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

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

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

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420.) Jay had hesitated to accept the office as Chief Justice when Washington tendered it to him in 1789, and he had resigned it gladly in 1795 to become the Federalist candidate for Governor of New York.

Washington offered the place to Patrick Henry, who refused it. (See Henry: Patrick Henry – Life, Correspondence and Speeches, ii, 562-63; also Tyler, i, 183.) The office was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton: State Trials, 33.) So little was a place on the Supreme Bench esteemed that John Rutledge resigned as Associate Justice to accept the office of Chief Justice of the Supreme Court of South Carolina. (Ib. 35.)

Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal, iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams, i, 290.) Edmund Randolph, when Attorney-General, deplored the weakening of the Supreme Court, and looked forward to the time when it should be strengthened. (Randolph to Washington, Aug. 5, 1792, Writings of George Washington: Sparks, x, 513.)

The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton in John Marshall – Life, Character and Judicial Services: Dillon, i, 198-99.) When the seat of government was transferred to Washington, the court crept into an humble apartment in the basement beneath the Senate Chamber.

350

New York Review, iii, 347. The article on Chief Justice Marshall in this periodical was written by Chancellor James Kent, although his name does not appear.

351

See vol. iv, chap. ix.

352

See Tilghman to Smith, May 22, 1802, Morison: Smith, 148-49.

"A general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. It is not descrete to say more at present." (Bayard to Bassett, April 19, 1802, Bayard Papers: Donnan, 153.)

353

See "Protest of Judges," American State Papers, Miscellaneous, i, 340.

Writing to Wolcott, now one of the displaced National circuit judges (Wolcott's appointment was secured by Marshall; see vol. ii, 559, of this work), concerning "the outrage committed by Congress on the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge: Cabot, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to Congress." He considered this to be "a manifest duty" of the judges, and gave Wolcott the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802, ib. 327-28.)

A proposition to submit to the Supreme Court the constitutionality of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 2d Sess. 439.)

354

See infra, 130, 131.

355

See supra, 110.

356

Marshall to James M. Marshall, March 18, 1801, MS.

357

February, 1803.

358

Jefferson to Johnson, June 12, 1823, Works: Ford, xii, footnote to 256.

359

See 1 Cranch, 137-80.

360

Section 13 provided, among other things, that "the Supreme Court … shall have power to issue writs of prohibition to the district courts … and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." (U.S. Statutes at Large, i, 73; Annals, 1st Cong. 2d Sess. 2245.)

361

See supra, 53-54.

362

See Dougherty: Power of the Federal Judiciary over Legislation, 82.

Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by analogy, recognized the validity of it. (Corwin, 8-9.)

363

U.S. vs. Ravara, 2 Dallas, 297.

364

U.S. vs. Lawrence, 3 Dallas, 42.

365

U.S. vs. Peters, ib. 121.

366

In the argument of Marbury vs. Madison, Charles Lee called Marshall's attention to the case of U.S. vs. Hopkins, in the February term, 1794, in which a motion was made for a mandamus to Hopkins as loan officer for the District of Virginia, and to the case of one John Chandler of Connecticut, also in February, 1794, in which a motion was made in behalf of Chandler for a mandamus to the Secretary of War. These cases do not seem to have been reported, and Lee must have referred to manuscript records of them. (See 1 Cranch, 148-49.)

Samuel W. Dana of Connecticut also referred to the Chandler case during the Judiciary debate in the House, March, 1802. (See Annals, 7th Cong. 1st Sess. 903-04.)

367

1 Cranch, 308.

368

Stuart vs. Laird, 1 Cranch, 309.

369

The next case in which the Supreme Court overthrew an act of Congress was that of Scott vs. Sandford – the famous Dred Scott case, decided in 1857. In this case the Supreme Court held that Congress had no power to prohibit slavery in the territory purchased from France in 1803 (the Louisiana Purchase), and that the Act of March 6, 1820, known as the Missouri Compromise, was unconstitutional, null, and void. (See Scott vs. Sandford, 19 Howard, 393 et seq.)

370

The President can veto a bill, of course, on the ground of unconstitutionally; but, by a two thirds vote, Congress can pass it over the Executive's disapproval.

371

Carson, i, 203; and see especially Adams: U.S. i, 192.

372

1 Cranch, 154.

373

This seems to have been inaccurate. Compare Lee's argument with Marshall's opinion.

374

1 Cranch, 158.

375

1 Cranch, 160.

376

Ib. 162.

377

Ib. 163.

378

Ib. 164.

379

Ib. 165.

380

1 Cranch, 166-68.

381

Ib. 169.

382

1 Cranch, 170.

383

Ib. 173.

384

1 Cranch, 174.

385

In all "other cases … the Supreme Court shall have appellate jurisdiction … with such exceptions … as the Congress shall make."

386

Ib. 174. (Italics the author's.)

387

1 Cranch, 176. This particular part of the text adopts Professor Edward S. Corwin's careful and accurate analysis of Marshall's opinion on this point. (See Corwin, 4-10.)

388

1 Cranch, 176.

389

Ib. 176-77.

390

1 Cranch, 177.

391

Ib. 178.

392

1 Cranch, 178-80.

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