The Life of John Marshall
Chapter 141 : John Rutledge, Jr., of South Carolina, then delivered one of the most distinguished ad

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 pa.s.s any of the laws which the Const.i.tution forbids, "who are to decide between the Const.i.tution and the acts of Congress?... If the people ... [are] not s.h.i.+elded by some Const.i.tutional 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 t.i.tles 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 antic.i.p.ated 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 const.i.tution 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 const.i.tution 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 pa.s.sionate earnestness, "is perhaps as awful a one as any on this side of the grave. This attack upon our Const.i.tution will form a great epoch in the history of our Government."[268]

Forcible resistance, if the Republican a.s.sault 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 demolis.h.i.+ng 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?"[272] 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.[273] 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?"[274]

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 pa.s.s the bill, the Supreme Court would annul it; for, said he, the Judiciary were sworn to support the Const.i.tution, 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 Const.i.tution. This is a doctrine coeval with the existence of our Government, and has been the uniform principle of all the const.i.tuted authorities."[275] And he cited the position taken by National judges in 1792 in the matter of the pension commission.[276]

John Bacon, that stanch Ma.s.sachusetts Republican,[277] a.s.serted that "the Judiciary have no more right to prescribe, direct or control the acts of the other departments of the Government, than the other departments of the Government have to prescribe or direct those of the Judiciary."[278]

The Republicans determined to permit no further delay; for the first time in its history the House was kept in session until midnight.[279]

At twelve o'clock, March 3, 1802, the vote was taken on the final pa.s.sage of the bill, the thirty-two Federalists voting against and the fifty-nine Republicans for the measure.[280] "Thus ended this gigantic debate," chronicles the historian of that event.[281] No discussion in Congress had hitherto been so widely reported in the press or excited such general comment. By the great majority of the people the repeal was received with enthusiasm, although some Republicans believed that their party had gone too far.[282] Republican papers, however, hailed the repeal as the breaking of one of those judicial fetters which shackled the people, while Federalist journals bemoaned it as the beginning of the annihilation of all that was sane and worthy in American inst.i.tutions.

"The fatal bill has pa.s.sed; our Const.i.tution is no more," exclaimed the _Was.h.i.+ngton Federalist_ in an editorial ent.i.tled

"FAREWELL, A LONG FAREWELL, TO ALL OUR GREATNESS."

The paper despaired of the Republic--n.o.body could tell "what other acts, urged by the intoxication of power and the fury of party rage" would be put through. But it announced that the Federalist judges would disregard the infamous Republican law: "The judges will continue to hold their courts as if the bill had not pa.s.sed. 'Tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it.

By the judges this bill will be declared null and void.... And we now ask the mighty victors, what is your triumph?... What is the triumph of the President? He has gratified his malice towards the judges, but he has drawn a tear into the eye of every thoughtful patriot ... and laid the foundation of infinite mischief." The Federalist organ declared that the Republican purpose was to force a "dissolution of the Union," and that this was likely to happen.

This significant editorial ended by a consideration of the Republican purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring forward a resolution to repeal the law establis.h.i.+ng the Supreme Court of the United States, we should only consider it a part of the system to be pursued.... We sincerely expect it will be done next session.... Such is democracy."[283]

Senator Plumer declared, before the final vote, that the pa.s.sage of the Republican Repeal Bill and of other Republican measures meant "anarchy."[284]

The ultra-Federalist _Palladium_ of Boston lamented: "Our army is to be less and our navy nothing: Our Secretaries are to be aliens and our Judges as independent as spaniels. In this way we are to save everything, but our reputation and our rights[285]... Has Liberty any citadel or fortress, has mob despotism any impediments?"[286]

The _Independent Chronicle_, on the other hand, "congratulated the public on the final triumph of _Republicanism_, in the repeal of the late obnoxious judiciary law."[287] The Republicans of Boston and Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle of ... disorganizing ... goes on with a destructive zeal. Internal Taxes--Judicial Sanct.i.ty--all are to be overset."[288] Sedgwick was sure that no defense was left against "legislative usurpation."[289] "The angels of destruction ... are making haste," moaned Fisher Ames.[290]

"The angels of destruction" lost no time in striking their next blow. On March 18, two weeks after the threat of the _Was.h.i.+ngton Federalist_ that the Supreme Court would declare unconst.i.tutional the Republican Repeal Act, a Senate committee was appointed to examine further the National Judiciary establishment and report a bill for any improvements considered necessary.[291] Within a week the committee laid the measure before the Senate,[292] and on April 8 it was pa.s.sed[293] without debate.

When it reached the House, however, the Federalists had taken alarm. The Federalist Judiciary Act of 1801 had fixed the terms of the Supreme Court in December and June instead of February and August. This new bill, plainly an afterthought, abolished the June session of the Supreme Court, directed that, thereafter, that tribunal should convene but once each year, and fixed the second Monday of February as the time of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the opportunity to pa.s.s upon the repeal of the Federalist Judiciary Act of 1801 until the old and defective system of 1789, which it restored, was again in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.[294] John Marshall should have no early opportunity to overturn the Repeal Act, as the Republicans believed he would do if given the chance. Neither should he proceed further with the case of Marbury _vs._ Madison for many months to come.[295]

Bayard moved that the bill should not go into effect until July 1, thus permitting the Supreme Court to hold its June session; but, said Nicholson, that was just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard.

"The effect of the present bill will be, to have no court for fourteen months.... Are gentlemen afraid of the judges? Are they afraid that they will p.r.o.nounce the repealing law void?"[296]

Nicholson did not care whether the Supreme Court "p.r.o.nounced the repealing law unconst.i.tutional or not." The Republican postponement of the session for more than a year "does not arise from any design ... to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to suppose gentlemen on the other side are as anxious for a session in June, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise."[297]

Griswold could not credit the Republicans with so base a purpose: "I know that it has been said, out of doors, that this is the great object of the bill. I know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supreme Court to hold its summer session. He frankly avowed a wish for an early decision that the Repeal Act was void. "I think the speedier it [usurpation] is checked the better."[298]

Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconst.i.tutional. "This act is not designed to amend the Judicial system," he a.s.serted; "that is but pretense.... It is to prevent that court from expressing their opinion upon the validity of the act lately pa.s.sed ... until the act has gone into full execution, and the excitement of the public mind is abated.... Could a less motive induce gentlemen to agree to suspend the sessions of the Supreme Court for fourteen months?"[299]

But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill pa.s.sed and the Supreme Court of the United States was practically abolished for fourteen months.[300]

At that moment began the movement that finally developed into the plan for the secession of the New England States from the Union. It is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extreme New England Federalist leaders from the time Theodore Sedgwick threatened it in the debate over the a.s.sumption Bill.[301]

Hints of withdrawing from the Union if Virginia should become dominant crop out in their correspondence. The Republican repeal of the Judiciary Act immediately called forth many expressions in Federalist papers such as this from the Boston _Palladium_ of March 2, 1802: "Whether the rights and interests of the Eastern States would be perfectly safe when Virginia rules the nation is a problem easy to solve but terrible to contemplate.... As ambitious _Virginia_ will not be just, let valiant _Ma.s.sachusetts_ be zealous."

Fisher Ames declared that "the federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins."[302] He thought the Federalists had neglected the press. "It is practicable," said he, "to rouse our sleeping patriotism--sleeping, like a drunkard in the snow....

The newspapers have been left to the lazy or the ill-informed, or to those who undertook singly work enough for six."[303]

Pickering, the truculent, brave, and persistent, antic.i.p.ated "a new confederacy.... There will be--and our children at farthest will see it--a separation.... The British Provinces, even with the a.s.sent of Britain, will become members of the Northern Confederacy."[304]

The more moderate George Cabot, on the contrary, thought that the strong defense made by the Federalists in Congress would induce the Republicans to cease their attacks on the National courts. "The very able discussions of the Judiciary Question," he wrote, "& great superiority of the Federalists in all the debates & public writings have manifestly checked the career of the _Revolutionists_."[305] But for once Cabot was wrong; the Republicans were jubilant and hastened to press their a.s.sault more vigorously than ever.

The Federalist newspapers teemed with long arguments against the repeal and laboriously strove, in dull and heavy fas.h.i.+on, to whip their readers into fighting humor. These articles were little more than turgid repet.i.tions of the Federalist speeches in Congress, with a pa.s.sage here and there of the usual Federalist denunciation. For instance, the _Columbian Centinel_, after restating the argument against the Repeal Act, thought that this "refutes all the absurd doctrines of the Jacobins upon that subject, ... and it will be sooner or later declared by the people, in a tone terrible to the present disorganizing party, to be the true construction of their const.i.tution, and the only one compatible with their safety and happiness."[306]

The _Independent Chronicle_, on the other hand, was exultant. After denouncing "the impudence and scurrility of the Federal faction," a correspondent of that paper proceeded in this fas.h.i.+on: "The Judiciary!

The Judiciary! like a wreck on Cape Cod is das.h.i.+ng at every wave"; but, thank Heaven, "instead of the 'Ess.e.x Junto's' Judiciary we are sailing by the grace of G.o.d in the Was.h.i.+ngton _Frigate_--our judges are as at first and Mr. Jefferson has thought fit to practice the old navigation and steer with the same compa.s.s by which _Admiral Was.h.i.+ngton_ regulated his log book. The Ess.e.x Junto may be afraid to trust themselves on board but every true Was.h.i.+ngton American will step on board in full confidence of a prosperous voyage. Huzza for the _Was.h.i.+ngton Judiciary_--no windows broke--no doors burst in--free from leak--tight and dry."[307]

Destiny was soon again to call John Marshall to the performance of an imperative duty.

FOOTNOTES:

[146] The Senate then met in the chamber now occupied by the Supreme Court.

[147] See _infra_, chap. III.

[148] Jefferson to Congress, Dec. 8, 1801, _Works_: Ford, IX, 321 _et seq._; also _Messages and Papers of the Presidents_: Richardson, I, 331.

[149] Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: _Economic Origins of Jeffersonian Democracy_, 454-55.

[150] For full text of this exposition of Const.i.tutional law by Jefferson see Appendix A.

[151] Ames to King, Dec. 20, 1801, King, IV, 40.

Like most eminent Federalists, except Marshall, Hamilton, and Cabot, Fisher Ames was soon to abandon his Nationalism and become one of the leaders of the secession movement in New England. (See vol. IV, chap. I, of this work.)

[152] See vol. II, 531, 547-48, 550-52, of this work.

[153] _Journal of Samuel Maclay_: Meginness, 90.

[154] _Annals_, 1st Cong. 1st Sess. 862.

[155] _Ib._ 852.