Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

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.