morris of New York. "Cast an eye over the

extent of our country" and reflect that the President, "in selecting a

character for the bench, must seek less the learning of a judge than the

agility of a post boy." Moreover, to repeal the Federal Judiciary Law

would be "a declaration to the remaining judges that they hold their

offices subject to your [Congress's] will and pleasure." Thus "the check

established by the Constitution is destroyed."

[Illustration]

Morris expounded the conservative Federalist philosophy thus:

"Governments are made to provide against the follies and vices of

men.... Hence, checks are required in the distribution of power among

those who are to exercise it for the benefit of the people." The most

efficient of these checks was the power given the National Judiciary--"a

check of the first necessity, to prevent an invasion of the Constitution

by unconstitutional laws--a check which might prevent any faction from

intimidating or annihilating the tribunals themselves."[178]

Let the Republican Senators consider where their course would end, he

warned. "What has been the ruin of every Republic? The vile love of

popularity. _Why are we here? To save the people from their most

dangerous enemy; to save them from themselves_."[179] Do not, he

besought, "commit the fate of America to the mercy of time and

chance."[180]

"Good God!" exclaimed Senator James Jackson of Georgia, "is it possible

that I have heard such a sentiment in this body? Rather should I have

expected to have heard it sounded from the despots of Turkey, or the

deserts of Siberia.[181]... I am more afraid of an army of judges, ...

than of an army of soldiers.... Have we not seen sedition laws?" The

Georgia Senator "thanked God" that the terrorism of the National

Judiciary was, at last, overthrown. "That we are not under dread of the

patronage of judges, is manifest, from their attack on the Secretary of

State."[182]

Senator Uriah Tracy of Connecticut was so concerned that he spoke in

spite of serious illness. "What security is there to an individual," he

asked, if the Legislature of the Union or any particular State, should

pass an _ex post facto_ law? "None in the world" but revolution or "an

appeal to the Judiciary of the United States, where he will obtain a

decision that the law itself is unconstitutional and void."[183]

That typical Virginian, Senator Stevens Thompson Mason, able, bold, and

impetuous, now took up Gouverneur Morris's gage of battle. He was one of

the most fearless and capable men in the Republican Party, and was as

impressive in physical appearance as he was dominant in character. He

was just under six feet in height, yet heavy with fat; he had

extraordinarily large eyes, gray in color, a wide mouth with lips

sternly compressed, high, broad forehead, and dark hair, thrown back

from his brow. Mason had "wonderful powers of sarcasm" which he employed

to the utmost in this debate.[184]

It was true, he said, in beginning his address, that the Judiciary

should be independent, but not "independent of the nation itself."

Certainly the Judiciary had not Constitutional authority "to control the

other departments of the Government."[185] Mason hotly attacked the

Federalist position that a National judge, once appointed, was in office

permanently; and thus, for the second time, Marbury _vs._ Madison was

brought into the debate. "Have we not heard this doctrine supported in

the memorable case of the mandamus, lately[186] before the Supreme

Court? Was it not there said [in argument of counsel] that, though the

law had a right to establish the office of a justice of the peace, yet

it had not a right to abridge its duration to five years?"[187]

The true principle, Mason declared, was that judicial offices like all

others "are made for the good of the people and not for that of the

individual who administers them." Even Judges of the Supreme Court

should do something to earn their salaries; but under the Federalist

Judiciary Act of 1801 "what have they got to do? To try ten suits,

[annually] for such is the number now on their docket."

Mason now departed slightly from the Republican programme of ignoring

the favorite Federalist theory that the Judiciary has the power to

decide the constitutionality of statutes. He fears that the Justices of

the Supreme Court "will be induced, from want of employment, to do that

which they ought not to do.... They may ... hold the Constitution in one

hand, and the law in the other, and say to the departments of

Government, so far shall you go and no farther." He is alarmed lest

"this independence of the Judiciary" shall become "something like

supremacy."[188]

Seldom in parliamentary contests has sarcasm, always a doubtful weapon,

been employed with finer art than it was by Mason against Morris at this

time. The Federalists, in the enactment of the Judiciary Act of 1801,

had abolished two district courts--the very thing for which the

Republicans were now assailed by the Federalists as destroyers of the

Constitution. Where was Morris, asked Mason, when his friends had

committed that sacrilege? "Where was the _Ajax Telamon_ of his party" at

that hour of fate? "Where was the hero with his seven-fold shield--not

of bull's hide, but of brass--prepared to prevent or to punish this

Trojan rape?"[189]

Morris replied lamely. He had been criticized, he complained, for

pointing out "the dangers to which popular governments are exposed, from

the influence of designing demagogues upon popular passion." Yet "'tis

for these purposes that all our Constitutional checks are devised."

Otherwise "the Constitution is all nonsense." He enumerated the

Constitutional limitations and exclaimed, "Why all these multiplied

precautions, unless to check and control that impetuous spirit ... which

has swept away every popular Government that ever existed?"[190]

Should all else fail, "the Constitution has given us ... an independent

judiciary" which, if "you trench upon the rights of your fellow

citizens, by passing an unconstitutional law ... will stop you short."

Preserve the Judiciary in its vigor, and in great controversies where

the passions of the multitude are aroused, "instead of a resort to arms,

there will be a happier appeal to argument."[191]

Answering Mason's fears that the Supreme Court, "having little else to

do, would do mischief," Morris avowed that he should "rejoice in that

mischief," if it checked "the Legislative or Executive departments in

any wanton invasion of our rights.... I know this doctrine is

unpleasant; I know it is more popular to appeal to public opinion--that

equivocal, transient being, which exists nowhere and everywhere. But if

ever the occasion calls for it, I trust the Supreme Court will not

neglect doing the great mischief of saving this Constitution."[192]

His emotions wrought to the point of oratorical ecstasy, Morris now made

an appeal to "the good sense, patriotism, and ... virtue" of the

Republic, in the course of which he became badly entangled in his

metaphors. "Do not," he pleaded, "rely on that popular will, which has

brought us frail beings into political existence. That opinion is but a

changeable thing. It will soon change. This very measure will change it.

You will be deceived. Do not ... commit the dignity, the harmony, the

existence of our nation to the wild wind. Trust not your treasure to the

waves. Throw not your compass and your charts into the ocean. Do not

believe that its billows will waft you into port. Indeed, indeed, you

will be deceived.

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

I know the difficulties through which it was obtained. I stand in the

presence of Almighty God, and of the world; and I declare to you, that

if you lose this charter, never, no, never will you get another! We are

now, perhaps, arrived at the parting point. Here, even here, we stand on

the brink of fate. Pause--Pause! For Heaven's sake, pause!"[193]

Senator Breckenridge would not "pause." The "progress" of Senator

Morris's "anchor," indeed, dragged him again to "the brink of fate." The

Senate had "wandered long enough" with the Federalist Senators "in

those regions of fancy and of terror, to which they [have] led us." He

now insisted that the Senate return to the real subject, and in a speech

which is a model of compact reasoning, sharpened by sarcasm, discussed

all the points raised by the Federalist Senators except their favorite

one of the power of the National Judiciary to declare acts of Congress

unconstitutional. This he carefully avoided.[194]

On January 15, 1802, the new Vice-President of the United States, Aaron

Burr, first took the chair as presiding officer of the Senate.[195]

Within two weeks[196] an incident happened which, though seemingly

trivial, was powerfully and dramatically to affect the course of

political events that finally encompassed the ruin of the reputation,

career, and fortune of many men.

Senator Jonathan Dayton of New Jersey, in order, as he claimed, to make

the measure less objectionable, moved that "the bill be referred to a

select committee, with instructions to consider and report the

alterations which may be proper in the judiciary system of the United

States."[197] On this motion the Senate tied; and Vice-President Burr,

by his deciding vote, referred the bill to the select committee. In

doing this he explained that he believed the Federalists sincere in

their wish "to ameliorate the provisions of the bill, that it might be

rendered more acceptable to the Senate." But he was careful to warn

them that he would "discountenance, by his vote, any attempt, if any

such should be made, that might, in an indirect way, go to defeat the

bill."[198]

Five days later, one more Republican Senator, being present, and one

Federalist Senator, being absent, the committee was discharged on motion

of Senator Breckenridge; and the debate continued, the Federalists

constantly accusing the Republicans of a purpose to destroy the

independence of the National Judiciary, and asserting that National

judges must be kept beyond the reach of either Congress or President in

order to decide fearlessly upon the constitutionality of laws.

At last the steady but spirited Breckenridge was so irritated that he

broke away from the Republican plan to ignore this principal article of

Federalist faith. He did not intend to rise again, he said, but "an

argument had been so much pressed" that he felt it must be answered. "I

did not expect, sir, to find the doctrine of the power of the courts to

annul the laws of Congress as unconstitutional, so seriously insisted

on.... I would ask where they got that power, and who checks the courts

when they violate the Constitution?"

The theory that courts may annul legislation would give them "the

absolute direction of the Government." For, "to whom are they

responsible?" He wished to have pointed out the clause which grants to

the National Judiciary the power to overthrow legislation. "Is it not

extraordinary," said he, "that if this high power was intended, it

should nowhere appear?... Never were such high and transcendant powers

in any Government (much less in one like ours, composed of powers

specially given and defined) claimed or exercised by construction

only."[199]

Breckenridge frankly stated the Republican philosophy, repeating

sometimes word for word the passage which Jefferson at the last moment

had deleted from his Message to Congress.[200] "The Constitution," he

declared, "intended a separation of the powers vested in the three great

departments, giving to each exclusive authority on the subjects

committed to it.... Those who made the laws are presumed to have an

equal attachment to, and interest in the Constitution; are equally bound

by oath to support it, and have an equal right to give a construction to

it.... The construction of one department of the powers vested in it, is

of higher authority than the construction of any other department.

"The Legislature," he continued, "have the exclusive right to interpret

the Constitution, in what regards the law-making power, and the judges

are bound to execute the laws they make. For the Legislature would

have at least an equal right to annul the decisions of the courts,

founded on their construction of the Constitution, as the courts

would have to annul the acts of the Legislature, founded on their

construction.[201]... In case the courts were to declare your revenue,

impost and appropriation laws unconstitutional, would they thereby be

blotted out of your statute book, and the operations of Government

arrested?... Let gentlemen consider well before they insist on a power

in the Judiciary which places the Legislature at their feet."[202]

The candles[203] now dimly illuminating the little Senate Chamber shed

scarcely more light than radiated from the broad, round, florid face of

Gouverneur Morris. Getting to his feet as quickly as his wooden leg

would permit, his features beaming with triumph, the New York Senator

congratulated "this House, and all America, that we have at length got

our adversaries upon the ground where we can fairly meet."[204]

The power of courts to declare legislation invalid is derived from

"authority higher than this Constitution ... from the constitution of

man, from the nature of things, from the necessary progress of human

affairs,"[205] he asserted. In a cause on trial before them, it becomes

necessary for the judges to "declare what the law is. They must, of

course, determine whether that which is produced and relied on, has

indeed the binding force of law."

Suppose, said Morris, that Congress should pass an act forbidden by the

Constitution--for instance, one laying "a duty on exports," and "the

citizen refuses to pay." If the Republicans were right, the courts would

enforce a collection. In vain would the injured citizen appeal to the

Supreme Court; for Congress would "defeat the appeal, and render final

the judgment of inferior tribunals, subjected to their absolute

control." According to the Republican doctrine, "the moment the

Legislature ... declare themselves supreme, they become so ... and the

Constitution is whatever they choose to make it."[206] This time Morris

made a great impression. The Federalists were in high feather; even the

Republicans were moved to admiration. Troup reported to King that "the

democratical paper at Washington pronounced his speech to be the

greatest display of eloquence ever exhibited in a deliberative

assembly!"[207]

Nevertheless, the Federalist politicians were worried by the apparent

indifference of the rank and file of their party. "I am surprized,"

wrote Bayard, "at the public apathy upon the subject. Why do not those

who are opposed to the project, express in the public papers or by

petitions their disapprobation?... It is likely that a public movement

would have great effect."[208] But, thanks to the former conduct of the

judges themselves, no "public movement" developed. Conservative citizens

were apprehensive; but, as usual, they were lethargic.

On February 3, 1802, the Senate, by a strictly party vote[209] of 16 to

15, passed the bill to repeal the Federalist Judiciary Act of 1801.[210]

When the bill came up in the House, the Federalist leader in that body,

James A. Bayard of Delaware, moved to postpone its consideration to the

third Monday in March, in order, as he said, to test public opinion,

because "few occasions have occurred so important as this."[211] But in

vain did the Federalists plead and threaten. Postponement was refused by

a vote of 61 to 35.[212] Another plea for delay was denied by a vote of

58 to 34.[213] Thus the solid Republican majority, in rigid pursuance of

the party plan, forced the consideration of the bill.

The Federalist organ in Washington, which Marshall two years earlier was

supposed to influence and to which he probably contributed,[214] saw

little hope of successful resistance. "What will eventually be the issue

of the present high-handed, overbearing proceedings of Congress it is

impossible to determine," but fear was expressed by this paper that

conditions would be created "which impartial, unbiased and reflecting

men consider as immediately preceding the total destruction of our

government and the introduction of disunion, anarchy and civil

war."[215]

This threat of secession and armed resistance, already made in the

Senate, was to be repeated three times in the debate in the House which

was opened for the Federalists by Archibald Henderson of North Carolina,

whom Marshall pronounced to be "unquestionably among the ablest lawyers

of his day" and "one of the great lawyers of the Nation."[216] "The

monstrous and unheard of doctrine ... lately advanced, that the judges

have not the right of declaring unconstitutional laws void," was,

declared Henderson, "the very definition of tyranny, and wherever you

find it, the people are slaves, whether they call their Government a

Monarchy, Republic, or Democracy." If the Republican theory of the

Constitution should prevail, "better at once to bury it with all our

hopes."[217]

Robert Williams of the same State, an extreme but unskillful Republican,

now uncovered his party's scheme to oust Federalist judges, which thus

far had carefully been concealed:[218] "Agreeably to our Constitution a

judge may be impeached," said he, but this punishment would be minimized

if judges could declare an act of Congress unconstitutional. "However he

may err, he commits no crime; how, then, can he be impeached?"[219]

Philip R. Thompson of Virginia, a Republican, was moved to the depths of

his being: "Give the Judiciary this check upon the Legislature, allow

them the power to declare your laws null and void, ... and in vain have

the people placed you upon this floor to legislate.[220]... This is the

tree where despotism lies concealed.... Nurture it with your treasure,

stop not its ramifications, and ... your atmosphere will be contaminated

with its poisonous effluvia, and your soaring eagle will fall dead at

its root."[221]

Thomas T. Davis of Kentucky, deeply stirred by this picture, declared

that the Federalists said to the people, you are "incapable" of

protecting yourselves; "in the Judiciary alone you find a safe deposit

for your liberties." The Kentucky Representative "trembled" at such

ideas. "The sooner we put men out of power, who [_sic_] we find

determined to act in this manner, the better; by doing so we preserve

the power of the Legislature, and save our nation from the ravages of an

uncontrolled Judiciary."[222] Thus again was revealed the Republican

purpose of dragging from the National Bench all judges who dared assert

the right, and to exercise the power to declare an act of Congress

unconstitutional.[223]

The contending forces became ever more earnest as the struggle

continued. All the cases then known in which courts directly or by

inference had held legislative acts invalid were cited;[224] and all the

arguments that ever had been advanced in favor of the principle of the

judicial power to annul legislation were made over and over again.

All the reasons for the opinion which John Marshall, exactly one year

later, pronounced in Marbury _vs._ Madison were given during this

debate. Indeed, the legislative struggle now in progress and the result

of it, created conditions which forced Marshall to execute that judicial

_coup d'état_. It should be repeated that an understanding of Marbury

_vs._ Madison is impossible without a thorough knowledge of the debate

in Congress which preceded and largely caused that epochal decision.

The alarm that the repeal was but the beginning of Republican havoc was

sounded by every Federalist member. "This measure," said John Stanley of

North Carolina, "will be the first link in that chain of measures which

will add the name of America to the melancholy catalogue of fallen

Republics."[225]

William Branch Giles, who for the next five years bore so vital a part

in the stirring events of Marshall's life, now took the floor and made

one of the ablest addresses of his tempestuous career.[226] He was

Jefferson's lieutenant in the House.[227] When the Federalists tried to

postpone the consideration of the bill,[228] Giles admitted that it

presented a question "more important than any that ever came before

this house."[229] But there was no excuse for delay, because the press

had been full of it for more than a year and the public was thoroughly

informed upon it.[230]

Giles was a large, robust, "handsome" Virginian, whose lightest word

always compelled the attention of the House. He had a very dark

complexion, black hair worn long, and intense, "retreating" brown eyes.

His dress was "remarkably plain, and in the style of Virginia

carelessness." His voice was "clear and nervous," his language

"powerfully condensed."[231]

This Republican gladiator came boldly to combat. How had the Federalists

contrived to gain their ends? Chiefly by "the breaking out of a

tremendous and unprecedented war in Europe," which had worked upon "the

feelings and sympathies of the people of the United States" till they

had neglected their own affairs. So it was, he said, that the

Federalists had been able to load upon the people an expensive army, a

powerful navy, intolerable taxes, and the despotic Alien and Sedition

Laws. But at last, when, as the result of their maladministration, the

Federalists saw their doom approaching, they began to "look out for some

department of the government in which they could entrench themselves ...

and continue to support those favorite principles of irresponsibility

which they could never consent to abandon."

For this purpose they had selected the Judiciary Department: "Not only

because it was already filled" with rabid Federalists, "but because they

held their offices by indefinite tenures, and of course were further

removed from any responsibility to the people than either of the other

departments." Thus came the Federalist Judiciary Act of 1801 which the

Republicans were about to repeal.

Giles could not resist a sneer at Marshall. Referring to the European

war, to which "the feelings and sympathies of the people of the United

States were so strongly attracted ... that they considered their own

internal concerns in a secondary point of view," Giles swiftly portrayed

those measures used by the Federalists as a pretext. They had, jeered

the sharp-tongued Virginia Republican, "pushed forward the people to the

X, Y, Z, of their political alphabet, before they had well learned ...

the A, B, C, of the principles of the [Federalist] Administration."[232]

But now, when blood was no longer flowing on European battle-fields, the

interests of the American people in that "tremendous and unprecedented"

combat of nations "no longer turn their attention from their internal

concerns; arguments of the highest consideration for the safety of the

Constitution and the liberty of the citizens, no longer receive the

short reply, French partisans! Jacobins! Disorganizers!"[233] So "the

American people and their Congress, in their real persons, and original

American characters" were at last "engaged in the transaction of

American concerns."[234]

Federalist despotism lay prostrate, thank Heaven, beneath the conquering

Republican heel. Should it rise again? Never! Giles taunted the

Federalists with the conduct of Federalist judges in the sedition

cases,[235] and denounced the attempt to fasten British law on the

American Nation--a law "unlimited in its object, and indefinite in its

character," covering "every object of legislation."

Think, too, of what Marshall and the Supreme Court have done! "They have

sent a ... process leading to a mandamus, into the Executive cabinet, to

examine its concerns."[236] The real issue between Federalists and

Republicans, declared Giles, was "the doctrine of irresponsibility

against the doctrine of responsibility.... The doctrine of despotism in

opposition to the representative system." The Federalist theory was "an

express avowal that the people were incompetent to govern themselves."

A handsome, florid, fashionably attired man of thirty-five now took the

floor and began his reply to the powerful speech of the tempestuous

Virginian. His complexion and stoutness indicated the generous manner

in which all public men of the time lived, and his polished elocution

and lofty scorn for all things Republican marked him as the equal of

Gouverneur Morris in oratorical finish and Federalist distrust of the

people.[237] It was James A. Bayard, the Federalist leader of the House.

He asserted that the Republican "designs [were] hostile to the powers of

this government"; that they flowed from "state pride [which]

extinguishes a national sentiment"; that while the Federalists were in

charge of the National Administration they struggled "to maintain the

Constitutional powers of the Executive" because "the wild principles of

French liberty were scattered through the country. We had our Jacobins

and disorganizers, who saw no difference between a King and a President;

and, as the people of France had put down their King, they thought the

people of America ought to put down their President.

"They [Federalists] who considered the Constitution as securing all the

principles of rational and practicable liberty, who were unwilling to

embark upon the tempestuous sea of revolution, in pursuit of visionary

schemes, were denounced as monarchists. A line was drawn between the

Government and the people, and the friends of the Government

[Federalists] were marked as the enemies of the people."[238] This was

the spirit that was now triumphant; to what lengths was it to carry the

Republicans? Did they include the downfall of the Judiciary in their

plans of general destruction? Did they propose to make judges the mere

creatures of Congress?[239]

Bayard skillfully turned the gibe at Marshall into a tribute to the

Chief Justice. What did Giles mean by his cryptic X. Y. Z. reference?

"Did he mean that the dispatches ... were impostures?" Though Giles

"felt no respect" for Marshall or Pinckney--"two characters as pure, as

honorable, and exalted, as any the country can boast of"--yet, exclaimed

Bayard, "I should have expected that he would have felt some tenderness

for Mr. Gerry."[240]

The Republicans had contaminated the country with falsehoods against the

Federalist Administrations; and now the target of their "poisoned

arrows" was the National Judiciary. "If ... they [the judges] have

offended against the Constitution or laws of the country, why are they

not impeached? The gentleman now holds the sword of justice. The judges

are not a privileged order; they have no shelter but their

innocence."[241]

In detail Bayard explained the facts in the case of Marbury _vs._

Madison. That the Supreme Court had been "hardy enough to send their

mandate into the Executive cabinet"[242] was, said he, "a strong proof

of the value of that Constitutional provision which makes them

independent. They are not terrified by the frowns of Executive power,

and dare to judge between the rights of a citizen and the pretensions of

a President."[243]

Contrast the defects of the Judiciary Act of 1789 with the perfection of

the Federalist law supplanting it. Could any man deny the superiority of

the latter?[244] The truth was that the Republicans were "to give notice

to the judges of the Supreme Court of their fate, and to bid them to

prepare for their end."[245] In these words Bayard charged the

Republicans with their settled but unavowed purpose to unseat Marshall

and his Federalist associates.[246]

Bayard hotly denied the Republican accusation that President Adams had

appointed to the bench Federalist members of Congress as a reward for

their party services; but, retorted he, Jefferson had done that very

thing.[247] He then spoke at great length on the nature of the American

Judiciary as distinguished from that of British courts, gave a vivid

account of the passage of the Federalist Judiciary Act under attack, and

finally swung back to the subject which more and more was coming to

dominate the struggle--the power of the Supreme Court to annul acts of

Congress.

Again and again Bayard restated, and with power and eloquence, all the

arguments to support the supervisory power of courts over

legislation.[248] At last he threatened armed resistance if the

Republicans dared to carry out their plans against the National

Judiciary. "There are many now willing to spill their blood to defend

that Constitution. Are gentlemen disposed to risk the consequences?...

Let them consider their wives and children, their neighbors and their

friends." Destroy the independence of the National Judiciary and "the

moment is not far when this fair country is to be desolated by civil

war."[249]

Bayard's speech aroused great enthusiasm among the leaders of his party.

John Adams wrote: "Yours is the most comprehensive masterly and compleat

argument that has been published in either house and will have,

indeed ... has already had more effect and influence on the public mind

than all other publications on the subject."[250] The _Washington

Federalist_ pronounced Bayard's performance to be "far superior, not

only to ... the speeches of Mr. Morris and Mr. Tracy in the Senate, but

to any speech of a Demosthenes, a Cicero, or a Chatham."[251]

Hardly was Bayard's last word spoken when the man who at that time was

the Republican master of the House, and, indeed, of the Senate also, was

upon his feet. Of medium stature, thin as a sword, his straight black

hair, in which gray already was beginning to appear, suggesting the

Indian blood in his veins, his intense black eyes flaming with the

passion of combat, his high and shrilling voice suggesting the scream of

an eagle, John Randolph of Roanoke--that haughty, passionate, eccentric

genius--personified the aggressive and ruthless Republicanism of the

hour. He was clad in riding-coat and breeches, wore long riding-boots,

and if the hat of the Virginia planter was not on his head, it was

because in his nervousness he had removed it;[252] while, if his

riding-whip was not in his hand, it was on his desk where he had cast

it, the visible and fitting emblem of this strange man's mastery over

his partisan followers.[253]

"He did not rise," he said, his voice quivering and body trembling,[254]

"for the purpose of assuming the gauntlet which had been so proudly

thrown by the Goliah of the adverse party; not but that he believed even

his feeble powers, armed with the simple weapon of truth, a sling and a

stone, capable of prostrating on the floor that gigantic boaster, armed

cap-a-pie as he was." Randolph sneered, as only he could sneer, at the

unctuous claims of the Federalists, that they had "nobly sacrificed

their political existence on the altar of the general welfare"; he

refused "to revere in them the self-immolated victims at the shrine of

patriotism."[255]

As to the Federalist assertion that "the common law of England is the

law of the United States in their confederate capacity," Randolph

observed that the meaning of such terms as "court," "jury," and the like

must, of course, be settled by reference to common-law definitions, but

"does it follow that that indefinite and undefinable body of law is the

irrepealable law of the land? The sense of a most important phrase,

'direct tax,' as used in the Constitution, has been ... settled by the

acceptation of Adam Smith; an acceptation, too, peculiar to himself.

Does the Wealth of Nations, therefore, form a part of the Constitution

of the United States?"

And would the Federalists inform the House what phase of the common law

they proposed to adopt for the United States? Was it that "of the reign

of Elizabeth and James the first; or ... that of the time of George the

Second?" Was it that "of Sir Walter Raleigh and Captain Smith, or that

which was imported by Governor Oglethorpe?" Or was it that of some

intermediate period? "I wish especially to know," asked Randolph,

"whether the common law of libels which attaches to this Constitution,

be the doctrine laid down by Lord Mansfield, or that which has

immortalized Mr. Fox?" Let the Federalists reflect on the persecution

for libel that had been made under the common law, as well as under the

Sedition Act.[256]

Proper restraint upon Congress, said Randolph, was not found in a

pretended power of the Judiciary to veto legislation, but in the people

themselves, who at the ballot box could "apply the Constitutional

corrective. That is the true check; every other is at variance with the

principle that a free people are capable of self-government." Then the

imperious Virginian boldly charged that the Federalists intended to have

John Marshall and his associates on the Supreme Bench annul the

Republican repeal of the Federalist Judiciary Act.

"Sir," cried Randolph, "if you pass the law, the judges are to put their

veto upon it by declaring it unconstitutional. Here is a new power of a

dangerous and uncontrollable nature.... The decision of a Constitutional

question must rest somewhere. Shall it be confided to men immediately

responsible to the people, or to those who are irresponsible?... From

whom is a corrupt decision most to be feared?... The power which has

the right of passing, without appeal, on the validity of your laws, is

your sovereign.... Are we not as deeply interested in the true

exposition of the Constitution as the judges can be?" inquired Randolph.

"Is not Congress as capable of forming a correct opinion as they are?

Are not its members acting under a responsibility to public opinion

which can and will check their aberrations from duty?"

Randolph referred to the case of Marbury _vs._ Madison and then recalled

the prosecution of Thomas Cooper in which the National court refused "to

a man under criminal prosecution ... a subpoena to be served on the

President, as a witness on the part of the prisoner.[257]... This court,

which it seems, has lately become the guardian of the feeble and

oppressed, against the strong arm of power, found itself destitute of

all power to issue the writ....

"No, sir, you may invade the press; the courts will support you, will

outstrip you in zeal to further this great object; your citizens may be

imprisoned and amerced, the courts will take care to see it executed;

the helpless foreigner may, contrary to the express letter of your

Constitution, be deprived of compulsory process for obtaining witnesses

in his defense; the courts in their extreme humility cannot find

authority for granting it."

Again Marbury _vs._ Madison came into the debate:[258] "In their

inquisitorial capacity," the Supreme Court, according to Marshall's

ruling in that case, could force the President himself to discharge his

executive functions "in what mode" the omnipotent judges might choose to

direct. And Congress! "For the amusement of the public, we shall retain

the right of debating but not of voting."[259] The judges could

forestall legislation by "inflammatory pamphlets," as they had

done.[260]

As the debate wore on, little that was new was adduced. Calvin Goddard

of Connecticut reviewed the cases in which judges of various courts had

asserted the Federalist doctrine of the judicial power to decide

statutes unconstitutional,[261] and quoted from Marshall's speech on the

Judiciary in the Virginia Convention of 1788.[262]

John Rutledge, Jr., of South Carolina, then delivered one of the most

distinguished addresses of this notable discussion. Suppose, he said,

that Congress were to pass any of the laws which the Constitution

forbids, "who are to decide between the Constitution and the acts of

Congress?... If the people ... [are] not shielded by some Constitutional

checks" their liberties will be "destroyed ... by demagogues, who filch

the confidence of the people by pretending to be their friends; ...

demagogues who carry daggers in their hearts, and seductive smiles in

their hypocritical faces."[263]

Rutledge was affected by the prevailing Federalist pessimism. "This

bill," said he, "is an egg which will produce a brood of mortal

consequences.... It will soon prostrate public confidence; it will

immediately depreciate the value of public property. Who will buy your

lands? Who will open your Western forests? Who will build upon the hills

and cultivate the valleys which here surround us?" The financial

adventurer who would take such risks "must be a speculator indeed, and

his purse must overflow ... if there be no independent tribunals where

the validity of your titles will be confirmed.[264]...

"Have we not seen a State [Georgia] sell its Western lands, and

afterwards declare the law under which they were sold made null and

void? Their nullifying law would have been declared void, had they had

an independent Judiciary."[265] Here Rutledge anticipated by eight years

the opinion delivered by Marshall in Fletcher _vs._ Peck.[266]

"Whenever in any country judges are dependent, property is insecure."

What had happened in France? "Frenchmen received their constitution as

the followers of Mahomet did their Koran, as though it came to them from

Heaven. They swore on their standards and their sabres never to abandon

it. But, sir, this constitution has vanished; the swords which were to

have formed a rampart around it, are now worn by the Consular

janissaries, and the Republican standards are among the trophies which

decorate the vaulted roof of the Consul's palace.[267] Indeed ... [the]

subject," avowed Rutledge with passionate earnestness, "is perhaps as

awful a one as any on this side of the grave. This attack upon our

Constitution will form a great epoch in the history of our

Government."[268]

Forcible resistance, if the Republican assault on the Judiciary

succeeded, had twice been intimated during the debate. As yet, however,

actual secession of the Northern and Eastern States had not been openly

suggested, although it was common talk among the Federalists;[269] but

now one of the boldest and frankest of their number broadly hinted it to

be the Federalist purpose, should the Republicans persist in carrying

out their purpose of demolishing the National courts.[270] In closing a

long, intensely partisan and wearisome speech, Roger Griswold of

Connecticut exclaimed: "There are states in this Union who will never

consent and are not doomed to become the humble provinces of

Virginia."

Joseph H. Nicholson of Maryland, Republican, was hardly less prolix than

Griswold. He asked whether the people had ever approved the adoption of

the common law by the Judiciary. "Have they ever sanctioned the

principle that the judges should make laws for them instead of their

Representatives?"[272] Tiresome as he was, he made a conclusive

argument against the Federalist position that the National Judiciary

might apply the common law in cases not provided for by acts of

Congress.

The debate ran into the month of March.[273] Every possible phase of the

subject was gone over time and again. All authorities which the ardent

and tireless industry of the contending partisans could discover were

brought to light. The pending case of Marbury _vs._ Madison was in the

minds of all; and it was repeatedly dragged into the discussion. Samuel

W. Dana of Connecticut examined it minutely, citing the action of the

Supreme Court in the case of the application for a mandamus to the

Secretary of War upon which the court acted February 14, 1794: "There

does not appear to have been any question respecting the general power

of the Supreme Court, to issue a mandamus to the Secretary of War, or

any other subordinate officer." That was "a regular mode for obtaining a

decision of the Supreme Court.... When such has been the unquestioned

usage heretofore, is it not extraordinary that there has not been

prudence enough to say less about the case of Marbury against the

Secretary of State?"[274]

Dana then touched upon the general expectation that Marshall would

declare void the Repeal Act. Because of this very apprehension, the

Republicans, a few days later, suspended for more than a year the

sessions of the Supreme Court. So Dana threatened that if the

Republicans should pass the bill, the Supreme Court would annul it; for,

said he, the Judiciary were sworn to support the Constitution, and when

they find that instrument on one side and an act of Congress on the

other, "what is their duty? Are they not to obey their oath, and judge

accordingly? If so, they necessarily decide, that your act is of no

force; for they are sworn to support the Constitution. This is a

doctrine coeval with the existence of our Government, and has been the

uniform principle of all the constituted authorities."[275] And he cited

the position taken by National judges in 1792 in the matter of the

pension commission.[276]

John Bacon, that stanch Massachusetts Republican,[277] asserted that

"the Judiciary have no more right to prescribe, direct or control the

acts of the other departments of the Government, than the other

departments of the Government have to prescribe or direct those of the

Judiciary."[278]

The Republicans determined to permit no further delay; for the first

time in its history the House was kept in session until midnight.[279]

At twelve o'clock, March 3, 1802, the vote was taken on the final

passage of the bill, the thirty-two Federalists voting against and the

fifty-nine Republicans for the measure.[280] "Thus ended this gigantic

debate," chronicles the historian of that event.[281] No discussion in

Congress had hitherto been so widely reported in the press or excited

such general comment. By the great majority of the people the repeal was

received with enthusiasm, although some Republicans believed that their

party had gone too far.[282] Republican papers, however, hailed the

repeal as the breaking of one of those judicial fetters which shackled

the people, while Federalist journals bemoaned it as the beginning of

the annihilation of all that was sane and worthy in American

institutions.

"The fatal bill has passed; our Constitution is no more," exclaimed the

_Washington Federalist_ in an editorial entitled

"FAREWELL, A LONG FAREWELL, TO ALL OUR GREATNESS."

The paper despaired of the Republic--nobody could tell "what other acts,

urged by the intoxication of power and the fury of party rage" would be

put through. But it announced that the Federalist judges would disregard

the infamous Republican law: "The judges will continue to hold their

courts as if the bill had not passed. 'Tis their solemn duty to do it;

their country, all that is dear and valuable, call upon them to do it.

By the judges this bill will be declared null and void.... And we now

ask the mighty victors, what is your triumph?... What is the triumph of

the President? He has gratified his malice towards the judges, but he

has drawn a tear into the eye of every thoughtful patriot ... and laid

the foundation of infinite mischief." The Federalist organ declared that

the Republican purpose was to force a "dissolution of the Union," and

that this was likely to happen.

This significant editorial ended by a consideration of the Republican

purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring

forward a resolution to repeal the law establishing the Supreme Court of

the United States, we should only consider it a part of the system to be

pursued.... We sincerely expect it will be done next session.... Such is

democracy."[283]

Senator Plumer declared, before the final vote, that the passage of the

Republican Repeal Bill and of other Republican measures meant

"anarchy."[284]

The ultra-Federalist _Palladium_ of Boston lamented: "Our army is to be

less and our navy nothing: Our Secretaries are to be aliens and our

Judges as independent as spaniels. In this way we are to save

everything, but our reputation and our rights[285]... Has Liberty any

citadel or fortress, has mob despotism any impediments?"[286]

The _Independent Chronicle_, on the other hand, "congratulated the

public on the final triumph of _Republicanism_, in the repeal of the

late obnoxious judiciary law."[287] The Republicans of Boston and

Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle

of ... disorganizing ... goes on with a destructive zeal. Internal

Taxes--Judicial Sanctity--all are to be overset."[288] Sedgwick was sure

that no defense was left against "legislative usurpation."[289] "The

angels of destruction ... are making haste," moaned Fisher Ames.[290]

"The angels of destruction" lost no time in striking their next blow. On

March 18, two weeks after the threat of the _Washington Federalist_ that

the Supreme Court would declare unconstitutional the Republican Repeal

Act, a Senate committee was appointed to examine further the National

Judiciary establishment and report a bill for any improvements

considered necessary.[291] Within a week the committee laid the measure

before the Senate,[292] and on April 8 it was passed[293] without

debate.

When it reached the House, however, the Federalists had taken alarm. The

Federalist Judiciary Act of 1801 had fixed the terms of the Supreme

Court in December and June instead of February and August. This new

bill, plainly an afterthought, abolished the June session of the

Supreme Court, directed that, thereafter, that tribunal should convene

but once each year, and fixed the second Monday of February as the time

of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the

opportunity to pass upon the repeal of the Federalist Judiciary Act of

1801 until the old and defective system of 1789, which it restored, was

again in full operation. Meanwhile, the wrath of the new National

judges, whom the repeal left without offices, would wear itself down,

and they would accept the situation as an accomplished fact.[294] John

Marshall should have no early opportunity to overturn the Repeal Act, as

the Republicans believed he would do if given the chance. Neither should

he proceed further with the case of Marbury _vs._ Madison for many

months to come.[295]

Bayard moved that the bill should not go into effect until July 1, thus

permitting the Supreme Court to hold its June session; but, said

Nicholson, that was just what the Republicans intended to prevent. Was a

June session of the Supreme Court "a source of alarm?" asked Bayard.

"The effect of the present bill will be, to have no court for fourteen

months.... Are gentlemen afraid of the judges? Are they afraid that they

will pronounce the repealing law void?"[296]

Nicholson did not care whether the Supreme Court "pronounced the

repealing law unconstitutional or not." The Republican postponement of

the session for more than a year "does not arise from any design ... to

prevent the exercise of power by the judges." But what of the

Federalists' solicitude for an early sitting of the court? "We have as

good a right to suppose gentlemen on the other side are as anxious for a

session in June, that this power may be exercised, as they have to

suppose we wish to avoid it, to prevent the exercise."[297]

Griswold could not credit the Republicans with so base a purpose: "I

know that it has been said, out of doors, that this is the great object

of the bill. I know there have been slanders of this kind; but they are

too disgraceful to ascribe to this body. The slander cannot, ought not

to be admitted." So Griswold hoped that Republicans would permit the

Supreme Court to hold its summer session. He frankly avowed a wish for

an early decision that the Repeal Act was void. "I think the speedier it

[usurpation] is checked the better."[298]

Bayard at last flatly charged the Republicans with the purpose of

preventing the Supreme Court from holding the Repeal Act

unconstitutional. "This act is not designed to amend the Judicial

system," he asserted; "that is but pretense.... It is to prevent that

court from expressing their opinion upon the validity of the act lately

passed ... until the act has gone into full execution, and the

excitement of the public mind is abated.... Could a less motive induce

gentlemen to agree to suspend the sessions of the Supreme Court for

fourteen months?"[299]

But neither the pleading nor the denunciation of the Federalists moved

the Republicans. On Friday, April 23, 1802, the bill passed and the

Supreme Court of the United States was practically abolished for

fourteen months.[300]

At that moment began the movement that finally developed into the plan

for the secession of the New England States from the Union. It is,

perhaps, more accurate to say that the idea of secession had never been

entirely out of the minds of the extreme New England Federalist leaders

from the time Theodore Sedgwick threatened it in the debate over the

Assumption Bill.[301]

Hints of withdrawing from the Union if Virginia should become dominant

crop out in their correspondence. The Republican repeal of the Judiciary

Act immediately called forth many expressions in Federalist papers such

as this from the Boston _Palladium_ of March 2, 1802: "Whether the

rights and interests of the Eastern States would be perfectly safe when

Virginia rules the nation is a problem easy to solve but terrible to

contemplate.... As ambitious _Virginia_ will not be just, let valiant

_Massachusetts_ be zealous."

Fisher Ames declared that "the federalists must entrench themselves in

the State governments, and endeavor to make State justice and State

power a shelter of the wise, and good, and rich, from the wild

destroying rage of the southern Jacobins."[302] He thought the

Federalists had neglected the press. "It is practicable," said he, "to

rouse our sleeping patriotism--sleeping, like a drunkard in the snow....

The newspapers have been left to the lazy or the ill-informed, or to

those who undertook singly work enough for six."[303]

Pickering, the truculent, brave, and persistent, anticipated "a new

confederacy.... There will be--and our children at farthest will see

it--a separation.... The British Provinces, even with the assent of

Britain, will become members of the Northern Confederacy."[304]

The more moderate George Cabot, on the contrary, thought that the strong

defense made by the Federalists in Congress would induce the Republicans

to cease their attacks on the National courts. "The very able

discussions of the Judiciary Question," he wrote, "& great superiority

of the Federalists in all the debates & public writings have manifestly

checked the career of the _Revolutionists_."[305] But for once Cabot was

wrong; the Republicans were jubilant and hastened to press their assault

more vigorously than ever.

The Federalist newspapers teemed with long arguments against the repeal

and laboriously strove, in dull and heavy fashion, to whip their readers

into fighting humor. These articles were little more than turgid

repetitions of the Federalist speeches in Congress, with a passage here

and there of the usual Federalist denunciation. For instance, the

_Columbian Centinel_, after restating the argument against the Repeal

Act, thought that this "refutes all the absurd doctrines of the Jacobins

upon that subject, ... and it will be sooner or later declared by the

people, in a tone terrible to the present disorganizing party, to be the

true construction of their constitution, and the only one compatible

with their safety and happiness."[306]

The _Independent Chronicle_, on the other hand, was exultant. After

denouncing "the impudence and scurrility of the Federal faction," a

correspondent of that paper proceeded in this fashion: "The Judiciary!

The Judiciary! like a wreck on Cape Cod is dashing at every wave"; but,

thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing

by the grace of God in the Washington _Frigate_--our judges are as at

first and Mr. Jefferson has thought fit to practice the old navigation

and steer with the same compass by which _Admiral Washington_ regulated

his log book. The Essex Junto may be afraid to trust themselves on board

but every true Washington American will step on board in full confidence

of a prosperous voyage. Huzza for the _Washington Judiciary_--no

windows broke--no doors burst in--free from leak--tight and dry."[307]

Destiny was soon again to call John Marshall to the performance of an

imperative duty.

FOOTNOTES:

[146] The Senate then met in the chamber now occupied by the Supreme

Court.

[147] See _infra_, chap. III.

[148] Jefferson to Congress, Dec. 8, 1801, _Works_: Ford, IX, 321 _et

seq._; also _Messages and Papers of the Presidents_: Richardson, I, 331.

[149] Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard:

_Economic Origins of Jeffersonian Democracy_, 454-55.

[150] For full text of this exposition of Constitutional law by

Jefferson see Appendix A.

[151] Ames to King, Dec. 20, 1801, King, IV, 40.

Like most eminent Federalists, except Marshall, Hamilton, and Cabot,

Fisher Ames was soon to abandon his Nationalism and become one of the

leaders of the secession movement in New England. (See vol. IV, chap. I,

of this work.)

[152] See vol. II, 531, 547-48, 550-52, of this work.

[153] _Journal of Samuel Maclay_: Meginness, 90.

[154] _Annals_, 1st Cong. 1st Sess. 862.

[155] _Ib._ 852.

[156] _Ib._ 833-34.

[157] _Ib._ 864-65.

[158] _Maclay's Journal_, 98.

[159] Grayson to Henry, Sept. 29, 1789, Tyler, I, 170-71.

[160] Davie to Iredell, Aug. 2, 1791, _Life and Correspondence of James

Iredell_: McRee, II, 335.

[161] Vol. II, 552-53, of this work.

[162] Jay to Adams, Jan. 2, 1801, _Jay_: Johnston, IV, 285.

[163] _Annals_, 1st Cong. 2d and 3d Sess. 2239.

[164] See vol. I, chap. VI, of this work. The conditions of travel are

well illustrated by the experiences of six members of Congress, when

journeying to Philadelphia in 1790. "Burke was shipwrecked off the

Capes; Jackson and Mathews with great difficulty landed at Cape May and

traveled one hundred and sixty miles in a wagon to the city; Burke got

here in the same way. Gerry and Partridge were overset in the stage; the

first had his head broke, ... the other had his ribs sadly bruised....

Tucker had a dreadful passage of sixteen days with perpetual storms."

(Letter of William Smith, as quoted by Johnson: _Union and Democracy_,

105-06.)

On his way to Washington from Amelia County in 1805, Senator Giles was

thrown from a carriage, his leg fractured and his knee badly injured.

(Anderson, 101.)

[165] This arrangement proved to be so difficult and vexatious that in

1792 Congress corrected it to the extent of requiring only one Justice

of the Supreme Court to hold circuit court with the District Judge; but

this slight relief did not reach the serious shortcomings of the law.

(_Annals_, 2d Cong. 1st and 2d Sess. 1447.)

See Adams: _U.S._ I, 274 _et seq._, for good summary of the defects of

the original Judiciary Act, and of the improvements made by the

Federalist Law of 1801.

[166] See statement of Ogden, _Annals_, 7th Cong. 1st Sess. 172; of

Chipman, _ib._ 123; of Tracy, _ib._ 52; of Griswold, _ib._ 768; of

Huger, _ib._ 672.

[167] Of course, to some extent this evil still continued in the appeals

to the Circuit Bench; but the ultimate appeal was before judges who had

taken no part in the cause.

The soundness of the Federalist Judiciary Act of 1801 was demonstrated

almost a century later, in 1891-95, when Congress reënacted every

essential feature of it. (See "Act to establish circuit courts of

appeals and to define and regulate in certain cases the jurisdiction of

the courts of the United States, and for other purposes," March 3, 1891,

chap. 517, amended Feb. 18, 1895, chap. 96.)

[168] For example, Senator Cocke of Tennessee asserted the expense to be

$137,000. (_Annals_, 7th Cong. 1st. Sess. 30.) See especially Prof.

Farrand's conclusive article in _Am. Hist. Rev._ V, 682-86.

[169] It was to Breckenridge that Jefferson had entrusted the

introduction of the Kentucky Resolutions of 1798 into the Legislature of

that State. It was Breckenridge who had led the fight for them. At the

time of the judiciary debate he was Jefferson's spokesman in the Senate;

and later, at the President's earnest request, resigned as Senator to

become Attorney-General.

[170] Breckenridge's constituents insisted that the law be repealed,

because they feared that the newly established National courts would

conflict with the system of State courts which the Legislature of

Kentucky had just established. (See Carpenter, _Am. Pol. Sci. Rev._ IX,

523.)

Although the repeal had been determined upon by Jefferson almost

immediately after his inauguration (see Jefferson to Stuart, April 8,

1801; _Works_: Ford, IX, 247), Breckenridge relied upon that most

fruitful of Republican intellects, John Taylor "of Caroline," the

originator of the Kentucky Resolutions (see vol. II, 397, of this work)

for his arguments. See Taylor to Breckenridge, Dec. 22, 1801, _infra_,

Appendix B.

[171] _Annals_, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530.

[172] _Annals_, 7th Cong. 1st Sess. 26.

[173] _Ib._ 25.

[174] _Ib._ 28.

[175] Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib.

Cong.

[176] See _infra_, chaps. III and IV.

[177] _Annals_, 7th Cong. 1st Sess. 31-32.

[178] _Annals_, 7th Cong. 1st Sess. 38.

[179] This unfortunate declaration of Morris gave the Republicans an

opportunity of unlimited demagogic appeal. See _infra_. (Italics the

author's.)

[180] _Annals_, 7th Cong. 1st Sess. 40-41.

Morris spoke for an hour. There was a "large audience, which is not

common for that House." He prepared his speech for the press. (_Diary

and Letters of Gouverneur Morris_: Morris, II, 417.)

[181] _Annals_, 7th Cong. 1st Sess. 49.

[182] _Ib._ 47-48. Senator Jackson here refers to the case of Marbury

_vs._ Madison, then pending before the Supreme Court. (See _infra_,

chap. III.) This case was mentioned several times during the debate. It

is plain that the Republicans expected Marshall to award the mandamus,

and if he did, to charge this as another act of judicial aggression for

which, if the plans already decided upon did not miscarry, they would

make the new Chief Justice suffer removal from his office by

impeachment. (See _infra_, chap. IV.)

[183] _Annals_, 7th Cong. 1st Sess. 58. Tracy's speech performed the

miracle of making one convert. After he closed he was standing before

the glowing fireplace, "half dead with his exertions." Senator Colhoun

of South Carolina came to Tracy, and giving him his hand, said: "You are

a stranger to me, sir, but by ---- you have made me your friend."

Colhoun said that he "had been told a thousand lies" about the

Federalist Judiciary Act, particularly the manner of passing it, and he

had, therefore, been in favor of repealing it. But Tracy had convinced

him, and Colhoun declared: "I shall be with you on the question." "May

we depend upon you?" asked Tracy, wringing the South Carolina Senator's

hand. "By ---- you may," was the response. (Morison: _Life of the Hon.

Jeremiah Smith_, footnote to 147.) Colhoun kept his word and voted with

the Federalists against his party's pet measure. (_Annals_, 7th Cong.

1st Sess. 185.)

The correct spelling of this South Carolina Senator's name is _Colhoun_,

and not C_a_lhoun, as given in so many biographical sketches of him.

(See _South Carolina Magazine_ for July, 1906.)

[184] See Grigsby: _Virginia Convention of 1788_, II, 260-262.

This was the same Senator who, in violation of the rules of the Senate,

gave to the press a copy of the Jay Treaty which the Senate was then

considering. The publication of the treaty raised a storm of public

wrath against that compact. (See vol. II, 115, of this work.) Senator

Mason's action was the first occurrence in our history of a treaty thus

divulged.

[185] _Annals_, 7th Cong. 1st Sess. 59.

[186] In that case Marshall had issued a rule to the Secretary of State

to show cause why a writ of mandamus should not be issued by the court

ordering him to deliver to Marbury and his associates commissions as

justices of the peace, to which offices President Adams had appointed

them. (See _infra_, chap. III.)

[187] _Annals_, 7th Cong. 1st Sess. 61.

[188] _Annals_, 7th Cong. 1st Sess. 63.

[189] _Annals_, 7th Cong. 1st Sess. 66. The eloquence of the Virginia

Senator elicited the admiration of even the rabidly Federalist

_Columbian Centinel_ of Boston. See issue of February 6, 1802.

[190] _Ib._ 77.

[191] _Ib._ 83.

[192] _Annals_, 7th Cong. 1st Sess. 89.

[193] _Ib._ 91-92.

[194] _Annals_, 7th Cong. 1st Sess. 99.

[195] Morris notes in his diary that, on the same day, the Senate

resolved "to admit a short-hand writer to their floor. This is the

beginning of mischief." (Morris, II, 416-17.)

[196] January 27, 1802.

[197] _Annals_, 7th Cong. 1st Sess. 149.

[198] _Annals_, 7th Cong. 1st Sess. 150.

Burr's action was perfectly correct. As an impartial presiding officer,

he could not well have done anything else. Alexander J. Dallas,

Republican Attorney-General of Pennsylvania, wrote the Vice-President a

letter approving his action. (Dallas to Burr, Feb. 3, 1802, Davis:

_Memoirs of Aaron Burr_, II, 82.) Nathaniel Niles, a rampant Republican,

sent Burr a letter thanking him for his vote. As a Republican, he wanted

his party to be fair, he said. (Niles to Burr, Feb. 17, 1802, _ib._

83-84.) Nevertheless, Burr's vote was seized upon by his enemies as the

occasion for beginning those attacks upon him which led to his overthrow

and disgrace. (See chaps. VI, VII, VIII, and IX of this volume.)

[199] _Annals_, 7th Cong. 1st Sess. 178-79.

[200] See Appendix A to this volume.

[201] _Annals_, 7th Cong. 1st Sess. 179.

[202] _Ib._ 180.

[203] It was five o'clock (_ib._ 178) when Senator Breckenridge began to

speak; it must have been well after six when Senator Morris rose to

answer him.

[204] _Ib._ 180.

[205] _Ib._ 180.

[206] _Annals_, 7th Cong. 1st Sess. 181.

[207] Troup to King, April 9, 1802, King, IV, 103.

[208] Bayard to Bassett, Jan. 25, 1802, _Papers of James A. Bayard_:

Donnan, 146-47.

[209] Except Colhoun of South Carolina, converted by Tracy. See _supra_,

62.

[210] _Annals_, 7th Cong. 1st Sess. 183.

[211] _Ib._ 510. A correspondent of the _Columbian Centinel_, reporting

the event, declared that "the stand which the Federal Senators have made

to preserve the Constitution, has been manly and glorious. They have

immortalized their names, while those of their opposers will be

execrated as the assassins of the Constitution." (_Columbian Centinel_,

Feb. 17, 1802.)

[212] _Annals_, 7th Cong. 1st Sess. 518-19.

[213] _Ib._ 521-22.

[214] See vol. II, 532, 541.

[215] _Washington Federalist_, Feb. 13, 1802.

[216] Henderson in _North Carolina Booklet_, XVII, 66.

[217] _Annals_, 7th Cong. 1st Sess. 529-30.

[218] See _infra_, chap. IV.

[219] _Annals_, 7th Cong. 1st Sess. 531.

[220] _Annals_, 7th Cong. 1st Sess. 552-53.

[221] _Ib._ 554.

[222] _Ib._ 558.

[223] See _infra_, chap. IV.

[224] See, for example, the speeches of Thomas Morris of New York

(_Annals_, 7th Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut

(_ib._ 727-34); John Stanley of North Carolina (_ib._ 569-78); Roger

Griswold of Connecticut (_ib._ 768-69).

[225] _Annals_, 7th Cong. 1st Sess. 579.

[226] Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him

(Giles) the ablest debater of the age." His speech on the Repeal Act,

Grigsby declares to have been "by far his most brilliant display."

(Grigsby: _Virginia Convention of 1829-30_, 23, 29.)

[227] Anderson, 76-82.

[228] See _supra_, 72.

[229] This statement, coming from the Virginia radical, reveals the

profound concern of the Republicans, for Giles thus declared that the

Judiciary debate was of greater consequence than those historic

controversies over Assumption, the Whiskey Rebellion, the Bank,

Neutrality, the Jay Treaty, the French complication, the army, and other

vital subjects. In most of those encounters Giles had taken a leading

and sometimes violent part.

[230] _Annals_, 7th Cong. 1st Sess. 512.

[231] Story's description of Giles six years later: Story to Fay, Feb.

13, 1808, Story, I, 158-59. Also see Anderson, frontispiece and 238.

Giles was thirty-nine years of age. He had been elected to the House in

1790, and from the day he entered Congress had exasperated the

Federalists. It is an interesting though trivial incident that Giles

bore to Madison a letter of introduction from Marshall. Evidently the

circumspect Richmond attorney was not well impressed with Giles, for the

letter is cautious in the extreme. (See Anderson, 10; also _Annals_, 7th

Cong. 1st Sess. 581.)

[232] _Annals_, 7th Cong. 1st Sess. 580-81.

[233] _Annals_, 7th Cong. 1st Sess. 582.

[234] _Ib._ 583.

[235] See _supra_, chap. I.

[236] Marbury _vs._ Madison (see _infra_, chap. III). For Giles's great

speech see _Annals_, 7th Cong. 1st Sess. 579-602.

[237] Bayard is "a fine, personable man ... of strong mental powers....

Nature has been liberal to him.... He has, in himself, vast

resources ... a lawyer of high repute ... and a man of integrity and

honor.... He is very fond of pleasure ... a married man but fond of

wine, women and cards. He drinks more than a bottle of wine each day....

He lives too fast to live long.... He is very attentive to dress and

person." (Senator William Plumer's description of James A. Bayard, March

10, 1803, "Repository," Plumer MSS. Lib. Cong.)

[238] _Annals_, 7th Cong. 1st Sess. 605.

[239] _Ib._ 606.

[240] _Ib._ 609.

[241] _Ib._ 611.

[242] _Ib._ 614.

[243] _Annals_, 7th Cong. 1st Sess. 615.

[244] Bayard's summary of the shortcomings of the Ellsworth Act of 1789

and the excellence of the Judiciary Act of 1801 (_Annals_, 7th Cong. 1st

Sess. 616-27) was the best made at that time or since.

[245] _Ib._ 632.

[246] See _infra_, chap. IV.

[247] Bayard pointed out that Charles Pinckney of South Carolina, whose

"zeal and industry" decided the Presidential vote of his State, had been

appointed Minister to Spain; that Claiborne of Tennessee held the vote

of that State and cast it for Jefferson, and that Jefferson had

conferred upon him "the high degree of Governor of the Mississippi

Territory"; that Mr. Linn of New Jersey, upon whom both parties

depended, finally cast his deciding vote in favor of Jefferson and "Mr.

Linn has since had the profitable office of supervisor of his district

conferred upon him"; and that Mr. Lyon of Vermont neutralized the vote

of his State, but since "his character was low ... Mr. Lyon's son has

been handsomely provided for in one of the Executive offices."

(_Annals_, 7th Cong. 1st Sess. 640.) Bayard named other men who had

influenced the vote in the House and who had thereafter been rewarded by

Jefferson.

[248] _Annals_, 7th Cong. 1st Sess. 645-48.

[249] _Ib._ 648-50. This was the second open expression in Congress of

the spirit that led the New England Federalist leaders into their futile

secession movement. (See _infra_, chaps. III and VI; also vol. IV, chap.

I, of this work.)

[250] Adams to Bayard, April 10, 1802; _Bayard Papers_: Donnan, 152.

[251] _Washington Federalist_, Feb. 20, 1802.

[252] Members of Congress wore their hats during the sessions of House

and Senate until 1828. For a description of Randolph in the House, see

Tyler, I, 291. Senator Plumer pictured him as "a pale, meagre, ghostly

man," with "more popular and effective talents than any other member of

his party." (Plumer to Emery, Plumer, 248.) See also Plumer's letter to

his son, Feb. 22, 1803, in which the New Hampshire Senator says that

"Randolph goes to the House booted and spurred, with his whip in his

hand, in imitation, it is said, of members of the British Parliament. He

is a very slight man, but of the common stature." At a distance he looks

young, but "upon a nearer approach you perceive his wrinkles and grey

hairs. He is, I believe, about thirty." (_Ib._ 256.)

[253] The personal domination which John Randolph of Roanoke wielded

over his party in Congress, until he broke with Jefferson (see _infra_,

chaps. IV and X), is difficult to realize at the present day. Nothing

like it has since been experienced, excepting only the merciless rule of

Thaddeus Stevens of Pennsylvania from 1862 until 1868. (See Woodburn:

_Life of Thaddeus Stevens_, 247 _et seq._)

[254] _Washington Federalist_, Feb. 22, 1802.

[255] _Annals_, 7th Cong. 1st Sess. 650-51.

[256] _Annals_, 7th Cong. 1st Sess. 652.

[257] See _supra_, chap. I, 33; also _infra_, chap. IX, where Marshall,

during the trial of Aaron Burr, actually issued such a subpoena.

Randolph was now denouncing the National court before which Cooper was

tried, because it refused to grant the very writ for the issuing of

which Marshall in a few years was so rancorously assailed by Jefferson

personally, and by nearly all Republicans as a party.

[258] At the time Marshall issued the rule against Madison he apparently

had no idea that Section 13 of the Ellsworth Judiciary Act was

unconstitutional. (See next chapter.)

[259] _Annals_, 7th Cong. 1st Sess. 662-63.

[260] The Federalist organ tried, by ridicule, to minimize Randolph's

really strong speech. "The speech of Mr. Randolph was a jumble of

disconnected declamation.... He was horribly tiresome to the ear and

disgusting to the taste." (_Washington Federalist_, Feb. 22, 1802.)

[261] _Annals_, 7th Cong. 1st Sess. 727.

[262] _Ib._ 737. See also vol. I, 452, of this work.

[263] _Annals_, 7th Cong. 1st Sess. 747-55.

[264] _Ib._ 759.

[265] _Ib._ 760.

[266] See _infra_, chap. X.

[267] _Annals_, 7th Cong. 1st Sess. 760.

[268] _Ib._ 760.

[269] See _infra_, chaps. III and VI.

[270] _Annals_, 7th Cong. 1st Sess. 767-94.

[271] _Ib._ 793.

[272] _Ib._ 805-06.

[273] In sour disgust Morris notes in his diary: "The House of

Representatives have talked themselves out of self-respect, and at

headquarters [White House] there is such an abandonment of manner and

such a pruriency of conversation as would reduce even greatness to the

level of vulgarity." (March 10, 1802, Morris, II, 421.)

[274] _Annals_, 7th Cong. 1st Sess. 904.

Dana's statement is of first importance and should be carefully noted.

It was at the time the universally accepted view of the power of the

Supreme Court to issue writs of mandamus. Neither Federalists nor

Republicans had ever questioned the Constitutional right of the Supreme

Court to entertain original jurisdiction of mandamus proceedings in

proper cases. Yet just this was what Marshall was so soon to deny in

Marbury _vs._ Madison. (See _infra_, chap. III.)

[275] _Annals_, 7th Cong. 1st Sess. 920.

[276] _Ib._ 923-26.

[277] See _supra_, chap, I, 43.

[278] _Annals_, 7th Cong. 1st Sess. 983.

[279] Hildreth, V, 441.

[280] Bayard to Bassett, March 3, 1802, _Bayard Papers_: Donnan, 150;

and see _Annals_, 7th Cong. 1st Sess. 982. One Republican, Dr. William

Eustis of Boston, voted with the Federalists.

[281] _Hist. Last Sess. Cong. Which Commenced 7th Dec. 1801_ (taken from

the _National Intelligencer_), 71.

[282] Tucker: _Life of Thomas Jefferson_, II, 114.

[283] _Washington Federalist_, March 3, 1802. Too much importance cannot

be attached to this editorial. It undoubtedly expressed accurately the

views of Federalist public men in the Capital, including Marshall, whose

partisan views and feelings were intense. It should not be forgotten

that his relations with this newspaper were believed to be intimate.

(See vol. II, 532, 541, of this work.)

[284] Plumer to Upham, March 1, 1802, Plumer MSS. Lib. Cong.

[285] March 12, 1802.

[286] March 23, 1802.

[287] March 15, 1802.

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

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

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

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

[292] _Ib._ 205.

[293] _Ib._ 257.

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

They were appointed, but the swift action of Jefferson and the

Republicans prevented them from entering upon the discharge of their

duties.

[295] This case was before the Supreme Court in December, 1801, and,

ordinarily, would have been decided at the next term, June, 1802.

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

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

[298] _Ib._ 1229-30.

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

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

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

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

[303] _Ib._ Here is another characteristic passage from Ames, who

accurately expressed New England Federalist sentiment: "The second

French and first American Revolution is now commencing.... The

extinction of Federalism would be followed by the ruin of the wise,

rich, and good." (Ames to Smith, Dec. 14, 1802, _ib._ 313-16.)

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

Adams, 338.

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

[306] _Columbian Centinel_, April 7, 1802.

[307] "Bowling" in the _Independent Chronicle_ of April 26, 1802. An

example of Jefferson's amazing skill in directing public opinion is

found in the fact that the people were made to feel that the President

was following in Washington's footsteps.