FOOTNOTES:
[308] Marshall to his wife, Jan. 2, 1803, MS.
[309] See vol. ii, 502-05, of this work.
[310] Marshall to King, May 5, 1802, King, iv, 116-18.
[311] Since the adoption of the Kentucky and Virginia Resolutions in 1798. (See vol. ii, chaps. x, xi, xii, of this work.)
[312] Since the Republican repeal of the Federalist Judiciary Act was proposed. See supra, 51.
[313] Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island.
[314] The Federalist majority in Vermont resolved that: "It belongs not to State Legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the Judiciary Courts of the Union." (Records of Governor and Council of Vermont, iv, 529.)
The Federalist majority in the Maryland Legislature asserted that "no state government ... is competent to declare an act of the federal government unconstitutional, ... that jurisdiction ... is exclusively vested in the courts of the United States." (Anderson, in Am. Hist. Rev. v, 248.)
The New York Federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by Congress ... appertains to the judiciary department." (Ib. 248-49.)
Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." (Ib. 247.)
In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration. (Ib. 246.)
The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (Anderson, in Am. Hist. Rev. v, 245.)
On February 8, 1799, Massachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." (Mass. Senate Journal, 1798-99, xix, 238, MS. volume Mass. State Library.)
Such was the general tenor of the Federalists' pronouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown.
The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic assertions that any State might declare an act of Congress unconstitutional and disregard it, and that the National Judiciary did not have supervisory power over legislation.
[315] See vol. ii, 387-89, of this work.
[316] Referring to Marshall's conduct in the French Mission. (See vol. ii, chaps. vii, viii, ix, of this work.)
[317] Anderson, in Am. Hist. Rev. v, 249.
[318] Ib. 235-37.
[319] The questions raised by the Kentucky and Virginia Resolutions were principal themes of debate in State Legislatures, in the press, in Congressional campaigns, and in the Presidential contest of 1800. The Judiciary debate of 1802 was, in part, a continuance of these popular discussions.
[320] See supra, 52.
[321] Within a year after Marbury vs. Madison was decided, Albert Moore, one of the Federalist Associate Justices of the Supreme Court, resigned because of ill health and his place was filled by William Johnson, a Republican of South Carolina.
[322] See vol. i, 410, of this work.
[323] March 2, 1801.
[324] Journal of the Executive Proceedings of the Senate, i, 388.
[325] Ib. 390.
[326] Ib. 404. Jefferson did this because, as he said, the appointees of Adams were too numerous.
[327] Journal, Exec. Proc. Senate, i, 417.
[328] See supra, 94-97.
[329] See infra, chap. iv.
[330] This belief is strikingly shown by the comment of the Republican press. For example, just before Marshall delivered his opinion, a correspondent of the Independent Chronicle of Boston sent from Washington this article:
"The efforts of federalism to exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the Judiciary.
"Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party passions and prejudices.
"The attempt of the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments.
"The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But our Republican frame of Government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments.
"The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions of federal monarchists and aristocrats to the contrary notwithstanding." (Independent Chronicle, March 10, 1803.)
Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in the Chronicle was probably sent while Marbury vs. Madison was being argued.
[331] Dodd, in Am. Hist. Rev. xii, 776. Under the law Marshall's successor must come from Virginia or North Carolina.
[332] As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assailed Marshall and his principles of Nationalism with unsparing rigor. (See vol. iv, chaps. iii, and vi, of this work.)
[333] For example, in Fletcher vs. Peck, Roane would have held that the National Courts could not annul a State statute; in Martin vs. Hunter's Lessees and in Cohen vs. Virginia, that the Supreme Court could not review the judgment of a State court; in McCulloch vs. Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Constitution, etc. All this we know positively from Roane's own writings. (See vol. iv, chaps. iii, vi, and vii, of this work.)
[334] It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin: Doctrine of Judicial Review, 10-11; Beard: Supreme Court and the Constitution, 16-18; McLaughlin: The Courts, the Constitution and Parties, 32-35.)
In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand, i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib. 109.)
On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)
Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib. ii, 93.)
George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib. 78.)
Gouverneur Morris of Pennsylvania—afterwards of New York—dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (Ib. 299.)
Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (Ib. i, 100-01.)
James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough"—the judges should also have "Revisionary power" to pass on bills in the process of enactment. (Ib. ii, 73.)
Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. (Ib. 76.)
John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." (Records, Fed. Conv.: Farrand, 298.)
John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (Ib. 299.)
Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (Ib. 298.)
The above is a condensed précis of all that was said in the Constitutional Convention on this vital matter.
[335] See vol. i, 452, of this work.
[336] The Virginia Resolutions.
[337] Address of the Minority, Jan. 22, 1799, Journal of the House of Delegates of Virginia, 1798-99, 90-95.
[338] Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington, Iredell: McRee, 293-96; and see letter of Jay to Washington, Aug. 8, 1793, Jay: Johnston, iii, 488-89.
[339] See supra, 40, footnote 1.
[340] Wharton: State Trials, 715-18.
[341] Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 31-32.
[342] Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 14-15. (Italics the author's.)
[343] For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.
[344] For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.
[345] See vol. i, 323, of this work.
[346] See Records Fed. Conv.: Farrand, i, Introduction, xii.
[347] Elliot's Debates were not published until 1827-30.
[348] Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.
[349] The Federalist: Lodge, 485-86. Madison also upheld the same doctrine. Later he opposed it, but toward the end of his life returned to his first position. (See vol. iv, chap. x, of this work.)
[350] John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (See supra, 55.) The first Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife, Jay: Johnston, iii, 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.
[351] 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.
[352] See vol. iv, chap. ix.
[353] 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.)
[354] 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.)
[355] See infra, 130, 131.
[356] See supra, 110.
[357] Marshall to James M. Marshall, March 18, 1801, MS.
[358] February, 1803.
[359] Jefferson to Johnson, June 12, 1823, Works: Ford, xii, footnote to 256.
[360] See 1 Cranch, 137-80.
[361] 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.)
[362] See supra, 53-54.
[363] 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.)
[364] U.S. vs. Ravara, 2 Dallas, 297.
[365] U.S. vs. Lawrence, 3 Dallas, 42.
[366] U.S. vs. Peters, ib. 121.
[367] 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.)
[368] 1 Cranch, 308.
[369] Stuart vs. Laird, 1 Cranch, 309.
[370] 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.)
[371] 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.
[372] Carson, i, 203; and see especially Adams: U.S. i, 192.
[373] 1 Cranch, 154.
[374] This seems to have been inaccurate. Compare Lee's argument with Marshall's opinion.
[375] 1 Cranch, 158.
[376] 1 Cranch, 160.
[377] Ib. 162.
[378] Ib. 163.
[379] Ib. 164.
[380] Ib. 165.
[381] 1 Cranch, 166-68.
[382] Ib. 169.
[383] 1 Cranch, 170.
[384] Ib. 173.
[385] 1 Cranch, 174.
[386] In all "other cases ... the Supreme Court shall have appellate jurisdiction ... with such exceptions ... as the Congress shall make."
[387] Ib. 174. (Italics the author's.)
[388] 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.)
[389] 1 Cranch, 176.
[390] Ib. 176-77.
[391] 1 Cranch, 177.
[392] Ib. 178.
[393] 1 Cranch, 178-80.
[394] See vol. i, 323, of this work.
[395] It must be borne in mind that the American Constitution declares that, in and of itself, it is law—the supreme law of the land; and that no other written constitution makes any such assertion.
[396] See infra, chap. iv.
[397] Jefferson to Mrs. Adams, Sept. 11, 1804, Works: Ford, x, footnote to 89.
[398] See infra, chap. viii.
[399] Jefferson to Jarvis, Sept. 28, 1820, Works: Ford, xii, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798, ib. viii, 448.)
[400] Jefferson to Gallatin, July 12, 1803, Works: Ford, x, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.
[401] See Channing: U.S. iv, 313-14.
[402] Talleyrand to Decrès, May 24, 1803, as quoted in Adams: U.S. ii, 55.
[403] Morison: Otis, i, 262; see also Adams: U.S. ii, 56.
[404] See instructions to Livingston and Monroe, Am. State Papers, Foreign Relations, ii, 540.
[405] Adams: U.S. i, 442-43.
[406] Ib. ii, 120-28.
[407] Works: Ford, x, 3-12.
[408] American Insurance Company et al. vs. Canter, 1 Peters, 511-46, and see vol. iv, chap. iii, of this work.
[409] See U.S. Statutes at Large, ii, 283; and Annals, 8th Cong. 2d Sess. 1597.
[410] For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)
[411] Jefferson to Nicholas, Sept. 7, 1803, Works: Ford, x, 10.
[412] Jefferson to Breckenridge, Aug. 12, 1803, ib. 7.
[413] Jefferson to Madison, Aug. 18, 1803, ib. 8.
[414] "The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800, ib. ix, 129; and see Adams: U.S. iii, 147.)
[415] "The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803, Life of the Late Gen. William Eaton: Prentiss, 263; also quoted in Adams: U.S. ii, 431.)
[416] Cabot to King, July 1, 1803, King, iv, 279. The Louisiana Purchase was first publicly announced through the press by the Independent Chronicle of Boston, June 30, 1803. (Adams: U.S. ii, 82-83.)
[417] Ames to Gore, Oct. 3, 1803, Ames, i, 323-24.
[418] Tracy to McHenry, Oct. 19, 1803, Steiner: Life and Correspondence of James McHenry, 522.
[419] Oct. 20, 1803, Plumer, 285.
[420] Ames to Dwight, Oct. 26, 1803, Ames, i, 328.
[421] Reeve to Tracy, Feb. 7, 1804, N.E. Federalism: Adams, 342; and see Adams: U.S. ii, 160.
Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to associate with one another. (Plumer, 245, 336.)
[422] Pickering to Cabot, Jan. 29, 1804, Lodge: Cabot, 338.
[423] Griswold to Wolcott, March 11, 1804, N.E. Federalism: Adams, 356.
[424] Morse to Plumer, Feb. 3, 1804, Plumer, 289.
[425] Plumer to Morse, March 10, 1804, ib.
[426] Cabot to King, March 17, 1804, Lodge: Cabot, 345.
[427] See Morison: Otis, i, 262.
[428] Jefferson to Ritchie, Dec. 25, 1820, Works: Ford, xii, 177.
[429] For instance, in 1808, the United States District Court of Massachusetts, in the decision of a case requiring all possible precedents like that of Marbury vs. Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marbury vs. Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citing Am. Law Journal, old series, ii, 255-64.)
Marshall's opinion in Marbury vs. Madison was first referred to by counsel in a legal controversy in Ex Parte Burford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and see infra, chap. vii). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.
A year later Marshall's opinion in Marbury vs. Madison was cited by Jefferson's Attorney-General, Cæsar A. Rodney. In the case Ex Parte Gilchrist et al. vs. The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.
Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marbury vs. Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (see infra, chaps. vii, viii, ix) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marbury vs. Madison. He did not even answer Rodney's letter.