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

"The fatal bill has passed; our Constitution is no more," exclaimed the Washington Federalist in an editorial entitled

The paper despaired of the Republic – nobody could tell "what other acts, urged by the intoxication of power and the fury of party rage" would be put through. But it announced that the Federalist judges would disregard the infamous Republican law: "The judges will continue to hold their courts as if the bill had not passed. 'Tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it. By the judges this bill will be declared null and void… And we now ask the mighty victors, what is your triumph?.. What is the triumph of the President? He has gratified his malice towards the judges, but he has drawn a tear into the eye of every thoughtful patriot … and laid the foundation of infinite mischief." The Federalist organ declared that the Republican purpose was to force a "dissolution of the Union," and that this was likely to happen.

This significant editorial ended by a consideration of the Republican purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring forward a resolution to repeal the law establishing the Supreme Court of the United States, we should only consider it a part of the system to be pursued… We sincerely expect it will be done next session… Such is democracy." 282 282 Washington Federalist , March 3, 1802. Too much importance cannot be attached to this editorial. It undoubtedly expressed accurately the views of Federalist public men in the Capital, including Marshall, whose partisan views and feelings were intense. It should not be forgotten that his relations with this newspaper were believed to be intimate. (See vol. ii, 532, 541, of this work.)

Senator Plumer declared, before the final vote, that the passage of the Republican Repeal Bill and of other Republican measures meant "anarchy." 283 283 Plumer to Upham, March 1, 1802, Plumer MSS. Lib. Cong.

The ultra-Federalist Palladium of Boston lamented: "Our army is to be less and our navy nothing: Our Secretaries are to be aliens and our Judges as independent as spaniels. In this way we are to save everything, but our reputation and our rights 284 284 March 12, 1802. … Has Liberty any citadel or fortress, has mob despotism any impediments?" 285 285 March 23, 1802.

The Independent Chronicle , on the other hand, "congratulated the public on the final triumph of Republicanism , in the repeal of the late obnoxious judiciary law." 286 286 March 15, 1802. The Republicans of Boston and Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle of … disorganizing … goes on with a destructive zeal. Internal Taxes – Judicial Sanctity – all are to be overset." 287 287 Vans Murray to King, April 5, 1802, King, iv, 95. Sedgwick was sure that no defense was left against "legislative usurpation." 288 288 Sedgwick to King, Feb. 20, 1802, ib. 73. "The angels of destruction … are making haste," moaned Fisher Ames. 289 289 Ames to Dwight, April 16, 1802, Ames, i, 297.

"The angels of destruction" lost no time in striking their next blow. On March 18, two weeks after the threat of the Washington Federalist that the Supreme Court would declare unconstitutional the Republican Repeal Act, a Senate committee was appointed to examine further the National Judiciary establishment and report a bill for any improvements considered necessary. 290 290 Annals , 7th Cong. 1st Sess. 201. Within a week the committee laid the measure before the Senate, 291 291 Ib. 205. and on April 8 it was passed 292 292 Ib. 257. without debate.

When it reached the House, however, the Federalists had taken alarm. The Federalist Judiciary Act of 1801 had fixed the terms of the Supreme Court in December and June instead of February and August. This new bill, plainly an afterthought, abolished the June session of the Supreme Court, directed that, thereafter, that tribunal should convene but once each year, and fixed the second Monday of February as the time of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the opportunity to pass upon the repeal of the Federalist Judiciary Act of 1801 until the old and defective system of 1789, which it restored, was again in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact. 293 293 They never occupied the bench under the Federalist Act of 1801. They were appointed, but the swift action of Jefferson and the Republicans prevented them from entering upon the discharge of their duties. John Marshall should have no early opportunity to overturn the Repeal Act, as the Republicans believed he would do if given the chance. Neither should he proceed further with the case of Marbury vs. Madison for many months to come. 294 294 This case was before the Supreme Court in December, 1801, and, ordinarily, would have been decided at the next term, June, 1802.

Bayard moved that the bill should not go into effect until July 1, thus permitting the Supreme Court to hold its June session; but, said Nicholson, that was just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard. "The effect of the present bill will be, to have no court for fourteen months… Are gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void?" 295 295 Annals , 7th Cong. 1st Sess. 1228-29.

Nicholson did not care whether the Supreme Court "pronounced the repealing law unconstitutional or not." The Republican postponement of the session for more than a year "does not arise from any design … to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to suppose gentlemen on the other side are as anxious for a session in June, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise." 296 296 Annals , 7th Cong. 1st Sess. 1229.

Griswold could not credit the Republicans with so base a purpose: "I know that it has been said, out of doors, that this is the great object of the bill. I know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supreme Court to hold its summer session. He frankly avowed a wish for an early decision that the Repeal Act was void. "I think the speedier it [usurpation] is checked the better." 297 297 Ib. 1229-30.

Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconstitutional. "This act is not designed to amend the Judicial system," he asserted; "that is but pretense… It is to prevent that court from expressing their opinion upon the validity of the act lately passed … until the act has gone into full execution, and the excitement of the public mind is abated… Could a less motive induce gentlemen to agree to suspend the sessions of the Supreme Court for fourteen months?" 298 298 Annals , 7th Cong. 1st Sess. 1235-36.

But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Court of the United States was practically abolished for fourteen months. 299 299 Ib. 1236. See also Channing, U.S. iv, 280-81.