Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

But for these things, Marbury vs. Madison 145 145 See infra , chap. iii, for a résumé of the conditions that forced Marshall to pronounce his famous opinion in the case of Marbury vs. Madison, as well as for a full discussion of that controversy. might never have been written; the Supreme Court might have remained nothing more than the comparatively powerless institution that ultimate appellate judicial establishments are in other countries; and the career of John Marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. But the Republican condemnations of the severe punishment that the Federalists inflicted upon anybody who criticized the Government, raised fundamental issues and created conditions that forced action on those issues.

The angels of destruction are making haste. Our judges are to be as independent as spaniels. (Fisher Ames.)

The power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. (John Randolph.)

On January 6, 1802, an atmosphere of intense but suppressed excitement pervaded the little semi-circular room where the Senate of the United States was in session. 146 146 The Senate then met in the chamber now occupied by the Supreme Court. The Republican assault upon the Judiciary was about to begin and the Federalists in Congress had nerved themselves for their last great fight. The impending debate was to prove one of the permanently notable engagements in American legislative history and was to create a situation which, in a few months, forced John Marshall to pronounce the first of those fundamental opinions which have helped to shape and which still influence the destiny of the American Nation.

The decision of Marbury vs. Madison was to be made inevitable by the great controversy to which we are now to listen. Marshall's course, and, indeed, his opinion in this famous case, cannot be understood without a thorough knowledge of the notable debate in Congress which immediately preceded it. 147 147 See infra , chap. iii.

Never was the effect of the long years of party training which Jefferson had given the Republicans better manifested than now. There was unsparing party discipline, perfect harmony of party plan. The President himself gave the signal for attack, but with such skill that while his lieutenants in House and Senate understood their orders and were eager to execute them, the rank and file of the Federalist voters, whom Jefferson hoped to win to the Republican cause in the years to come, were soothed rather than irritated by the seeming moderation and reasonableness of the President's words.

"The Judiciary system … and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress," was the almost casual reference in the President's first Message to the Republican purpose to subjugate the National Judiciary. To assist Senators and Representatives in determining "the proportion which the institution bears to the business it has to perform" Jefferson had "procured from the several states … an exact statement of all the causes decided since the first establishment of the courts and of the causes which were pending when additional courts and judges were brought to their aid." This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the President suggested Congressional inquiry as to whether jury trials had not been withheld in many cases, and advised the investigation of the manner of impaneling juries. 148 148 Jefferson to Congress, Dec. 8, 1801, Works : Ford, ix, 321 et seq. ; also Messages and Papers of the Presidents : Richardson, i, 331.

Thus far and no farther went the comments on the National Judiciary which the President laid before Congress. The status of the courts – a question that filled the minds of all, both Federalists and Republicans – was not referred to. But the thought of it thrilled Jefferson, and only his caution restrained him from avowing it. Indeed, he had actually written into the message words as daring as those of his cherished Kentucky Resolutions; had boldly declared that the right existed in each department "to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other department"; had asserted that he himself, as President, had the authority and power to decide the constitutionality of National laws; and had, as President, actually pronounced, in official form, the Sedition Act to be "in palpable and unqualified contradiction to the Constitution." 149 149 Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: Economic Origins of Jeffersonian Democracy , 454-55.

This was not merely a part of a first rough draft of this Presidential document, nor was it lightly cast aside. It was the most important paragraph of the completed Message. Jefferson had signed it on December 8, 1801, and it was ready for transmission to the National Legislature. But just before sending the Message to the Capitol, he struck out this passage, 150 150 For full text of this exposition of Constitutional law by Jefferson see Appendix A. and thus notes on the margin of the draft his reason for doing so: "This whole paragraph was omitted as capable of being chicaned, and furnishing something to the opposition to make a handle of. It was thought better that the message should be clear of everything which the public might be made to misunderstand."

Although Jefferson's programme, as stated in the altered message which he finally sent to Congress, did not arouse the rank and file of Federalist voters, it did alarm and anger the Federalist chieftains, who saw the real purpose back of the President's colorless words. Fisher Ames, that delightful reactionary, thus interpreted it: "The message announces the downfall of the late revision of the Judiciary; economy, the patriotism of the shallow and the trick of the ambitious… The U. S. Gov't … is to be dismantled like an old ship… The state gov'ts are to be exhibited as alone safe and salutary." 151 151 Ames to King, Dec. 20, 1801, King, iv, 40. Like most eminent Federalists, except Marshall, Hamilton, and Cabot, Fisher Ames was soon to abandon his Nationalism and become one of the leaders of the secession movement in New England. (See vol. iv, chap. i, of this work.)

The Judiciary Law of 1801, which the Federalist majority enacted before their power over legislation passed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party. 152 152 See vol. ii, 531, 547-48, 550-52, of this work. Almost from the time of the organization of the National Judiciary the National judges had complained of the inadequacy and positive evils of the law under which they performed their duties. The famous Judiciary Act of 1789, which has received so much undeserved praise, did not entirely satisfy anybody except its author, Oliver Ellsworth. "It is a child of his and he defends it … with wrath and anger," wrote Maclay in his diary. 153 153 Journal of Samuel Maclay : Meginness, 90.

In the first Congress opposition to the Ellsworth Act had been sharp and determined. Elbridge Gerry denounced the proposed National Judiciary as "a tyranny." 154 154 Annals , 1st Cong. 1st Sess. 862. Samuel Livermore of New Hampshire called it "this new fangled system" which "would … swallow up the State Courts." 155 155 Ib. 852. James Jackson of Georgia declared that National courts would cruelly harass "the poor man." 156 156 Ib. 833-34. Thomas Sumter of South Carolina saw in the Judiciary Bill "the iron hand of power." 157 157 Ib. 864-65. Maclay feared that it would be "the gunpowder plot of the Constitution." 158 158 Maclay's Journal , 98.