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

As the debate wore on, little that was new was adduced. Calvin Goddard of Connecticut reviewed the cases in which judges of various courts had asserted the Federalist doctrine of the judicial power to decide statutes unconstitutional, 261 261 Annals , 7th Cong. 1st Sess. 727. and quoted from Marshall's speech on the Judiciary in the Virginia Convention of 1788. 262 262 Ib. 737. See also vol. i, 452, of this work.

John Rutledge, Jr., of South Carolina, then delivered one of the most distinguished addresses of this notable discussion. Suppose, he said, that Congress were to pass any of the laws which the Constitution forbids, "who are to decide between the Constitution and the acts of Congress?.. If the people … [are] not shielded by some Constitutional checks" their liberties will be "destroyed … by demagogues, who filch the confidence of the people by pretending to be their friends; … demagogues who carry daggers in their hearts, and seductive smiles in their hypocritical faces." 263 263 Annals , 7th Cong. 1st Sess. 747-55.

Rutledge was affected by the prevailing Federalist pessimism. "This bill," said he, "is an egg which will produce a brood of mortal consequences… It will soon prostrate public confidence; it will immediately depreciate the value of public property. Who will buy your lands? Who will open your Western forests? Who will build upon the hills and cultivate the valleys which here surround us?" The financial adventurer who would take such risks "must be a speculator indeed, and his purse must overflow … if there be no independent tribunals where the validity of your titles will be confirmed. 264 264 Ib. 759. …

"Have we not seen a State [Georgia] sell its Western lands, and afterwards declare the law under which they were sold made null and void? Their nullifying law would have been declared void, had they had an independent Judiciary." 265 265 Ib. 760. Here Rutledge anticipated by eight years the opinion delivered by Marshall in Fletcher vs. Peck. 266 266 See infra , chap. x.

"Whenever in any country judges are dependent, property is insecure." What had happened in France? "Frenchmen received their constitution as the followers of Mahomet did their Koran, as though it came to them from Heaven. They swore on their standards and their sabres never to abandon it. But, sir, this constitution has vanished; the swords which were to have formed a rampart around it, are now worn by the Consular janissaries, and the Republican standards are among the trophies which decorate the vaulted roof of the Consul's palace. 267 267 Annals , 7th Cong. 1st Sess. 760. Indeed … [the] subject," avowed Rutledge with passionate earnestness, "is perhaps as awful a one as any on this side of the grave. This attack upon our Constitution will form a great epoch in the history of our Government." 268 268 Ib. 760.

Forcible resistance, if the Republican assault on the Judiciary succeeded, had twice been intimated during the debate. As yet, however, actual secession of the Northern and Eastern States had not been openly suggested, although it was common talk among the Federalists; 269 269 See infra , chaps. iii and vi. but now one of the boldest and frankest of their number broadly hinted it to be the Federalist purpose, should the Republicans persist in carrying out their purpose of demolishing the National courts. 270 270 Annals , 7th Cong. 1st Sess. 767-94. [271] Ib. 793. In closing a long, intensely partisan and wearisome speech, Roger Griswold of Connecticut exclaimed: "There are states in this Union who will never consent and are not doomed to become the humble provinces of Virginia."

Joseph H. Nicholson of Maryland, Republican, was hardly less prolix than Griswold. He asked whether the people had ever approved the adoption of the common law by the Judiciary. "Have they ever sanctioned the principle that the judges should make laws for them instead of their Representatives?" 271 271 Ib. 805-06. Tiresome as he was, he made a conclusive argument against the Federalist position that the National Judiciary might apply the common law in cases not provided for by acts of Congress.

The debate ran into the month of March. 272 272 In sour disgust Morris notes in his diary: "The House of Representatives have talked themselves out of self-respect, and at headquarters [White House] there is such an abandonment of manner and such a pruriency of conversation as would reduce even greatness to the level of vulgarity." (March 10, 1802, Morris, ii, 421.) Every possible phase of the subject was gone over time and again. All authorities which the ardent and tireless industry of the contending partisans could discover were brought to light. The pending case of Marbury vs. Madison was in the minds of all; and it was repeatedly dragged into the discussion. Samuel W. Dana of Connecticut examined it minutely, citing the action of the Supreme Court in the case of the application for a mandamus to the Secretary of War upon which the court acted February 14, 1794: "There does not appear to have been any question respecting the general power of the Supreme Court, to issue a mandamus to the Secretary of War, or any other subordinate officer." That was "a regular mode for obtaining a decision of the Supreme Court… When such has been the unquestioned usage heretofore, is it not extraordinary that there has not been prudence enough to say less about the case of Marbury against the Secretary of State?" 273 273 Annals , 7th Cong. 1st Sess. 904. Dana's statement is of first importance and should be carefully noted. It was at the time the universally accepted view of the power of the Supreme Court to issue writs of mandamus. Neither Federalists nor Republicans had ever questioned the Constitutional right of the Supreme Court to entertain original jurisdiction of mandamus proceedings in proper cases. Yet just this was what Marshall was so soon to deny in Marbury vs. Madison. (See infra , chap. iii.)

Dana then touched upon the general expectation that Marshall would declare void the Repeal Act. Because of this very apprehension, the Republicans, a few days later, suspended for more than a year the sessions of the Supreme Court. So Dana threatened that if the Republicans should pass the bill, the Supreme Court would annul it; for, said he, the Judiciary were sworn to support the Constitution, and when they find that instrument on one side and an act of Congress on the other, "what is their duty? Are they not to obey their oath, and judge accordingly? If so, they necessarily decide, that your act is of no force; for they are sworn to support the Constitution. This is a doctrine coeval with the existence of our Government, and has been the uniform principle of all the constituted authorities." 274 274 Annals , 7th Cong. 1st Sess. 920. And he cited the position taken by National judges in 1792 in the matter of the pension commission. 275 275 Ib. 923-26.

John Bacon, that stanch Massachusetts Republican, 276 276 See supra , chap, i, 43. asserted that "the Judiciary have no more right to prescribe, direct or control the acts of the other departments of the Government, than the other departments of the Government have to prescribe or direct those of the Judiciary." 277 277 Annals , 7th Cong. 1st Sess. 983.

The Republicans determined to permit no further delay; for the first time in its history the House was kept in session until midnight. 278 278 Hildreth, v, 441. At twelve o'clock, March 3, 1802, the vote was taken on the final passage of the bill, the thirty-two Federalists voting against and the fifty-nine Republicans for the measure. 279 279 Bayard to Bassett, March 3, 1802, Bayard Papers : Donnan, 150; and see Annals , 7th Cong. 1st Sess. 982. One Republican, Dr. William Eustis of Boston, voted with the Federalists. "Thus ended this gigantic debate," chronicles the historian of that event. 280 280 Hist. Last Sess. Cong. Which Commenced 7th Dec. 1801 (taken from the National Intelligencer ), 71. No discussion in Congress had hitherto been so widely reported in the press or excited such general comment. By the great majority of the people the repeal was received with enthusiasm, although some Republicans believed that their party had gone too far. 281 281 Tucker: Life of Thomas Jefferson , ii, 114. Republican papers, however, hailed the repeal as the breaking of one of those judicial fetters which shackled the people, while Federalist journals bemoaned it as the beginning of the annihilation of all that was sane and worthy in American institutions.