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

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

Plumer, 274-75; and see especially Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

The powerful Republican organ, the Aurora , of Philadelphia, thus indicted the National Judiciary: Because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors… It is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the Constitution." ( Aurora , Jan. 28, 1805, as quoted in Corwin, 41.) Professor Corwin says that this utterance was approved by Jefferson.

"Mr. Giles from Virginia … is the Ministerial leader in the Senate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.)

"I considered M r.Giles as the ablest practical politician of the whole party enlisted under M r.Jefferson's banners." (Pickering to Marshall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.)

William Johnson of South Carolina, appointed March 26, 1804, vice William Moore, resigned. Johnson was a stanch Jeffersonian when appointed. He was thirty-three years old at the time he was made Associate Justice.

It is impossible to put too much emphasis on Giles's avowal. His statement is the key to the Chase impeachment.

Adams to his father, March 8, 1805, Writings, J. Q. A. : Ford, iii, 108.

Pickering to Lyman, Feb. 11, 1804, N.E. Federalism : Adams, 344; Lodge: Cabot , 444; also see Plumer, 275.

Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong.

Bayard to Bassett, Feb. 12, 1802, Bayard Papers : Donnan, 148.

Channing: Jeffersonian System , 119-20; Adams: U.S. ii, 225-27, 235; Anderson, 93, 95.

Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

See infra , 176-77, 196.

2 Cranch, 358-405.

See vol. ii, 481-82, of this work.

See vol. ii, 71-74, of this work.

Fifteen years passed before a critical occasion called for another assertion by Marshall of the doctrine of implied powers; and that occasion produced one of Marshall's greatest opinions – in the judgment of many, the greatest of all his writings. (See McCulloch vs. Maryland, vol. iv, chap. vi, of this work.)

Addison's address is historically important; it perfectly shows the distrust of democracy which all Federalist leaders then felt. Among other things, he pleaded for the independence of the Judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. ( Addison Trial , 101-43.)

The petition praying for the impeachment of Addison was sent to the Pennsylvania House of Representatives on January 11, 1802. On March 23, 1802, that body transmitted articles of impeachment to the State Senate. The trial was held in early January, 1803. Addison was convicted January 26, 1803. ( Ib. )

Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the ship Eliza, and suggested that "the Constitution has confided [to the House] a power of instituting proceedings of redress." ( Annals , 7th Cong. 2d Sess. 460.)

On March 2 the committee reported a resolution for Pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few Federalists tried to postpone a vote, the resolution was adopted immediately.

Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, Edward St. Loe Livermore. ( Annals , 8th Cong. 1st Sess. 334-42.)

Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan Steele. ( Ib. 351-56.)

The wise and comprehensive Federalist Judiciary Act of 1801 covered just such cases. It provided that when a National judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (See Annals , 6th Cong. 2d Sess. 1545.) This very thing had been done in the case of Judge Pickering (see McMaster: U.S. iii, 166). It is curious that, in the debate, the Republicans did not denounce this as unconstitutional.

Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

Annals , 8th Cong. 1st Sess. 328-30.

Memoirs, J. Q. A. : Adams, i, 299-300.

"This," records Adams, "had evidently been settled … out of court. And this is the way in which these men administer justice." ( Ib. )

"In the House … speeches are making every day to dictate to the Senate how they are to proceed; and the next morning they proceed accordingly." ( Ib. 301-02.)

Feb. 18, 1803, Plumer, 253.

Annals , 8th Cong. 1st Sess. 365.

See Memoirs, J. Q. A. ; Adams, i, 302-04, for a vivid account of the whole incident.

Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.

Annals , 8th Cong. 1st Sess. 367. "The independence of our judiciary is no more … I hope the time is not far distant when the people east of the North river will manage their own affairs in their own way ; … and that the sound part will separate from the corrupt ." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On the unconstitutional and revolutionary conduct of the Republicans in the Pickering impeachment trial see Adams: U.S. ii, 158.

Senators John Armstrong of New York, Stephen R. Bradley of Vermont, and David Stone of North Carolina. Jonathan Dayton of New Jersey and Samuel White of Delaware, Federalists, also withdrew. ( Annals , 8th Cong. 1st Sess. 366.) And see Memoirs, J. Q. A. : Adams, i, 308-09; J. Q. Adams to his father, March 8, 1805, Writings, J. Q. A. : Ford, iii, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib. Cong.

Senator John Brown of Kentucky, a Republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) Senator Brown had been elected President pro tem. of the Senate, January 23, 1804.

Burr "abruptly left the Senate" to attend to his candidacy for the governorship of New York. (Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.) Senator Franklin of North Carolina was then chosen President pro tem. and presided during the trial of Pickering. But Burr returned in time to arrange for, and preside over, the trial of Justice Chase.