The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah
accept the situation as an accomplished fact.293 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.294
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 pronounce the repealing law void?"295
Nicholson did not care whether the Supreme Court "pronounced the repealing law unconstitutional 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."296
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."297
Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconstitutional. "This act is not designed to amend the Judicial system," he asserted; "that is but pretense… It is to prevent that court from expressing their opinion upon the validity of the act lately passed … 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?"298
But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Court of the United States was practically abolished for fourteen months.299
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 Assumption Bill.300
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 Massachusetts 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."301 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."302
Pickering, the truculent, brave, and persistent, anticipated "a new confederacy… There will be – and our children at farthest will see it – a separation… The British Provinces, even with the assent of Britain, will become members of the Northern Confederacy."303
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."304 But for once Cabot was wrong; the Republicans were jubilant and hastened to press their assault more vigorously than ever.
The Federalist newspapers teemed with long arguments against the repeal and laboriously strove, in dull and heavy fashion, to whip their readers into fighting humor. These articles were little more than turgid repetitions of the Federalist speeches in Congress, with a passage 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 constitution, and the only one compatible with their safety and happiness."305
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 fashion: "The Judiciary! The Judiciary! like a wreck on Cape Cod is dashing at every wave"; but, thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing by the grace of God in the Washington Frigate– our judges are as at first and Mr. Jefferson has thought fit to practice the old navigation and steer with the same compass by which Admiral Washington regulated his log book. The Essex Junto may be afraid to trust themselves on board but every true Washington American will step on board in full confidence of a prosperous voyage. Huzza for the Washington Judiciary– no windows broke – no doors burst in – free from leak – tight and dry."306
Destiny was soon again to call John Marshall to the performance of an imperative duty.
CHAPTER III
MARBURY VERSUS MADISON
To consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy. (Jefferson.)
The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty. (Marshall.)
To have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it – this is an achievement of statesmanship which a thousand years may not exhaust or reveal all that is good. (Rufus Choate.)
"My dearest Polly
"You will laugh at my vexation when you hear the various calamaties that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained & sought their liberty in the sands of Carolina.
"I determined not to vex myself with what coud not be remedied & orderd Peter to take out my cloaths that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, staring at vacancy, & sweating most profusely he turned to me with the doleful tidings that
They never occupied the bench under the Federalist Act of 1801. They were appointed, but the swift action of Jefferson and the Republicans prevented them from entering upon the discharge of their duties.
This case was before the Supreme Court in December, 1801, and, ordinarily, would have been decided at the next term, June, 1802.
See vol. ii, 62, of this work.
Ames to Gore, Dec. 13, 1802, Ames, i, 310.
Pickering to Peters, Dec. 24, 1803,
Cabot to King, March 27, 1802, King, iv, 94.
"Bowling" in the