A handsome, florid, fashionably attired man of thirty-five now took the floor and began his reply to the powerful speech of the tempestuous Virginian. His complexion and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things Republican marked him as the equal of Gouverneur Morris in oratorical finish and Federalist distrust of the people.[237] It was James A. Bayard, the Federalist leader of the House.
He asserted that the Republican "designs [were] hostile to the powers of this government"; that they flowed from "state pride [which] extinguishes a national sentiment"; that while the Federalists were in charge of the National Administration they struggled "to maintain the Constitutional powers of the Executive" because "the wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizers, who saw no difference between a King and a President; and, as the people of France had put down their King, they thought the people of America ought to put down their President.
"They [Federalists] who considered the Constitution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the Government and the people, and the friends of the Government [Federalists] were marked as the enemies of the people."[238] This was the spirit that was now triumphant; to what lengths was it to carry the Republicans? Did they include the downfall of the Judiciary in their plans of general destruction? Did they propose to make judges the mere creatures of Congress?[239]
Bayard skillfully turned the gibe at Marshall into a tribute to the Chief Justice. What did Giles mean by his cryptic X. Y. Z. reference? "Did he mean that the dispatches ... were impostures?" Though Giles "felt no respect" for Marshall or Pinckney—"two characters as pure, as honorable, and exalted, as any the country can boast of"—yet, exclaimed Bayard, "I should have expected that he would have felt some tenderness for Mr. Gerry."[240]
The Republicans had contaminated the country with falsehoods against the Federalist Administrations; and now the target of their "poisoned arrows" was the National Judiciary. "If ... they [the judges] have offended against the Constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence."[241]
In detail Bayard explained the facts in the case of Marbury vs. Madison. That the Supreme Court had been "hardy enough to send their mandate into the Executive cabinet"[242] was, said he, "a strong proof of the value of that Constitutional provision which makes them independent. They are not terrified by the frowns of Executive power, and dare to judge between the rights of a citizen and the pretensions of a President."[243]
Contrast the defects of the Judiciary Act of 1789 with the perfection of the Federalist law supplanting it. Could any man deny the superiority of the latter?[244] The truth was that the Republicans were "to give notice to the judges of the Supreme Court of their fate, and to bid them to prepare for their end."[245] In these words Bayard charged the Republicans with their settled but unavowed purpose to unseat Marshall and his Federalist associates.[246]
Bayard hotly denied the Republican accusation that President Adams had appointed to the bench Federalist members of Congress as a reward for their party services; but, retorted he, Jefferson had done that very thing.[247] He then spoke at great length on the nature of the American Judiciary as distinguished from that of British courts, gave a vivid account of the passage of the Federalist Judiciary Act under attack, and finally swung back to the subject which more and more was coming to dominate the struggle—the power of the Supreme Court to annul acts of Congress.
Again and again Bayard restated, and with power and eloquence, all the arguments to support the supervisory power of courts over legislation.[248] At last he threatened armed resistance if the Republicans dared to carry out their plans against the National Judiciary. "There are many now willing to spill their blood to defend that Constitution. Are gentlemen disposed to risk the consequences?... Let them consider their wives and children, their neighbors and their friends." Destroy the independence of the National Judiciary and "the moment is not far when this fair country is to be desolated by civil war."[249]
Bayard's speech aroused great enthusiasm among the leaders of his party. John Adams wrote: "Yours is the most comprehensive masterly and compleat argument that has been published in either house and will have, indeed ... has already had more effect and influence on the public mind than all other publications on the subject."[250] The Washington Federalist pronounced Bayard's performance to be "far superior, not only to ... the speeches of Mr. Morris and Mr. Tracy in the Senate, but to any speech of a Demosthenes, a Cicero, or a Chatham."[251]