But there was one institution of which Richmond could boast, even in comparison with New York, Boston, or Philadelphia, and that was its Bar. Randolph, Wickham, Campbell, Call, Pendleton, Wythe—these are names whose fame still survives wherever the history of the American Bar is cherished; and it was with their living bearers that young Marshall now entered into competition. The result is somewhat astonishing at first consideration, for even by the standards of his own day, when digests, indices, and the other numerous aids which now ease the path of the young attorney were generally lacking, his preparation had been slight. Several circumstances, however, came to his rescue. So soon after the Revolution British precedents were naturally rather out of favor, while on the other hand many of the questions which found their way into the courts were those peculiar to a new country and so were without applicable precedents for their solution. What was chiefly demanded of an attorney in this situation was a capacity for attention, the ability to analyze an opponent’s argument, and a discerning eye for fundamental issues. Competent observers soon made the discovery that young Marshall possessed all these faculties to a marked degree and, what was just as important, his modesty made recognition by his elders easy and gracious.

From 1782 until the adoption of the Constitution, Marshall was almost continuously a member of the Virginia Legislature. He thus became a witness of that course of policy which throughout this period daily rendered the state governments more and more “the hope of their enemies, the despair of their friends.” The termination of hostilities against England had relaxed the already feeble bonds connecting the States. Congress had powers which were only recommendatory, and its recommendations were ignored by the local legislatures. The army, unpaid and frequently in actual distress, was so rapidly losing its morale that it might easily become a prey to demagogues. The treaties of the new nation were flouted by every State in the Union. Tariff wars and conflicting land grants embittered the relations of sister States. The foreign trade of the country, it was asserted, “was regulated, taxed, monopolized, and crippled at the pleasure of the maritime powers of Europe.” Burdened with debts which were the legacy of an era of speculation, a considerable part of the population, especially of the farmer class, was demanding measures of relief which threatened the security of contracts. “Laws suspending the collection of debts, insolvent laws, instalment laws, tender laws, and other expedients of a like nature, were familiarly adopted or openly and boldly vindicated.” ¹

From the outset Marshall ranged himself on the side of that party in the Virginia Legislature which, under the leadership of Madison, demanded with growing insistence a general and radical constitutional reform designed at once to strengthen the national power and to curtail state legislative power. His attitude was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington, who were of the same party, but also by his military experience, which had rendered the pretensions of state sovereignty ridiculous in his eyes. Local discontent came to a head in the autumn of 1786 with the outbreak of Shays’s Rebellion in western Massachusetts. Marshall, along with the great body of public men of the day, conceived for the movement the gravest alarm, and the more so since he considered it as the natural culmination of prevailing tendencies. In a letter to James Wilkinson early in 1787, he wrote: “These violent … dissensions in a State I had thought inferior in wisdom and virtue to no one in our Union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over that bright prospect which the Revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that those have truth on their side who say that man is incapable of governing himself.”

Marshall accordingly championed the adoption of the Constitution of 1787 quite as much because of its provisions for diminishing the legislative powers of the States in the interest of private rights as because of its provisions for augmenting the powers of the General Government. His attitude is revealed, for instance, in the opening words of his first speech on the floor of the Virginia Convention, to which he had been chosen a member from Richmond: “Mr. Chairman, I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible.… The supporters of the Constitution claim the title of being firm friends of liberty and the rights of man.… We prefer this system because we think it a well-regulated democracy.… What are the favorite maxims of democracy? A strict observance of justice and public faith.… Would to Heaven that these principles had been observed under the present government. Had this been the case the friends of liberty would not be willing now to part with it.” The point of view which Marshall here assumed was obviously the same as that from which Madison, Hamilton, Wilson, and others on the floor of the Federal Convention had freely predicted that republican liberty must disappear from the earth unless the abuses of it practiced in many of the States could be eliminated.

Marshall’s services in behalf of the Constitution in the closely fought battle for ratification which took place in the Virginia Convention are only partially disclosed in the pages of Elliot’s Debates. He was already coming to be regarded as one excellent in council as well as in formal discussion, and his democratic manners and personal popularity with all classes were a pronounced asset for any cause he chose to espouse. Marshall’s part on the floor of the Convention was, of course, much less conspicuous than that of either Madison or Randolph, but in the second rank of the Constitution’s defenders, including men like Corbin, Nicholas, and Pendleton, he stood foremost. His remarks were naturally shaped first of all to meet the immediate necessities of the occasion, but now and then they foreshadow views of a more enduring value. For example, he met a favorite contention of the opposition by saying that arguments based on the assumption that necessary powers would be abused were arguments against government in general and “a recommendation of anarchy.” To Henry’s despairing cry that the proposed system lacked checks, he replied: “What has become of his enthusiastic eulogium of the American spirit? We should find a check and control, when oppressed, from that source. In this country there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual.… When we consult the common good, we consult our own.” And when Henry argued that a vigorous union was unnecessary because “we are separated by the sea from the powers of Europe,” Marshall replied: “Sir, the sea makes them neighbors of us.”

It is worthy of note that Marshall gave his greatest attention to the judiciary article as it appeared in the proposed Constitution. He pointed out that the principle of judicial independence was here better safeguarded than in the Constitution of Virginia. He stated in one breath the principle of judicial review and the doctrine of enumerated powers. If, said he, Congress “make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard; they would not consider such a law as coming within their jurisdiction. They would declare it void.” ¹ On the other hand, Marshall scoffed at the idea that the citizen of a State might bring an original action against another State in the Supreme Court. His dissections of Mason’s and Henry’s arguments frequently exhibit controversial skill of a high order. From Henry, indeed, Marshall drew a notable tribute to his talent, which was at the same time proof of his ability to keep friends with his enemies.

On the day the great Judiciary Act became law, Marshall attained his thirty-fourth year. His stride toward professional and political prominence was now rapid. At the same time his private interests were becoming more closely interwoven with his political principles and personal affiliations, and his talents were maturing. Hitherto his outlook upon life had been derived largely from older men, but his own individuality now began to assert itself; his groove in life was taking final shape.

The best description of Marshall shows him in the prime of his manhood a few months after his accession to the Supreme Bench. It appears in William Wirt’s celebrated Letters of the British Spy:

The [Chief Justice] of the United States is, in his person, tall, meager, emaciated; his muscles relaxed, and his joints so loosely connected, as not only to disqualify him, apparently for any vigorous exertion of body, but to destroy everything like elegance and harmony in his air and movements. Indeed, in his whole appearance, and demeanour; dress, attitudes, gesture; sitting, standing or walking; he is as far removed from the idolized graces of Lord Chesterfield, as any other gentleman on earth. To continue the portrait: his head and face are small in proportion to his height; his complexion swarthy; the muscles of his face, being relaxed, give him the appearance of a man of fifty years of age, nor can he be much younger; his countenance has a faithful expression of great good humour and hilarity; while his black eyes—that unerring index—possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within.

The “British Spy” then describes Marshall’s personality as an orator at the time when he was still practicing at the Virginia bar:

His voice [the description continues] is dry and hard; his attitude, in his most effective orations, was often extremely awkward, as it was not unusual for him to stand with his left foot in advance, while all his gestures proceeded from his right arm, and consisted merely in a vehement, perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand.… [Nevertheless] if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends, [then] this extraordinary man, without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world.… He possesses one original, and, almost, supernatural faculty; the faculty of developing a subject by a single glance of his mind, and detecting at once, the very point on which every controversy depends. No matter what the question; though ten times more knotty than the gnarled oak, the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take in its various objects with more promptitude and facility, than his mind embraces and analyzes the most complex subject.

Possessing while at the bar this intellectual elevation, which enables him to look down and comprehend the whole ground at once, he determined immediately and without difficulty, on which side the question might be most advantageously approached and assailed. In a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so spacious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid.

All his eloquence consists in the apparently deep self-conviction, and emphatic earnestness of his manner, the correspondent simplicity and energy of his style; the close and logical connexion of his thoughts; and the easy gradations by which he opens his lights on the attentive minds of his hearers.

The audience are never permitted to pause for a moment. There is no stopping to weave garlands of flowers, to hang in festoons, around a favorite argument. On the contrary, every sentence is progressive; every idea sheds new light on the subject; the listener is kept perpetually in that sweetly pleasurable vibration, with which the mind of man always receives new truths; the dawn advances in easy but unremitting pace; the subject opens gradually on the view; until, rising in high relief, in all its native colors and proportions, the argument is consummated by the conviction of the delighted hearer.

What appeared to Marshall’s friends as most likely in his early middle years to stand in the way of his advancement was his addiction to ease and to a somewhat excessive conviviality. But it is worth noting that the charge of conviviality was never repeated after he was appointed Chief Justice; and as to his unstudious habits, therein perhaps lay one of the causes contributing to his achievement. Both as attorney and as judge, he preferred the quest of broad, underlying principles, and, with plenty of time for recuperation from each exertion, he was able to bring to each successive task undiminished vitality and unclouded attention. What the author of the Leviathan remarks of himself may well be repeated of Marshall—that he made more use of his brains than of his bookshelves and that, if he had read as much as most men, he would have been as ignorant as they.

That Marshall was one of the leading members of his profession in Virginia, the most recent biographical researches unmistakably prove. “From 1790 until his election to Congress nine years later,” Albert J. Beveridge ¹ writes, “Marshall argued 113 cases decided by the court of appeals of Virginia.… He appeared during this time in practically every important cause heard and determined by the supreme tribunal of the State.” Practically all this litigation concerned property rights, and much of it was exceedingly intricate. Marshall’s biographer also points out the interesting fact that “whenever there was more than one attorney for the client who retained Marshall, the latter almost invariably was retained to make the closing argument.” He was thus able to make good any lack of knowledge of the technical issues involved as well as to bring his great debating powers to bear with the best advantage.

Meanwhile Marshall was also rising into political prominence. From the first a supporter of Washington’s Administration, he was gradually thrust into the position of Federalist leader in Virginia. In 1794 he declined the post of Attorney-General, which Washington had offered him. In the following year he became involved in the acrimonious struggle over the Jay Treaty with Great Britain, and both in the Legislature and before meetings of citizens defended the treaty so aggressively that its opponents were finally forced to abandon their contention that it was unconstitutional and to content themselves with a simple denial that it was expedient. Early in 1796 Marshall made his first appearance before the Supreme Court, in the case of Ware vs. Hylton. The fame of his defense of “the British Treaty” during the previous year had preceded him, and his reception by the Federalist leaders from New York and New England was notably cordial. His argument before the Court, too, though it did not in the end prevail, added greatly to his reputation. “His head,” said Rufus King, who heard the argument, “is one of the best organized of any one that I have known.”

Either in 1793 or early in the following year, Marshall participated in a business transaction which, though it did not impart to his political and constitutional views their original bent, yet must have operated more or less to confirm his opinions. A syndicate composed of Marshall, one of his brothers, and two other gentlemen, purchased from the British heirs what remained of the great Fairfax estate in the Northern Neck, a tract “embracing over 160,000 acres of the best land in Virginia.” By an Act passed during the Revolution, Virginia had decreed the confiscation of all lands held by British subjects; and though the State had never prosecuted the forfeiture of this particular estate, she was always threatening to do so. Marshall’s investment thus came to occupy for many years a precarious legal footing which, it may be surmised, did not a little to keep alert his natural sympathy for all victims of legislative oppression. Moreover the business relation which he formed with Robert Morris in financing the investment brought him into personal contact for the first time with the interests behind Hamilton’s financial program, the constitutionality of which he had already defended on the hustings.

It was due also to this business venture that Marshall was at last persuaded to break through his rule of declining office and to accept appointment in 1797, together with Pinckney and Gerry, on the famous “X.Y.Z.” mission to France. From this single year’s employment he obtained nearly $20,000, which, says his biographer, “over and above his expenses,” was “three times his annual earnings at the bar”; and the money came just in the nick of time to save the Fairfax investment, for Morris was now bankrupt and in jail. But not less important as a result of his services was the enhanced reputation which Marshall’s correspondence with Talleyrand brought him. His return to Philadelphia was a popular triumph, and even Jefferson, temporarily discomfited by the “X.Y.Z.” disclosures, found it discreet to go through the form of paying him court—whereby hangs a tale. Jefferson called at Marshall’s tavern. Marshall was out. Jefferson thereupon left a card deploring how “unlucky” he had been. Commenting years afterwards upon the occurrence, Marshall remarked that this was one time at least when Jefferson came near telling the truth.

Through the warm insistence of Washington, Marshall was finally persuaded in the spring of 1799 to stand as Federalist candidate for Congress in the Richmond district. The expression of his views at this time is significant. A correspondent of an Alexandria newspaper signing himself “Freeholder” put to him a number of questions intended to call forth Marshall’s opinions on the issues of the day. In answering a query as to whether he favored an alliance with Great Britain, the candidate declared that the whole of his “politics respecting foreign nations” was “reducible to this single position.… Commercial intercourse with all, but political ties with none.” But a more pressing issue on which the public wished information was that furnished by the Alien and Sedition laws, which Marshall had originally criticized on grounds both of expediency and of constitutionality. Now, however, he defended these measures on constitutional grounds, taking the latitudinarian position that “powers necessary for the attainment of all objects which are general in their nature, which interest all America … would be naturally vested in the Government of the whole,” but he declared himself strongly opposed to their renewal. At the same time he denounced the Virginia Resolutions as calculated “to sap the foundations of our Union.”

The election was held late in April, under conditions which must have added greatly to popular interest. Following the custom in Virginia, the voter, instead of casting a ballot, merely declared his preference in the presence of the candidates, the election officials, and the assembled multitude. In the intensity of the struggle no voter, halt, lame, or blind, was overlooked; and a barrel of whisky near at hand lent further zest to the occasion. Time and again the vote in the district was a tie, and as a result frequent personal encounters took place between aroused partisans. Marshall’s election by a narrow majority in a borough which was strongly pro-Jeffersonian was due, indeed, not to his principles but to his personal popularity and to the support which he received from Patrick Henry, the former Governor of the State.

The most notable event of his brief stay in Congress was his successful defense of President Adams’s action in handing over to the British authorities, in conformity with the twenty-seventh article of the Jay treaty, Jonathan Robins, who was alleged to be a fugitive from justice. Adams’s critics charged him with having usurped a judicial function. “The President,” said Marshall in reply, “is sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty where he, and he alone, possesses the means of executing it.” This is one of the few speeches ever uttered on the floor of Congress which demonstrably made votes. Gallatin, who had been set to answer Marshall, threw up his brief; and the resolutions against the President were defeated by a House hostile to him.

Marshall’s course in Congress was characterized throughout by independence of character, moderation of views, and level good sense, of which his various congressional activities afford abundant evidence. Though he had himself been one of the “X.Y.Z.” mission, Marshall now warmly supported Adams’s policy of renewing diplomatic relations with France. He took his political life in his hands to register a vote against the Sedition Act, a proposal to repeal which was brought before the House. He foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the electoral vote—a plan all too likely to precipitate civil war. His Federalist brethren of the extreme Hamiltonian type quite resented the frequency with which he was wont to kick over the party traces. “He is disposed,” wrote Sedgwick, the Speaker, “to express great respect for the sovereign people and to quote their opinions as an evidence of truth,” which “is of all things the most destructive of personal independence and of that weight of character which a great man ought to possess.” ¹

Marshall had now come to be practically indispensable to the isolated President, at whose most earnest insistence he entered the Cabinet as Secretary of State, though he had previously declined to become Secretary of War. The presidential campaign was the engrossing interest of the year, and as it spread its “havoc of virulence” throughout the country, Federalists of both factions seemed to turn to Marshall in the hope that, by some miracle of conciliation, he could save the day. The hope proved groundless, however, and all that was ultimately left the party which had founded the Government was to choose a President from the rival leaders of the opposition. Of these Marshall preferred Burr, because, as he explained, he knew Jefferson’s principles better. Besides having foreign prejudices, Mr. Jefferson, he continued, “appears to me to be a man who will embody himself with the House of Representatives, and by weakening the office of President, he will increase his personal power.” Better political prophecy has, indeed, rarely been penned. Deferring nevertheless to Hamilton’s insistence—and, as events were to prove, to his superior wisdom—Marshall kept aloof from the fight in the House, and his implacable foe was elected.

Marshall was already one of the eminent men of the country when Adams, without consulting him, nominated him for Chief Justice. He stood at the head of the Virginia bar; he was the most generally trusted leader of his party; he already had a national reputation as an interpreter of the Constitution. Yet his appointment as Chief Justice aroused criticism even among his party friends. Their doubt did not touch his intellectual attainments, but in their opinion his political moderation, his essential democracy, his personal amiability, all counted against him. “He is,” wrote Sedgwick, “a man of very affectionate disposition, of great simplicity of manners, and honest and honorable in all his conduct. He is attached to pleasures, with convivial habits strongly fixed. He is indolent therefore. He has a strong attachment to popularity but is indisposed to sacrifice to it his integrity; hence he is disposed on all popular subjects to feel the public pulse, and hence results indecision and an expression of doubt.” ¹

It was perhaps fortunate for the Federal Judiciary, of which he was now to take command, that John Marshall was on occasion “disposed … to feel the public pulse.” A headstrong pilot might speedily have dashed his craft on the rocks; a timid one would have abandoned his course; but Marshall did neither. The better answer to Sedgwick’s fears was given in 1805 when John Randolph declared that Marshall’s “real worth was never known until he was appointed Chief Justice.” And Sedgwick is further confuted by the portraits of the Chief Justice, which, with all their diversity, are in accord on that stubborn chin, that firm placid mouth, that steady, benignant gaze, so capable of putting attorneys out of countenance when they had to face it overlong. Here are the lineaments of self-confidence unmarred by vanity, of dignity without condescension, of tenacity untouched by fanaticism, and above all, of an easy conscience and unruffled serenity. It required the lodestone of a great and thoroughly congenial responsibility to bring to light Marshall’s real metal.

Jefferson’s War On The Judiciary

By a singular coincidence Marshall took his seat as Chief Justice at the opening of the first term of Court in Washington, the new capital, on Wednesday, February 4, 1801. The most beautiful of capital cities was then little more than a swamp, athwart which ran a streak of mire named by solemn congressional enactment “Pennsylvania Avenue.” At one end of this difficult thoroughfare stood the President’s mansion—still in the hands of the builders but already sagging and leaking through the shrinkage of the green timber they had used—two or three partially constructed office-buildings, and a few private edifices and boarding houses. Marshall never removed his residence to Washington but occupied chambers in one or other of these buildings, in company with some of the associate justices. This arrangement was practicable owing to the brevity of the judicial term, which usually lasted little more than six weeks, and was almost necessitated by the unhealthful climate of the place. It may be conjectured that the life of John Marshall was prolonged for some years by the Act of 1802, which abolished the August term of court, for in the late summer and early autumn the place swarmed with mosquitoes and reeked with malaria.

The Capitol, which stood at the other end of Pennsylvania Avenue, was in 1801 even less near completion than the President’s house; at this time the south wing rose scarcely twenty feet above its foundations. In the north wing, which was nearer completion, in a basement chamber, approached by a small hall opening on the eastern side of the Capitol and flanked by pillars carved to represent bundles of cornstalks with ears half opened at the top, Marshall held court for more than a third of a century and elaborated his great principles of constitutional law. This room, untouched by British vandalism in the invasion of 1814, was christened by the witty malignity of John Randolph, “the cave of Trophonius.” ¹

It was in the Senate Chamber in this same north wing that Marshall administered the oath of office to Jefferson just one month after he himself had taken office. There have been in American history few more dramatic moments, few more significant, than this occasion when these two men confronted each other. They detested each other with a detestation rooted in the most essential differences of character and outlook. As good fortune arranged it, however, each came to occupy precisely that political station in which he could do his best work and from which he could best correct the bias of the other. Marshall’s nationalism rescued American democracy from the vaguer horizons to which Jefferson’s cosmopolitanism beckoned, and gave to it a secure abode with plenty of elbow-room. Jefferson’s emphasis on the right of the contemporary majority to shape its own institutions prevented Marshall’s constitutionalism from developing a privileged aristocracy. Marshall was finely loyal to principles accepted from others; Jefferson was speculative, experimental; the personalities of these two men did much to conserve essential values in the American Republic.

As Jefferson turned from his oath-taking to deliver his inaugural, Marshall must have listened with attentive ears for some hint of the attitude which the new Administration proposed to take with regard to the Federal Judiciary and especially with regard to the recent act increasing its numbers; but if so, he got nothing for his pains. The new President seemed particularly bent upon dispelling any idea that there was to be a political proscription. Let us, said he, “unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.… Every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.”

Notwithstanding the reassurance of these words, the atmosphere both of official Washington and of the country at large was electric with dangerous currents—dangerous especially to judges—and Jefferson was far too well known as an adept in the manipulation of political lightning to admit of much confidence that he would fail to turn these forces against his enemy when the opportune moment should arrive. The national courts were regarded with more distrust by the mass of Republicans than any other part of the hated system created by the once dominant Federalists. The reasons why this was so have already been indicated, but the most potent reason in 1801, because it was still freshest in mind, was the domineering part which the national judges had played in the enforcement of the Sedition Act. The terms of this illiberal measure made, and were meant to make, criticism of the party in power dangerous. The judges—Federalists to a man and bred, moreover, in a tradition which ill distinguished the office of judge from that of prosecutor—felt little call to mitigate the lot of those who fell within the toils of the law under this Act. A shining mark for the Republican enemies of the Judiciary was Justice Samuel Chase of the Supreme Court. It had fallen to Chase’s lot to preside successively at the trial of Thomas Cooper for sedition, at the second trial of John Fries for treason, and at the trial of James Thompson Callender at Richmond for sedition. On each of the two latter occasions the defendant’s counsel, charging “oppressive conduct” on the part of the presiding judge, had thrown up their briefs and rushed from the court room. In 1800 there were few Republicans who did not regard Chase as “the bloody Jeffreys of America.”

Local conditions also frequently accentuated the prevailing prejudice against the Judiciary. The people of Kentucky, afraid that their badly tangled land titles were to be passed upon by the new Federal Courts, were already insisting, when Jefferson took office, that the Act of the 13th of February creating these courts be repealed. In Maryland extensive and radical alterations of the judicial system of the State were pending. In Pennsylvania the situation was even more serious, for though the judges of the higher courts of that commonwealth were usually men of ability, education, and character, the inferior magistrates were frequently the very opposite. By the state constitution judges were removable for serious offenses by impeachment, and for lesser reasons by the Governor upon the address of two-thirds of both branches of the Legislature. So long, however, as the Federalists had remained in power neither remedy had been applied; but in 1799, when the Republicans had captured both the governorship and the Legislature, a much needed purgation of the lower courts had forthwith begun.

Unfortunately this is a sort of reform that grows by what it feeds upon. Having got rid of the less fit members of the local judiciary, the Republican leaders next turned their attention to some of their aggressive party foes on the Superior Bench. The most offensive of these was Alexander Addison, president of one of the Courts of Common Pleas of the State. He had started life as a Presbyterian preacher and had found it natural to add to his normal judicial duties the business of inculcating “sound morals and manners.” ¹ Addison had at once taken the Alien and Sedition laws under his wing, though their enforcement did not fall within his jurisdiction, and he found in the progress of the French Revolution numerous texts for partisan harangues to county juries. For some reason Addison’s enemies decided to resort to impeachment rather than to removal by address; and, as a result, in January, 1803, the State Senate found him guilty of “misdemeanor,” ordered his removal from office, and disqualified him for judicial office in Pennsylvania. Not long afterwards the House of Representatives granted without inquiry or discussion a petition to impeach three members of the Supreme Court of the State for having punished one Thomas Passmore for contempt of court without a jury trial.

Jefferson entered office with his mind made up that the Act of the 13th of February should be repealed. ¹ He lacked only a theory whereby he could reconcile this action with the Constitution, and that was soon forthcoming. According to the author of this theory, John Taylor of Caroline, a budding “Doctor Irrefragabilis” of the State Rights school, the proposed repeal raised two questions: first, whether Congress could abolish courts created by a previous act of Congress; and second, whether, with such courts abolished, their judges still retained office. Addressing himself to the first question, Taylor pointed out that the Act of the 13th of February had itself by instituting a new system abolished the then existing inferior courts. As to the second point, he wrote thus: “The Constitution declares that the judge shall hold his office during good behavior. Could it mean that he should hold office after it had been abolished? Could it mean that his tenure should be limited by behaving well in an office which did not exist?” A construction based on such absurdities, said he, “overturns the benefits of language and intellect.”

In his message of December 8, 1801, Jefferson gave the signal for the repeal of the obnoxious measure, and a month later Breckinridge of Kentucky introduced the necessary resolution in the Senate. In the prolonged debate which followed, the Republicans in both Senate and House rang the changes on Taylor’s argument. The Federalists made a twofold answer. Some, accepting the Republican premise that the fate of the judge was necessarily involved with that of the court, denied in toto the validity of repeal. Gouverneur Morris, for instance, said: “You shall not take the man from the office but you may take the office from the man; you may not drown him, but you may sink his boat under him.… Is this not absurd?” Other Federalists, however, were ready to admit that courts of statutory origin could be abolished by statute but added that the operation of Congress’s power in this connection was limited by the plain requirement of the Constitution that judges of the United States should hold office during good behavior. Hence, though a valid repeal of the Act in question would take from the judges the powers which they derived from its provisions, the repeal would still leave them judges of the United States until they died, resigned, or were legally removed in consequence of impeachment. The Federalist orators in general contended that the spirit of the Constitution confirmed its letter, and that its intention was clear that the national judges should pass finally upon the constitutionality of acts of Congress and should therefore be as secure as possible from legislative molestation.

The repeal of this Act was voted by a strict party majority and was reënforced by a provision postponing the next session of the Supreme Court until the following February. The Republican leaders evidently hoped that by that time all disposition to test the validity of the Repealing Act in the Court would have passed. But by this very precaution they implied a recognition of the doctrine of judicial review and the whole trend of the debate abundantly confirmed this implication. Breckinridge, Randolph, and Giles, it is true, scouted the claim made for the courts as “unheard-of doctrine,” and as “mockery of the high powers of legislation”; but the rank and file of their followers, with the excesses of the French Revolution a recent memory and a “consolidated government” a recent fear, were not to be seduced from what they clearly regarded as established doctrine. Moreover, when it came to legislation concerning the Supreme Court, the majority of the Republicans again displayed genuine moderation, for, thrusting aside an obvious temptation to swamp that tribunal with additional judges of their own creed, they merely restored it to its original size under the Act of 1789.

Nevertheless the most significant aspect in the repeal of the Act of the 13th of February was the fact itself. The Republicans had not shown a more flagrant partisanism in effecting this repeal than had the Federalists in originally enacting the measure which was now at an end. Though the Federalists had sinned first, the fact nevertheless remained that in realizing their purpose the Republican majority had established a precedent which threatened to make of the lower Federal Judiciary the merest cat’s-paw of party convenience. The attitude of the Republican leaders was even more menacing, for it touched the security of the Supreme Court itself in the enjoyment of its highest prerogative and so imperiled the unity of the nation. Beyond any doubt the moment was now at hand when the Court must prove to its supporters that it was still worth defending and to all that the Constitution had an authorized final interpreter.

Marshall’s first constitutional case was that of Marbury vs. Madison. ¹ The facts of this famous litigation are simple. On March 2, 1801, William Marbury had been nominated by President Adams to the office of Justice of the Peace in the District of Columbia for five years; his nomination had been ratified by the Senate; his commission had been signed and sealed; but it had not yet been delivered when Jefferson took office. The new President ordered Madison, his Secretary of State, not to deliver the commission. Marbury then applied to the Supreme Court for a writ of mandamus to the Secretary of State under the supposed authorization of the thirteenth section of the Act of 1789, which empowered the Court to issue the writ “in cases warranted by the principles and usages of law to … persons holding office under the authority of the United States.” The Court at first took jurisdiction of the case and issued a rule to the Secretary of State ordering him to show cause, but it ultimately dismissed the suit for want of jurisdiction on the ground that the thirteenth section was unconstitutional.