Early in the session (January 23) the Republicans brought up the vexed question of the Sedition Law. A resolution to repeal the obnoxious section of this measure was presented on January 29, and after a hot debate was adopted by the close vote of 50 to 48. Marshall voted for the repeal and against his own party.[1033] Had he voted with his party, the Republican attack would have failed. But no pressure of party regularity could influence Marshall against his convictions, no crack of the party whip could frighten him.
Considering the white heat of partisan feeling at the time, and especially on the subject of the Alien and Sedition Laws; considering, too, the fact that these offensive acts were Administration measures; and taking into account the prominence as a Federalist leader which Marshall had now achieved, his vote against the reprobated section of the Sedition Law was a supreme act of independence of political ties and party discipline. He had been and still was the only Federalist to disapprove, openly, the Alien and Sedition Laws.[1034] "To make a little saving for our friend Marshall's address," Chief Justice Ellsworth sarcastically suggested that, in case of the repeal of the Sedition Law, "the preamble ... should read thus: 'Whereas the increasing danger and depravity of the present time require that the law against seditious practices should be restored to its full rigor, therefore,' etc."[1035]
From the point of view of its probable effect on Marshall's political fortunes, his vote appeared to spell his destruction, for it practically left him outside of either party. He abhorred the doctrine of State Sovereignty which Jefferson now was making the rallying-point of the Republican Party; he believed, quite as fervently as had Washington himself, that the principle of Nationality alone could save the Republic. So Marshall could have no hopes of any possible future political advancement through the Republican Party.
On the other hand, his vote against his own party on its principal measure killed Marshall's future as a Federalist in the opinion of all the politicians of his time, both Federal and Republican.[1036] And we may be certain that Marshall saw this even more clearly than did the politicians, just as he saw most things more clearly than most men.
But if Marshall's vote on the Sedition Law was an act of insubordination, his action on the Disputed Elections Bill was nothing short of party treason. This next to the last great blunder of the Federalists was in reality a high-handed attempt to control the coming presidential election, regardless of the votes of the people. It was aimed particularly at the anticipated Republican presidential majority in Pennsylvania which had just elected a Republican Governor over the Federalist candidate.
On January 3, Senator Ross of Pennsylvania, the defeated Federalist candidate for Governor of that State, offered a resolution that a committee should be appointed to consider a law "for deciding disputed elections of President and Vice-President ... and ... the legality or illegality of the votes given for those officers in the different states." In a brief but pointed debate, the Republicans insisted that such a law would be unconstitutional.
The Federalist position was that, since the Constitution left open the manner of passing upon votes, Congress had the power to regulate that subject and ought to provide some method to meet anticipated emergencies. Suppose, said Senator Ross, that "persons should claim to be Electors who had never been properly appointed [elected], should their vote be received? Suppose they should vote for a person to be President who had not the age required by the Constitution or who had not been long enough a citizen of the United States or for two persons who were both citizens of the same State?... What situation would the country be in if such a case was to happen?"[1037]
So lively was the interest and high the excitement that Marshall did not go to Richmond when his fifth child was born on February 13, 1800.[1038] He spoke in the House February 12, and was appointed on an important committee February 13.[1039]
On February 14, the bill was reported to the Senate. Five days later the Republican organ, the "Aurora," made shift to get a copy of the measure,[1040] and printed it in full with a bold but justifiable attack upon it and the method of its origin.[1041] On March 28, the bill passed the Senate by a strict party vote.[1042] It provided that a "Grand Committee," consisting of six Senators and six Representatives elected by ballot and the Chief Justice of the Supreme Court, should take charge of the certificates of electoral votes immediately after they had been opened and read in the presence of Congress.
This Grand Committee was to be given power to send for papers and persons and, in secret session, to consider and determine all questions concerning the election. Had bribery been employed, had force been used, had threats or intimidation, persuasion or cajolery polluted the voters?—the Grand Committee was to decide these questions; it was to declare what electoral votes should be counted; it was to throw out electoral votes which it thought to be tainted or improper; and the report of this Grand Committee was to be final and conclusive. In short, it was to settle absolutely the Presidency; from its decree there was to be no appeal.[1043]