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

The Federalist organ in Washington, which Marshall two years earlier was supposed to influence and to which he probably contributed,214 saw little hope of successful resistance. "What will eventually be the issue of the present high-handed, overbearing proceedings of Congress it is impossible to determine," but fear was expressed by this paper that conditions would be created "which impartial, unbiased and reflecting men consider as immediately preceding the total destruction of our government and the introduction of disunion, anarchy and civil war."215

This threat of secession and armed resistance, already made in the Senate, was to be repeated three times in the debate in the House which was opened for the Federalists by Archibald Henderson of North Carolina, whom Marshall pronounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the Nation."216 "The monstrous and unheard of doctrine … lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared Henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy." If the Republican theory of the Constitution should prevail, "better at once to bury it with all our hopes."217

Robert Williams of the same State, an extreme but unskillful Republican, now uncovered his party's scheme to oust Federalist judges, which thus far had carefully been concealed:218 "Agreeably to our Constitution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of Congress unconstitutional. "However he may err, he commits no crime; how, then, can he be impeached?"219

Philip R. Thompson of Virginia, a Republican, was moved to the depths of his being: "Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and void, … and in vain have the people placed you upon this floor to legislate.220… This is the tree where despotism lies concealed… Nurture it with your treasure, stop not its ramifications, and … your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root."221

Thomas T. Davis of Kentucky, deeply stirred by this picture, declared that the Federalists said to the people, you are "incapable" of protecting yourselves; "in the Judiciary alone you find a safe deposit for your liberties." The Kentucky Representative "trembled" at such ideas. "The sooner we put men out of power, who [sic] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary."222 Thus again was revealed the Republican purpose of dragging from the National Bench all judges who dared assert the right, and to exercise the power to declare an act of Congress unconstitutional.223

The contending forces became ever more earnest as the struggle continued. All the cases then known in which courts directly or by inference had held legislative acts invalid were cited;224 and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again.

All the reasons for the opinion which John Marshall, exactly one year later, pronounced in Marbury vs. Madison were given during this debate. Indeed, the legislative struggle now in progress and the result of it, created conditions which forced Marshall to execute that judicial coup d'état. It should be repeated that an understanding of Marbury vs. Madison is impossible without a thorough knowledge of the debate in Congress which preceded and largely caused that epochal decision.

The alarm that the repeal was but the beginning of Republican havoc was sounded by every Federalist member. "This measure," said John Stanley of North Carolina, "will be the first link in that chain of measures which will add the name of America to the melancholy catalogue of fallen Republics."225

William Branch Giles, who for the next five years bore so vital a part in the stirring events of Marshall's life, now took the floor and made one of the ablest addresses of his tempestuous career.226 He was Jefferson's lieutenant in the House.227 When the Federalists tried to postpone the consideration of the bill,228 Giles admitted that it presented a question "more important than any that ever came before this house."229 But there was no excuse for delay, because the press had been full of it for more than a year and the public was thoroughly informed upon it.230

Giles was a large, robust, "handsome" Virginian, whose lightest word always compelled the attention of the House. He had a very dark complexion, black hair worn long, and intense, "retreating" brown eyes. His dress was "remarkably plain, and in the style of Virginia carelessness." His voice was "clear and nervous," his language "powerfully condensed."231

This Republican gladiator came boldly to combat. How had the Federalists contrived to gain their ends? Chiefly by "the breaking out of a tremendous and unprecedented war in Europe," which had worked upon "the feelings and sympathies of the people of the United States" till they had neglected their own affairs. So it was, he said, that the Federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic Alien and Sedition Laws. But at last, when, as the result of their maladministration, the Federalists saw their doom approaching, they began to "look out for some department of the government in which they could entrench themselves … and continue to support those favorite principles of irresponsibility which they could never consent to abandon."

For this purpose they had selected the Judiciary Department: "Not only because it was already filled" with rabid Federalists, "but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people than either of the other departments." Thus came the Federalist Judiciary Act of 1801 which the Republicans were about to repeal.

Giles could not resist a sneer at Marshall. Referring to the European war, to which "the feelings and sympathies of the people of the United States were so strongly attracted … that they considered their own internal concerns in a secondary point of view," Giles swiftly portrayed those measures used by the Federalists as a pretext. They had, jeered the sharp-tongued Virginia Republican, "pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned … the A, B, C, of the principles of the [Federalist] Administration."232

But now, when blood was no longer flowing on European battle-fields, the interests of the American people in that "tremendous and unprecedented" combat of nations "no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the Constitution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers!"233 So "the American people and their Congress, in their real persons, and original American characters" were at last "engaged in the transaction of American concerns."234

Federalist despotism lay prostrate, thank Heaven, beneath the conquering Republican heel. Should it rise again? Never! Giles taunted the Federalists with the conduct of Federalist judges in the sedition cases,235 and denounced the attempt to fasten British law on the American Nation – a law "unlimited in its object, and indefinite in its character," covering "every object of legislation."

Think, too, of what Marshall and the Supreme Court have done! "They have sent a … process leading to a mandamus, into the Executive cabinet, to examine its concerns."236 The real issue between Federalists and Republicans, declared Giles, was "the doctrine of irresponsibility against the doctrine of responsibility… The doctrine of despotism in opposition to the representative system." The Federalist theory was "an express avowal that the people were incompetent to govern themselves."

A handsome, florid, fashionably attired man of thirty-five now took the floor and began his reply to the powerful speech of the tempestuous Virginian. His complexion and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things Republican marked him as the equal of Gouverneur Morris in oratorical finish and Federalist distrust of the people.237 It was James A. Bayard, the Federalist leader of the House.

He asserted that the Republican "designs [were] hostile to the powers of this government"; that they flowed from "state pride [which] extinguishes a national sentiment"; that while the Federalists were in charge of the National Administration they struggled "to maintain the Constitutional powers of the Executive" because "the wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizers, who saw no difference between a King and a President; and, as the people of France had put down their King, they thought the people of America ought to put down their President.

"They [Federalists] who considered the Constitution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the Government and the people, and the friends of the Government [Federalists] were marked as the enemies of the people."238 This was the spirit that was now triumphant; to what lengths was it to carry the Republicans? Did they include the downfall of the Judiciary in their plans of general destruction? Did they propose to make judges the mere creatures of Congress?239

Bayard skillfully turned the gibe at Marshall into a tribute to the Chief Justice. What did Giles mean by his cryptic X. Y. Z. reference? "Did he mean that the dispatches … were impostures?" Though Giles "felt no respect" for Marshall or Pinckney – "two characters as pure, as honorable, and exalted, as any the country can boast of" – yet, exclaimed Bayard, "I should have expected that he would have felt some tenderness for Mr. Gerry."240

The Republicans had contaminated the country with falsehoods against the Federalist Administrations; and now the target of their "poisoned arrows" was the National Judiciary. "If … they [the judges] have offended against the Constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence."241

In detail Bayard explained the facts in the case of Marbury vs. Madison. That the Supreme Court had been "hardy enough to send their mandate into the Executive cabinet"242 was, said he, "a strong proof of the value of that Constitutional provision which makes them independent. They are not terrified by the frowns of Executive power, and dare to judge between the rights of a citizen and the pretensions of a President."243

Contrast the defects of the Judiciary Act of 1789 with the perfection of the Federalist law supplanting it. Could any man deny the superiority of the latter?244 The truth was that the Republicans were "to give notice to the judges of the Supreme Court of their fate, and to bid them to prepare for their end."245 In these words Bayard charged the Republicans with their settled but unavowed purpose to unseat Marshall and his Federalist associates.246

Bayard hotly denied the Republican accusation that President Adams had appointed to the bench Federalist members of Congress as a reward for their party services; but, retorted he, Jefferson had done that very thing.247 He then spoke at great length on the nature of the American Judiciary as distinguished from that of British courts, gave a vivid account of the passage of the Federalist Judiciary Act under attack, and finally swung back to the subject which more and more was coming to dominate the struggle – the power of the Supreme Court to annul acts of Congress.

Again and again Bayard restated, and with power and eloquence, all the arguments to support the supervisory power of courts over legislation.248 At last he threatened armed resistance if the Republicans dared to carry out their plans against the National Judiciary. "There are many now willing to spill their blood to defend that Constitution. Are gentlemen disposed to risk the consequences?.. Let them consider their wives and children, their neighbors and their friends." Destroy the independence of the National Judiciary and "the moment is not far when this fair country is to be desolated by civil war."249

Bayard's speech aroused great enthusiasm among the leaders of his party. John Adams wrote: "Yours is the most comprehensive masterly and compleat argument that has been published in either house and will have, indeed … has already had more effect and influence on the public mind than all other publications on the subject."250 The Washington Federalist pronounced Bayard's performance to be "far superior, not only to … the speeches of Mr. Morris and Mr. Tracy in the Senate, but to any speech of a Demosthenes, a Cicero, or a Chatham."251

Hardly was Bayard's last word spoken when the man who at that time was the Republican master of the House, and, indeed, of the Senate also, was upon his feet. Of medium stature, thin as a sword, his straight black hair, in which gray already was beginning to appear, suggesting the Indian blood in his veins, his intense black eyes flaming with the passion of combat, his high and shrilling voice suggesting the scream of an eagle, John Randolph of Roanoke – that haughty, passionate, eccentric genius – personified the aggressive and ruthless Republicanism of the hour. He was clad in riding-coat and breeches, wore long riding-boots, and if the hat of the Virginia planter was not on his head, it was because in his nervousness he had removed it;252 while, if his riding-whip was not in his hand, it was on his desk where he had cast it, the visible and fitting emblem of this strange man's mastery over his partisan followers.253

"He did not rise," he said, his voice quivering and body trembling,254 "for the purpose of assuming the gauntlet which had been so proudly thrown by the Goliah of the adverse party; not but that he believed even his feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-a-pie as he was." Randolph sneered, as only he could sneer, at the unctuous claims of the Federalists, that they had "nobly sacrificed their political existence on the altar of the general welfare"; he refused "to revere in them the self-immolated victims at the shrine of patriotism."255

As to the Federalist assertion that "the common law of England is the law of the United States in their confederate capacity," Randolph observed that the meaning of such terms as "court," "jury," and the like must, of course, be settled by reference to common-law definitions, but "does it follow that that indefinite and undefinable body of law is the irrepealable law of the land? The sense of a most important phrase, 'direct tax,' as used in the Constitution, has been … settled by the acceptation of Adam Smith; an acceptation, too, peculiar to himself. Does the Wealth of Nations, therefore, form a part of the Constitution of the United States?"

And would the Federalists inform the House what phase of the common law they proposed to adopt for the United States? Was it that "of the reign of Elizabeth and James the first; or … that of the time of George the Second?" Was it that "of Sir Walter Raleigh and Captain Smith, or that which was imported by Governor Oglethorpe?" Or was it that of some intermediate period? "I wish especially to know," asked Randolph, "whether the common law of libels which attaches to this Constitution, be the doctrine laid down by Lord Mansfield, or that which has immortalized Mr. Fox?" Let the Federalists reflect on the persecution for libel that had been made under the common law, as well as under the Sedition Act.256

Proper restraint upon Congress, said Randolph, was not found in a pretended power of the Judiciary to veto legislation, but in the people themselves, who at the ballot box could "apply the Constitutional corrective. That is the true check; every other is at variance with the principle that a free people are capable of self-government." Then the imperious Virginian boldly charged that the Federalists intended to have John Marshall and his associates on the Supreme Bench annul the Republican repeal of the Federalist Judiciary Act.

"Sir," cried Randolph, "if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power of a dangerous and uncontrollable nature… The decision of a Constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible?.. From whom is a corrupt decision most to be feared?.. The power which has the right of passing, without appeal, on the validity of your laws, is your sovereign… Are we not as deeply interested in the true exposition of the Constitution as the judges can be?" inquired Randolph. "Is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion which can and will check their aberrations from duty?"

Randolph referred to the case of Marbury vs. Madison and then recalled the prosecution of Thomas Cooper in which the National court refused "to a man under criminal prosecution … a subpœna to be served on the President, as a witness on the part of the prisoner.257… This court, which it seems, has lately become the guardian of the feeble and oppressed, against the strong arm of power, found itself destitute of all power to issue the writ…

"No, sir, you may invade the press; the courts will support you, will outstrip you in zeal to further this great object; your citizens may be imprisoned and amerced, the courts will take care to see it executed; the helpless foreigner may, contrary to the express letter of your Constitution, be deprived of compulsory process for obtaining witnesses in his defense; the courts in their extreme humility cannot find authority for granting it."

Again Marbury vs. Madison came into the debate:258 "In their inquisitorial capacity," the Supreme Court, according to Marshall's ruling in that case, could force the President himself to discharge his executive functions "in what mode" the omnipotent judges might choose to direct. And Congress! "For the amusement of the public, we shall retain the right of debating but not of voting."259 The judges could forestall legislation by "inflammatory pamphlets," as they had done.260

As the debate wore on, little that was new was adduced. Calvin Goddard of Connecticut reviewed the cases in which judges of various courts had asserted the Federalist doctrine of the judicial power to decide statutes unconstitutional,261 and quoted from Marshall's speech on the Judiciary in the Virginia Convention of 1788.262

John Rutledge, Jr., of South Carolina, then delivered one of the most distinguished addresses of this notable discussion. Suppose, he said, that Congress were to pass any of the laws which the Constitution forbids, "who are to decide between the Constitution and the acts of Congress?.. If the people … [are] not shielded by some Constitutional checks" their liberties will be "destroyed … by demagogues, who filch the confidence of the people by pretending to be their friends; … demagogues who carry daggers in their hearts, and seductive smiles in their hypocritical faces."263

Rutledge was affected by the prevailing Federalist pessimism. "This bill," said he, "is an egg which will produce a brood of mortal consequences… It will soon prostrate public confidence; it will immediately depreciate the value of public property. Who will buy your lands? Who will open your Western forests? Who will build upon the hills and cultivate the valleys which here surround us?" The financial adventurer who would take such risks "must be a speculator indeed, and his purse must overflow … if there be no independent tribunals where the validity of your titles will be confirmed.264…

"Have we not seen a State [Georgia] sell its Western lands, and afterwards declare the law under which they were sold made null and void? Their nullifying law would have been declared void, had they had an independent Judiciary."265 Here Rutledge anticipated by eight years the opinion delivered by Marshall in Fletcher vs. Peck.266

"Whenever in any country judges are dependent, property is insecure." What had happened in France? "Frenchmen received their constitution as the followers of Mahomet did their Koran, as though it came to them from Heaven. They swore on their standards and their sabres never to abandon it. But, sir, this constitution has vanished; the swords which were to have formed a rampart around it, are now worn by the Consular janissaries, and the Republican standards are among the trophies which decorate the vaulted roof of the Consul's palace.267 Indeed … [the] subject," avowed Rutledge with passionate earnestness, "is perhaps as awful a one as any on this side of the grave. This attack upon our Constitution will form a great epoch in the history of our Government."268

Forcible resistance, if the Republican assault on the Judiciary succeeded, had twice been intimated during the debate. As yet, however, actual secession of the Northern and Eastern States had not been openly suggested, although it was common talk among the Federalists;269 but now one of the boldest and frankest of their number broadly hinted it to be the Federalist purpose, should the Republicans persist in carrying out their purpose of demolishing the National courts.270 In closing a long, intensely partisan and wearisome speech, Roger Griswold of Connecticut exclaimed: "There are states in this Union who will never consent and are not doomed to become the humble provinces of Virginia."

Joseph H. Nicholson of Maryland, Republican, was hardly less prolix than Griswold. He asked whether the people had ever approved the adoption of the common law by the Judiciary. "Have they ever sanctioned the principle that the judges should make laws for them instead of their Representatives?"271 Tiresome as he was, he made a conclusive argument against the Federalist position that the National Judiciary might apply the common law in cases not provided for by acts of Congress.

The debate ran into the month of March.272 Every possible phase of the subject was gone over time and again. All authorities which the ardent and tireless industry of the contending partisans could discover were brought to light. The pending case of Marbury vs. Madison was in the minds of all; and it was repeatedly dragged into the discussion. Samuel W. Dana of Connecticut examined it minutely, citing the action of the Supreme Court in the case of the application for a mandamus to the Secretary of War upon which the court acted February 14, 1794: "There does not appear to have been any question respecting the general power of the Supreme Court, to issue a mandamus to the Secretary of War, or any other subordinate officer." That was "a regular mode for obtaining a decision of the Supreme Court… When such has been the unquestioned usage heretofore, is it not extraordinary that there has not been prudence enough to say less about the case of Marbury against the Secretary of State?"273

Dana then touched upon the general expectation that Marshall would declare void the Repeal Act. Because of this very apprehension, the Republicans, a few days later, suspended for more than a year the sessions of the Supreme Court. So Dana threatened that if the Republicans should pass the bill, the Supreme Court would annul it; for, said he, the Judiciary were sworn to support the Constitution, and when they find that instrument on one side and an act of Congress on the other, "what is their duty? Are they not to obey their oath, and judge accordingly? If so, they necessarily decide, that your act is of no force; for they are sworn to support the Constitution. This is a doctrine coeval with the existence of our Government, and has been the uniform principle of all the constituted authorities."274 And he cited the position taken by National judges in 1792 in the matter of the pension commission.275