Glance at the General Subject as heretofore discussed in this
Essay--One important Topic not yet touched upon, viz.: the Effort
that has been made to secure to the Judicial Department a Superior
Controlling and Dangerous Power over the Executive and Legislative
Departments--The constant Aim of the leading Federalists to give
undue Influence to one of the Three Great Departments--The Judicial
not the Department originally preferred by Hamilton as the
Depository of this Power--How that Department came to be selected
for that Purpose--The Election of Jefferson the Overthrow of the
Federalists in the Executive and Legislative Departments--Efforts
of the latter to retain Control of the Judicial
Department--Character and Career of Chief Justice Marshall--His
Efforts to control the Action of the Executive by
Mandamus--Resistance by Jefferson--Account of the Proceeding by
Mandamus against the Secretary of State, Madison--Opinion of the
Court in Marbury _v._ Madison--Merits and Result of the
case--Jurisdiction of the Supreme Court under the
Constitution--Great Addition to its Power conferred by the
Judiciary Act of 1789--Encroachment by the Federal Judiciary upon
the Jurisdiction of State Courts, the Distinct Policy of the
Federalists--Popular Respect for the Court and Judges favorable to
the Success of that Policy--Jefferson directed the Resistance which
was made to Orders of the Supreme Court, in Marbury _v._
Madison--His Action sustained by Congress and approved by the
People--The Federalists hesitate and abandon their Attempt to carry
the Encroachment they had undertaken in the Case of Marbury _v._
Madison--High Character of Marshall.
I have proceeded thus far in my endeavor to search out the origin, trace
the progress, and define the principles of political parties in the
United States. To accomplish these objects the measures they have from
time to time advocated have been brought into view; opinions they have
advanced partially discussed, and the means that have been employed to
make them effectual considered.
The general subject, considering the interest and the importance
attached to it in several aspects, has been but little canvassed, and
is at best but imperfectly understood. The most important points put in
issue, so far as they have arisen out of principles advanced or
pretenses set up by either party prior to the election of 1800, have, it
is believed, been fully, and, it is hoped, fairly presented. Here, on
account of the unforeseen extent to which the subject has grown upon my
hands, it would be my wish to dismiss it and to resume the thread of my
Memoirs at the point at which I left it for the consideration of what I
then regarded as incidental matter. To do so has been my intention
through the last two hundred pages of my manuscript. But, at the stage
to which I had looked as the termination of this branch of my labors, I
am met by the reflection that in all I have said in respect to the
doctrines, theories, and acts of parties, I have not even touched upon a
great principle subsequently advanced for the action of the Federal
Government, which, for reasons that will be seen and appreciated as we
proceed, is of equal interest, and which, from considerations of recent
application, is perhaps of more urgent importance than those upon which
my attention has been bestowed.
I allude to the effort which has been made to secure to one of the three
great departments of the Government--the judicial--a superior and
controlling power over its departmental associates, the executive and
the legislative, all of which were designed by the Constitution to be
coördinate, and, in respect to their relative powers, independent of
each other. This pretension, though successfully discouraged at its
origin, instead of sharing the fate of other constitutional heresies
which sprang from the same source, has been revived with increased
earnestness at critical periods, and at this time seems to threaten to
exert a dangerous influence upon our political system.
I have not noticed it before, because it was not set up until after the
great struggle of 1800, and was thus separated from the questions which
originated under the previous administration, most of which have been
agitated to the present day, and because the period of its most imposing
if not its first introduction into the political arena, unconnected with
judicial proceedings,--that of President Jackson's veto against the
passage of the Bank Bill,--occurred at a later period than that to which
my account of political movements has been brought in my Memoirs.
It has from the beginning been the constant aim of the leading
Federalists to select some department, or some nook or corner in our
political system, and to make it the depository of power which public
sentiment could not reach nor the people control. The judicial was not
the department which Hamilton deemed the best adapted to that end, and
his opinion upon such points seldom failed to become that of his party.
He liked the judiciary as well on account of its being the only branch
of the Government that was constituted, in regard to the tenure of
office, upon the principles he preferred, and which he had proposed in
the Convention for other offices also, as on account of its usefulness
in protecting the rights of persons and property against vicious
legislation or lawless violence. But regarding the exercise of its
powers in no other light than through its judgments in cases "in law and
equity" that were brought before it by parties litigant, the only sense
in which they were regarded by the framers of the Constitution, he
thought it too weak a department for his purpose. This was nominally to
influence, but really to control, the action of the public mind--an
object which, he never hesitated to declare, could only be effected by
appeals to the interests or the fears of the people, and the judicial
power did not possess the means to make either effectual. This opinion
of the weakness of the judicial power he frequently avowed, and
particularly in the 78th No. of the "Federalist." The judiciary, he
there said, "was incontestibly the weakest of the three departments of
power;"--that "though individual oppression might now and then proceed
from the courts of justice, the general liberty of the people could
never be endangered from that quarter;"--that it had "no influence over
either the sword or the purse; no direction either of the strength or of
the wealth of the society; and can take no active resolution whatever.
It may truly be said to have neither _force_ nor _will_, but merely
judgment; and must ultimately depend upon the aid of the executive arm
for the efficacious exercise even of this faculty." In support of these
views he cited Montesquieu, who, speaking of them says: "_Of the three
powers above mentioned, the Judiciary is next to nothing._" Thus
regarding the judicial department, Hamilton selected the executive and
legislative as those best adapted to his purposes. Of the means which
those departments possessed he spoke in the same number of the
"Federalist" in the following strain: "The executive not only dispenses
the honors, but holds the sword of the community; the legislative not
only commands the purse, but prescribes the rules by which the duties
and rights of every citizen are to be regulated." These were the
departments, through the instrumentality of which, invigorated as he
designed to invigorate them by his construction of the Constitution, he
hoped to make ours a practicable government. Sustained by a Congress, a
majority of whom stood ready to follow his lead, and by the almost
unbounded confidence of the executive, he for a season carried out his
plans with great success, and enjoyed that momentary confidence which
produced his jubilant remark to Mr. Jefferson.
But he soon found that, like the scriptural foolish man, he had built
his house upon the sand, and the rain descended and the floods came and
the winds blew, and it fell. Within the short period that he remained in
the Government, some of the measures that he had brought into existence
were already discredited by an offended public sentiment, and toward the
close of Mr. Adams' administration--one still guided by his
superintending genius--the political fabric which he had created was, by
the same power, blown into atoms. It was this great overthrow that
brought home to him the unwelcome conviction that other constitutional
foundations than those which the Federal Convention, the people, and the
States had laid, no man, without the same aid, could lay. It presented
to his mind, under circumstances the most impressive, a truth which he
had overlooked in the eagerness of his pursuit after power, viz., that
the people were enabled by the popular provisions of the Constitution in
respect to the executive and legislative departments, to break down the
greater part of such structures as those which he had reared, by
dismissing from their places those who had assisted in their
construction, and substituting others, who, knowing their wishes, would
feel it their interest to respect them; and what was passing before his
eyes afforded the most reliable evidence that they would not be slow in
the exercise of the rights that belonged to them. This was the
handwriting on the wall that foretold the fate of all his plans, and
called forth, during the brief period of his subsequent existence, his
continued denunciation of the Constitution as "a frail and worthless
fabric."
It was at the moment of this great disaster, when dismay prevailed in
the Federal councils, whilst Hamilton was brooding over a defective
Constitution which he knew the States would not alter to suit his wishes
and which it was evident the people would not permit him to pervert,
that the Federal party was conducted to the judicial department of the
Government, as to an ark of future safety which the Constitution placed
beyond the reach of public opinion. The man who planned this retreat was
John Marshall--a statesman of great power, one who partook largely of
Hamilton's genius, was better acquainted with the character of the
people, and possessed more control over his own actions.
The period when this once powerful party was thus counseled and guided
was one well calculated to cause its members to embrace the advice given
to them with avidity. They had just been expelled, root and branch, from
those departments of the government which the Constitution had made
accessible to public opinion and subject to the voice of the people;
whilst over that to which they were recommended to extend their
preference and favor, the people possessed but little if any control.
This difference, so acceptable to their most cherished feelings, was
besides greatly increased in value by the grossly irrational
apprehensions under which they labored in regard to the course of the
President elect and to the dispositions of the party by which he had
been elevated to power. That he participated largely in the feelings and
views of the Jacobins of France, and was prepared for the introduction
of their opinions and practices in this country; that religion, the
rights of persons and property, and all the interests which are regarded
as sacred under well regulated governments, were put in jeopardy by his
election, were opinions to which there were but few dissentients in the
Federal ranks. I have elsewhere referred to a letter, written during the
then recent canvass by Hamilton to Washington, in which he avowed in the
most solemn and deliberate manner his conviction that the Republican
party desired to make our Government subservient to the policy of that
of France, and would, in all probability, rally under her banner if it
was unfurled in force on our shores. Similar sentiments were fulminated
from pulpit and press; and there are yet, here and there, living
witnesses, who will not partake of the surprise this description of the
then condition of the public mind is calculated to excite on the part of
the present generation because they know it to be true, and yet remember
how often and with what solemnity the warning was uttered from sacred
desks that Jefferson's election would be the signal for the prostration
of our pulpits, the burning of our Bibles, and the substitution of some
Goddess of Reason.
The promises of the mild sway of reason and justice, installed and
enforced by that great statesman, with no other limitation than the
removal from office of factious incumbents whose violence was calculated
to obstruct the successful action of the principles he was elected to
sustain, and the revocation of judicial trusts created in the last
moments of a power already condemned by the people, and which were
designed to counteract their will--a sway which bore upon its wings the
repeal of odious taxes, the reduction of superfluous expense, the
payment of the public debt, and the avoidance of all unnecessary public
burdens, with a zealous concern for the rights of the States as well as
for those of individuals,--made impressions upon the public mind in
favor of the principles upon which it was founded, which now, after the
lapse of more than half a century, are as fixed and as powerful as they
were then; but at the time were scouted by Federal leaders and presses
as false pretences designed to deceive the people and to clear the way
for destructive changes.
Under such impressions the first object of solicitude on the part of the
Federalists was to strengthen the existing organization of the
judiciary by increasing the number of its tribunals and those employed
in its administration, and thus to place it before the country in a more
imposing attitude; and the second to enlarge its powers beyond the
bounds intended to be assigned to them by the Constitution. To
accomplish the first object they resorted to a stretch of power which
now, when the feelings it excited have long since died away and the
actors concerned in it have without exception descended to their tombs,
will not, I feel confident, find a justification in the breast of a
single upright man, whatever disposition he may entertain to excuse it
on account of the violence of public feeling prevalent at the time.
After the fiat of the people had pronounced the absolute expulsion from
office of the Federal executive within a brief and fixed period, and
virtually that of the Federal party from power, they availed themselves
of the remnant of authority unavoidably left to them by the forms of the
Constitution to establish new courts, embracing within the jurisdiction
assigned to them all the States of the Confederacy, and the district
which had been set apart for the seat of the Federal Government;
appointed three judges for each court, to hold their offices nominally
during good behavior, virtually for life, with liberal salaries,--making
in all twenty-one judges, besides clerks, etc.,--all designed to be
placed beyond the power of the government that had been selected by the
people to succeed them. Thus, much was done toward the accomplishment of
their first object. The enlargement of the judicial power of the
department was to be effected by a different process.
Among the "_midnight appointments_" by President Adams, (a stigma
attached to them at the time, and from which they have never been
rescued,) were forty-two magistrates, nominated for the District of
Columbia. The list, though containing many highly respectable names,
was in the main made up of opponents of the President elect, not a few
of them strongly imbued with the partisan _furor_ of the day. They were
to hold their offices for a period extending beyond that for which the
President himself was elected, and it was upon their coöperation Mr.
Adams and his cabinet intended that his successor should be mainly
dependent for the discharge of the high duty imposed upon him by the
Constitution--that of causing the laws to be executed in the Federal
District. The nominations were sent to the Senate on the second of
March, confirmed during the night of the third, and Mr. Jefferson
entered upon the duties of his office the next morning. The commissions
were found on the table in the State Department with its seal attached,
signed by President Adams, and if signed also by a Secretary it must
have been by a _locum tenens_, as Mr. Marshall had some days before been
transferred from the office of Secretary of State to that of Chief
Justice of the Supreme Court of the United States. The commissions had
not been delivered,--an act which Mr. Jefferson, as the head of the
executive department of the Government, decided to be necessary to the
completion of the appointment. Under such circumstances, and, doubtless,
stung by the ungraciousness of the treatment he had received, he
directed that the commissions should neither be recorded nor delivered,
but treated as nullities. Believing the number far too large, he issued
new commissions during the recess to twenty of those selected by Mr.
Adams and to five others designated by himself, nominated them to the
Senate at its next session, by which body they were confirmed.
This transaction furnished the desired occasion to apply the opening
wedge for the enlargement of the judicial power of the Federal
Government, and it was promptly and fully embraced through the
proceedings that were had in the celebrated case of Marbury and Madison.
The judges of the Supreme Court were to a man Federalists, and at the
head of them stood, as chief justice, President Jefferson's persevering
and consistent old political antagonist--John Marshall.
The Chief Justice may not have been the severest student or the most
learned lawyer, but he was certainly, all things considered, the ablest
judge that had ever occupied a seat upon the bench of the Supreme Court
of the United States. No man was ever more rigidly just or strictly
impartial in all cases of _meum and tuum_ that were brought before him
for adjudication. Under a disposition the most genial, and a childlike
simplicity and frankness of manner he cherished during his whole life,
as all his race have done, Federal principles and Federal prejudices of
the most ultra character. These, though ordinarily kept in due check by
a commendable and exemplary self-command,--a virtue he shared with, if
he had not in some degree imbibed it from, his friend and neighbor,
General Washington,--had nevertheless been warmed by the circumstances
of the moment to a high temperature. The inducements by which he was
almost forced into public life by the General, shortly before the death
of the latter, have been narrated in the account I have given of my
conversation with his nephew, Judge Washington, at Mount Vernon.[32]
Unhappily impressed with the idea that his own as well as the interests
of the country depended upon the support of Mr. Adams' administration,
General Washington for once, and fortunately only for a brief season,
lent himself to partisan movements and used his controlling influence to
induce Mr. Marshall to offer for Congress, and in no other case has the
high estimate he formed of a man's capacity been more signally verified
by the result. Marshall became at once, through the influence of a
single speech of extraordinary power, a leader in the House of
Representatives during the most stormy period of the administration of
John Adams, was subsequently appointed Secretary of War and Secretary of
State by Mr. Adams, and held the latter office until his party, and the
administration with it, were overthrown by the Republicans under the
lead of Mr. Jefferson. He was then transferred by Mr. Adams to the place
of Chief Justice. Other circumstances lent their influence to infuse
ill-will into the personal relations of Jefferson and Marshall. They
were natives of the same State, and although they had stood as Whigs
side by side in the Revolution, the political principles maintained by
Mr. Jefferson, after the establishment of our Independence, were so much
more in harmony with those of Virginia as to place Marshall's views ever
after under the ban of her opinion, notwithstanding the qualified
sanction they received front General Washington. On the part of Mr.
Jefferson, the unfriendly feelings which he believed were entertained
toward him by the Chief Justice were, for him, quite earnestly
reciprocated. This is shown by the following pointed extract from his
letter to myself, in which, speaking of the alterations and other uses
that had been made of his letter to Mazzei, he adds, "and even Judge
Marshall makes history descend from its dignity and the ermine from its
sanctity to exaggerate, to record, and to sanction this forgery."[33]
[32] See Note on p. 9.
[33] See Appendix.
Mr. Jefferson, apprised that steps were being taken to bring his acts in
respect to the commissions under the supervision of the Supreme Court,
at once penetrated the design that lay behind the particular measure,
and, with that moral courage that never deserted him, prepared to defend
the department committed to his charge. The head of the State
Department was advised, and the clerks instructed, to make themselves
parties to no act which would justly be regarded as recognizing the
authority of the court to meddle in the affair, and his views were, of
course, faithfully carried out by Mr. Madison, as well as by the
subordinates in the department. A motion was made at the December term
of the court in 1801, for a rule requiring James Madison to show cause
why a mandamus should not issue commanding him to deliver those
commissions to the nominees. Notice of motion was served upon Mr.
Madison, but he declined to appear. He was asked by the relator whether
the commissions were signed and sealed, but declined to respond to such
inquiries, as did also the officers of the department. Application was
also made to the Secretary of the Senate for a certificate that the
nominations had been confirmed, which was also refused. A resolution was
offered in the Senate directing the Secretary of the Senate to give the
certificate. It was laid upon the table and no further acted upon. Upon
affidavits stating these facts, except the last, a rule was obtained
requiring the Secretary to show cause why the mandamus should not be
issued on a day certain, of which he took no notice. The court,
notwithstanding, proceeded to an _ex parte_ hearing. "Two clerks were
summoned from the department as witnesses, who objected to be sworn
because they were not bound to disclose any facts relating to the
business or transactions of the office. The court ordered the witnesses
to be sworn, and their testimony taken in writing; but informed them
that, when the questions were asked, they might state their objections
to answering each particular question, if they had any. Mr. Lincoln, who
had been Acting Secretary of State when the circumstances stated in the
affidavits occurred, was called upon to give testimony. He objected to
answering. The questions were put in writing. The Court said there was
nothing confidential required to be disclosed. If there had been, he was
not obliged to answer that, nor was he obliged to state any thing which
would criminate himself."[34]
[34] Taken from the report of the case.
The testimony that was given is not set forth in the report of the case.
The counsel for the relator argued the questions he presented for the
consideration of the court in the following order, viz.:
1st. Whether the Supreme Court can award the writ of mandamus in any
case.
2d. Whether it would lie to a Secretary of State in any case whatever.
3d. Whether in the present case the court may award a mandamus to James
Madison, Secretary of State.
The point involving the question of jurisdiction was, according to the
invariable course of legal proceeding, the first in order of
consideration, upon the plain and simple principle that if the court
have no right to act definitively in the matter there is neither use nor
propriety in considering even, and much less in making a decision upon,
the merits of the case. That belongs to the tribunal that possesses
jurisdiction. No point was clearer than the want of jurisdiction on the
part of the Supreme Court, and such it will be seen was the unanimous
and unhesitating opinion of the court itself. The Constitution divides
the jurisdiction conferred on that high tribunal into that which may be
exercised as original, and that which shall only be appellate, and
separates the two in terms which leave no room for misapprehension or
mistake. The language of the Constitution is--"In all cases affecting
ambassadors, other public ministers and consuls, and those in which a
State shall be party, the Supreme Court shall have original
jurisdiction. In all the other cases before mentioned the Supreme Court
shall have appellate jurisdiction" both as to the law and fact, with
such exceptions and under such regulations as Congress shall make. The
motion before the court was clearly an original proceeding in a matter
in which it confessedly had no original jurisdiction; so the court was
obliged to say, and so it ultimately said.
A pretense was set up by the relator's counsel that the court might
claim the desired authority under that part of the Judiciary Act
providing necessary means to enforce its appellate jurisdiction, which,
after specifying the cases in which such jurisdiction may be exercised,
and pointing out the way in which it may be carried into effect, adds to
the authority to issue writs of prohibition to the district courts in
certain cases--"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." Now the plain
intention of this clause of the sentence was to extend the right of
issuing a mandamus, in the exercise of its _appellate jurisdiction_, to
any subordinate authorities upon whom Congress might confer judicial
power, whether that power was given to a court, or to a single officer
not constituting a court according to the ordinary interpretation of
that word. The commissioners subsequently appointed under the Fugitive
Slave Act are officers of that description. To think otherwise is to
suppose that the men who framed the Judiciary Act of 1789 designed by
the terms they employed to give to the Supreme Court original
jurisdiction in cases in which it was denied to it by the
Constitution--a design too absurd and too disingenuous to have found
even a momentary resting-place in the minds of those great men. The
court so far countenanced this interpretation as to assume, for the sake
of the argument, that the words "or persons holding office," might
embrace the case before it. But it immediately proceeded to disprove the
assumption by saying, "It has been stated at the bar that the appellate
jurisdiction may be exercised in a variety of forms, and that if it be
the will of the legislature that a _mandamus_ should be issued for that
purpose that will must be obeyed. _This is true_; yet the jurisdiction
must be _appellate_ not _original_,"--and the court goes on to show that
this proceeding would in no sense be regarded as an exercise of
appellate jurisdiction; adding to that demonstrative refutation the
declaration, that if the act would bear the interpretation given to it
by the counsel, it would be directly contrary to the Constitution and
therefore void. That the court had not the slightest right to do what it
was asked to do, or to take original jurisdiction of the matter in any
form, was a point upon which it expressed no doubt; and if it had
decided the questions in the order in which they were presented by the
relator's counsel, the necessity of dismissing the motion before coming
to the consideration of the merits of the case would have been too
imperative to be overcome.
Under these circumstances what was the course pursued by the Chief
Justice, who gave the opinion of the court, and who alone of its members
appears, in the report, to have taken part in the case? He reversed the
order in which the relator's counsel had presented their client's case
and substituted the following:--
1st. Has the applicant a right to the commission he demanded?
2d. If he has a right and that right has been violated, do the laws of
his country afford him a remedy?
3d. If they do afford him a remedy, is it a mandamus from this court?
That the question of jurisdiction is always the first in order is a
proposition too plain and too well-established to be discussed. It is
not only a rule in our judicial system and in that from which ours has
been derived, but must of necessity be a feature in every enlightened
system of jurisprudence.
This order was observed by the counsel for the relator, but was so
changed in the opinion of the court as to make the consideration of the
merits precede the question of jurisdiction--an arrangement for which no
good reason could be given, and for which therefore none was attempted
to be given. The motive lay on the face of the transaction. It was the
only way in which the court could avoid the necessity of saying that
they had no jurisdiction over the subject before proceeding to discuss
and decide upon its merits. It was to avoid, though in appearance only,
this judicial deformity that the Chief Justice reversed the order of the
questions, and then in an opinion, which occupies some twenty-six pages
in Cranch's Reports,[35] he attempted to prove that the withholding of
the commissions was an act not warranted by law, but a violation of a
vested legal right which the court pronounced it to be; yet wound up
with an admission that the court had no jurisdiction of the subject, and
of course no right to act upon it.
[35] See Cranch's _Supreme Court Reports_, Vol. I. p. 137.
If this statement is not in all respects true, then I do injustice to
the Chief Justice and his associates, and the inferences I draw from it
are to be turned not only from them but against myself. But if the
matter, as described by the Chief Justice himself, stood in every
respect as I have here narrated, then I insist--and I cannot, I am very
sure, deceive myself in believing that every ingenuous mind, whatever
may be its political bias, will concur with me in the position--that the
course pursued by the Chief Justice and sanctioned by his associates
was exceptionable in the highest degree. With the Constitution before
them, it was entirely clear at the first introduction of the matter that
they had no original jurisdiction of the subject, and could not, under
any state of facts, comply with the application of the relator. The
course should therefore have been, and doubtless under ordinary
circumstances would have been, to direct the relator's counsel to
confine their argument to that preliminary point and at its close, with
the want of jurisdiction as apparent to the court as it proved to be, to
have discharged the rule. But if the court had for any reason thought it
desirable to hear the whole case, the same course should have been
pursued when it came to their decision, and the merits of the case
should have been left unacted upon. No end could be answered by an
unauthorized decision on the merits, other than to show to the inferior
tribunals what the Supreme Court would do if the case was brought before
it on appeal; and that was the design attributed to the Chief Justice by
Mr. Jefferson and severely reprobated. Such is not the way in which it
is admissible for superior tribunals to treat such subjects; but if it
could in any case be deemed excusable, it could never be so on an _ex
parte_ hearing. For myself I cannot, with equal and great respect for
the principal actors, help regarding the proceedings, from the granting
of the rule to show cause to the final decision, as exhibiting a
culpable want of courtesy on the part of one of the three great
departments of the Federal Government toward a coördinate member, at
least equal in dignity and power, greatly aggravated by the political
relations in which the President and the Chief Justice stood toward each
other, and by the temper of the times in which they occurred.
I apply the remark to them individually, because Chief Justice Marshall
was the principal, and seemingly the sole actor, in the proceedings on
the part of the court, and because the retention of the commissions--the
grievance those proceedings were designed to redress--was not merely an
executive act, but one committed in pursuance of the specific direction
of President Jefferson. This was always avowed by the latter, and the
guarded manner in which the replies of Mr. Madison are stated in the
report of the case is, to my mind at least, sufficient proof that the
President was throughout considered and treated by the Chief Justice as
the actual offender in the matter.
In respect to the soundness of the volunteer opinion of the court it
would be superfluous, considering the fate that awaited it, to do more
than to restate the question. This may certainly be done with more
brevity and perhaps with equal distinctness.
It will not be denied that President Jefferson had the same power over
the subject on the 4th March that Mr. Adams would have possessed if his
term of office had not expired on the 3d. The President under our
system, like the king in a monarchy, never dies. Let us then suppose
that Mr. Adams, after he had signed the commission and caused the seal
to be affixed to it, but before it had been recorded or delivered, had
discovered that the appointee was a felon, or for any reason an
obviously improper person to be made a conservator of the public peace,
was he not authorized to withhold it? The appointment is made by the
Constitution to consist of three acts--the nomination, the approval by
the Senate, and the commissioning. The first and last devolve on the
President. The signatures to them must necessarily be his own act; but
Congress supplies him with a Secretary of State subject to his own
directions, to do whatever else is necessary, viz.: to affix the seal to
the commission; to record it; and to cause it to be delivered or
transmitted to the appointee. The President is apprised of the
impropriety of the appointment,--an act which the Constitution had
devolved on him alone,--the commission is yet in his possession, for the
office of Secretary of State is, for all such purposes, his office, and
the question would not have been changed if the seal had been affixed at
the President's House; can it be for a moment supposed that the
Constitution intended that his power over the commission ceased the
moment he attached his signature, or the Secretary the public seal, and
that after that he had no right to arrest further proceedings, however
strong his reasons for so doing? Can it be presumed that its framers
intended to invest the President in the discharge of his responsible
duty to "commission all the officers of the United States" with an
authority so precise and technical? It is on all sides conceded that he
is not bound to commission after the Senate has approved, but has still
a right to withhold the commission at his pleasure; and it would be
strange, indeed, if it was not intended to give him the power also to
arrest its being put on record and delivered after he had signed it, if
he saw good cause to do so. But it is not now important to weigh
accurately the reasoning of the Chief Justice, which certainly partakes
largely of the art and precision of special pleading; as the case was
abandoned then, and no similar case has arisen for more than half a
century. That the claim of Mr. Marbury and his associates, with ample
facilities for its prosecution in the inferior tribunals within their
reach, (Judge Cranch, the reporter of the case of Marbury _v._ Madison,
a full believer in the judicial as well as the political infallibility
of the Chief Justice, being the Federal judge in the District) should
have been given up, after the determination with which it had been
asserted, and the care and favor with which it had been considered and
elaborated by the Chief Justice, would at the first blush seem not a
little unaccountable. The fact of abandonment, in the absence of other
explanation, would justify the inference that it was the result of a
subsequent conviction that the proceedings were erroneous. But changes
of opinion or disposition under such circumstances seldom arise, and the
solution of their subsequent course is, I think, to be found in other
considerations. The course pursued by the President afforded
unmistakable evidence of his determination to resist at the threshold,
and to the bitter end, the supervisory power of the judiciary over the
other great departments of the Government, which was then for the first
time sought to be introduced through the _ex parte_ proceedings in the
case of Marbury _v._ Madison.
With such a demonstration before them it became the Supreme Court and
its supporters, before it committed itself more deeply in the attempt it
had entered upon to control the action of the aroused democracy of the
country represented in the executive and legislative departments of the
Federal Government, to survey, with more care than had perhaps been
hitherto used, the means of offense and defense with which the
Constitution had invested each.
The result of such a scrutiny could not have failed to satisfy sensible
men that the President elect, the new Senate, and the new House of
Representatives,--who in their respective positions had frustrated the
effort of the late President to subject his successor to a dependence
during his entire official term, for the performance of a highly
important part of his official duties in the Federal District, upon a
magistracy not of his own selection, and had thus far also defeated an
attempt, springing from the same spirit and upon an enlarged scale, to
saddle the country with an uncalled-for and enormous addition to the
existing judicial corps, clothed with extensive authority, and to all
substantial purposes irresponsible to the people,--were also invested by
the Constitution with ample power not only to defeat a new effort to
carry into effect before the appropriate tribunal the hostile views
indicated by the proceedings in the case of Marbury _v._ Madison, but to
reduce the power and dignity of the Supreme Court itself to a standard
far inferior to those it then possessed.
The Federal Constitution declares, that "all the appellate jurisdiction
conferred on the Supreme Court shall in all cases be subject to such
exceptions and under such regulations as Congress shall make." Thus by
the words of the Constitution the whole subject is placed under the
revision of Congress and is made subject to its action. If any attempt
had been made to set up anew the importance that had been constructively
attached, in the case of Marbury _v._ Madison, to the words "or persons
holding office" in the Judiciary Act, that body would instantly have
relieved that act and its authors from the preposterous aspersions which
had been cast upon them.
But there was matter in the background of far greater moment.
The _original_ jurisdiction of the Supreme Court was limited to cases
affecting ambassadors and those in which a State was a party. This
branch of its jurisdiction has, it is well known, occupied but little of
the time of the court, and has been withal very unimportant either in
its character or consequences. Deprived of the influence and _éclat_ it
has derived from the exercise of its appellate jurisdiction, the court
would have stood as a pageant in the federal system of but little
account for good or evil. With the addition of that obtained from
appeals and writs of error from the inferior tribunals of the United
States, its position before the country would still have been one of
little consideration.
Both branches of the jurisdiction in these respects taken collectively,
their results would not have been any thing like the power and influence
and dignity which the Supreme Court of the United States derived from a
single clause in the Judiciary Act of 1789, extending its appellate
jurisdiction to the decisions of the State courts. The assemblage of
cases for its application arrayed in that pregnant section, aided by the
power derived from the construction given to the provision in the
Federal Constitution prohibiting the passage of State laws violating the
obligation of contracts--a provision always understood to have been
introduced to prevent State obstructions to the collection of British
debts, but now made to override the insolvent systems of the States,
etc.,--gave the Supreme Court the supervision and control of the most
valuable and hitherto the most cherished portion of the legislation and
jurisprudence of the State governments. To secure this control was an
object always near to Hamilton's heart. He attempted it openly in the
Convention by his proposition for a negative upon State laws, etc. But
in the hands of the court the control of the Federal Government over
State legislation was equally effective, less likely to become
obnoxious, and infinitely more secure; for if it had been placed, as he
proposed, in the hands of the President, or of the President and Senate,
or of Congress, it would still have been deposited in places accessible
to the people, and at short and stated periods liable to be overruled by
their will. But here it was in the only sanctuary in a republican
government he deemed safe against popular inroads, and it was this
provision _in the Judiciary Act_ which, more than all other things
combined, made that department--which Montesquieu described as next to
nothing in point of power, and upon the weakness of which Hamilton,
before the passage of that act, descanted so freely--the most formidable
and overshadowing branch of the government. The section bears the
impress of his mind, and if not the work of his pen was beyond all doubt
the result of his suggestions. Hamilton was not a member then, but we
have seen that he made speeches in Congress through another, and I have
not a doubt that, if the truth could now be known, it would appear that
but few things were said or done on one side, in either branch of that
body, of which he did not make a part in some form. Is it not passing
strange that not a word is to be found in the Constitution to authorize
Congress to confer such a jurisdiction upon the Supreme Court? Can it be
for a moment supposed that such a power,--one so nearly akin to the
proposition to place a veto in the hands of the Federal Government upon
State legislation, one so eminently calculated to alarm the State-rights
party,--would have been allowed, if it had been by anybody believed to
be in the Constitution, to pass the State Conventions _sub silentio_?
What is said in the Constitution about the appellate jurisdiction of the
Supreme Court is not only satisfied by referring it to the inferior
courts which Congress were authorized to "ordain and establish," but is,
by the terms employed, fairly confined to them. The place in the
Constitution where the authority is given to establish inferior courts
to exercise those parts of the judicial power of which no original
jurisdiction was given to the Supreme Court, and which were to
constitute the basis for the operation of that which was to be appellate
only, would have been, one would suppose, the very place in which the
authority to extend that jurisdiction to the State courts would have
been inserted if it was intended to be given. Again, the whole judicial
power of the United States is by the Constitution vested in the Supreme
Court, and in _such inferior courts as the Congress may from time to
time ordain and establish_. That the words used embrace, and seem
intended to embrace, the _whole power_, is apparent from the face of the
Constitution, and was, besides, demonstrated by Hamilton in the first
number of his "Pacificus." Madison said in the Virginia Convention, that
it would be in the power of Congress to _vest the inferior Federal
jurisdiction in the State courts_; and Pendleton and Mason intimated an
expectation that this would be done; whilst Grayson said that State
judges formed the principal defense of the rights of the States, and
that Congress should not take from them their "only defensive armor;"
and Patrick Henry, who in the days of his political orthodoxy could
snuff danger to State rights in almost every breeze, apprehended that
"by construction the Supreme Court would completely annihilate the State
courts." Had Congress invested the inferior Federal jurisdiction in the
State courts, and had they accepted the extension, the appellate
jurisdiction of the Supreme Court to those courts in the cases
enumerated would have been in all respects proper. But the Congress, a
majority of whose members were Hamiltonian Federalists, were not, for
reasons it is now unnecessary to consider, willing to admit the State
courts to a participation in the administration of the judicial power
reserved to the Federal Government, and proceeded at once to ordain and
establish inferior courts of their own. These consisting of district
courts, circuit courts and the one Supreme Court named in the
Constitution, completed the organization of the Federal judiciary. Their
respective jurisdictions were wisely separated and accurately defined. A
small portion of that which was original was, for well-understood
reasons, vested in the Supreme Court. The residue was separated and
distributed among the inferior tribunals, subject to an appellate
jurisdiction and supervisory power in the Supreme Court over all their
proceedings. The system thus arranged was not only complete but
harmonious in all its parts. The courts were clothed with the entire
judicial power of the Government; were only authorized to act upon one
class of subjects--those which appertained to the judicial power of the
United States. The judges received their appointments from the same
source, and were responsible for their conduct to one head. Looking only
to judicial objects this might well be regarded as the judicial system
designed by the framers of the Constitution.
If ours had been a consolidated government these provisions would have
embraced the whole subject, and satisfied the wants of the whole
country. But in the actual state of things in that regard they were
inadequate to the accomplishment of that end. Instead of one
consolidated government ours was a confederacy of sovereign States,
presided over by a Federal Government which they had themselves created
and clothed with such powers as they deemed necessary to its efficiency
and usefulness, and as would be most likely to conduce to the freedom,
prosperity, and happiness of all.
With no other bond of union during the first years of the Revolutionary
contest than common danger, and obliged to struggle with a defective
Federal organization, these States succeeded in constructing for
themselves republican constitutions, and in several instances, before
the establishment of our Independence, sustained the brunt of that
struggle and came out of it with institutions fully adequate to all the
purposes of good government, including systems of jurisprudence and
competent tribunals for their administration. The administrators of
these institutions, driven to desperation by great public and private
distress,--the direct results of the oppression of the mother
country,--may in a few cases, and for a short period, have forgotten
that interests liable to sequestration in war were inviolable in peace,
and failed to interpose with sufficient alacrity a judicial barrier
against the attempts of some of the State legislatures to throw
obstructions in the way of the collection of British debts. But those
were limited and temporary aberrations, which would soon have yielded to
proper treatment on the part of the Federal Government. At the period of
the passage of the Judiciary Act the judges who presided in most of the
State courts might be compared without discredit to those who filled the
benches of the Federal courts, and this relative equality has ever since
been well maintained. Such has certainly been the case in the State of
New York. The name of Chancellor Livingston, who was then at the head of
our equity system, would lose nothing from a comparison with Chief
Justice Jay, when the latter was placed at the head of the Federal
courts. Our equity and common-law courts have since been graced by
Chancellor Lansing, Chief Justices Lewis and Kent, and Judges Brockholst
Livingston, Smith Thompson, Ambrose Spencer, Wm. W. Van Ness, and
others, all men of great talents and acquirements. Nor have the courts
of our sister States been wanting in this regard. The names of
Theophilus Parsons of Massachusetts, Tappan Reeves of Connecticut, and
Pendleton, Wythe and Roane of Virginia, with numerous others, might be
added to the list. It would not be an easy matter to match these by
selections from the bench of the Supreme Court of the United States,
highly distinguished as its incumbents have been.
The State courts had, for nearly fifteen years before the passage of the
Judiciary Act of 1789, performed, as well in peace as in war, most of
the duties which the new Constitution devolved upon the Federal
judiciary. The Federal Government was authorized, by the articles of
Confederation, to establish inferior courts for the trial of piracies
and felonies committed on the high seas, and courts for the trial of
Admiralty cases, yet these powers had been carried into effect through
the State judiciaries. But all at once the State courts were deemed
unworthy of trust. Whence this change? Had the State courts degenerated?
No such thing; they were constantly improving, the supineness of a few
in respect to the interests of the mother country, blamable as it
certainly was, to the contrary notwithstanding. No, the State courts had
not become worse, but the implacable opponents of those whose judicial
power they represented had become stronger! The old Anti-Federal party,
the inflexible and powerful champion for the rights of the States, had
been overthrown--forever demolished, at least in that array. The State
governments were for a season helpless. Those who were always hostile to
their power--who, in the language of Hamilton after the Convention, and
in the act of foreshadowing the effects of such an administration as
actually succeeded, were desirous of a "triumph altogether over the
State governments, and to reduce them to an entire subordination"--were
all powerful in Congress. Nor was their power confined to Congress or to
any particular branch of the Government. The result of the question of
ratification in the different State Conventions, and the idea present to
every mind that material prosperity, public and private, would be much
promoted by that result, produced a great change in public sentiment
adverse to the authority and influence of the State governments. It was
made fashionable to deride them. The organization of the Federal
judiciary was the very first opportunity that was afforded after the
adoption of the Constitution to make the States feel the power which
their inveterate opponents had acquired by that event, and most
unsparingly was that power exercised.
The few members of that Congress who had not been entirely carried away
by this current, and had the boldness to stand by the States and their
tribunals--among whom that firm and incorruptible republican, James
Jackson of Georgia, was by far the most effective--were willing that a
right to supervise and reverse the decisions of the State tribunals in
all matters of Federal jurisdiction, should be conferred on the Supreme
Court of the United States, provided only that the State courts were
intrusted, as they had hitherto been, with the administration of the
inferior Federal jurisdiction in lieu of the inferior Federal courts
which the Bill proposed to establish. This they contended would make the
system an harmonious and consistent one, and preserve the respect and
consideration which was due to the State tribunals.
The proposition was literally scouted in debate and rejected by a vote
of two to one in the House, and in the Senate by a still larger
majority. The Bill was so constructed as to clothe the Supreme Court and
the inferior courts it established with all the judicial power allowed
to the Federal Government by the Constitution, with unimportant
reservations which did not diminish their authority and do not require
to be noticed. Ample means were thus provided for its practical
extension to every party entitled to its protection, and if those who
regulated the action of Congress had not been influenced by any views
other than such as related to the administration of justice, its
legislation would have terminated there. But that body went further. A
clause was added to the Judiciary Bill professing to give to the Supreme
Court appellate jurisdiction over the final judgments and decrees of the
highest courts of law and equity of a State, whoever might be the
parties to the suit, or whatever might have been the objects for which
it had been brought, provided only that the relative powers of the
Federal and State governments under the Federal Constitution in respect
to several enumerated subjects had in the course of prosecution of such
suit been "drawn in question," and decided against the Federal power. No
matter to what extent the rights of the parties were concluded by that
question, or in what form or how incidentally it had been introduced, it
was sufficient that it had been raised and decided against the Federal,
or in favor of the State authority, to subject the judgment or decree
given by the State court to be reëxamined or reversed in the Supreme
Court of the United States. To confer upon that tribunal, the anomalous
authority of issuing writs of error to the highest courts of other
States confessedly sovereign, and which in all such matters might well
be regarded as foreign States,--courts which were not established by the
Federal Government, and between which and it there existed no judicial
relations,--commanding those courts to send to it for reëxamination,
reversal, or affirmance, the record of judgments and decrees which had
neither been made under Federal authority nor by judges in any sense
amenable to it for the discharge of their official duties, was an idea
never broached in the Federal Convention, or in the slightest degree
alluded to in the Constitution it adopted.
Disputes in respect to the boundaries of power between the Federal and
State governments were foreseen, and the means for acquisition and
defense sought after by the special friends of each. Both looked to
their respective legislatures as the theatres of encroachment, and a
very serious effort was made to obtain authority for the Federal
Government to confer important State appointments, and to interpose a
negative upon State laws. These concessions were sternly refused by the
friends of the State authorities, and if they had been granted the new
Constitution would never have been ratified. No efforts have been made
by Congress through direct legislation to restrain the State
legislatures from encroaching on the power of the Federal Government,
and it would not be an easy matter--the Constitution being silent on the
subject--to establish a right on the part of the judicial power to
interfere in that direction which would not also devolve on the Federal
legislature, the power more particularly interested in the matter. The
clause referred to in the Federal Judiciary Act looks in an especial
manner to the legislative acts of each government, and seeks to
establish the supremacy in the Federal system. It is possible that the
framers of the Constitution intended to give Congress a right to confer
such a power on the Supreme Court, but it is certainly most
extraordinary if that was so that the subject should have remained
unnoticed in the Convention, and have been so entirely excluded from the
face of the Constitution. Be that as it may, it is well known that the
authority given to the court by the statute for a long time lay in its
hands a dormant power. Those who conferred it had too much their own way
in the administration of the Federal Government, during the first twelve
years of its existence, to require extraneous aid to push its power to
the extremes they desired. It was when they had been expelled from its
executive and legislative departments by the uprising of the people that
their attention was more earnestly turned to that of the judiciary as
one which--as well from the peculiarity of its constitution as from the
views of those who were in possession of it--was best qualified for the
protection of rights which they, no doubt honestly, believed in danger.
Hence the movement in the case of Marbury _v._ Madison.
We cannot now form a complete estimate of the extent to which the
character of our institutions, in view of that step and of measures of
which it might have been the opening wedge, hinged upon the character
and disposition of those whom the people had then just raised to power.
The respect and reverence with which the minds of a vast majority of our
citizens were impressed for their courts of justice, the confidence
which had been reposed in their purity as indicated by the tenure of
their offices, and the imposing character of those who filled them at
the moment combined to deter feeble and irresolute minds from resistance
to the authority of the Supreme Court of the United States, however
unfavorable their estimation of the course upon which it was entering.
No unauthorized exercise of power would, for any considerable period,
have passed unchecked by a people like ours, then yet fresh from a
national struggle for principles better defined and defended with more
steadiness and by purer means than any the world had ever witnessed in
revolutionary contests. But the class of men, in any community where
deference for the ermine is habitual, who will meet danger at the very
threshold, and oppose resistance to judicial usurpation at the instant
of its appearance, is not likely to be numerous.
Hostile to every assumption of power over the conduct or mind of man not
originally authorized by man himself, however plausible the pretences
upon which it might be exerted, an opposition deeply seated in his
nature, matured and confirmed by study and by all the observation and
experience of his eventful career, Jefferson was not the man to submit
to encroachments upon institutions he had sworn to protect, and more
especially upon that branch of them which a great and free people had
confided to his particular care. It was no matter to a man of his
knowledge of the world and approved moral courage from what quarter such
encroachments proceeded, they were certain to meet with a firm and
spirited opposition on his part.
The course pursued by the State department was by his express direction,
and of course upon his responsibility. This he always avowed, and this
would have appeared in the report of the case of Marbury and Madison, if
the fact had not been designedly and for obvious reasons suppressed. It
was to accomplish this object that the statement of the case which
accompanies the elaborate opinion of Chief Justice Marshall was made to
present an appearance so ambiguous and unlawyer-like. Mr. Madison, it is
stated, refused to deliver the commission. On what grounds? That is not
stated, only that his explanations were not satisfactory to the relator.
If they had been given the fact referred to would have appeared on the
face of the record, and would have gone down to posterity as an answer
to the reasoning of the opinion. The refusal of the witnesses--clerks in
the department--to be sworn or to answer, and the decision of the court
that they should be sworn and answer under certain restrictions, and
that they were sworn, are all stated with much particularity, but what
they said is not stated. Here, again, the fact is suppressed that the
commission was retained in the executive department by the orders of the
President, who, in the exercise of executive discretion, regarded it as
the evidence of an appointment not completed, and which he decided not
to complete.
But this was only a foretaste of the spirit with which the scheme of the
Federal party to raise the judicial department of the Federal
Government, not only over the States and their judicatories but over the
two other departments of the General Government, was to be met. Two
months had not elapsed after the delivery of the opinion of the Chief
Justice in Marbury _v._ Madison, before the entire judicial fabric which
that party had erected during the last moments of their expiring power,
by which twenty-one additional federal judges were appointed, eighteen
in the States and three in the District of Columbia, with large salaries
and still larger power, to hold their offices virtually for life, was
overthrown by the vote of a majority of Congress, a majority more
confiding, more harmonious, and better disposed to second and sustain
the measures of the executive than any we have ever had.
This measure--the least important effect of which was to relieve the
national treasury from the payment of salaries to some twenty-seven or
thirty gentlemen, whose services an experience of more than half a
century has shown to have been unnecessary--was assailed with
unprecedented violence. Gouverneur Morris said it had stricken down the
sanctity of the judiciary, and his political associates in Congress
denounced it as a gross infraction of the Constitution. He spoke of it
with the same vehemence and heat with which he taunted the men who had
passed it and their successors, twelve years afterwards, at the federal
celebration of the restoration of the Bourbons, when he invited them, by
the appellation of the "savage and wild democracy," to see, "though it
should blast their eye-balls, royal princes surrounded by loyal
subjects!" The attempts of Mr. Morris and his coadjutors to exasperate
the public mind against the repeal of the midnight Judiciary Act
recoiled upon their party. The only effects they produced were to rivet
the convictions of a large majority of the people that they had acted
wisely in changing their rulers, and to evoke a determination to sustain
the men in power as long as they adhered to the course upon which they
had entered. To the Chief Justice, his associates on the bench, and the
leaders of the defeated party, this condition of public opinion
presented considerations of the gravest import. The court had decided,
and their decision was sustained by the latter with perfect unanimity,
that the appointment of Marbury had been completed before Mr. Jefferson
came into office, that the Secretary of State had therefore no right to
withhold his commission, and that he could be compelled to deliver it by
_mandamus_, provided only that the proceedings should originate in an
inferior court. There was no ground for question in respect to the
legality of the appointments of the midnight judges, or their clerks, if
the repealing law was unconstitutional, nor of their right to their
salaries. This was certainly a question for the judiciary in respect to
private rights; and if the courts could compel the one Secretary by
_mandamus_ to deliver a commission wrongfully withheld, _a fortiori_
could they compel another to pay salaries undeniably due if the
repealing law was unconstitutional. The field for the writ of _mandamus_
was thus greatly enlarged. If the withholding of a few justices'
commissions constituted good ground for the institution of such
proceedings as those we have referred to, the case now presented was one
of much greater magnitude, and no party was ever more deeply committed
before the country on a public question than they were in regard to the
unconstitutionality of the Repealing Act. If they were right in that,
and also in their views in respect to the powers of the Supreme Court, a
_mandamus_ would of course have been authorized to compel the treasury
to pay the judges their salaries. Should they resume the Marbury and
Madison case in the inferior courts, and proceed in this also, or should
they abandon both and submit themselves to the stigma of having been the
authors of false pretences and unfounded clamor, was the question to be
met.
The Republican party of the Union, as then constituted, was for the
first time in possession of two departments of the Federal Government.
Whilst in a minority they had not been regarded by their high-reaching
opponents with feelings of much respect. Whatever might still have been
the federal impressions of their principles or designs, there was no
longer room for two opinions, in respect to their determination, their
firmness and their capacity to carry out the measures they deemed
necessary to the public service. Such being the circumstances in which
they were placed, the Chief Justice, his associates and friends,
surveyed the exposures and defenses of the only department that was left
under their control, and it was natural that they should ponder upon
possible consequences before they proceeded another step in a course
which the other departments regarded as one of aggression.
The supervision and control of the Supreme Court of the United States
over the largest portion of the legislation and jurisprudence of the
State governments, designed to be secured by the twenty-fifth section of
the Federal Judiciary Act and the extent to which they might be carried,
were, in their political aspects, looked upon by Hamilton and his
followers as constituting the only remaining sheet-anchor of the
government, in the sense in which they desired to see it administered.
This lay completely at the mercy of their opponents. No matter what
might be their confidence in the constitutionality of the provision, the
whole appellate jurisdiction of the Supreme Court is, by the express
letter of the Constitution, to be exercised subject to "such exceptions
and such regulations as the Congress shall make." An act of three lines
repealing the clause of the Judiciary Act would except writs of error to
State courts from the appellate jurisdiction of the Supreme Court, and
another might abolish the use of the writ of _mandamus_. The members of
that court had seen too much of the temper and firmness of the President
and Congress to doubt the immediate adoption of such measures if the
contest in regard to the boundaries of power between the departments
was continued, and were too sensible of the extent to which that high
tribunal was indebted for its power and dignity to that branch of their
jurisdiction to push so unprofitable a collision one step farther under
their present auspices. The consequence was a suspension of all
movements in that direction. No more was heard of Mr. Marbury's claims
to his commission, and the new judges quietly submitted to expulsions
from their life-estates in offices by a law they claimed to be
unconstitutional, with a court within their reach authorized to declare
it such if it so believed.
Chief Justice Marshall remained at the head of the Supreme Court many
years after the delivery of his opinion in the case of Marbury and
Madison. During that long period he not only acquired, by the exercise
of his great talent, the high distinction of which I have already
spoken, but endeared himself by his personal demeanor to all who were
drawn within the circle of his acquaintance. No generous mind could
contemplate a man possessed of such towering intellect, placed in so
elevated a position and bearing his honors with such modesty and
unaffected simplicity as he habitually displayed, without being
impressed with a deep interest in his character. I was not among the
least cordial of his admirers, and would not for the world speak a
wanton or unkind word in disparagement of his memory. But the public
acts of public men are always and under all circumstances legitimate
materials for history, and may be canvassed with freedom, provided they
are spoken of truly, and reviewed "with good motives and for justifiable
ends." To this limitation it shall be my endeavor to confine myself on
this as on all other occasions.
No part of the fame which Chief Justice Marshall acquired on the bench
was due to his course and conduct in the case of Marbury and Madison,
which may with truth be regarded as his judicial _début_. He had been
snatched from the political caldron, heated to redness by human
passions, almost at the moment of his first appearance on the bench. In
his rapid transition from the halls of Congress and the Departments of
War and State to that of the Judiciary, he had, as it were, been driven
to the bench as to a place of safety before a tempest of public
indignation created by the abuses of the administration of which he had
been a part. Among his first acts after reaching it, and before time had
been allowed for his passions to cool, before he had acquired judicial
habits or had leisure to think even of the amenities that should
distinguish his new position, was a severe blow at the wizard who, he
believed, had raised the wind and directed the storm. But Jefferson, the
"dreaming Condorcet," as Hamilton sometimes called him, proved an
accomplished statesman. Wide awake, he made ample preparations for the
assault, interposed effectual resistance, and the recoil and ultimate
abandonment were the result. I have heretofore referred to the
non-observance in these proceedings of due respect toward the acts of a
coördinate department of the Government,--an obligation on the part of
each from which no consideration can release them, and which in this
case was rendered still more imperative by the relations, personal and
political, that had existed between the President and the Chief Justice.
Whatever weaknesses I may be subject to,--and doubtless they are
numerous,--dogmatism, I am very sure, is not one of them. My endeavor
always is to state my positions with deference to the judgments of
others. But on this point I cannot refrain from insisting that no man
who can divest himself of prejudice to only a reasonable extent can
review these proceedings without being satisfied that the objection I
have made to the course of the Chief Justice in this regard is well
founded. No such omission was ever chargeable to him at a more advanced
period in his judicial career; whatever exception may have been taken to
the course of his decisions no one ever had reason to complain of a want
of courtesy toward any branch of the government or toward individuals.