The annexation of Louisiana, the constitutional amendment in regard to the Vice-presidency, the change of financial practices foreshadowed by the Mediterranean Fund, were signs of reaction toward nationality and energy in government. Yet the old prejudices of the Republican party had not yet wholly lost their force. Especially the extreme wing, consisting of men like John Randolph and W. B. Giles, thought that a substantial reform should be attempted. Increase of power encouraged them to act. The party, stimulated by its splendid success and irresistible popularity, at length, after long hesitation, prepared for a trial of strength with the last remnant of Federalism,—the Supreme Court of the United States.
A year of truce between Congress and the Supreme Court had followed the repeal of the Judiciary Act. To prevent Chief-Justice Marshall and his associates from interfering with the new arrangements, Congress in abolishing the circuit courts in 1801 took the strong measure of suspending for more than a year the sessions of the Supreme Court itself. Between December, 1801, and February, 1803, the court was not allowed to sit. Early in February, 1803, a few days before the Supreme Court was to meet, after fourteen months of separation, President Jefferson sent an ominous Message to the House of Representatives.
“The enclosed letter and affidavits,” he said,[92] “exhibiting matter of complaint against John Pickering, district judge of New Hampshire, which is not within executive cognizance, I transmit them to the House of Representatives, to whom the Constitution has confided a power of instituting proceedings of redress if they shall be of opinion that the case calls for them.”
The enclosed papers tended to show that Judge Pickering, owing to habits of intoxication or other causes, had become a scandal to the bench, and was unfit to perform his duties. At first sight the House of Representatives might not understand what it had to do with such a matter; but the President’s language admitted no doubt of his meaning. The Constitution said that the House of Representatives “shall have the sole power of impeachment;” and “all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Jefferson’s Message officially announced to the House the President’s opinion that Judge Pickering’s conduct was a misdemeanor within the reach of impeachment.
The House referred the Message to a committee of five, controlled by Joseph Nicholson and John Randolph. A fortnight later, Nicholson reported a resolution ordering the impeachment; and before the session closed, the House, by a vote of forty-five to eight, adopted his report, and sent Nicholson and Randolph to the bar of the Senate to impeach Judge Pickering of high crimes and misdemeanors. March 3, 1803, the last day of the session, the two members delivered their message.
Precisely as the House, by the President’s invitation, was about to impeach Judge Pickering, the Supreme Court, through the Chief-Justice’s mouth, delivered an opinion which could be regarded in no other light than as a defiance. Chief-Justice Marshall’s own appointment had been one of those made by the last President between Dec. 12, 1800, and March 4, 1801, which Jefferson called an “outrage on decency,”[93] and which, except as concerned life offices, he held to be “nullities.” His doctrine that all appointments made by a retiring President were nullities, unless made with the consent of the President elect, rested on the argument that the retiring President was no longer selecting his own but his successor’s agents. Perhaps it involved also the favorite idea that the election of 1800 was something more than a change of Presidents,—that it was a real revolution in the principle of government. Any theory was sufficient for the Executive, but executive theories did not necessarily bind the Judiciary. Among the nominations which, like the appointment of Marshall, were obnoxious to Jefferson, was that of William Marbury as justice of the peace for five years for the District of Columbia. The nomination was sent to the Senate March 2, 1801, and was approved the next day, a few hours before Jefferson took his oath of office. The commission, regularly made out, signed by the President, countersigned by John Marshall the acting Secretary of State, and duly sealed, was left with other documents on the table in the State Department, where it came into the possession of Attorney-General Lincoln, acting as President Jefferson’s Secretary of State. Jefferson, having decided that late appointments were nullities, retained Marbury’s commission. Marbury, at the December term of 1801, moved the Supreme Court for a Rule to Secretary Madison to show cause why a mandamus should not issue commanding him to deliver the document. The Rule was duly served, and the case argued in December, 1801; but the Judiciary Act having suspended for fourteen months the sessions of the Supreme Court, the Chief-Justice did not deliver his opinion until Feb. 24, 1803.[94]
The strongest admirers of Marshall admitted that his manner of dealing with this case was unusual. Where a judgment was to turn on a question of jurisdiction, the Court commonly considered that point as first and final. In the case of Marbury the Court had no original jurisdiction, and so decided; but instead of beginning at that point and dismissing the motion, the Court began by discussing the merits of the case, and ruled that when a commission had been duly signed and sealed the act was complete, and delivery was not necessary to its validity. Marbury’s appointment was complete; and as the law gave him the right to hold for five years, independent of the Executive, his appointment was not revocable: “To withhold his commission, therefore, is an act deemed by the Court not warranted by law, but violative of a legal vested right.”
This part of the decision bore the stamp of Marshall’s character. The first duty of law, as he understood it, was to maintain the sanctity of pledged word. In his youth society had suffered severely from want of will to enforce a contract. The national government, and especially the judiciary, had been created to supply this want by compelling men to perform their contracts. The essence of the opinion in Marbury’s case was that the Executive should be held to the performance of a contract, all the more because of his personal repugnance. Marshall ruled that Marbury had to his commission a vested legal right of which the Executive could not deprive him; and although the Court could not intermeddle with the prerogatives of the Executive, it might and would command a head of department to perform a duty not depending on Executive discretion, but on particular Acts of Congress and the general principles of law. The mandamus might issue, but not from the Supreme Court, which had appellate jurisdiction only. In other words, if Marbury chose to apply for the mandamus to Judge Cranch and the District Court, he might expect the success of his application.
The decision in Marbury’s case naturally exasperated Jefferson; but the chief-justice knew the point beyond which he could not go in asserting the jurisdiction of his court, and was content to leave the matter as it stood. Marbury never applied for the mandamus in the court below. The opinion in the case of Marbury and Madison was allowed to sleep, and its language was too guarded to furnish excuse for impeachment; but while the President was still sore under the discourtesy of Marshall’s law, another member of the Supreme Bench attacked him in a different way. If one judge in the United States should have known the peril in which the judiciary stood, it was Justice Samuel Chase of Maryland, who had done more than all the other judges to exasperate the democratic majority. His overbearing manners had twice driven from his court the most eminent counsel of the circuit; he had left the bench without a quorum in order that he might make political speeches for his party; and his contempt for the popular will was loudly expressed. In the cases of Fries and Callender, in 1800, he had strained the law in order to convict for the government; and inasmuch as his energy was excess of zeal, for conviction was certain, he had exposed himself to the charge of over-officiousness in order to obtain the chief-justice’s chair, which was given to Marshall. That he was not impeached after the change of administration proved the caution of the Republican party; but by this neglect Congress seemed to have condoned his old offences, or at least had tacitly consented to let their punishment depend on the judge’s future good behavior.
Unluckily Chase’s temper knew no laws of caution. He belonged to the old class of conservatives who thought that judges, clergymen, and all others in authority should guide and warn the people. May 2, 1803, barely two months after Marshall’s defiance of the President in Marbury’s case and the impeachment of Pickering, Justice Chase addressed the grand jury at Baltimore on the democratic tendencies of their local and national government.[95]