CHAPTER III

MARBURY VERSUS MADISON

To consider the judges as the ultimate arbiters of all

constitutional questions would place us under the despotism of

an oligarchy. (Jefferson.)

The constitution is either a superior paramount law,

unchangeable by ordinary means, or it is on a level with

ordinary legislative acts alterable when the legislature shall

please to alter it. It is emphatically the province and duty of

the judicial department to say what the law is. This is the very

essence of judicial duty. (Marshall.)

To have inscribed this vast truth of conservatism upon the

public mind, so that no demagogue not in the last stages of

intoxication denies it--this is an achievement of statesmanship

which a thousand years may not exhaust or reveal all that is

good. (Rufus Choate.)

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

"MY DEAREST POLLY

"You will laugh at my vexation when you hear the various calamaties that

have befallen me. In the first place when I came to review my funds, I

had the mortification to discover that I had lost 15 silver dollars out

of my waist coat pocket. They had worn through the various mendings the

pocket had sustained & sought their liberty in the sands of Carolina.

"I determined not to vex myself with what coud not be remedied & orderd

Peter to take out my cloaths that I might dress for court when to my

astonishment & grief after fumbling several minutes in the portmanteau,

staring at vacancy, & sweating most profusely he turned to me with the

doleful tidings that I had no pair of breeches. You may be sure this

piece of inteligence was not very graciously receivd; however, after a

little scolding I determined to make the best of my situation &

immediately set out to get a pair made.

"I thought I should be a sans culotte only one day & that for the

residue of the term I might be well enough dressd for the appearance on

the first day to be forgotten. But, the greatest of evils, I found, was

followed by still greater! Not a taylor in town coud be prevaild on to

work for me. They were all so busy that it was impossible to attend to

my wants however pressing they might be, & I have the extreme

mortification to pass the whole time without that important article of

dress I have mentiond. I have no alleviation for this misfortune but the

hope that I shall be enabled in four or five days to commence my journey

homeward & that I shall have the pleasure of seeing you & our dear

children in eight or nine days after this reaches you.

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

"Adieu my dearest Polly

I am your ever affectionate

J MARSHALL."[308]

With the same unfailing light-heartedness which, nearly a quarter of a

century before, had cheered his comrades at Valley Forge, John Marshall,

Chief Justice of the United States, thus went about his duties and bore

his troubles. Making his circuit in a battered gig or sulky, which he

himself usually drove, absent-minded and laughing at himself for the

mishaps that his forgetfulness and negligence continually brought upon

him, he was seemingly unperturbed in the midst of the political

upheaval.

Yet he was not at ease. Rufus King, still the American Minister to Great

Britain, had finally settled the controversy over the British debts,

upon the very basis laid down by Marshall when Secretary of State.[309]

But Jefferson's Administration now did not hesitate to assert that this

removal of one cause of conflict with Great Britain was the triumph of

Republican diplomacy. Marshall, with unreserve so unlike him, reveals to

King his disgust and sense of injury, and in doing so portrays the

development of political conditions.

"The advocates of the present administration ascribe to it great

praise," wrote Marshall to our Minister in London, "for having, with so

much dexterity & so little loss, extricated our country from a debt of

twenty-four million of dollars in which a former administration had

involved it.... The mortifying reflection obtrudes itself, that the

reputation of the most wise & skilful conduct depends, in this our

capricious world, so much on accident. Had Mr. Adams been reelected

President of the United States, or had his successor been

[a Federalist] ... a very different reception ... would have been

given to the same measure.

"The payment of a specific sum would then have been pronounced, by those

who now take merit to themselves for it, a humiliating national

degradation, an abandonment of national interest, a free will offering

of millions to Britain for her grace & favor, by those who sought to

engage in a war with France, rather than repay, in part, by a small loan

to that republic, the immense debt of gratitude we owe her."

So speaks with bitter sarcasm the new Chief Justice, and pessimistically

continues: "Such is, & such I fear will ever be human justice!" He tells

King that the Federalist "disposition to coalesce" with the Republicans,

which seemed to be developing during the first few months after

Jefferson's inauguration, had disappeared; "but," he adds, "the minority

[Federalist Party] is only recovering its strength & firmness. It

acquires nothing." Then, with the characteristic misgivings of a

Federalist, he prophesies: "Our political tempests will long, very long,

exist, after those who are now toss'd about by them shall be at

rest."[310]

For more than five years[311] Marshall had foreseen the complicated and

dangerous situation in which the country now found itself; and for more

than a year[312] he had, in his ample, leisurely, simple manner of

thinking, been framing the constructive answer which he was at last

forced to give to the grave question: Who shall say with final authority

what is and what is not law throughout the Republic? In his opinion in

the case of Marbury _vs._ Madison, to which this chapter is devoted, we

shall see how John Marshall answered this vital question.

The philosophy of the Virginia and Kentucky Resolutions had now become

the ruling doctrine of the Republican Party. The writer of the creed of

State Rights sat in the Executive chair, while in House and Senate

Virginia and her daughter Kentucky ruled the Republican majority. The

two States that had declared the right and power of any member of the

Union to pronounce a National law unconstitutional, and that had

actually asserted a National statute to be null and void, had become the

dominant force in the National Government.

The Federalist majority in the legislatures of ten States,[313] it is

true, had passed resolutions denouncing that anti-National theory, and

had vigorously asserted that the National Judiciary alone had the power

to invalidate acts of Congress.[314] _But in none of these States had

the Republican minority concurred_. In all of them the Republicans had

vigorously fought the Federalist denial of the right and power of the

States to nullify National laws, and had especially resisted the

Federalist assertion that this power was in the National Judiciary.

In the New York Legislature, forty-three Republicans voted solidly

against the Federalist reply to Virginia and Kentucky, while the

Federalists were able to muster but fifty votes in its favor. In

Massachusetts, Pennsylvania, and Maryland, the Republican opposition was

determined and outspoken.

The thirty-three Republicans of the Vermont Legislature cited, in their

protest, the position which Marshall had taken on the Sedition Law in

his campaign for Congress:[315] "We have ever been of an opinion, with

that much and deservedly respected statesman, Mr. Marshall, (whose

abilities and integrity have been doubted by no party, and whose

spirited and patriotic defence of his country's rights, has been

universally admired)[316] that 'it was calculated to create

_unnecessarily_, discontents and jealousies, at a time, when our very

existence as a nation may depend on our union.'"[317]

In Southern States, where the Federalists were dominant when Kentucky

and Virginia adopted their famous Resolutions, the Republicans were,

nevertheless, so strong that the Federalist majority in the Legislatures

of those States dared not attempt to deny formally the new Republican

gospel.[318]

So stood the formal record; but, since it had been written, the

Jeffersonian propaganda had drawn scores of thousands of voters into the

Republican ranks. The whole South had now decisively repudiated

Federalism. Maryland had been captured; Pennsylvania had become as

emphatically Republican as Virginia herself; New York had joined her

forces to the Republican legions. The Federalists still held New England

and the States of Delaware and New Jersey, but even there the incessant

Republican assaults, delivered with ever-increasing strength, were

weakening the Federalist power. Nothing was plainer than that, if the

Kentucky and Virginia Resolutions had been submitted to the Legislatures

of the various States in 1801-1803, most of them would have

enthusiastically endorsed them.

Thus the one subject most discussed, from the campaign of 1800 to the

time when Marshall delivered his opinion in Marbury _vs._ Madison, was

the all-important question as to what power, if any, could annul acts of

Congress.[319] During these years popular opinion became ever stronger

that the Judiciary could not do so, that Congress had a free hand so far

as courts were concerned, and that the individual States might ignore

National laws whenever those States deemed them to be infractions of the

Constitution. As we have seen, the Republican vote in Senate and House,

by which the Judiciary Act of 1801 was repealed, was also a vote against

the theory of the supervisory power of the National Judiciary over

National legislation.

Should this conclusion go unchallenged? If so, it would have the

sanction of acquiescence and soon acquire the strength of custom. What

then would become the condition of the country? Congress might pass a

law which some States would oppose and which they would refuse to obey,

but which other States would favor and of which they would demand the

enforcement. What would this entail? At the very least it would provoke

a relapse into the chaos of the Confederation and more probably civil

war. Or a President might take it upon himself to pronounce null and

void a law of Congress, as Jefferson had already done in the matter of

the Sedition Law,[320] and if House and Senate were of a hostile

political party, Congress might insist upon the observance of its

legislation; but such a course would seriously damage the whole

machinery of the National Government.

The fundamental question as to what power could definitely pass upon the

validity of legislation must be answered without delay. Some of

Marshall's associates on the Supreme Bench were becoming old and feeble,

and death, or resignation enforced by illness, was likely at any moment

to break the Nationalist solidarity of the Supreme Court;[321] and the

appointing power had fallen into the hands of the man who held the

subjugation of the National Judiciary as one of his chief purposes.

Only second in importance to these reasons for Marshall's determination

to meet the issue was the absolute necessity of asserting that there was

one department of the Government that could not be influenced by

temporary public opinion. The value to a democracy of a steadying force

was not then so well understood as it is at present, but the Chief

Justice fully appreciated it and determined at all hazards to make the

National Judiciary the stabilizing power that it has since become. It

should be said, however, that Marshall no longer "idolized democracy,"

as he declared he did when as a young man he addressed the Virginia

Convention of 1788.[322] On the contrary, he had come to distrust

popular rule as much as did most Federalists.

A case was then pending before the Supreme Court the decision of which

might, by boldness and ingenuity, be made to serve as the occasion for

that tribunal's assertion of its right and power to invalidate acts of

Congress and also for the laying-down of rules for the guidance of all

departments of the Government. This was the case of Marbury _vs._

Madison.

Just before his term expired,[323] President Adams had appointed

forty-two persons to be justices of the peace for the Counties of

Washington and Alexandria in the District of Columbia.[324] The

Federalist Senate had confirmed these nominations,[325] and the

commissions had been signed and sealed, but had not been delivered. When

Jefferson was inaugurated he directed Madison, as Secretary of State, to

issue commissions to twenty-five of the persons appointed by Adams, but

to withhold the commissions from the other seventeen.[326]

Among the latter were William Marbury, Dennis Ramsay, Robert Townsend

Hooe, and William Harper. These four men applied to the Supreme Court

for a writ of mandamus compelling Madison to deliver their commissions.

The other thirteen did not join in the suit, apparently considering the

office of justice of the peace too insignificant to be worth the expense

of litigation. Indeed, these offices were deemed so trifling that one of

Adams's appointees to whom Madison delivered a commission resigned, and

five others refused to qualify.[327]

When the application of Marbury and his associates came before Marshall

he assumed jurisdiction, and in December, 1801, issued the usual rule to

Madison ordering him to show cause at the next term of the Supreme Court

why the writ of mandamus should not be awarded against him. Soon

afterward, as we have seen, Congress abolished the June session of the

Supreme Court;[328] thus, when the court again convened in February,

1803, the case of Marbury _vs._ Madison was still pending.

Marshall resolved to make use of this unimportant litigation to assert,

at the critical hour when such a pronouncement was essential, the power

of the Supreme Court to declare invalid acts of Congress that violate

the Constitution.

Considering the fact that Marshall was an experienced politician, was

intimately familiar with the political methods of Jefferson and the

Republican leaders, and was advised of their purposes, he could not have

failed to realize the probable consequences to himself of the bold

course he now determined to take. As the crawling months of 1802 wore

on, no signs appeared that the Republican programme for overthrowing the

independence of the Judiciary would be relinquished or modified. On the

contrary, the coming of the new year (1803) found the second phase of

the Republican assault determined upon.

At the beginning of the session of 1803 the House impeached John

Pickering, Judge of the United States District Court for the District

of New Hampshire. In Pennsylvania, the recently elected Republican House

had impeached Judge Alexander Addison, and his conviction by a partisan

vote was assured. Already the Republican determination to remove Samuel

Chase from the Supreme Bench was frankly avowed.[329]

Moreover, the Republicans openly threatened to oust Marshall and his

Federalist associates in case the court decided Marbury _vs._ Madison as

the Republicans expected it would. They did not anticipate that Marshall

would declare unconstitutional that section of the old Federalist

Judiciary Act of 1789 under which the suit had been brought. Indeed,

nobody imagined that the court would do that.

Everybody apparently, except Marshall and the Associate Justices,

thought that the case would be decided in Marbury's favor and that

Madison would be ordered to deliver the withheld commissions. It was

upon this supposition that the Republican threats of impeachment were

made. The Republicans considered Marbury's suit as a Federalist partisan

maneuver and believed that the court's decision and Marshall's opinion

would be inspired by motives of Federalist partisanship.[330]

There was a particular and powerful reason for Marshall to fear

impeachment and removal from office; for, should he be deposed, it was

certain that Jefferson would appoint Spencer Roane of Virginia to be

Chief Justice of the United States. It was well known that Jefferson had

intended to appoint Roane upon the death of Chief Justice

Ellsworth.[331] But Ellsworth had resigned in time to permit Adams to

appoint Marshall as his successor and thus thwart Jefferson's purpose.

If now Marshall were removed, Roane would be given his place.

Should he be succeeded by Roane, Marshall knew that the great principles

of Nationalism, to the carrying-out of which his life was devoted,

would never be asserted by the National Judiciary. On the contrary, the

Supreme Court would become an engine for the destruction of every theory

of government which Marshall held dear; for a bolder, abler, and more

persistent antagonist of those principles than Spencer Roane did not

exist.[332] Had he become Chief Justice those cases in which Marshall

delivered opinions that vitalized the Constitution would have been

decided in direct opposition to Marshall's views.[333]

But despite the peril, Marshall resolved to act. Better to meet the

issue now, come what might, than to evade it. If he succeeded, orderly

government would be assured, the National Judiciary lifted to its high

and true place, and one element of National disintegration suppressed,

perhaps destroyed. If he failed, the country would be in no worse case

than that to which it was rapidly tending.

No words in the Constitution gave the Judiciary the power to annul

legislation. The subject had been discussed in the Convention, but the

brief and scattering debate had arisen upon the proposition to make the

President and Justices of the Supreme Court members of a Council of

Revision with power to negative acts of Congress. No direct resolution

was ever offered to the effect that the Judiciary should be given power

to declare acts of Congress unconstitutional. In the discussion of the

proposed Council of Revision there were sharp differences of opinion on

the collateral question of the right and wisdom of judicial control of

legislative acts.[334] But, in the end, nothing was done and the whole

subject was dropped.

Such was the record of the Constitutional Convention when, by his

opinion in Marbury _vs._ Madison, Marshall made the principle of

judicial supremacy over legislation as much a part of our fundamental

law as if the Constitution contained these specific words: the Supreme

Court shall have the power to declare invalid any act of Congress which,

in the opinion of the court, is unconstitutional.

In establishing this principle Marshall was to contribute nothing new to

the thought upon the subject. All the arguments on both sides of the

question had been made over and over again since the Kentucky and

Virginia Resolutions had startled the land, and had been freshly stated

in the Judiciary debate in the preceding Congress. Members of the

Federalist majority in most of the State Legislatures had expressed, in

highly colored partisan rhetoric, every sound reason for the theory that

the National Judiciary should be the ultimate interpreter of the

Constitution. Both Federalist and Republican newspapers had printed

scores of essays for and against that doctrine.

In the Virginia Convention of 1788 Marshall had announced as a

fundamental principle that if Congress should pass an unconstitutional

law the courts would declare it void,[335] and in his reply to the

address of the majority of the Virginia Legislature[336] he had

elaborately, though with much caution and some mistiness, set forth his

views.[337] Chief Justice Jay and his associates had complained that the

Judiciary Act of 1789 was unconstitutional, but they had not had the

courage to announce that opinion from the Bench.[338] Justices Iredell

and Paterson, sitting as circuit judges, had claimed for the National

Judiciary the exclusive right to determine the constitutionality of

laws. Chief Justice Jay in charging a grand jury, and Associate Justice

Wilson in a carefully prepared law lecture, had announced the same

conclusion.

Various State judges of the Federalist faith, among them Dana of

Massachusetts and Addison of Pennsylvania, had spoken to like effect. At

the trial of Callender[339] Marshall had heard Chase deliver the opinion

that the National Judiciary had the exclusive power to declare acts of

Congress unconstitutional.[340] Jefferson himself had written Meusnier,

the year before the National Constitution was framed, that the Virginia

Legislature had passed unconstitutional laws,[341] adding: "I have not

heard that in the other states they have ever infringed their

constitution; ... _as the judges would consider any law as void_ which

was contrary to the constitution."[342]

Just as Jefferson, in writing the Declaration of Independence, put on

paper not a single new or original idea, but merely set down in clear

and compact form what had been said many times before,[343] so Marshall,

in his opinion in Marbury _vs._ Madison, did nothing more than restate

that which had previously been declared by hundreds of men. Thomas

Jefferson and John Marshall as private citizens in Charlottesville and

Richmond might have written Declarations and Opinions all their lives,

and to-day none but the curious student would know that such men had

ever lived. It was the authoritative position which these two great

Americans happened to occupy and the compelling emergency for the

announcement of the principles they expressed, as well as the soundness

of those principles, that have given immortality to their enunciations.

Learned men have made exhaustive research for legal decisions by which

Marshall's footsteps may have been guided, or which, at least, would

justify his conclusion in Marbury _vs._ Madison.[344] The cases thus

discovered are curious and interesting, but it is probable that

Marshall had not heard of many of them. At any rate, he does not cite

one of them in the course of this opinion, although no case ever was

decided in which a judge needed so much the support of judicial

precedents. Neither did he know anything whatever of what was said on

the subject in the Constitutional Convention, unless by hearsay, for its

sessions were secret[345] and the Journals were not made public until

1819--thirty years after the Government was established, and sixteen

years after Marbury _vs._ Madison was decided.[346] Nor was Marshall

informed of the discussions of the subject in the State Conventions that

ratified the Constitution, except of those that took place in the

Virginia Convention.[347]

On the other hand, he surely had read the Judiciary debate in Congress,

for he was in the Capital when that controversy took place and the

speeches were fully reported in the Washington press. Marshall probably

was present in the Senate and the House when the most notable arguments

were made.[348] More important, however, than written decisions or

printed debates in influencing Marshall's mind was _The Federalist_,

which we know he read carefully. In number seventy-eight of that work,

Hamilton stated the principle of judicial supremacy which Marshall

whole-heartedly adopted in Marbury _vs._ Madison.

"The interpretation of the laws," wrote Hamilton, "is the proper and

peculiar province of the courts. A constitution is, in fact, and must be

regarded by the judges, as a fundamental law. It therefore belongs to

them to ascertain its meaning, as well as the meaning of any particular

act proceeding from the legislative body. If there should happen to be

an irreconcilable variance between the two, ... the Constitution ought

to be preferred to the statute, the intention of the people to the

intention of their agents."[349]

In this passage Hamilton merely stated the general understanding of

nearly all the important framers of the Constitution. Beyond question,

Marshall considered that principle to have been woven into the very

fiber of the Nation's fundamental law.

In executing his carefully determined purpose to have the Supreme Court

formally announce the exclusive power of that tribunal as the authority

of last resort to interpret the Constitution and determine the validity

of laws by the test of that instrument, Marshall faced two practical and

baffling difficulties, in addition to those larger and more forbidding

ones which we have already considered.

The first of these was the condition of the Supreme Court itself and the

low place it held in the public esteem; from the beginning it had not,

as a body, impressed the public mind with its wisdom, dignity, or

force.[350] The second obstacle was technical and immediate. Just how

should Marshall declare the Supreme Court to be the ultimate arbiter of

conflicts between statutes and the Constitution? What occasion could he

find to justify, and seemingly to require, the pronouncement as the

judgment of the Supreme Court of that opinion now imperatively demanded,

and which he had resolved at all hazards to deliver?

When the Republicans repealed the Federalist Judiciary Act of 1801,

Marshall had actually proposed to his associates upon the Supreme Bench

that they refuse to sit as circuit judges, and "risk the consequences."

By the Constitution, he said, they were Judges of the Supreme Court

only; their commissions proved that they were appointed solely to those

offices; the section requiring them to sit in inferior courts was

unconstitutional. The other members of the Supreme Court, however, had

not the courage to adopt the heroic course Marshall recommended. They

agreed that his views were sound, but insisted that, because the

Ellsworth Judiciary Act had been acquiesced in since the adoption of

the Constitution, the validity of that act must now be considered as

established.[351] So Marshall reluctantly abandoned his bold plan,

and in the autumn of 1802 held court at Richmond as circuit judge.

To the end of his life, however, he held firmly to the opinion that

in so far as the Republican Judiciary Repeal Act of 1802 deprived

National judges of their offices and salaries, that legislation was

unconstitutional.[352]

Had the circuit judges, whose offices had just been taken from them,

resisted in the courts, Marshall might, and probably would, have seized

upon the issue thus presented to declare invalid the act by which the

Republicans had overturned the new Federalist Judiciary system. Just

this, as we have seen, the Republicans had expected him to do, and

therefore had so changed the sessions of the Supreme Court that it could

not render any decision for more than a year after the new Federalist

courts were abolished.

Certain of the deposed National judges had, indeed, taken steps to bring

the "revolutionary" Republican measure before the Supreme Court,[353]

but their energies flagged, their hearts failed, and their only action

was a futile and foolish protest to the very Congress that had wrested

their judicial seats from under them.[354] Marshall was thus deprived of

that opportunity at the only time he could have availed himself of it.

A year afterward, when Marbury _vs._ Madison came up for decision, the

entire National Judiciary had submitted to the Republican repeal and was

holding court under the Act of 1789.[355] This case, then, alone

remained as the only possible occasion for announcing, at that critical

time, the supervisory power of the Judiciary over legislation.

Marshall was Secretary of State when President Adams tardily appointed,

and the Federalist Senate confirmed, the forty-two justices of the peace

for the District of Columbia,[356] and it was Marshall who had failed to

deliver the commissions to the appointees. Instead, he had, with his

customary negligence of details, left them on his desk. Scarcely had he

arrived at Richmond, after Jefferson's inauguration, when his brother,

James M. Marshall, wrote him of the plight in which the newly appointed

justices of the peace found themselves as the result of Marshall's

oversight.

The Chief Justice replied: "I learn with infinite chagrin

the 'development of principle' mentioned in yours of the

12th,"--sarcastically referring to the Administration's conduct toward

the Judiciary,--"& I cannot help regreting it the more as I fear some

blame may be imputed to me....

"I did not send out the commissions because I apprehended such as were

for a fixed time to be completed when signed & sealed & such as depended

on the will of the President might at any time be revoked. To withhold

the commission of the Marshal is equal to displacing him which the

President, I presume, has the power to do, but to withhold the

commissions of the Justices is an act of which I entertaind no

suspicion. I should however have sent out the commissions which had been

signed & sealed but for the extreme hurry of the time & the absence of

Mr. Wagner [Clerk of the State Department] who had been called on by the

President to act as his private secretary."[357]

Marshall, it thus appears, was thoroughly familiar with the matter when

the application of Marbury and his three associates came before the

Supreme Court, and took in it a keen and personal interest. By the

time[358] the case came on for final disposition the term had almost

half expired for which Marbury and his associates had been appointed.

The other justices of the peace to whom Madison had delivered

commissions were then transacting all the business that required the

attention of such officials. It was certain, moreover, that the

Administration would not recognize Marbury and his associates, no matter

what Marshall might decide. In fact, these appointees must have lost all

interest in the contest for offices of such slight dignity and such

insignificant emoluments.

So far, then, as practical results were concerned, the case of Marbury

_vs._ Madison had now come to the point where it was of no consequence

whatever to any one. It presented only theoretical questions, and, on

the face of the record, even these were as simple as they were

unimportant. This controversy, in fact, had degenerated into little more

than "a moot case," as Jefferson termed it twenty years later.[359]

At the hearing it was proved that the commissions had been signed and

sealed. One witness was Marshall's brother, James M. Marshall.

Jefferson's Attorney-General, Levi Lincoln, was excused from testifying

as to what finally became of them. Madison refused to show cause and

denied, by utterly ignoring, the jurisdiction of the Supreme Court to

direct or control him in his administration of the office of Secretary

of State.[360]

Charles Lee, former Attorney-General, counsel for the applicants, argued

the questions which he and everybody else thought were involved. He

maintained that a mandamus was the proper remedy, made so not only by

the nature of the relation of the Supreme Court to inferior courts and

ministerial officers, but by positive enactment of Congress in the

Judiciary Law of 1789. Lee pointed out that the Supreme Court had acted

on this authority in two previous cases.

Apparently the court could do one or the other of two things: it could

disavow its power over any branch of the Executive Department and

dismiss the application, or it could assert this power in cases like the

one before it and command Madison to deliver the withheld commissions.

It was the latter course that the Republicans expected Marshall to take.

If the Chief Justice should do this, Madison undoubtedly would ignore

the writ and decline to obey the court's mandate. Thus the Executive and

Judicial Departments would have been brought into direct conflict, with

every practical advantage in the hands of the Administration. The court

had no physical means to compel the execution of its order. Jefferson

would have denounced the illegality of such a decision and laughed at

the court's predicament. In short, had the writ to Madison been issued,

the court would have been powerless to enforce obedience to its own

mandate.

If, on the contrary, the court dismissed the case, the Republican

doctrines that the National courts could not direct executives to obey

the laws, and that the Judiciary could not invalidate acts of Congress,

would by acquiescence have been admitted.

No matter which horn of the dilemma Marshall selected, it was hard to

see how his views could escape impalement. He chose neither. Instead of

allowing his cherished purpose of establishing the principle of

supervisory power of the Judiciary over legislation to be thus wounded

and perhaps fatally injured, he made the decision of this insignificant

case--about which the applicants themselves no longer cared--the

occasion for asserting that principle. And he did assert that

principle--asserted it so impressively that for more than a century his

conclusion has easily withstood repeated assaults upon it, which still

continue.

Marshall accomplished his purpose by convincing the Associate Justices

of the unconstitutionality of that section of the Ellsworth Judiciary

Act of 1789[361] which expressly conferred upon the Supreme Court the

power to issue writs of mandamus and prohibition, and in persuading them

to allow him to announce that conclusion as the opinion of the court.

When we consider that, while all the Justices agreed with Marshall that

the provision of the Ellsworth Judiciary Law requiring them to sit as

circuit judges was unconstitutional, and yet refused to act upon that

belief as Marshall wanted them to act, we can realize the measure of his

triumph in inducing the same men to hold unconstitutional another

provision of the same act--a provision, too, even less open to objection

than the one they had sustained.

The theory of the Chief Justice that Section 13 of the old Judiciary Law

was unconstitutional was absolutely new, and it was as daring as it was

novel. It was the only original idea that Marshall contributed to the

entire controversy. Nobody ever had questioned the validity of that

section of the statute which Marshall now challenged. Ellsworth, who

preceded Marshall as Chief Justice, had drawn the act when he was

Senator in the First Congress;[362] he was one of the greatest lawyers

of his time and an influential member of the Constitutional Convention.

One of Marshall's associates on the Supreme Bench at that very moment,

William Paterson, had also been, with Ellsworth, a member of the Senate

Committee that reported the Judiciary Act of 1789, and he, too, had been

a member of the Constitutional Convention. Senators Gouverneur Morris

of New York, William S. Johnson of Connecticut, Robert Morris of

Pennsylvania, William Few of Georgia, George Read and Richard Bassett of

Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law

when the Senate passed it; and in the House James Madison and George

Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of

Connecticut heartily favored and voted for the act. Most of these men

were thorough lawyers, and every one of them had also helped to draft

the National Constitution. Here were twelve men, many of them highly

learned in the law, makers of the Constitution, draftsmen or advocates

and supporters of the Ellsworth Judiciary Act of 1789, not one of whom

had ever dreamed that an important section of that law was

unconstitutional.[363]

Furthermore, from the organization of the Supreme Court to that moment,

the bench and bar had accepted it, and the Justices of the Supreme

Court, sitting with National district judges, had recognized its

authority when called upon to take action in a particular controversy

brought directly under it.[364] The Supreme Court itself had held that

it had jurisdiction, under Section 13, to issue a mandamus in a proper

case,[365] and had granted a writ of prohibition by authority of the

same section.[366] In two other cases this section had come before the

Supreme Court, and no one had even intimated that it was

unconstitutional.[367]

When, to his great disgust, Marshall was forced to sit as a circuit

judge at Richmond in the winter of 1802, a case came before him that

involved both the validity of the Republican Repeal Act and also the

constitutionality of that provision of the Ellsworth Judiciary Law

requiring justices of the Supreme Court to sit as circuit judges. This

was the case of Stuart _vs._ Laird. Marshall held merely that the plea

which raised these questions was insufficient, and the case was taken to

the Supreme Court on a writ of error. After extended argument Justice

Paterson delivered the opinion of the court, Marshall declining to

participate in the decision because he had "tried the cause in the court

below."[368]

At the same term, then, at which Marbury _vs._ Madison was decided, and

immediately after Marshall's opinion in that case was delivered, all the

justices of the Supreme Court except the Chief Justice, held "that

practice and acquiescence under it [the Judiciary Act of 1789] for a

period of several years, commencing with the organization of the

judicial system ... has fixed the construction. It is a contemporary

interpretation of the most forcible nature. This practical exposition is

too strong and obstinate to be shaken or controlled. Of course, the

question is at rest, and ought not now to be disturbed."[369]

But the exigency disclosed in this chapter required immediate action,

notwithstanding the obstacles above set forth. The issue raised by the

Republicans--the free hand of Congress, unrestrained by courts--must be

settled at that time or be abandoned perhaps forever. The fundamental

consideration involved must have a prompt, firm, and, if possible, final

answer. Were such an answer not then given, it was not certain that it

could ever be made. As it turned out, but for Marbury _vs._ Madison, the

power of the Supreme Court to annul acts of Congress probably would not

have been insisted upon thereafter. For, during the thirty-two years

that Marshall remained on the Supreme Bench after the decision of that

case, and for twenty years after his death, no case came before the

court where an act of Congress was overthrown; and none had been

invalidated from the adoption of the Constitution to the day when

Marshall delivered his epochal opinion. So that, as a matter of

historical significance, had he not then taken this stand, nearly

seventy years would have passed without any question arising as to the

omnipotence of Congress.[370] After so long a period of judicial

acquiescence in Congressional supremacy it seems likely that opposition

to it would have been futile.

For the reasons stated, Marshall resolved to take that step which, for

courage, statesmanlike foresight, and, indeed, for perfectly calculated

audacity, has few parallels in judicial history. In order to assert that

in the Judiciary rested the exclusive power[371] to declare any statute

unconstitutional, and to announce that the Supreme Court was the

ultimate arbiter as to what is and what is not law under the

Constitution, Marshall determined to annul Section 13 of the Ellsworth

Judiciary Act of 1789. In taking such a step the Chief Justice made up

his mind that he would sum up in final and conclusive form the reasoning

that sustained that principle.

Marshall resolved to go still further. He would announce from the

Supreme Bench rules of procedure which the Executive branch of the

Government must observe. This was indispensable, he correctly thought,

if the departments were to be harmonious branches of a single and

National Government, rather than warring factions whose dissensions must

in the end paralyze the administration of the Nation's affairs.[372]

It was not, then, Marshall's declaring an act of Congress to be

unconstitutional that was innovating or revolutionary. The extraordinary

thing was the pretext he devised for rendering that opinion--a pretext

which, it cannot be too often recalled, had been unheard of and

unsuspected hitherto. Nothing but the emergency compelling the

insistence, at this particular time, that the Supreme Court has such a

power, can fully and satisfactorily explain the action of Marshall in

holding this section void.

In his opinion the Chief Justice spoke of "the peculiar delicacy of this

case, the novelty of some of its circumstances, and the real difficulty

attending the points which occur in it."[373] He would follow, he said,

the points of counsel in the order in which they had been made.[374] Did

the applicants have a right to the commissions? This depended, he said,

on whether Marbury had been appointed to office. If so, he was entitled

to the commission which was merely the formal evidence of the

appointment. The President had nominated him to the Senate, the Senate

had confirmed the nomination, the President had signed the commission,

and, in the manner directed by act of Congress, the Secretary of State

had affixed to it the seal of the United States.[375]

The President could not recall his appointment if "the officer is not

removable." Delivery of the commission was not necessary to the

consummation of the appointment which had already been effected;

otherwise "negligence, ... fraud, fire or theft, might deprive an

individual of his office." But the truth was that "a copy from the

record ... would be, to every intent and purpose, equal to the

original."[376] The appointment of Marbury "vested in the officer legal

rights ... of his country," and "to withhold his commission is an

act ... not warranted by law, but violative of a vested legal

right....[377]

"The very essence of civil liberty," continues Marshall, "certainly

consists in the right of every individual to claim the protection of the

laws, whenever he receives an injury. One of the first duties of

government is to afford that protection." Ours has been "emphatically

termed a government of laws, and not of men. It will certainly cease to

deserve this high appellation, if the laws furnish no remedy for the

violation of a vested legal right....[378]

"The act of delivering or withholding a commission" is not "a mere

political act, belonging to the executive department alone," but a

ministerial act, the performance of which is directed by statute.

Congress had ordered the Secretary of War to place the names of certain

persons on the pension rolls; suppose that he should refuse to do so?

"Would the wounded veteran be without remedy?... Is it to be contended

that the heads of departments are not amenable to the laws of their

country?"[379]

Would any person whatever attempt to maintain that a purchaser of public

lands could be deprived of his property because a Secretary of State

withheld his patent?[380] To be sure, the President had certain

political powers and could appoint agents to aid him in the exercise of

them. The courts had no authority to interfere in this sphere of

Executive action. For example, the conduct of foreign affairs by the

Secretary of State, as the representative of the President, can never be

examinable by the courts. But the delivery of a commission to an office

or a patent to land was a different matter.

When Congress by statute peremptorily directs the Secretary of State or

any other officer to perform specific duties on which "the rights of

individuals are dependent ... he cannot at his discretion sport away the

vested rights of others." If he attempts to do so he is answerable to

the courts. "The question whether a right has vested or not, is, in its

nature, judicial, and must be tried by the judicial authority." The

court therefore was empowered to decide the point; and held that

Madison's refusal to deliver Marbury's commission was "a plain violation

of that right, for which the laws of his country afford him a

remedy."[381]

But was this remedy the writ of mandamus for which Marbury had applied?

It was, said Marshall; but could such an order be directed to the

Secretary of State? This was a task "peculiarly irksome, as well as

delicate,"[382] for, he observed, there were those who would at first

consider it "as an attempt to intrude into the cabinet, and to

intermeddle with the prerogatives of the executive." Far be it from John

Marshall to do such a thing. He need hardly "disclaim all pretensions to

such jurisdiction." Not "for a moment" would he entertain "an

extravagance so absurd and excessive.... Questions in their nature

political, ... can never be made in this court." But if the case before

him presented only questions concerning legal rights of an individual,

"what is there in the exalted station" of the Secretary of State which

"exempts him from ... being compelled to obey the judgment of the law"?

The only remaining question, therefore, was whether a mandamus could

issue from the Supreme Court.[383]

In such manner Marshall finally arrived at the examination of the

constitutionality of Section 13, which, he said, fitted the present case

"precisely"; and "if this court is not authorized to issue a writ of

mandamus" to Madison, "it must be because the law is unconstitutional,

and therefore absolutely incapable of conferring the authority."[384] In

reaching this point Marshall employs almost seven thousand words.

Fifteen hundred more words are used before he takes up the principle of

judicial supremacy over legislation.

The fundamental law of the Nation, Marshall explained, expressly defined

the original jurisdiction of the Supreme Court and carefully limited its

authority. It could take original cognizance only of specific cases. In

all others, the court was given nothing but "appellate jurisdiction."

But he omitted the words that immediately follow in the same

sentence--"with such exceptions ... as the Congress shall make." Yet

this language had, for fourteen years, apparently been considered by the

whole bench and bar as meaning, among other things, that while Congress

could _not take from_ the Supreme Court original jurisdiction in the

cases specifically named in Article Three of the Constitution, Congress

_could add_ other cases to the original jurisdiction of the Supreme

Court.

Marshall was quite conscious of all this, it would seem. In the

argument, counsel had insisted that since "the clause, assigning

original jurisdiction to the Supreme Court, contains no negative or

restrictive words, the power remains to the legislature, to assign

original jurisdiction to that court in other cases than those

specified."[385] But, reasons Marshall, in answer to this contention, if

Congress could thus enlarge the original jurisdiction of the Supreme

Court, "the subsequent part of the section[386] is mere surplusage, is

entirely without meaning, ... is form without substance.... Affirmative

words are often ... negative of other objects than those affirmed; and

in this case, a negative or exclusive sense must be given to them, _or

they have no operation at all_."[387]

That is to say, when the Constitution conferred upon the Supreme Court

original jurisdiction in specified cases, it thereby excluded all

others--denied to Congress the power to add to the jurisdiction thus

affirmatively granted. And yet, let it be repeated, by giving original

jurisdiction in cases specifically named, the Constitution put it beyond

the power of Congress to interfere with the Supreme Court in those

cases; but Marshall asserted that the specific grant of jurisdiction has

"_no operation at all_" unless "a negative or exclusive sense" be given

it.[388]

Marshall boldly held, therefore, that Section 13 of the Ellsworth

Judiciary Act was "not warranted by the Constitution." Such being the

case, ought the Supreme Court to act under this unconstitutional

section? As the Chief Justice stated the question, could "an act,

repugnant to the constitution ... become the law of the land"? After

writing nearly nine thousand words, he now reached the commanding

question: Can the Supreme Court of the United States invalidate an act

which Congress has passed and the President has approved?

Marshall avowed that the Supreme Court can and must do that very thing,

and in so doing made Marbury _vs._ Madison historic. In this, the vital

part of his opinion, the Chief Justice is direct, clear, simple, and

convincing. The people, he said, have an elemental right to establish

such principles for "their future government, as ... shall most conduce

to their own happiness." This was "the basis on which the whole American

fabric had been erected." These "permanent" and "fundamental"

principles, in the instance of the American Government, were those

limiting the powers of the various departments: "That those limits may

not be mistaken, or forgotten, the constitution is written. To what

purpose are powers limited ... if these limits may, at any time, be

passed by those intended to be restrained?"[389]

If Congress or any other department of the Government can ignore the

limitations of the Constitution, all distinction between government of

"limited and unlimited powers" is done away with. To say that "acts

prohibited and acts allowed are of equal obligation" is to deny the very

purpose for which our fundamental law was adopted. "The constitution

controls any legislative act repugnant to it." Congress cannot alter it

by legislation.[390] All this, said Marshall, was too clear to admit of

discussion, but he proceeded, nevertheless, to discuss the subject at

great length.

There is "no middle ground." The Constitution is either "a superior

paramount law" not to be changed by legislative enactment, or else "it

is on a level with the ordinary legislative acts" and, as such,

"alterable" at the will of Congress. If the Constitution is supreme,

then an act of Congress violative of it is not law; if the Constitution

is not supreme, then "written constitutions are absurd attempts, on the

part of the people, to limit a power in its own nature illimitable."

Three times in a short space Marshall insists that, for Congress to

ignore the limitations which the Constitution places upon it, is to deny

the whole theory of government under written constitutions.

Although the contention that the Judiciary must consider

unconstitutional legislation to be valid was "an absurdity too gross to

be insisted on," Marshall would, nevertheless, patiently examine

it.[391] This he did by reasoning so simple and so logical that the

dullest citizen could not fail to understand it nor the most astute

intellect escape it. But in the process he was tiresomely repetitious,

though not to so irritating an extent as he at times became.

If two laws conflict, the courts must decide between them. Where the

Constitution and an act of Congress apply to a case, "the court must

determine which ... governs [it]. This is of the very essence of

judicial duty.... If, then, ... the constitution is superior to any

ordinary act of the legislature," the Judiciary must prefer it to a mere

statute. Otherwise "courts must close their eyes on the constitution,"

and see only the legislative enactment.[392]

But to do this "would subvert the very foundation of all written

constitutions." It would be to "declare that an act which ... is

entirely void, is yet ... completely obligatory," and that Congress may

do "what is expressly forbidden." This would give to the legislature "a

practical and real omnipotence, with the same breath which professes to

restrict their powers within narrow limits." It would be "prescribing

limits, and declaring that those limits may be passed at pleasure." This

"reduces to nothing" both the letter and the theory of the Constitution.

That instrument expressly extends the judicial power to cases "arising

under the constitution." Must the courts decide such a case "without

examining the instrument under which it arises?" If the courts must

look into the Constitution at all, as assuredly they must do in some

cases, "what part of it are they forbidden to read or to obey?"

Marshall cites hypothetical examples of legislation in direct conflict

with the fundamental law. Suppose that Congress should place an export

duty on cotton, tobacco, flour, and that the Government should bring

suit to recover the tax. "Ought judgment to be rendered in such a case?"

Or if a bill of attainder should be passed and citizens prosecuted under

it, "must the court condemn to death those victims whom the constitution

endeavors to preserve?"

Take, for example, the crime of treason: the Constitution emphatically

prescribes that nobody can be convicted of this offense "unless on the

testimony of two witnesses to the same overt act, or on confession in

open court." The Judiciary particularly are addressed--"it prescribes,

directly for them, a rule of evidence not to be departed from." Suppose

that Congress should enact a law providing that a citizen might be

convicted of treason upon the testimony of one witness or by a

confession out of court? Which must the court obey--the Constitution or

the act altering that instrument?

Did not these illustrations and many others that might be given prove

that the Constitution must govern courts as well as Congress? If not,

why does the Constitution require judges "to take an oath to support

it"? That solemn obligation "applies in an especial manner to their

conduct in their official character." How "immoral" to direct them to

take this oath "if they were to be used as the instruments, and the

knowing instruments, for violating what they swear to support!" Such

contradictions and confusions would make the ceremony of taking the oath

of judicial office "a solemn mockery" and even "a crime."

There is, then, said Marshall, no escape from the conclusion "that a law

repugnant to the constitution is void," and that the judicial as well as

other departments are bound by the Constitution.[393] The application of

Marbury and others must therefore be dismissed.

Thus, by a coup as bold in design and as daring in execution as that by

which the Constitution had been framed,[394] John Marshall set up a

landmark in American history so high that all the future could take

bearings from it, so enduring that all the shocks the Nation was to

endure could not overturn it. Such a decision was a great event in

American history. State courts, as well as National tribunals,

thereafter fearlessly applied the principle that Marshall announced, and

the supremacy of written constitutions over legislative acts was firmly

established.

This principle is wholly and exclusively American. It is America's

original contribution to the science of law.[395] The assertion of it,

under the conditions related in this chapter, was the deed of a great

man. One of narrower vision and smaller courage never would have done

what Marshall did. In his management and decision of this case, at the

time and under the circumstances, Marshall's acts and words were those

of a statesman of the first rank.

His opinion gave fresh strength to the purpose of the Republican leaders

to subdue the Federalist Judiciary. It furnished Jefferson and his

radical followers a new and concrete reason for ousting from the

National Bench, and especially from the Supreme Court, all judges who

would thus override the will of Congress. Against himself, in

particular, Marshall had newly whetted the edge of Republican wrath,

already over-keen.

The trial of John Pickering, Judge of the United States Court for the

District of New Hampshire, brought by the House before the bar of the

Senate, was now pushed with cold venomousness to what Henry Adams calls

"an infamous and certainly an illegal conviction"; and then Marshall's

associate on the Supreme Bench, Justice Samuel Chase, was quickly

impeached for high crimes and misdemeanors. If the Republican

organization could force from its partisans in the Senate a verdict of

"guilty" in Chase's case also, Marshall's official head would be the

next to fall.[396]

Concerning Marshall's assertion of the power of the National Judiciary

to annul acts of Congress and to direct administrative officers in the

discharge of their legal duties, Jefferson himself said nothing at the

time. But the opinion of the Chief Justice was another ingredient thrown

into the caldron of Jefferson's heart, where a hatred was brewed that

poisoned the great politician to his latest day.

Many months after the decision in the Marbury case, Jefferson first

broke his silence. "Nothing in the Constitution has given them [the

Supreme Court] a right to decide for the Executive, more than to the

Executive to decide for them," he wrote. "The opinion which gives to the

judges the right to decide what laws are constitutional, and what not,

not only for themselves in their own sphere of action, but for the

Legislature & Executive also, in their spheres, would make the judiciary

a despotic branch."[397]

Again, during the trial of Aaron Burr,[398] Jefferson denounced Marshall

for his opinion in Marbury _vs._ Madison; and toward the close of his

life he returned again and again with corroding words to the subject

regarding which, at the moment it arose, he concealed, so far as written

words were concerned, his virulent resentment. For instance, seventeen

years later Jefferson wrote that "to consider the judges as the ultimate

arbiters of all constitutional questions ... would place us under the

despotism of an oligarchy."[399]

But for the time being, Jefferson was quiescent. His subtle mind knew

how, in political controversies, to control his tongue and pen. It could

do no good for him, personally, to make an outcry now; and it might do

harm. The doctrine which Marshall announced had, Jefferson knew, a

strong hold on all Federalists, and, indeed, on many Northern

Republicans; the bar, especially, upheld it generally.

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 personal matters 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 Marbury _vs._

Madison which enthralled the eager attention of the whole people and

changed the destiny of the Republic. Three months after Marshall

delivered 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 we could 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 a British 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 States _without 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 now turning 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 Marbury

_vs._ 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 they had, 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 consequence he 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 Marbury _vs._ 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. See _supra_, 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

to _State Legislatures_ to decide on the constitutionality of laws made

by the general government; this power being exclusively vested in the

_Judiciary 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, in _Am. 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, in _Am. 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, and _that 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, in _Am. 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] See _supra_, 52.

[321] Within a year after Marbury _vs._ 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] See _supra_, 94-97.

[329] See _infra_, 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 the _Independent Chronicle_ of Boston sent from

Washington this article:

"The efforts of _federalism_ to 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.

"The _attempt_ of 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 our

_Republican_ frame 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 of _federal_

monarchists 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 the _Chronicle_ was probably sent while

Marbury _vs._ Madison was being argued.

[331] Dodd, in _Am. 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, and VI, of this work.)

[333] For example, in Fletcher _vs._ Peck, Roane would have held that

the National Courts could not annul a State statute; in Martin _vs._

Hunter's Lessees and in Cohen _vs._ Virginia, that the Supreme Court

could not review the judgment of a State court; in McCulloch _vs._

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, and VII, 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 condensed _précis_ of 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] See _supra_, 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] See _Records Fed. Conv._: Farrand, I, Introduction, XII.

[347] Elliot's _Debates_ were 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. (See _supra_, 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 in _John 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] See _infra_, 130, 131.

[356] See _supra_, 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 of _mandamus_, 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] See _supra_, 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 Marbury _vs._ 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. (See _Annals_, 7th Cong.

1st Sess. 903-04.)

[368] 1 Cranch, 308.

[369] Stuart _vs._ Laird, 1 Cranch, 309.

[370] The next case in which the Supreme Court overthrew an act of

Congress was that of Scott _vs._ 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

Scott _vs._ Sandford, 19 Howard, 393 _et 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] See _infra_, chap. IV.

[397] Jefferson to Mrs. Adams, Sept. 11, 1804, _Works_: Ford, X,

footnote to 89.

[398] See _infra_, 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 Company _et al._ _vs._ Canter, 1 Peters,

511-46, and see vol. IV, chap. III, of this work.

[409] See _U.S. Statutes at Large_, II, 283; and _Annals_, 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 the _Independent

Chronicle_ of 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 Marbury _vs._ Madison, did not so much as refer

to Marshall's opinion, although every other case that could be found was

cited. Marbury _vs._ Madison, long afterwards, was added in a footnote

to the printed report. (McLaughlin, 30, citing _Am. Law Journal_, old

series, II, 255-64.)

Marshall's opinion in Marbury _vs._ Madison was first referred to by

counsel in a legal controversy in _Ex Parte_ Burford, 1806 (3 Cranch,

448). Robert Goodloe Harper next cited it in his argument for Bollmann

(4 Cranch, 86; and see _infra_, 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 Marbury _vs._ Madison was cited by

Jefferson's Attorney-General, Cæsar A. Rodney. In the case _Ex Parte_

Gilchrist _et 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 Marbury _vs._ Madison. But Jefferson was

then so savagely attacking Marshall's rulings in the Burr trial (see

_infra_, chaps. VII, VIII, IX) that he was, at last, giving public

expression of his disapproval of the opinion of the Chief Justice in

Marbury _vs._ Madison. He did not even answer Rodney's letter.