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

by Martin Van Buren

The proposition was literally scouted in debate and rejected by a vote of two to one in the House, and in the Senate by a still larger majority. The Bill was so constructed as to clothe the Supreme Court and the inferior courts it established with all the judicial power allowed to the Federal Government by the Constitution, with unimportant reservations which did not diminish their authority and do not require to be noticed. Ample means were thus provided for its practical extension to every party entitled to its protection, and if those who regulated the action of Congress had not been influenced by any views other than such as related to the administration of justice, its legislation would have terminated there. But that body went further. A clause was added to the Judiciary Bill professing to give to the Supreme Court appellate jurisdiction over the final judgments and decrees of the highest courts of law and equity of a State, whoever might be the parties to the suit, or whatever might have been the objects for which it had been brought, provided only that the relative powers of the Federal and State governments under the Federal Constitution in respect to several enumerated subjects had in the course of prosecution of such suit been "drawn in question," and decided against the Federal power. No matter to what extent the rights of the parties were concluded by that question, or in what form or how incidentally it had been introduced, it was sufficient that it had been raised and decided against the Federal, or in favor of the State authority, to subject the judgment or decree given by the State court to be reëxamined or reversed in the Supreme Court of the United States. To confer upon that tribunal, the anomalous authority of issuing writs of error to the highest courts of other States confessedly sovereign, and which in all such matters might well be regarded as foreign States,—courts which were not established by the Federal Government, and between which and it there existed no judicial relations,—commanding those courts to send to it for reëxamination, reversal, or affirmance, the record of judgments and decrees which had neither been made under Federal authority nor by judges in any sense amenable to it for the discharge of their official duties, was an idea never broached in the Federal Convention, or in the slightest degree alluded to in the Constitution it adopted.

Disputes in respect to the boundaries of power between the Federal and State governments were foreseen, and the means for acquisition and defense sought after by the special friends of each. Both looked to their respective legislatures as the theatres of encroachment, and a very serious effort was made to obtain authority for the Federal Government to confer important State appointments, and to interpose a negative upon State laws. These concessions were sternly refused by the friends of the State authorities, and if they had been granted the new Constitution would never have been ratified. No efforts have been made by Congress through direct legislation to restrain the State legislatures from encroaching on the power of the Federal Government, and it would not be an easy matter—the Constitution being silent on the subject—to establish a right on the part of the judicial power to interfere in that direction which would not also devolve on the Federal legislature, the power more particularly interested in the matter. The clause referred to in the Federal Judiciary Act looks in an especial manner to the legislative acts of each government, and seeks to establish the supremacy in the Federal system. It is possible that the framers of the Constitution intended to give Congress a right to confer such a power on the Supreme Court, but it is certainly most extraordinary if that was so that the subject should have remained unnoticed in the Convention, and have been so entirely excluded from the face of the Constitution. Be that as it may, it is well known that the authority given to the court by the statute for a long time lay in its hands a dormant power. Those who conferred it had too much their own way in the administration of the Federal Government, during the first twelve years of its existence, to require extraneous aid to push its power to the extremes they desired. It was when they had been expelled from its executive and legislative departments by the uprising of the people that their attention was more earnestly turned to that of the judiciary as one which—as well from the peculiarity of its constitution as from the views of those who were in possession of it—was best qualified for the protection of rights which they, no doubt honestly, believed in danger. Hence the movement in the case of Marbury v. Madison.

We cannot now form a complete estimate of the extent to which the character of our institutions, in view of that step and of measures of which it might have been the opening wedge, hinged upon the character and disposition of those whom the people had then just raised to power. The respect and reverence with which the minds of a vast majority of our citizens were impressed for their courts of justice, the confidence which had been reposed in their purity as indicated by the tenure of their offices, and the imposing character of those who filled them at the moment combined to deter feeble and irresolute minds from resistance to the authority of the Supreme Court of the United States, however unfavorable their estimation of the course upon which it was entering.

No unauthorized exercise of power would, for any considerable period, have passed unchecked by a people like ours, then yet fresh from a national struggle for principles better defined and defended with more steadiness and by purer means than any the world had ever witnessed in revolutionary contests. But the class of men, in any community where deference for the ermine is habitual, who will meet danger at the very threshold, and oppose resistance to judicial usurpation at the instant of its appearance, is not likely to be numerous.

Hostile to every assumption of power over the conduct or mind of man not originally authorized by man himself, however plausible the pretences upon which it might be exerted, an opposition deeply seated in his nature, matured and confirmed by study and by all the observation and experience of his eventful career, Jefferson was not the man to submit to encroachments upon institutions he had sworn to protect, and more especially upon that branch of them which a great and free people had confided to his particular care. It was no matter to a man of his knowledge of the world and approved moral courage from what quarter such encroachments proceeded, they were certain to meet with a firm and spirited opposition on his part.

The course pursued by the State department was by his express direction, and of course upon his responsibility. This he always avowed, and this would have appeared in the report of the case of Marbury and Madison, if the fact had not been designedly and for obvious reasons suppressed. It was to accomplish this object that the statement of the case which accompanies the elaborate opinion of Chief Justice Marshall was made to present an appearance so ambiguous and unlawyer-like. Mr. Madison, it is stated, refused to deliver the commission. On what grounds? That is not stated, only that his explanations were not satisfactory to the relator. If they had been given the fact referred to would have appeared on the face of the record, and would have gone down to posterity as an answer to the reasoning of the opinion. The refusal of the witnesses—clerks in the department—to be sworn or to answer, and the decision of the court that they should be sworn and answer under certain restrictions, and that they were sworn, are all stated with much particularity, but what they said is not stated. Here, again, the fact is suppressed that the commission was retained in the executive department by the orders of the President, who, in the exercise of executive discretion, regarded it as the evidence of an appointment not completed, and which he decided not to complete.

But this was only a foretaste of the spirit with which the scheme of the Federal party to raise the judicial department of the Federal Government, not only over the States and their judicatories but over the two other departments of the General Government, was to be met. Two months had not elapsed after the delivery of the opinion of the Chief Justice in Marbury v. Madison, before the entire judicial fabric which that party had erected during the last moments of their expiring power, by which twenty-one additional federal judges were appointed, eighteen in the States and three in the District of Columbia, with large salaries and still larger power, to hold their offices virtually for life, was overthrown by the vote of a majority of Congress, a majority more confiding, more harmonious, and better disposed to second and sustain the measures of the executive than any we have ever had.

This measure—the least important effect of which was to relieve the national treasury from the payment of salaries to some twenty-seven or thirty gentlemen, whose services an experience of more than half a century has shown to have been unnecessary—was assailed with unprecedented violence. Gouverneur Morris said it had stricken down the sanctity of the judiciary, and his political associates in Congress denounced it as a gross infraction of the Constitution. He spoke of it with the same vehemence and heat with which he taunted the men who had passed it and their successors, twelve years afterwards, at the federal celebration of the restoration of the Bourbons, when he invited them, by the appellation of the "savage and wild democracy," to see, "though it should blast their eye-balls, royal princes surrounded by loyal subjects!" The attempts of Mr. Morris and his coadjutors to exasperate the public mind against the repeal of the midnight Judiciary Act recoiled upon their party. The only effects they produced were to rivet the convictions of a large majority of the people that they had acted wisely in changing their rulers, and to evoke a determination to sustain the men in power as long as they adhered to the course upon which they had entered. To the Chief Justice, his associates on the bench, and the leaders of the defeated party, this condition of public opinion presented considerations of the gravest import. The court had decided, and their decision was sustained by the latter with perfect unanimity, that the appointment of Marbury had been completed before Mr. Jefferson came into office, that the Secretary of State had therefore no right to withhold his commission, and that he could be compelled to deliver it by mandamus, provided only that the proceedings should originate in an inferior court. There was no ground for question in respect to the legality of the appointments of the midnight judges, or their clerks, if the repealing law was unconstitutional, nor of their right to their salaries. This was certainly a question for the judiciary in respect to private rights; and if the courts could compel the one Secretary by mandamus to deliver a commission wrongfully withheld, a fortiori could they compel another to pay salaries undeniably due if the repealing law was unconstitutional. The field for the writ of mandamus was thus greatly enlarged. If the withholding of a few justices' commissions constituted good ground for the institution of such proceedings as those we have referred to, the case now presented was one of much greater magnitude, and no party was ever more deeply committed before the country on a public question than they were in regard to the unconstitutionality of the Repealing Act. If they were right in that, and also in their views in respect to the powers of the Supreme Court, a mandamus would of course have been authorized to compel the treasury to pay the judges their salaries. Should they resume the Marbury and Madison case in the inferior courts, and proceed in this also, or should they abandon both and submit themselves to the stigma of having been the authors of false pretences and unfounded clamor, was the question to be met.

The Republican party of the Union, as then constituted, was for the first time in possession of two departments of the Federal Government. Whilst in a minority they had not been regarded by their high-reaching opponents with feelings of much respect. Whatever might still have been the federal impressions of their principles or designs, there was no longer room for two opinions, in respect to their determination, their firmness and their capacity to carry out the measures they deemed necessary to the public service. Such being the circumstances in which they were placed, the Chief Justice, his associates and friends, surveyed the exposures and defenses of the only department that was left under their control, and it was natural that they should ponder upon possible consequences before they proceeded another step in a course which the other departments regarded as one of aggression.

The supervision and control of the Supreme Court of the United States over the largest portion of the legislation and jurisprudence of the State governments, designed to be secured by the twenty-fifth section of the Federal Judiciary Act and the extent to which they might be carried, were, in their political aspects, looked upon by Hamilton and his followers as constituting the only remaining sheet-anchor of the government, in the sense in which they desired to see it administered. This lay completely at the mercy of their opponents. No matter what might be their confidence in the constitutionality of the provision, the whole appellate jurisdiction of the Supreme Court is, by the express letter of the Constitution, to be exercised subject to "such exceptions and such regulations as the Congress shall make." An act of three lines repealing the clause of the Judiciary Act would except writs of error to State courts from the appellate jurisdiction of the Supreme Court, and another might abolish the use of the writ of mandamus. The members of that court had seen too much of the temper and firmness of the President and Congress to doubt the immediate adoption of such measures if the contest in regard to the boundaries of power between the departments was continued, and were too sensible of the extent to which that high tribunal was indebted for its power and dignity to that branch of their jurisdiction to push so unprofitable a collision one step farther under their present auspices. The consequence was a suspension of all movements in that direction. No more was heard of Mr. Marbury's claims to his commission, and the new judges quietly submitted to expulsions from their life-estates in offices by a law they claimed to be unconstitutional, with a court within their reach authorized to declare it such if it so believed.