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

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Marshall's next case 58 58 Wilson vs. Mason, 1 Cranch, 45-101. involved complicated questions concerning lands in Kentucky. Like nearly all of his opinions, the one in this case is of no historical importance except that in it he announced for the second time the views of the court. In United States vs . Schooner Peggy, 59 59 1 Cranch, 102-10. Marshall declared that, since the Constitution makes a treaty a "supreme law of the land," courts are as much bound by it as by an act of Congress. This was the first time that principle was stated by the Supreme Court. Another case 60 60 Turner vs. Fendall, 1 Cranch, 115-30. concerned the law of practice and of evidence. This was the last case in which Marshall delivered an opinion before the Republican assault on the Judiciary was made – the causes of which assault we are now to examine.

At the time of his inauguration, Jefferson apparently meant to carry out the bargain 61 61 See vol. ii, 531-47, of this work. by which his election was made possible. "We are all Republicans, we are all Federalists," were the reassuring words with which he sought to quiet those who already were beginning to regret that they had yielded to his promises. 62 62 See Adams: U.S. i, chaps. ix and x, for account of the revolutionary measures which the Republicans proposed to take. Even Marshall was almost favorably impressed by the inaugural address. "I have administered the oath to the Presdt.," he writes Pinckney immediately after Jefferson had been inducted into office. "His inauguration speech … is in general well judged and conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of this political theory." 63 63 Marshall to Pinckney, March 4, 1801, "four o'clock," MS.

It is likely that, for the moment, the President intended to keep faith with the Federalist leaders. But the Republican multitude demanded the spoils of victory; and the Republican leaders were not slow or soft-spoken in telling their chieftain that he must take those measures, the assurance of which had captivated the popular heart and given "the party of the people" a majority in both House and Senate.

Thus the Republican programme of demolition was begun. Federalist taxes were, of course, to be abolished; the Federalist mint dismantled; the Federalist army disbanded; the Federalist navy beached. Above all, the Federalist system of National courts was to be altered, the newly appointed Federalist National judges ousted and their places given to Republicans; and if this could not be accomplished, at least the National Judiciary must be humbled and cowed. Yet every step must be taken with circumspection – the cautious politician at the head of the Government would see to that. No atom of party popularity 64 64 "It is the sole object of the Administration to acquire popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: Cabot , 325.) "The President has … the itch for popularity." (J. Q. Adams to his father, November, 1804, Writings, J. Q. A. : Ford, iii, 81.) "The mischiefs of which his immoderate thirst for … popularity are laying the foundation, are not immediately perceived." (Adams to Quincy, Dec. 4, 1804, Quincy, 64.) "It seems to be a great primary object with him never to pursue a measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer MSS. Lib. Cong.) "In dress, conversation, and demeanor he studiously sought and displayed the arts of a low demagogue seeking the gratification of the democracy on whose voices and votes he laid the foundation of his power." (Quincy's Diary, Jan. 1806, Quincy, 93.) must be jeopardized; on the contrary, Republican strength must be increased at any cost, even at the temporary sacrifice of principle. 65 65 Ames to Gore, Dec. 13, 1802, Works of Fisher Ames : Ames, i, 309. Unless these facts are borne in mind, the curious blending of fury and moderation – of violent attack and sudden quiescence – in the Republican tactics during the first years of Jefferson's Administration are inexplicable.

Jefferson determined to strike first at the National Judiciary. He hated it more than any other of the "abominations" of Federalism. It was the only department of the Government not yet under his control. His early distrust of executive authority, his suspicion of legislative power when his political opponents held it, were now combined against the National courts which he did not control.

Impotent and little respected as the Supreme Court had been and still was, Jefferson nevertheless entertained an especial fear of it; and this feeling had been made personal by the thwarting of his cherished plan of appointing his lieutenant, Spencer Roane of Virginia, Chief Justice of the United States. 66 66 Dodd in American Historical Review , xii, 776; and see next chapter. The elevation of his particular aversion, John Marshall, to that office, had, he felt, wickedly robbed him of the opportunity to make the new regime harmonious; and, what was far worse, it had placed in that station of potential, if as yet undeveloped, power, one who, as Jefferson had finally come to think, might make the high court of the Nation a mighty force in the Government, retard fundamental Republican reforms, and even bring to naught measures dear to the Republican heart.

It seems probable that, at this time, Jefferson was the only man who had taken Marshall's measure correctly. His gentle manner, his friendliness and conviviality, no longer concealed from Jefferson the courage and determination of his great relative; and Jefferson doubtless saw that Marshall, with his universally conceded ability, would find means to vitalize the National Judiciary, and with his fearlessness, would employ those means.

"The Federalists," wrote Jefferson, "have retired into the judiciary as a stronghold … and from that battery all the works of republicanism are to be beaten down and erased." 67 67 Jefferson to Dickinson, Dec. 19, 1801, Writings of Thomas Jefferson : Washington, iv, 424. Therefore that stronghold must be taken. Never was a military plan more carefully devised than was the Republican method of capturing it. Jefferson would forthwith remove all Federalist United States marshals and attorneys; 68 68 "The only shield for our Republican citizens against the federalism of the courts is to have the attorneys & Marshals republicans." (Jefferson to Stuart, April 8, 1801, Works : Ford, ix, 248.) he would get rid of the National judges whom Adams had appointed under the Judiciary Act of 1801. 69 69 "The judge of course stands until the law [Judiciary Act of 1801] shall be repealed which we trust will be at the next Congress." (Jefferson to Stuart, April 8, 1801, Works : Ford, ix, 247.) For two weeks Jefferson appears to have been confused as to the possibility of repealing the Judiciary Act of 1801. A fortnight before he informed Stuart that this course would be taken, he wrote Giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in American Political Science Review , ix, 522.) But the repeal had been determined upon within six weeks after Jefferson's inauguration as his letter to Stuart shows. If this did not make those who remained on the National Bench sufficiently tractable, the sword of impeachment would be held over their obstinate heads until terror of removal and disgrace should render them pliable to the dominant political will. Thus by progressive stages the Supreme Court would be brought beneath the blade of the executioner and the obnoxious Marshall decapitated or compelled to submit.

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