The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah
exports," and "the citizen refuses to pay." If the Republicans were right, the courts would enforce a collection. In vain would the injured citizen appeal to the Supreme Court; for Congress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." According to the Republican doctrine, "the moment the Legislature … declare themselves supreme, they become so … and the Constitution is whatever they choose to make it."206 This time Morris made a great impression. The Federalists were in high feather; even the Republicans were moved to admiration. Troup reported to King that "the democratical paper at Washington pronounced his speech to be the greatest display of eloquence ever exhibited in a deliberative assembly!"207
Nevertheless, the Federalist politicians were worried by the apparent indifference of the rank and file of their party. "I am surprized," wrote Bayard, "at the public apathy upon the subject. Why do not those who are opposed to the project, express in the public papers or by petitions their disapprobation?.. It is likely that a public movement would have great effect."208 But, thanks to the former conduct of the judges themselves, no "public movement" developed. Conservative citizens were apprehensive; but, as usual, they were lethargic.
On February 3, 1802, the Senate, by a strictly party vote209 of 16 to 15, passed the bill to repeal the Federalist Judiciary Act of 1801.210
When the bill came up in the House, the Federalist leader in that body, James A. Bayard of Delaware, moved to postpone its consideration to the third Monday in March, in order, as he said, to test public opinion, because "few occasions have occurred so important as this."211 But in vain did the Federalists plead and threaten. Postponement was refused by a vote of 61 to 35.212 Another plea for delay was denied by a vote of 58 to 34.213 Thus the solid Republican majority, in rigid pursuance of the party plan, forced the consideration of the bill.
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
Troup to King, April 9, 1802, King, iv, 103.
Bayard to Bassett, Jan. 25, 1802,
Except Colhoun of South Carolina, converted by Tracy. See
See vol. ii, 532, 541.
Henderson in
See
See
See, for example, the speeches of Thomas Morris of New York (
Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him (Giles) the ablest debater of the age." His speech on the Repeal Act, Grigsby declares to have been "by far his most brilliant display." (Grigsby:
Anderson, 76-82.
See
This statement, coming from the Virginia radical, reveals the profound concern of the Republicans, for Giles thus declared that the Judiciary debate was of greater consequence than those historic controversies over Assumption, the Whiskey Rebellion, the Bank, Neutrality, the Jay Treaty, the French complication, the army, and other vital subjects. In most of those encounters Giles had taken a leading and sometimes violent part.
Story's description of Giles six years later: Story to Fay, Feb. 13, 1808, Story, i, 158-59. Also see Anderson, frontispiece and 238.
Giles was thirty-nine years of age. He had been elected to the House in 1790, and from the day he entered Congress had exasperated the Federalists. It is an interesting though trivial incident that Giles bore to Madison a letter of introduction from Marshall. Evidently the circumspect Richmond attorney was not well impressed with Giles, for the letter is cautious in the extreme. (See Anderson, 10; also