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

Yet he was not at ease. Rufus King, still the American Minister to Great Britain, had finally settled the controversy over the British debts, upon the very basis laid down by Marshall when Secretary of State. 308 308 See vol. ii, 502-05, of this work. But Jefferson's Administration now did not hesitate to assert that this removal of one cause of conflict with Great Britain was the triumph of Republican diplomacy. Marshall, with unreserve so unlike him, reveals to King his disgust and sense of injury, and in doing so portrays the development of political conditions.

"The advocates of the present administration ascribe to it great praise," wrote Marshall to our Minister in London, "for having, with so much dexterity & so little loss, extricated our country from a debt of twenty-four million of dollars in which a former administration had involved it… The mortifying reflection obtrudes itself, that the reputation of the most wise & skilful conduct depends, in this our capricious world, so much on accident. Had Mr. Adams been reelected President of the United States, or had his successor been [a Federalist] … a very different reception … would have been given to the same measure.

"The payment of a specific sum would then have been pronounced, by those who now take merit to themselves for it, a humiliating national degradation, an abandonment of national interest, a free will offering of millions to Britain for her grace & favor, by those who sought to engage in a war with France, rather than repay, in part, by a small loan to that republic, the immense debt of gratitude we owe her."

So speaks with bitter sarcasm the new Chief Justice, and pessimistically continues: "Such is, & such I fear will ever be human justice!" He tells King that the Federalist "disposition to coalesce" with the Republicans, which seemed to be developing during the first few months after Jefferson's inauguration, had disappeared; "but," he adds, "the minority [Federalist Party] is only recovering its strength & firmness. It acquires nothing." Then, with the characteristic misgivings of a Federalist, he prophesies: "Our political tempests will long, very long, exist, after those who are now toss'd about by them shall be at rest." 309 309 Marshall to King, May 5, 1802, King, iv, 116-18.

For more than five years 310 310 Since the adoption of the Kentucky and Virginia Resolutions in 1798. (See vol. ii, chaps. x, xi, xii, of this work.) Marshall had foreseen the complicated and dangerous situation in which the country now found itself; and for more than a year 311 311 Since the Republican repeal of the Federalist Judiciary Act was proposed. See supra , 51. he had, in his ample, leisurely, simple manner of thinking, been framing the constructive answer which he was at last forced to give to the grave question: Who shall say with final authority what is and what is not law throughout the Republic? In his opinion in the case of Marbury vs. Madison, to which this chapter is devoted, we shall see how John Marshall answered this vital question.

The philosophy of the Virginia and Kentucky Resolutions had now become the ruling doctrine of the Republican Party. The writer of the creed of State Rights sat in the Executive chair, while in House and Senate Virginia and her daughter Kentucky ruled the Republican majority. The two States that had declared the right and power of any member of the Union to pronounce a National law unconstitutional, and that had actually asserted a National statute to be null and void, had become the dominant force in the National Government.

The Federalist majority in the legislatures of ten States, 312 312 Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island. it is true, had passed resolutions denouncing that anti-National theory, and had vigorously asserted that the National Judiciary alone had the power to invalidate acts of Congress. 313 313 The Federalist majority in Vermont resolved that: "It belongs not to State Legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the Judiciary Courts of the Union ." ( Records of Governor and Council of Vermont , iv, 529.) The Federalist majority in the Maryland Legislature asserted that "no state government … is competent to declare an act of the federal government unconstitutional, … that jurisdiction … is exclusively vested in the courts of the United States." (Anderson, in Am. Hist. Rev. v, 248.) The New York Federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by Congress … appertains to the judiciary department." ( Ib. 248-49.) Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." ( Ib. 247.) In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration. ( Ib. 246.) The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (Anderson, in Am. Hist. Rev. v, 245.) On February 8, 1799, Massachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." ( Mass. Senate Journal, 1798-99 , xix, 238, MS. volume Mass. State Library.) Such was the general tenor of the Federalists' pronouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown. The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic assertions that any State might declare an act of Congress unconstitutional and disregard it, and that the National Judiciary did not have supervisory power over legislation . But in none of these States had the Republican minority concurred . In all of them the Republicans had vigorously fought the Federalist denial of the right and power of the States to nullify National laws, and had especially resisted the Federalist assertion that this power was in the National Judiciary.

In the New York Legislature, forty-three Republicans voted solidly against the Federalist reply to Virginia and Kentucky, while the Federalists were able to muster but fifty votes in its favor. In Massachusetts, Pennsylvania, and Maryland, the Republican opposition was determined and outspoken.

The thirty-three Republicans of the Vermont Legislature cited, in their protest, the position which Marshall had taken on the Sedition Law in his campaign for Congress: 314 314 See vol. ii, 387-89, of this work. "We have ever been of an opinion, with that much and deservedly respected statesman, Mr. Marshall, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's rights, has been universally admired) 315 315 Referring to Marshall's conduct in the French Mission. (See vol. ii, chaps. vii, viii, ix, of this work.) that 'it was calculated to create unnecessarily , discontents and jealousies, at a time, when our very existence as a nation may depend on our union.'" 316 316 Anderson, in Am. Hist. Rev. v, 249.

In Southern States, where the Federalists were dominant when Kentucky and Virginia adopted their famous Resolutions, the Republicans were, nevertheless, so strong that the Federalist majority in the Legislatures of those States dared not attempt to deny formally the new Republican gospel. 317 317 Ib. 235-37.