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

To this agreeable course, so well adapted to his purposes, the President was hotly urged by the foremost leaders of his party. Within two weeks after Jefferson's inauguration, the able and determined William Branch Giles of Virginia, faithfully interpreting the general Republican sentiment, demanded "the removal of all its [the Judiciary's] executive officers indiscriminately." This would get rid of the Federalist marshals and clerks of the National courts; they had been and were, avowed Giles, "the humble echoes" of the "vicious schemes" of the National judges, who had been "the most unblushing violators of constitutional restrictions." 70 70 Giles to Jefferson, March 16, 1801, Anderson: William Branch Giles – A Study in the Politics of Virginia 1790-1830 , 77. Again Giles expressed the will of his party: "The revolution [Republican success in 1800] is incomplete so long as that strong fortress [the Judiciary] is in possession of the enemy." He therefore insisted upon "the absolute repeal of the whole judiciary system." 71 71 Same to same, June 1, 1801, ib. 80.

The Federalist leaders quickly divined the first part of the Republican purpose: "There is nothing which the [Republican] party more anxiously wish than the destruction of the judicial arrangements made during the last session," wrote Sedgwick. 72 72 Sedgwick to King, Dec. 14, 1801, King, iv, 36. And Hale, with dreary sarcasm, observed that "the independence of our Judiciary is to be confirmed by being made wholly subservient to the will of the legislature & the caprice of Executive visions." 73 73 Hale to King, Dec. 19, 1801, King, iv, 39.

The judges themselves had invited the attack so soon to be made upon them. 74 74 It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. i, 297-99, of this work.) Braintree, Mass., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws … as may crush or, at least, put a proper check of restraint" upon them. Dedham, Mass., instructed its members of the Legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abolished." (Warren: History of the American Bar , 215.) All this, of course, was the result of the bitter hardships of debtors. Immediately after the Government was established under the Constitution, they took a position which disturbed a large part of the general public, and also awakened apprehensions in many serious minds. Persons were haled before the National courts charged with offenses unknown to the National statutes and unnamed in the Constitution; nevertheless, the National judges held that these were indictable and punishable under the common law of England. 75 75 For an able defense of the adoption by the National courts of the British common law, see Works of the Honourable James Wilson : Wilson, iii, 384.

This was a substantial assumption of power. The Judiciary avowed its right to pick and choose among the myriad of precedents which made up the common law, and to enforce such of them as, in the opinion of the National judges, ought to govern American citizens. In a manner that touched directly the lives and liberties of the people, therefore, the judges became law-givers as well as law-expounders. Not without reason did the Republicans of Boston drink with loud cheers this toast: "The Common Law of England! May wholesome statutes soon root out this engine of oppression from America." 76 76 Columbian Centinel , July 11, 1801, as quoted in Warren, 225-27.

The occasions that called forth this exercise of judicial authority were the violation of Washington's Neutrality Proclamation, the violation of the Treaty of Peace with Great Britain, and the numberless threats to disregard both. From a strictly legal point of view, these indeed furnished the National courts with plausible reasons for the position they took. Certainly the judges were earnestly patriotic and sincere in their belief that, although Congress had not authorized it, nevertheless, that accumulation of British decisions, usages, and customs called "the common law" was a part of American National jurisprudence; and that, of a surety, the assertion of it in the National tribunals was indispensable to the suppression of crimes against the United States. In charging the National grand jury at Richmond, May 22, 1793, Chief Justice John Jay first announced this doctrine, although not specifically naming the common law. 77 77 Correspondence and Public Papers of John Jay : Johnston, iii, 478-85. Two months later, Justice James Wilson claimed the same inclusive power in his address to the grand jury at Philadelphia. 78 78 Wharton: State Trials of the U.S. during the Administrations of Washington and Adams , 60 et seq. ; and see Wilson's law lecture on the subject, Wilson, iii, 384.

In 1793, Joseph Ravara, consul for Genoa, was indicted in the United States District Court of Pennsylvania for sending an anonymous and threatening letter to the British Minister and to other persons in order to extort money from them. There was not a word in any act of Congress that referred even indirectly to such a misdemeanor, yet Justices Wilson and Iredell of the Supreme Court, with Judge Peters of the District Court, held that the court had jurisdiction, 79 79 2 Dallas, 297-99. and at the trial Chief Justice Jay and District Judge Peters held that the rash Genoese could be tried and punished under the common law of England. 80 80 Ib. Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: State Trials , 90-92.)

Three months later Gideon Henfield was brought to trial for the violation of the Neutrality Proclamation. The accused, a sailor from Salem, Massachusetts, had enlisted at Charleston, South Carolina, on a French privateer and was given a commission as an officer of the French Republic. As such he preyed upon the vessels of the enemies of France. One morning in May, 1793, Captain Henfield sailed into the port of Philadelphia in charge of a British prize captured by the French privateer which he commanded.

Upon demand of the British Minister, Henfield was seized, indicted, and tried in the United States Circuit Court for the District of Pennsylvania. 81 81 For the documents preceding the arrest and prosecution of Henfield, see Wharton: State Trials , footnotes to 49-52. In the absence of any National legislation covering the subject, Justice Wilson instructed the grand jury that Henfield could, and should, be indicted and punished under British precedents. 82 82 See Wilson's charge, Wharton: State Trials , 59-66. When the case was heard the charge of the court to the trial jury was to the same effect. 83 83 See Wharton's summary of Wilson's second charge, ib. footnote to 85.

The jury refused to convict. 84 84 Ib. 88. The verdict was "celebrated with extravagant marks of joy and exultation," records Marshall in his account of this memorable trial. "It was universally asked," he says, "what law had been offended, and under what statute was the indictment supported? Were the American people already prepared to give to a proclamation the force of a legislative act, and to subject themselves to the will of the executive? But if they were already sunk to such a state of degradation, were they to be punished for violating a proclamation which had not been published when the offense was committed, if indeed it could be termed an offense to engage with France, combating for liberty against the combined despots of Europe?" 85 85 Marshall: Life of George Washington , 2d ed. ii, 273-74. After the Henfield and Ravara cases, Congress passed a law applicable to such offenses. (See Wharton: State Trials , 93-101.)