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

1 Cranch, 178-80.

See vol. i, 323, of this work.

It must be borne in mind that the American Constitution declares that, in and of itself, it is law – the supreme law of the land; and that no other written constitution makes any such assertion.

See infra , chap. iv.

Jefferson to Mrs. Adams, Sept. 11, 1804, Works : Ford, x, footnote to 89.

See infra , chap. viii.

Jefferson to Jarvis, Sept. 28, 1820, Works : Ford, xii, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798, ib. viii, 448.)

Jefferson to Gallatin, July 12, 1803, Works : Ford, x, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.

See Channing: U.S. iv, 313-14.

Talleyrand to Decrès, May 24, 1803, as quoted in Adams: U.S. ii, 55.

Morison: Otis , i, 262; see also Adams: U.S. ii, 56.

See instructions to Livingston and Monroe, Am. State Papers, Foreign Relations , ii, 540.

Adams: U.S. i, 442-43.

Ib. ii, 120-28.

Works : Ford, x, 3-12.

American Insurance Company et al. vs. Canter, 1 Peters, 511-46, and see vol. iv, chap. iii, of this work.

See U.S. Statutes at Large , ii, 283; and Annals , 8th Cong. 2d Sess. 1597.

For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)

Jefferson to Nicholas, Sept. 7, 1803, Works : Ford, x, 10.

Jefferson to Breckenridge, Aug. 12, 1803, ib. 7.

Jefferson to Madison, Aug. 18, 1803, ib. 8.

"The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800, ib. ix, 129; and see Adams: U.S. iii, 147.)

"The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803, Life of the Late Gen. William Eaton : Prentiss, 263; also quoted in Adams: U.S. ii, 431.)

Cabot to King, July 1, 1803, King, iv, 279. The Louisiana Purchase was first publicly announced through the press by the Independent Chronicle of Boston, June 30, 1803. (Adams: U.S. ii, 82-83.)

Ames to Gore, Oct. 3, 1803, Ames, i, 323-24.

Tracy to McHenry, Oct. 19, 1803, Steiner: Life and Correspondence of James McHenry , 522.

Oct. 20, 1803, Plumer, 285.

Ames to Dwight, Oct. 26, 1803, Ames, i, 328.

Reeve to Tracy, Feb. 7, 1804, N.E. Federalism : Adams, 342; and see Adams: U.S. ii, 160.

Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)

Pickering to Cabot, Jan. 29, 1804, Lodge: Cabot , 338.

Griswold to Wolcott, March 11, 1804, N.E. Federalism : Adams, 356.

Morse to Plumer, Feb. 3, 1804, Plumer, 289.

Plumer to Morse, March 10, 1804, ib.

Cabot to King, March 17, 1804, Lodge: Cabot , 345.

See Morison: Otis , i, 262.

Jefferson to Ritchie, Dec. 25, 1820, Works : Ford, xii, 177.

For instance, in 1808, the United States District Court of Massachusetts, in the decision of a case requiring all possible precedents like that of Marbury vs. Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marbury vs. Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citing Am. Law Journal , old series, ii, 255-64.)

Marshall's opinion in Marbury vs. Madison was first referred to by counsel in a legal controversy in Ex Parte Burford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and see infra , chap. vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.

A year later Marshall's opinion in Marbury vs. Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the case Ex Parte Gilchrist et al. vs. The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.

Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marbury vs. Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (see infra , chaps. vii, viii, ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marbury vs. Madison. He did not even answer Rodney's letter.

Giles was appointed Senator August 11, 1804, by the Governor to fill the unexpired term of Abraham Venable who resigned in order that Giles might be sent to the Senate. In December the Legislature elected him for the full term. Upon taking his seat Giles immediately became the Republican leader of the Senate. (See Anderson, 93.)

Dec. 21, 1804, Memoirs, J. Q. A. : Adams, i, 322-23.