On January 24, 1831, William R. Davis of South Carolina presented the majority report of the Judiciary Committee favoring the repeal of that section of the Judiciary Act under which the Supreme Court had demolished State laws and annihilated the decisions of State courts.[1381] James Buchanan presented the minority report.[1382] A few minutes' preliminary discussion revealed the deep feeling on both sides. Philip Doddridge of Virginia declared that the bill was of "as much importance as if it were a proposition to repeal the Union of these States." William W. Ellsworth of Connecticut avowed that it was of "overwhelming magnitude."[1383]
Thereupon the subject was furiously debated. Thomas H. Crawford of Pennsylvania considered Section 25 of the Judiciary Act, to be as "sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky asserted that the Supreme Court "stops at nothing to obtain power." Let the "States ... prepare for the worst, and protect themselves against the assaults of this gigantic tribunal."[1385]
William Fitzhugh Gordon of Virginia, recently elected, but already a member of the Judiciary Committee, stoutly defended the report of the majority: "When a committee of the House had given to a subject the calmest and maturest investigation, and a motion is made to print their report, a gentleman gets up, and, in a tone of alarm, denounces the proposition as tantamount to a motion to repeal the Union." Gordon repudiated the very thought of dismemberment of the Republic—that "palladium of our hopes, and of the liberties of mankind."
As to the constitutionality of Section 25 of the Judiciary Act—"could it be new, especially to a Virginia lawyer"? when the Virginia Judiciary, with Roane at its head, had solemnly proclaimed the illegality of that section. And had not Georgia ordered her Governor to resist the enforcement of that provision of that ancient act of Congress? "I declare to God ... that I believe nothing would tend so much to compose the present agitation of the country ... as the repeal of that portion of the judiciary act." Gordon was about to discuss the nefarious case of Cohens vs. Virginia when his emotions overcame him—"he did not wish ... to go into the merits of the question."[1386]
Thomas F. Foster of Georgia said that the Judiciary Committee had reported under a "galling fire from the press"; quoted Marshall's unfortunate language in the Convention of 1788;[1387] and insisted that the "vast and alarming" powers of the Supreme Court must be bridled.[1388]
But the friends of the court overwhelmed the supporters of the bill, which was rejected by a vote of 138 to 51.[1389] It was ominous, however, that the South stood almost solid against the court and Nationalism.
FOOTNOTES:
[1269] Marshall to his wife, March 12, 1826, MS.
[1270] Nevertheless he watched the course of politics closely. For instance: immediately after the House had elected John Quincy Adams to the Presidency, Marshall writes his brother a letter full of political gossip. He is surprised that Adams was chosen on the first ballot; many think Kremer's letter attacking Clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of Clay's friends probably determined some of the western members who were hesitating. It is supposed to have had some influence elsewhere. The vote of New York was not decided five minutes before the ballots were taken."
Marshall tells his brother about Cabinet rumors—Crawford has refused the Treasury and Clay has been offered the office of Secretary of State. "It is meer [sic] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to the Columbian Observer in which he asserted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bluster, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent, i, 67-74, 123-24.)