CHAPTER VI.
Glance at the General Subject as heretofore discussed in this Essay—One important Topic not yet touched upon, viz.: the Effort that has been made to secure to the Judicial Department a Superior Controlling and Dangerous Power over the Executive and Legislative Departments—The constant Aim of the leading Federalists to give undue Influence to one of the Three Great Departments—The Judicial not the Department originally preferred by Hamilton as the Depository of this Power—How that Department came to be selected for that Purpose—The Election of Jefferson the Overthrow of the Federalists in the Executive and Legislative Departments—Efforts of the latter to retain Control of the Judicial Department—Character and Career of Chief Justice Marshall—His Efforts to control the Action of the Executive by Mandamus—Resistance by Jefferson—Account of the Proceeding by Mandamus against the Secretary of State, Madison—Opinion of the Court in Marbury v. Madison—Merits and Result of the case—Jurisdiction of the Supreme Court under the Constitution—Great Addition to its Power conferred by the Judiciary Act of 1789—Encroachment by the Federal Judiciary upon the Jurisdiction of State Courts, the Distinct Policy of the Federalists—Popular Respect for the Court and Judges favorable to the Success of that Policy—Jefferson directed the Resistance which was made to Orders of the Supreme Court, in Marbury v. Madison—His Action sustained by Congress and approved by the People—The Federalists hesitate and abandon their Attempt to carry the Encroachment they had undertaken in the Case of Marbury v. Madison—High Character of Marshall.
I have proceeded thus far in my endeavor to search out the origin, trace the progress, and define the principles of political parties in the United States. To accomplish these objects the measures they have from time to time advocated have been brought into view; opinions they have advanced partially discussed, and the means that have been employed to make them effectual considered.
The general subject, considering the interest and the importance attached to it in several aspects, has been but little canvassed, and is at best but imperfectly understood. The most important points put in issue, so far as they have arisen out of principles advanced or pretenses set up by either party prior to the election of 1800, have, it is believed, been fully, and, it is hoped, fairly presented. Here, on account of the unforeseen extent to which the subject has grown upon my hands, it would be my wish to dismiss it and to resume the thread of my Memoirs at the point at which I left it for the consideration of what I then regarded as incidental matter. To do so has been my intention through the last two hundred pages of my manuscript. But, at the stage to which I had looked as the termination of this branch of my labors, I am met by the reflection that in all I have said in respect to the doctrines, theories, and acts of parties, I have not even touched upon a great principle subsequently advanced for the action of the Federal Government, which, for reasons that will be seen and appreciated as we proceed, is of equal interest, and which, from considerations of recent application, is perhaps of more urgent importance than those upon which my attention has been bestowed.
I allude to the effort which has been made to secure to one of the three great departments of the Government—the judicial—a superior and controlling power over its departmental associates, the executive and the legislative, all of which were designed by the Constitution to be coördinate, and, in respect to their relative powers, independent of each other. This pretension, though successfully discouraged at its origin, instead of sharing the fate of other constitutional heresies which sprang from the same source, has been revived with increased earnestness at critical periods, and at this time seems to threaten to exert a dangerous influence upon our political system.
I have not noticed it before, because it was not set up until after the great struggle of 1800, and was thus separated from the questions which originated under the previous administration, most of which have been agitated to the present day, and because the period of its most imposing if not its first introduction into the political arena, unconnected with judicial proceedings,—that of President Jackson's veto against the passage of the Bank Bill,—occurred at a later period than that to which my account of political movements has been brought in my Memoirs.
It has from the beginning been the constant aim of the leading Federalists to select some department, or some nook or corner in our political system, and to make it the depository of power which public sentiment could not reach nor the people control. The judicial was not the department which Hamilton deemed the best adapted to that end, and his opinion upon such points seldom failed to become that of his party. He liked the judiciary as well on account of its being the only branch of the Government that was constituted, in regard to the tenure of office, upon the principles he preferred, and which he had proposed in the Convention for other offices also, as on account of its usefulness in protecting the rights of persons and property against vicious legislation or lawless violence. But regarding the exercise of its powers in no other light than through its judgments in cases "in law and equity" that were brought before it by parties litigant, the only sense in which they were regarded by the framers of the Constitution, he thought it too weak a department for his purpose. This was nominally to influence, but really to control, the action of the public mind—an object which, he never hesitated to declare, could only be effected by appeals to the interests or the fears of the people, and the judicial power did not possess the means to make either effectual. This opinion of the weakness of the judicial power he frequently avowed, and particularly in the 78th No. of the "Federalist." The judiciary, he there said, "was incontestibly the weakest of the three departments of power;"—that "though individual oppression might now and then proceed from the courts of justice, the general liberty of the people could never be endangered from that quarter;"—that it had "no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty." In support of these views he cited Montesquieu, who, speaking of them says: "Of the three powers above mentioned, the Judiciary is next to nothing." Thus regarding the judicial department, Hamilton selected the executive and legislative as those best adapted to his purposes. Of the means which those departments possessed he spoke in the same number of the "Federalist" in the following strain: "The executive not only dispenses the honors, but holds the sword of the community; the legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated." These were the departments, through the instrumentality of which, invigorated as he designed to invigorate them by his construction of the Constitution, he hoped to make ours a practicable government. Sustained by a Congress, a majority of whom stood ready to follow his lead, and by the almost unbounded confidence of the executive, he for a season carried out his plans with great success, and enjoyed that momentary confidence which produced his jubilant remark to Mr. Jefferson.
But he soon found that, like the scriptural foolish man, he had built his house upon the sand, and the rain descended and the floods came and the winds blew, and it fell. Within the short period that he remained in the Government, some of the measures that he had brought into existence were already discredited by an offended public sentiment, and toward the close of Mr. Adams' administration—one still guided by his superintending genius—the political fabric which he had created was, by the same power, blown into atoms. It was this great overthrow that brought home to him the unwelcome conviction that other constitutional foundations than those which the Federal Convention, the people, and the States had laid, no man, without the same aid, could lay. It presented to his mind, under circumstances the most impressive, a truth which he had overlooked in the eagerness of his pursuit after power, viz., that the people were enabled by the popular provisions of the Constitution in respect to the executive and legislative departments, to break down the greater part of such structures as those which he had reared, by dismissing from their places those who had assisted in their construction, and substituting others, who, knowing their wishes, would feel it their interest to respect them; and what was passing before his eyes afforded the most reliable evidence that they would not be slow in the exercise of the rights that belonged to them. This was the handwriting on the wall that foretold the fate of all his plans, and called forth, during the brief period of his subsequent existence, his continued denunciation of the Constitution as "a frail and worthless fabric."
It was at the moment of this great disaster, when dismay prevailed in the Federal councils, whilst Hamilton was brooding over a defective Constitution which he knew the States would not alter to suit his wishes and which it was evident the people would not permit him to pervert, that the Federal party was conducted to the judicial department of the Government, as to an ark of future safety which the Constitution placed beyond the reach of public opinion. The man who planned this retreat was John Marshall—a statesman of great power, one who partook largely of Hamilton's genius, was better acquainted with the character of the people, and possessed more control over his own actions.
The period when this once powerful party was thus counseled and guided was one well calculated to cause its members to embrace the advice given to them with avidity. They had just been expelled, root and branch, from those departments of the government which the Constitution had made accessible to public opinion and subject to the voice of the people; whilst over that to which they were recommended to extend their preference and favor, the people possessed but little if any control. This difference, so acceptable to their most cherished feelings, was besides greatly increased in value by the grossly irrational apprehensions under which they labored in regard to the course of the President elect and to the dispositions of the party by which he had been elevated to power. That he participated largely in the feelings and views of the Jacobins of France, and was prepared for the introduction of their opinions and practices in this country; that religion, the rights of persons and property, and all the interests which are regarded as sacred under well regulated governments, were put in jeopardy by his election, were opinions to which there were but few dissentients in the Federal ranks. I have elsewhere referred to a letter, written during the then recent canvass by Hamilton to Washington, in which he avowed in the most solemn and deliberate manner his conviction that the Republican party desired to make our Government subservient to the policy of that of France, and would, in all probability, rally under her banner if it was unfurled in force on our shores. Similar sentiments were fulminated from pulpit and press; and there are yet, here and there, living witnesses, who will not partake of the surprise this description of the then condition of the public mind is calculated to excite on the part of the present generation because they know it to be true, and yet remember how often and with what solemnity the warning was uttered from sacred desks that Jefferson's election would be the signal for the prostration of our pulpits, the burning of our Bibles, and the substitution of some Goddess of Reason.
The promises of the mild sway of reason and justice, installed and enforced by that great statesman, with no other limitation than the removal from office of factious incumbents whose violence was calculated to obstruct the successful action of the principles he was elected to sustain, and the revocation of judicial trusts created in the last moments of a power already condemned by the people, and which were designed to counteract their will—a sway which bore upon its wings the repeal of odious taxes, the reduction of superfluous expense, the payment of the public debt, and the avoidance of all unnecessary public burdens, with a zealous concern for the rights of the States as well as for those of individuals,—made impressions upon the public mind in favor of the principles upon which it was founded, which now, after the lapse of more than half a century, are as fixed and as powerful as they were then; but at the time were scouted by Federal leaders and presses as false pretences designed to deceive the people and to clear the way for destructive changes.
Under such impressions the first object of solicitude on the part of the Federalists was to strengthen the existing organization of the judiciary by increasing the number of its tribunals and those employed in its administration, and thus to place it before the country in a more imposing attitude; and the second to enlarge its powers beyond the bounds intended to be assigned to them by the Constitution. To accomplish the first object they resorted to a stretch of power which now, when the feelings it excited have long since died away and the actors concerned in it have without exception descended to their tombs, will not, I feel confident, find a justification in the breast of a single upright man, whatever disposition he may entertain to excuse it on account of the violence of public feeling prevalent at the time.
After the fiat of the people had pronounced the absolute expulsion from office of the Federal executive within a brief and fixed period, and virtually that of the Federal party from power, they availed themselves of the remnant of authority unavoidably left to them by the forms of the Constitution to establish new courts, embracing within the jurisdiction assigned to them all the States of the Confederacy, and the district which had been set apart for the seat of the Federal Government; appointed three judges for each court, to hold their offices nominally during good behavior, virtually for life, with liberal salaries,—making in all twenty-one judges, besides clerks, etc.,—all designed to be placed beyond the power of the government that had been selected by the people to succeed them. Thus, much was done toward the accomplishment of their first object. The enlargement of the judicial power of the department was to be effected by a different process.
Among the "midnight appointments" by President Adams, (a stigma attached to them at the time, and from which they have never been rescued,) were forty-two magistrates, nominated for the District of Columbia. The list, though containing many highly respectable names, was in the main made up of opponents of the President elect, not a few of them strongly imbued with the partisan furor of the day. They were to hold their offices for a period extending beyond that for which the President himself was elected, and it was upon their coöperation Mr. Adams and his cabinet intended that his successor should be mainly dependent for the discharge of the high duty imposed upon him by the Constitution—that of causing the laws to be executed in the Federal District. The nominations were sent to the Senate on the second of March, confirmed during the night of the third, and Mr. Jefferson entered upon the duties of his office the next morning. The commissions were found on the table in the State Department with its seal attached, signed by President Adams, and if signed also by a Secretary it must have been by a locum tenens, as Mr. Marshall had some days before been transferred from the office of Secretary of State to that of Chief Justice of the Supreme Court of the United States. The commissions had not been delivered,—an act which Mr. Jefferson, as the head of the executive department of the Government, decided to be necessary to the completion of the appointment. Under such circumstances, and, doubtless, stung by the ungraciousness of the treatment he had received, he directed that the commissions should neither be recorded nor delivered, but treated as nullities. Believing the number far too large, he issued new commissions during the recess to twenty of those selected by Mr. Adams and to five others designated by himself, nominated them to the Senate at its next session, by which body they were confirmed.
This transaction furnished the desired occasion to apply the opening wedge for the enlargement of the judicial power of the Federal Government, and it was promptly and fully embraced through the proceedings that were had in the celebrated case of Marbury and Madison. The judges of the Supreme Court were to a man Federalists, and at the head of them stood, as chief justice, President Jefferson's persevering and consistent old political antagonist—John Marshall.
The Chief Justice may not have been the severest student or the most learned lawyer, but he was certainly, all things considered, the ablest judge that had ever occupied a seat upon the bench of the Supreme Court of the United States. No man was ever more rigidly just or strictly impartial in all cases of meum and tuum that were brought before him for adjudication. Under a disposition the most genial, and a childlike simplicity and frankness of manner he cherished during his whole life, as all his race have done, Federal principles and Federal prejudices of the most ultra character. These, though ordinarily kept in due check by a commendable and exemplary self-command,—a virtue he shared with, if he had not in some degree imbibed it from, his friend and neighbor, General Washington,—had nevertheless been warmed by the circumstances of the moment to a high temperature. The inducements by which he was almost forced into public life by the General, shortly before the death of the latter, have been narrated in the account I have given of my conversation with his nephew, Judge Washington, at Mount Vernon.[32] Unhappily impressed with the idea that his own as well as the interests of the country depended upon the support of Mr. Adams' administration, General Washington for once, and fortunately only for a brief season, lent himself to partisan movements and used his controlling influence to induce Mr. Marshall to offer for Congress, and in no other case has the high estimate he formed of a man's capacity been more signally verified by the result. Marshall became at once, through the influence of a single speech of extraordinary power, a leader in the House of Representatives during the most stormy period of the administration of John Adams, was subsequently appointed Secretary of War and Secretary of State by Mr. Adams, and held the latter office until his party, and the administration with it, were overthrown by the Republicans under the lead of Mr. Jefferson. He was then transferred by Mr. Adams to the place of Chief Justice. Other circumstances lent their influence to infuse ill-will into the personal relations of Jefferson and Marshall. They were natives of the same State, and although they had stood as Whigs side by side in the Revolution, the political principles maintained by Mr. Jefferson, after the establishment of our Independence, were so much more in harmony with those of Virginia as to place Marshall's views ever after under the ban of her opinion, notwithstanding the qualified sanction they received front General Washington. On the part of Mr. Jefferson, the unfriendly feelings which he believed were entertained toward him by the Chief Justice were, for him, quite earnestly reciprocated. This is shown by the following pointed extract from his letter to myself, in which, speaking of the alterations and other uses that had been made of his letter to Mazzei, he adds, "and even Judge Marshall makes history descend from its dignity and the ermine from its sanctity to exaggerate, to record, and to sanction this forgery."[33]
Mr. Jefferson, apprised that steps were being taken to bring his acts in respect to the commissions under the supervision of the Supreme Court, at once penetrated the design that lay behind the particular measure, and, with that moral courage that never deserted him, prepared to defend the department committed to his charge. The head of the State Department was advised, and the clerks instructed, to make themselves parties to no act which would justly be regarded as recognizing the authority of the court to meddle in the affair, and his views were, of course, faithfully carried out by Mr. Madison, as well as by the subordinates in the department. A motion was made at the December term of the court in 1801, for a rule requiring James Madison to show cause why a mandamus should not issue commanding him to deliver those commissions to the nominees. Notice of motion was served upon Mr. Madison, but he declined to appear. He was asked by the relator whether the commissions were signed and sealed, but declined to respond to such inquiries, as did also the officers of the department. Application was also made to the Secretary of the Senate for a certificate that the nominations had been confirmed, which was also refused. A resolution was offered in the Senate directing the Secretary of the Senate to give the certificate. It was laid upon the table and no further acted upon. Upon affidavits stating these facts, except the last, a rule was obtained requiring the Secretary to show cause why the mandamus should not be issued on a day certain, of which he took no notice. The court, notwithstanding, proceeded to an ex parte hearing. "Two clerks were summoned from the department as witnesses, who objected to be sworn because they were not bound to disclose any facts relating to the business or transactions of the office. The court ordered the witnesses to be sworn, and their testimony taken in writing; but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been Acting Secretary of State when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing. The Court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer that, nor was he obliged to state any thing which would criminate himself."[34]
The testimony that was given is not set forth in the report of the case.
The counsel for the relator argued the questions he presented for the consideration of the court in the following order, viz.:
1st. Whether the Supreme Court can award the writ of mandamus in any case.
2d. Whether it would lie to a Secretary of State in any case whatever.
3d. Whether in the present case the court may award a mandamus to James Madison, Secretary of State.
The point involving the question of jurisdiction was, according to the invariable course of legal proceeding, the first in order of consideration, upon the plain and simple principle that if the court have no right to act definitively in the matter there is neither use nor propriety in considering even, and much less in making a decision upon, the merits of the case. That belongs to the tribunal that possesses jurisdiction. No point was clearer than the want of jurisdiction on the part of the Supreme Court, and such it will be seen was the unanimous and unhesitating opinion of the court itself. The Constitution divides the jurisdiction conferred on that high tribunal into that which may be exercised as original, and that which shall only be appellate, and separates the two in terms which leave no room for misapprehension or mistake. The language of the Constitution is—"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction" both as to the law and fact, with such exceptions and under such regulations as Congress shall make. The motion before the court was clearly an original proceeding in a matter in which it confessedly had no original jurisdiction; so the court was obliged to say, and so it ultimately said.
A pretense was set up by the relator's counsel that the court might claim the desired authority under that part of the Judiciary Act providing necessary means to enforce its appellate jurisdiction, which, after specifying the cases in which such jurisdiction may be exercised, and pointing out the way in which it may be carried into effect, adds to the authority to issue writs of prohibition to the district courts in certain cases—"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." Now the plain intention of this clause of the sentence was to extend the right of issuing a mandamus, in the exercise of its appellate jurisdiction, to any subordinate authorities upon whom Congress might confer judicial power, whether that power was given to a court, or to a single officer not constituting a court according to the ordinary interpretation of that word. The commissioners subsequently appointed under the Fugitive Slave Act are officers of that description. To think otherwise is to suppose that the men who framed the Judiciary Act of 1789 designed by the terms they employed to give to the Supreme Court original jurisdiction in cases in which it was denied to it by the Constitution—a design too absurd and too disingenuous to have found even a momentary resting-place in the minds of those great men. The court so far countenanced this interpretation as to assume, for the sake of the argument, that the words "or persons holding office," might embrace the case before it. But it immediately proceeded to disprove the assumption by saying, "It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be issued for that purpose that will must be obeyed. This is true; yet the jurisdiction must be appellate not original,"—and the court goes on to show that this proceeding would in no sense be regarded as an exercise of appellate jurisdiction; adding to that demonstrative refutation the declaration, that if the act would bear the interpretation given to it by the counsel, it would be directly contrary to the Constitution and therefore void. That the court had not the slightest right to do what it was asked to do, or to take original jurisdiction of the matter in any form, was a point upon which it expressed no doubt; and if it had decided the questions in the order in which they were presented by the relator's counsel, the necessity of dismissing the motion before coming to the consideration of the merits of the case would have been too imperative to be overcome.
Under these circumstances what was the course pursued by the Chief Justice, who gave the opinion of the court, and who alone of its members appears, in the report, to have taken part in the case? He reversed the order in which the relator's counsel had presented their client's case and substituted the following:—
1st. Has the applicant a right to the commission he demanded?
2d. If he has a right and that right has been violated, do the laws of his country afford him a remedy?
3d. If they do afford him a remedy, is it a mandamus from this court?
That the question of jurisdiction is always the first in order is a proposition too plain and too well-established to be discussed. It is not only a rule in our judicial system and in that from which ours has been derived, but must of necessity be a feature in every enlightened system of jurisprudence.
This order was observed by the counsel for the relator, but was so changed in the opinion of the court as to make the consideration of the merits precede the question of jurisdiction—an arrangement for which no good reason could be given, and for which therefore none was attempted to be given. The motive lay on the face of the transaction. It was the only way in which the court could avoid the necessity of saying that they had no jurisdiction over the subject before proceeding to discuss and decide upon its merits. It was to avoid, though in appearance only, this judicial deformity that the Chief Justice reversed the order of the questions, and then in an opinion, which occupies some twenty-six pages in Cranch's Reports,[35] he attempted to prove that the withholding of the commissions was an act not warranted by law, but a violation of a vested legal right which the court pronounced it to be; yet wound up with an admission that the court had no jurisdiction of the subject, and of course no right to act upon it.
If this statement is not in all respects true, then I do injustice to the Chief Justice and his associates, and the inferences I draw from it are to be turned not only from them but against myself. But if the matter, as described by the Chief Justice himself, stood in every respect as I have here narrated, then I insist—and I cannot, I am very sure, deceive myself in believing that every ingenuous mind, whatever may be its political bias, will concur with me in the position—that the course pursued by the Chief Justice and sanctioned by his associates was exceptionable in the highest degree. With the Constitution before them, it was entirely clear at the first introduction of the matter that they had no original jurisdiction of the subject, and could not, under any state of facts, comply with the application of the relator. The course should therefore have been, and doubtless under ordinary circumstances would have been, to direct the relator's counsel to confine their argument to that preliminary point and at its close, with the want of jurisdiction as apparent to the court as it proved to be, to have discharged the rule. But if the court had for any reason thought it desirable to hear the whole case, the same course should have been pursued when it came to their decision, and the merits of the case should have been left unacted upon. No end could be answered by an unauthorized decision on the merits, other than to show to the inferior tribunals what the Supreme Court would do if the case was brought before it on appeal; and that was the design attributed to the Chief Justice by Mr. Jefferson and severely reprobated. Such is not the way in which it is admissible for superior tribunals to treat such subjects; but if it could in any case be deemed excusable, it could never be so on an ex parte hearing. For myself I cannot, with equal and great respect for the principal actors, help regarding the proceedings, from the granting of the rule to show cause to the final decision, as exhibiting a culpable want of courtesy on the part of one of the three great departments of the Federal Government toward a coördinate member, at least equal in dignity and power, greatly aggravated by the political relations in which the President and the Chief Justice stood toward each other, and by the temper of the times in which they occurred.
I apply the remark to them individually, because Chief Justice Marshall was the principal, and seemingly the sole actor, in the proceedings on the part of the court, and because the retention of the commissions—the grievance those proceedings were designed to redress—was not merely an executive act, but one committed in pursuance of the specific direction of President Jefferson. This was always avowed by the latter, and the guarded manner in which the replies of Mr. Madison are stated in the report of the case is, to my mind at least, sufficient proof that the President was throughout considered and treated by the Chief Justice as the actual offender in the matter.
In respect to the soundness of the volunteer opinion of the court it would be superfluous, considering the fate that awaited it, to do more than to restate the question. This may certainly be done with more brevity and perhaps with equal distinctness.
It will not be denied that President Jefferson had the same power over the subject on the 4th March that Mr. Adams would have possessed if his term of office had not expired on the 3d. The President under our system, like the king in a monarchy, never dies. Let us then suppose that Mr. Adams, after he had signed the commission and caused the seal to be affixed to it, but before it had been recorded or delivered, had discovered that the appointee was a felon, or for any reason an obviously improper person to be made a conservator of the public peace, was he not authorized to withhold it? The appointment is made by the Constitution to consist of three acts—the nomination, the approval by the Senate, and the commissioning. The first and last devolve on the President. The signatures to them must necessarily be his own act; but Congress supplies him with a Secretary of State subject to his own directions, to do whatever else is necessary, viz.: to affix the seal to the commission; to record it; and to cause it to be delivered or transmitted to the appointee. The President is apprised of the impropriety of the appointment,—an act which the Constitution had devolved on him alone,—the commission is yet in his possession, for the office of Secretary of State is, for all such purposes, his office, and the question would not have been changed if the seal had been affixed at the President's House; can it be for a moment supposed that the Constitution intended that his power over the commission ceased the moment he attached his signature, or the Secretary the public seal, and that after that he had no right to arrest further proceedings, however strong his reasons for so doing? Can it be presumed that its framers intended to invest the President in the discharge of his responsible duty to "commission all the officers of the United States" with an authority so precise and technical? It is on all sides conceded that he is not bound to commission after the Senate has approved, but has still a right to withhold the commission at his pleasure; and it would be strange, indeed, if it was not intended to give him the power also to arrest its being put on record and delivered after he had signed it, if he saw good cause to do so. But it is not now important to weigh accurately the reasoning of the Chief Justice, which certainly partakes largely of the art and precision of special pleading; as the case was abandoned then, and no similar case has arisen for more than half a century. That the claim of Mr. Marbury and his associates, with ample facilities for its prosecution in the inferior tribunals within their reach, (Judge Cranch, the reporter of the case of Marbury v. Madison, a full believer in the judicial as well as the political infallibility of the Chief Justice, being the Federal judge in the District) should have been given up, after the determination with which it had been asserted, and the care and favor with which it had been considered and elaborated by the Chief Justice, would at the first blush seem not a little unaccountable. The fact of abandonment, in the absence of other explanation, would justify the inference that it was the result of a subsequent conviction that the proceedings were erroneous. But changes of opinion or disposition under such circumstances seldom arise, and the solution of their subsequent course is, I think, to be found in other considerations. The course pursued by the President afforded unmistakable evidence of his determination to resist at the threshold, and to the bitter end, the supervisory power of the judiciary over the other great departments of the Government, which was then for the first time sought to be introduced through the ex parte proceedings in the case of Marbury v. Madison.
With such a demonstration before them it became the Supreme Court and its supporters, before it committed itself more deeply in the attempt it had entered upon to control the action of the aroused democracy of the country represented in the executive and legislative departments of the Federal Government, to survey, with more care than had perhaps been hitherto used, the means of offense and defense with which the Constitution had invested each.
The result of such a scrutiny could not have failed to satisfy sensible men that the President elect, the new Senate, and the new House of Representatives,—who in their respective positions had frustrated the effort of the late President to subject his successor to a dependence during his entire official term, for the performance of a highly important part of his official duties in the Federal District, upon a magistracy not of his own selection, and had thus far also defeated an attempt, springing from the same spirit and upon an enlarged scale, to saddle the country with an uncalled-for and enormous addition to the existing judicial corps, clothed with extensive authority, and to all substantial purposes irresponsible to the people,—were also invested by the Constitution with ample power not only to defeat a new effort to carry into effect before the appropriate tribunal the hostile views indicated by the proceedings in the case of Marbury v. Madison, but to reduce the power and dignity of the Supreme Court itself to a standard far inferior to those it then possessed.
The Federal Constitution declares, that "all the appellate jurisdiction conferred on the Supreme Court shall in all cases be subject to such exceptions and under such regulations as Congress shall make." Thus by the words of the Constitution the whole subject is placed under the revision of Congress and is made subject to its action. If any attempt had been made to set up anew the importance that had been constructively attached, in the case of Marbury v. Madison, to the words "or persons holding office" in the Judiciary Act, that body would instantly have relieved that act and its authors from the preposterous aspersions which had been cast upon them.
But there was matter in the background of far greater moment.
The original jurisdiction of the Supreme Court was limited to cases affecting ambassadors and those in which a State was a party. This branch of its jurisdiction has, it is well known, occupied but little of the time of the court, and has been withal very unimportant either in its character or consequences. Deprived of the influence and éclat it has derived from the exercise of its appellate jurisdiction, the court would have stood as a pageant in the federal system of but little account for good or evil. With the addition of that obtained from appeals and writs of error from the inferior tribunals of the United States, its position before the country would still have been one of little consideration.
Both branches of the jurisdiction in these respects taken collectively, their results would not have been any thing like the power and influence and dignity which the Supreme Court of the United States derived from a single clause in the Judiciary Act of 1789, extending its appellate jurisdiction to the decisions of the State courts. The assemblage of cases for its application arrayed in that pregnant section, aided by the power derived from the construction given to the provision in the Federal Constitution prohibiting the passage of State laws violating the obligation of contracts—a provision always understood to have been introduced to prevent State obstructions to the collection of British debts, but now made to override the insolvent systems of the States, etc.,—gave the Supreme Court the supervision and control of the most valuable and hitherto the most cherished portion of the legislation and jurisprudence of the State governments. To secure this control was an object always near to Hamilton's heart. He attempted it openly in the Convention by his proposition for a negative upon State laws, etc. But in the hands of the court the control of the Federal Government over State legislation was equally effective, less likely to become obnoxious, and infinitely more secure; for if it had been placed, as he proposed, in the hands of the President, or of the President and Senate, or of Congress, it would still have been deposited in places accessible to the people, and at short and stated periods liable to be overruled by their will. But here it was in the only sanctuary in a republican government he deemed safe against popular inroads, and it was this provision in the Judiciary Act which, more than all other things combined, made that department—which Montesquieu described as next to nothing in point of power, and upon the weakness of which Hamilton, before the passage of that act, descanted so freely—the most formidable and overshadowing branch of the government. The section bears the impress of his mind, and if not the work of his pen was beyond all doubt the result of his suggestions. Hamilton was not a member then, but we have seen that he made speeches in Congress through another, and I have not a doubt that, if the truth could now be known, it would appear that but few things were said or done on one side, in either branch of that body, of which he did not make a part in some form. Is it not passing strange that not a word is to be found in the Constitution to authorize Congress to confer such a jurisdiction upon the Supreme Court? Can it be for a moment supposed that such a power,—one so nearly akin to the proposition to place a veto in the hands of the Federal Government upon State legislation, one so eminently calculated to alarm the State-rights party,—would have been allowed, if it had been by anybody believed to be in the Constitution, to pass the State Conventions sub silentio? What is said in the Constitution about the appellate jurisdiction of the Supreme Court is not only satisfied by referring it to the inferior courts which Congress were authorized to "ordain and establish," but is, by the terms employed, fairly confined to them. The place in the Constitution where the authority is given to establish inferior courts to exercise those parts of the judicial power of which no original jurisdiction was given to the Supreme Court, and which were to constitute the basis for the operation of that which was to be appellate only, would have been, one would suppose, the very place in which the authority to extend that jurisdiction to the State courts would have been inserted if it was intended to be given. Again, the whole judicial power of the United States is by the Constitution vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. That the words used embrace, and seem intended to embrace, the whole power, is apparent from the face of the Constitution, and was, besides, demonstrated by Hamilton in the first number of his "Pacificus." Madison said in the Virginia Convention, that it would be in the power of Congress to vest the inferior Federal jurisdiction in the State courts; and Pendleton and Mason intimated an expectation that this would be done; whilst Grayson said that State judges formed the principal defense of the rights of the States, and that Congress should not take from them their "only defensive armor;" and Patrick Henry, who in the days of his political orthodoxy could snuff danger to State rights in almost every breeze, apprehended that "by construction the Supreme Court would completely annihilate the State courts." Had Congress invested the inferior Federal jurisdiction in the State courts, and had they accepted the extension, the appellate jurisdiction of the Supreme Court to those courts in the cases enumerated would have been in all respects proper. But the Congress, a majority of whose members were Hamiltonian Federalists, were not, for reasons it is now unnecessary to consider, willing to admit the State courts to a participation in the administration of the judicial power reserved to the Federal Government, and proceeded at once to ordain and establish inferior courts of their own. These consisting of district courts, circuit courts and the one Supreme Court named in the Constitution, completed the organization of the Federal judiciary. Their respective jurisdictions were wisely separated and accurately defined. A small portion of that which was original was, for well-understood reasons, vested in the Supreme Court. The residue was separated and distributed among the inferior tribunals, subject to an appellate jurisdiction and supervisory power in the Supreme Court over all their proceedings. The system thus arranged was not only complete but harmonious in all its parts. The courts were clothed with the entire judicial power of the Government; were only authorized to act upon one class of subjects—those which appertained to the judicial power of the United States. The judges received their appointments from the same source, and were responsible for their conduct to one head. Looking only to judicial objects this might well be regarded as the judicial system designed by the framers of the Constitution.
If ours had been a consolidated government these provisions would have embraced the whole subject, and satisfied the wants of the whole country. But in the actual state of things in that regard they were inadequate to the accomplishment of that end. Instead of one consolidated government ours was a confederacy of sovereign States, presided over by a Federal Government which they had themselves created and clothed with such powers as they deemed necessary to its efficiency and usefulness, and as would be most likely to conduce to the freedom, prosperity, and happiness of all.
With no other bond of union during the first years of the Revolutionary contest than common danger, and obliged to struggle with a defective Federal organization, these States succeeded in constructing for themselves republican constitutions, and in several instances, before the establishment of our Independence, sustained the brunt of that struggle and came out of it with institutions fully adequate to all the purposes of good government, including systems of jurisprudence and competent tribunals for their administration. The administrators of these institutions, driven to desperation by great public and private distress,—the direct results of the oppression of the mother country,—may in a few cases, and for a short period, have forgotten that interests liable to sequestration in war were inviolable in peace, and failed to interpose with sufficient alacrity a judicial barrier against the attempts of some of the State legislatures to throw obstructions in the way of the collection of British debts. But those were limited and temporary aberrations, which would soon have yielded to proper treatment on the part of the Federal Government. At the period of the passage of the Judiciary Act the judges who presided in most of the State courts might be compared without discredit to those who filled the benches of the Federal courts, and this relative equality has ever since been well maintained. Such has certainly been the case in the State of New York. The name of Chancellor Livingston, who was then at the head of our equity system, would lose nothing from a comparison with Chief Justice Jay, when the latter was placed at the head of the Federal courts. Our equity and common-law courts have since been graced by Chancellor Lansing, Chief Justices Lewis and Kent, and Judges Brockholst Livingston, Smith Thompson, Ambrose Spencer, Wm. W. Van Ness, and others, all men of great talents and acquirements. Nor have the courts of our sister States been wanting in this regard. The names of Theophilus Parsons of Massachusetts, Tappan Reeves of Connecticut, and Pendleton, Wythe and Roane of Virginia, with numerous others, might be added to the list. It would not be an easy matter to match these by selections from the bench of the Supreme Court of the United States, highly distinguished as its incumbents have been.
The State courts had, for nearly fifteen years before the passage of the Judiciary Act of 1789, performed, as well in peace as in war, most of the duties which the new Constitution devolved upon the Federal judiciary. The Federal Government was authorized, by the articles of Confederation, to establish inferior courts for the trial of piracies and felonies committed on the high seas, and courts for the trial of Admiralty cases, yet these powers had been carried into effect through the State judiciaries. But all at once the State courts were deemed unworthy of trust. Whence this change? Had the State courts degenerated? No such thing; they were constantly improving, the supineness of a few in respect to the interests of the mother country, blamable as it certainly was, to the contrary notwithstanding. No, the State courts had not become worse, but the implacable opponents of those whose judicial power they represented had become stronger! The old Anti-Federal party, the inflexible and powerful champion for the rights of the States, had been overthrown—forever demolished, at least in that array. The State governments were for a season helpless. Those who were always hostile to their power—who, in the language of Hamilton after the Convention, and in the act of foreshadowing the effects of such an administration as actually succeeded, were desirous of a "triumph altogether over the State governments, and to reduce them to an entire subordination"—were all powerful in Congress. Nor was their power confined to Congress or to any particular branch of the Government. The result of the question of ratification in the different State Conventions, and the idea present to every mind that material prosperity, public and private, would be much promoted by that result, produced a great change in public sentiment adverse to the authority and influence of the State governments. It was made fashionable to deride them. The organization of the Federal judiciary was the very first opportunity that was afforded after the adoption of the Constitution to make the States feel the power which their inveterate opponents had acquired by that event, and most unsparingly was that power exercised.
The few members of that Congress who had not been entirely carried away by this current, and had the boldness to stand by the States and their tribunals—among whom that firm and incorruptible republican, James Jackson of Georgia, was by far the most effective—were willing that a right to supervise and reverse the decisions of the State tribunals in all matters of Federal jurisdiction, should be conferred on the Supreme Court of the United States, provided only that the State courts were intrusted, as they had hitherto been, with the administration of the inferior Federal jurisdiction in lieu of the inferior Federal courts which the Bill proposed to establish. This they contended would make the system an harmonious and consistent one, and preserve the respect and consideration which was due to the State tribunals.
The proposition was literally scouted in debate and rejected by a vote of two to one in the House, and in the Senate by a still larger majority. The Bill was so constructed as to clothe the Supreme Court and the inferior courts it established with all the judicial power allowed to the Federal Government by the Constitution, with unimportant reservations which did not diminish their authority and do not require to be noticed. Ample means were thus provided for its practical extension to every party entitled to its protection, and if those who regulated the action of Congress had not been influenced by any views other than such as related to the administration of justice, its legislation would have terminated there. But that body went further. A clause was added to the Judiciary Bill professing to give to the Supreme Court appellate jurisdiction over the final judgments and decrees of the highest courts of law and equity of a State, whoever might be the parties to the suit, or whatever might have been the objects for which it had been brought, provided only that the relative powers of the Federal and State governments under the Federal Constitution in respect to several enumerated subjects had in the course of prosecution of such suit been "drawn in question," and decided against the Federal power. No matter to what extent the rights of the parties were concluded by that question, or in what form or how incidentally it had been introduced, it was sufficient that it had been raised and decided against the Federal, or in favor of the State authority, to subject the judgment or decree given by the State court to be reëxamined or reversed in the Supreme Court of the United States. To confer upon that tribunal, the anomalous authority of issuing writs of error to the highest courts of other States confessedly sovereign, and which in all such matters might well be regarded as foreign States,—courts which were not established by the Federal Government, and between which and it there existed no judicial relations,—commanding those courts to send to it for reëxamination, reversal, or affirmance, the record of judgments and decrees which had neither been made under Federal authority nor by judges in any sense amenable to it for the discharge of their official duties, was an idea never broached in the Federal Convention, or in the slightest degree alluded to in the Constitution it adopted.
Disputes in respect to the boundaries of power between the Federal and State governments were foreseen, and the means for acquisition and defense sought after by the special friends of each. Both looked to their respective legislatures as the theatres of encroachment, and a very serious effort was made to obtain authority for the Federal Government to confer important State appointments, and to interpose a negative upon State laws. These concessions were sternly refused by the friends of the State authorities, and if they had been granted the new Constitution would never have been ratified. No efforts have been made by Congress through direct legislation to restrain the State legislatures from encroaching on the power of the Federal Government, and it would not be an easy matter—the Constitution being silent on the subject—to establish a right on the part of the judicial power to interfere in that direction which would not also devolve on the Federal legislature, the power more particularly interested in the matter. The clause referred to in the Federal Judiciary Act looks in an especial manner to the legislative acts of each government, and seeks to establish the supremacy in the Federal system. It is possible that the framers of the Constitution intended to give Congress a right to confer such a power on the Supreme Court, but it is certainly most extraordinary if that was so that the subject should have remained unnoticed in the Convention, and have been so entirely excluded from the face of the Constitution. Be that as it may, it is well known that the authority given to the court by the statute for a long time lay in its hands a dormant power. Those who conferred it had too much their own way in the administration of the Federal Government, during the first twelve years of its existence, to require extraneous aid to push its power to the extremes they desired. It was when they had been expelled from its executive and legislative departments by the uprising of the people that their attention was more earnestly turned to that of the judiciary as one which—as well from the peculiarity of its constitution as from the views of those who were in possession of it—was best qualified for the protection of rights which they, no doubt honestly, believed in danger. Hence the movement in the case of Marbury v. Madison.
We cannot now form a complete estimate of the extent to which the character of our institutions, in view of that step and of measures of which it might have been the opening wedge, hinged upon the character and disposition of those whom the people had then just raised to power. The respect and reverence with which the minds of a vast majority of our citizens were impressed for their courts of justice, the confidence which had been reposed in their purity as indicated by the tenure of their offices, and the imposing character of those who filled them at the moment combined to deter feeble and irresolute minds from resistance to the authority of the Supreme Court of the United States, however unfavorable their estimation of the course upon which it was entering.
No unauthorized exercise of power would, for any considerable period, have passed unchecked by a people like ours, then yet fresh from a national struggle for principles better defined and defended with more steadiness and by purer means than any the world had ever witnessed in revolutionary contests. But the class of men, in any community where deference for the ermine is habitual, who will meet danger at the very threshold, and oppose resistance to judicial usurpation at the instant of its appearance, is not likely to be numerous.
Hostile to every assumption of power over the conduct or mind of man not originally authorized by man himself, however plausible the pretences upon which it might be exerted, an opposition deeply seated in his nature, matured and confirmed by study and by all the observation and experience of his eventful career, Jefferson was not the man to submit to encroachments upon institutions he had sworn to protect, and more especially upon that branch of them which a great and free people had confided to his particular care. It was no matter to a man of his knowledge of the world and approved moral courage from what quarter such encroachments proceeded, they were certain to meet with a firm and spirited opposition on his part.
The course pursued by the State department was by his express direction, and of course upon his responsibility. This he always avowed, and this would have appeared in the report of the case of Marbury and Madison, if the fact had not been designedly and for obvious reasons suppressed. It was to accomplish this object that the statement of the case which accompanies the elaborate opinion of Chief Justice Marshall was made to present an appearance so ambiguous and unlawyer-like. Mr. Madison, it is stated, refused to deliver the commission. On what grounds? That is not stated, only that his explanations were not satisfactory to the relator. If they had been given the fact referred to would have appeared on the face of the record, and would have gone down to posterity as an answer to the reasoning of the opinion. The refusal of the witnesses—clerks in the department—to be sworn or to answer, and the decision of the court that they should be sworn and answer under certain restrictions, and that they were sworn, are all stated with much particularity, but what they said is not stated. Here, again, the fact is suppressed that the commission was retained in the executive department by the orders of the President, who, in the exercise of executive discretion, regarded it as the evidence of an appointment not completed, and which he decided not to complete.
But this was only a foretaste of the spirit with which the scheme of the Federal party to raise the judicial department of the Federal Government, not only over the States and their judicatories but over the two other departments of the General Government, was to be met. Two months had not elapsed after the delivery of the opinion of the Chief Justice in Marbury v. Madison, before the entire judicial fabric which that party had erected during the last moments of their expiring power, by which twenty-one additional federal judges were appointed, eighteen in the States and three in the District of Columbia, with large salaries and still larger power, to hold their offices virtually for life, was overthrown by the vote of a majority of Congress, a majority more confiding, more harmonious, and better disposed to second and sustain the measures of the executive than any we have ever had.
This measure—the least important effect of which was to relieve the national treasury from the payment of salaries to some twenty-seven or thirty gentlemen, whose services an experience of more than half a century has shown to have been unnecessary—was assailed with unprecedented violence. Gouverneur Morris said it had stricken down the sanctity of the judiciary, and his political associates in Congress denounced it as a gross infraction of the Constitution. He spoke of it with the same vehemence and heat with which he taunted the men who had passed it and their successors, twelve years afterwards, at the federal celebration of the restoration of the Bourbons, when he invited them, by the appellation of the "savage and wild democracy," to see, "though it should blast their eye-balls, royal princes surrounded by loyal subjects!" The attempts of Mr. Morris and his coadjutors to exasperate the public mind against the repeal of the midnight Judiciary Act recoiled upon their party. The only effects they produced were to rivet the convictions of a large majority of the people that they had acted wisely in changing their rulers, and to evoke a determination to sustain the men in power as long as they adhered to the course upon which they had entered. To the Chief Justice, his associates on the bench, and the leaders of the defeated party, this condition of public opinion presented considerations of the gravest import. The court had decided, and their decision was sustained by the latter with perfect unanimity, that the appointment of Marbury had been completed before Mr. Jefferson came into office, that the Secretary of State had therefore no right to withhold his commission, and that he could be compelled to deliver it by mandamus, provided only that the proceedings should originate in an inferior court. There was no ground for question in respect to the legality of the appointments of the midnight judges, or their clerks, if the repealing law was unconstitutional, nor of their right to their salaries. This was certainly a question for the judiciary in respect to private rights; and if the courts could compel the one Secretary by mandamus to deliver a commission wrongfully withheld, a fortiori could they compel another to pay salaries undeniably due if the repealing law was unconstitutional. The field for the writ of mandamus was thus greatly enlarged. If the withholding of a few justices' commissions constituted good ground for the institution of such proceedings as those we have referred to, the case now presented was one of much greater magnitude, and no party was ever more deeply committed before the country on a public question than they were in regard to the unconstitutionality of the Repealing Act. If they were right in that, and also in their views in respect to the powers of the Supreme Court, a mandamus would of course have been authorized to compel the treasury to pay the judges their salaries. Should they resume the Marbury and Madison case in the inferior courts, and proceed in this also, or should they abandon both and submit themselves to the stigma of having been the authors of false pretences and unfounded clamor, was the question to be met.
The Republican party of the Union, as then constituted, was for the first time in possession of two departments of the Federal Government. Whilst in a minority they had not been regarded by their high-reaching opponents with feelings of much respect. Whatever might still have been the federal impressions of their principles or designs, there was no longer room for two opinions, in respect to their determination, their firmness and their capacity to carry out the measures they deemed necessary to the public service. Such being the circumstances in which they were placed, the Chief Justice, his associates and friends, surveyed the exposures and defenses of the only department that was left under their control, and it was natural that they should ponder upon possible consequences before they proceeded another step in a course which the other departments regarded as one of aggression.
The supervision and control of the Supreme Court of the United States over the largest portion of the legislation and jurisprudence of the State governments, designed to be secured by the twenty-fifth section of the Federal Judiciary Act and the extent to which they might be carried, were, in their political aspects, looked upon by Hamilton and his followers as constituting the only remaining sheet-anchor of the government, in the sense in which they desired to see it administered. This lay completely at the mercy of their opponents. No matter what might be their confidence in the constitutionality of the provision, the whole appellate jurisdiction of the Supreme Court is, by the express letter of the Constitution, to be exercised subject to "such exceptions and such regulations as the Congress shall make." An act of three lines repealing the clause of the Judiciary Act would except writs of error to State courts from the appellate jurisdiction of the Supreme Court, and another might abolish the use of the writ of mandamus. The members of that court had seen too much of the temper and firmness of the President and Congress to doubt the immediate adoption of such measures if the contest in regard to the boundaries of power between the departments was continued, and were too sensible of the extent to which that high tribunal was indebted for its power and dignity to that branch of their jurisdiction to push so unprofitable a collision one step farther under their present auspices. The consequence was a suspension of all movements in that direction. No more was heard of Mr. Marbury's claims to his commission, and the new judges quietly submitted to expulsions from their life-estates in offices by a law they claimed to be unconstitutional, with a court within their reach authorized to declare it such if it so believed.
Chief Justice Marshall remained at the head of the Supreme Court many years after the delivery of his opinion in the case of Marbury and Madison. During that long period he not only acquired, by the exercise of his great talent, the high distinction of which I have already spoken, but endeared himself by his personal demeanor to all who were drawn within the circle of his acquaintance. No generous mind could contemplate a man possessed of such towering intellect, placed in so elevated a position and bearing his honors with such modesty and unaffected simplicity as he habitually displayed, without being impressed with a deep interest in his character. I was not among the least cordial of his admirers, and would not for the world speak a wanton or unkind word in disparagement of his memory. But the public acts of public men are always and under all circumstances legitimate materials for history, and may be canvassed with freedom, provided they are spoken of truly, and reviewed "with good motives and for justifiable ends." To this limitation it shall be my endeavor to confine myself on this as on all other occasions.
No part of the fame which Chief Justice Marshall acquired on the bench was due to his course and conduct in the case of Marbury and Madison, which may with truth be regarded as his judicial début. He had been snatched from the political caldron, heated to redness by human passions, almost at the moment of his first appearance on the bench. In his rapid transition from the halls of Congress and the Departments of War and State to that of the Judiciary, he had, as it were, been driven to the bench as to a place of safety before a tempest of public indignation created by the abuses of the administration of which he had been a part. Among his first acts after reaching it, and before time had been allowed for his passions to cool, before he had acquired judicial habits or had leisure to think even of the amenities that should distinguish his new position, was a severe blow at the wizard who, he believed, had raised the wind and directed the storm. But Jefferson, the "dreaming Condorcet," as Hamilton sometimes called him, proved an accomplished statesman. Wide awake, he made ample preparations for the assault, interposed effectual resistance, and the recoil and ultimate abandonment were the result. I have heretofore referred to the non-observance in these proceedings of due respect toward the acts of a coördinate department of the Government,—an obligation on the part of each from which no consideration can release them, and which in this case was rendered still more imperative by the relations, personal and political, that had existed between the President and the Chief Justice. Whatever weaknesses I may be subject to,—and doubtless they are numerous,—dogmatism, I am very sure, is not one of them. My endeavor always is to state my positions with deference to the judgments of others. But on this point I cannot refrain from insisting that no man who can divest himself of prejudice to only a reasonable extent can review these proceedings without being satisfied that the objection I have made to the course of the Chief Justice in this regard is well founded. No such omission was ever chargeable to him at a more advanced period in his judicial career; whatever exception may have been taken to the course of his decisions no one ever had reason to complain of a want of courtesy toward any branch of the government or toward individuals.
FOOTNOTES:
[33] See [Appendix].
[34] Taken from the report of the case.
[35] See Cranch's Supreme Court Reports, Vol. I. p. 137.