Chapter I: Democracy: Judiciary (2)

In view of the fact that Abijah Adams was not the author of the libel, nor even the publisher or editor of the _Chronicle_, but was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month's imprisonment, but required him to find sureties for his good behavior for a year, and to pay the costs of the trial.[138]

Alexander Addison, the presiding judge of one of the Pennsylvania State courts, was another Federalist State judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into disrepute. Some of his charges to grand juries were nothing but denunciations of Republican principles.[139]

His manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. In one case,[140] Addison forbade the Associate Judge to address the jury, and prevented him from doing so.[141]

Nor did the judges stop with lecturing everybody from the bench. Carrying with them the authority of their exalted positions, more than one of them, notably Justice Chase and Judge Addison, took the stump in political campaigns and made partisan speeches.[142]

So it fell out that the manners, language, and conduct of the judges themselves, together with their use of the bench as a political rostrum, their partisanship as to the European belligerents, their merciless enforcement of the common law--aroused that public fear and hatred of the courts which gave Jefferson and the Republicans their opportunity. The questions which lay at the root of the Republican assault upon the Judiciary would not of themselves, and without the human and dramatic incidents of which the cases mentioned are examples, have wrought up among citizens that fighting spirit essential to a successful onslaught upon the National system of justice, which the Federalists had made so completely their own.[143]

Those basic questions thus brought theatrically before the people's eyes, had been created by the Alien and Sedition Laws, and by the Virginia and Kentucky Resolutions which those undemocratic statutes called forth. Freedom of speech on the one hand and Nationalism on the other hand, the crushing of "sedition" as against that license which Localism permitted--such were the issues which the imprudence and hot-headedness of the Federalist judges had brought up for settlement. Thus, unhappily, democracy marched arm in arm with State Rights, while Nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism.

Had not the Federalists, arrogant with power and frantic with hatred of France and fast becoming zealots in their championship of Great Britain, passed the drastic laws against liberty of the press and freedom of speech; had not the Republican protest against these statutes taken the form of the assertion that individual States might declare unconstitutional and disregard the acts of the National Legislature; and finally, had not National tribunals and some judges of State courts been so harsh and insolent, the Republican assault upon the National Judiciary,[144] the echoes of which loudly sound in our ears even to the present day, probably never would have been made.

But for these things, Marbury _vs._ Madison[145] might never have been written; the Supreme Court might have remained nothing more than the comparatively powerless institution that ultimate appellate judicial establishments are in other countries; and the career of John Marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. But the Republican condemnations of the severe punishment that the Federalists inflicted upon anybody who criticized the Government, raised fundamental issues and created conditions that forced action on those issues.

FOOTNOTES:

[1] Gallatin to his wife, Jan. 15, 1801, Adams: _Life of Albert Gallatin_, 252; also Bryan: _History of the National Capital_, I, 357-58.

[2] _First Forty Years of Washington Society_: Hunt, 11.

[3] _Ib._; and see Wolcott to his wife, July 4, 1800, Gibbs: _Administrations of Washington and John Adams_, II, 377.

[4] Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.

[5] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 252-53.

[6] Hunt, 10.

[7] Gallatin to his wife, _supra_.

[8] Bryan, I, 357-58.

[9] A few of these are still standing and occupied.

[10] Gallatin to his wife, _supra_; also Wharton: _Social Life in the Early Republic_, 58-59.

[11] Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304.

[12] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.

[13] Otis to his wife, Feb. 28, 1815, Morison: _Life and Letters of Harrison Gray Otis_, II, 170-71. This letter is accurately descriptive of travel from the National Capital to Baltimore as late as 1815 and many years afterward.

"The Bladensburg _run, before we came to the bridge_, was happily in no one place _above_ the Horses bellies.--As we passed thro', the driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled us by shewing the tree, on which all the Passengers _but one_, were saved. Whether that one was gouty or not, I did not enquire....

"We ... arriv'd safe at our first stage, Ross's, having gone at a rate rather exceeding two miles & an half per hour.... In case of a _break Down_ or other accident, ... I should be sorry to stick and freeze in over night (_as I have seen happen to twenty waggons_) for without an extraordinary thaw I could not be dug out in any reasonable dinner-time the next day."

Of course conditions were much worse in all parts of the country, except the longest and most thickly settled sections.

[14] Parton: _Life of Thomas Jefferson_, 622.

[15] Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.

[16] _Memoirs of John Quincy Adams_: Adams, IV, 74; and see Quincy: _Life of Josiah Quincy_, 186.

Bayard wrote to Rodney: "four months [in Washington] almost killed me." (Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, IV, 230.)

[17] Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs. Smith to her husband, July 8, 1803, _ib._ 41; and Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304-05.

[18] King to Gore, Aug. 20, 1803, _Life and Correspondence of Rufus King_: King, IV, 294; and see Adams: _History of the United States_, IV, 31.

[19] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[20] Wharton: _Social Life_, 60.

[21] See _infra_, chap. IV.

[22] Plumer to Lowndes, Dec. 30, 1805, Plumer: _Life of William Plumer_, 244.

"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805, Plumer MSS. Lib. Cong.)

[23] Story to Fay, Feb. 16, 1808, _Life and Letters of Joseph Story_: Story, I, 161.

[24] This was a little Presbyterian church building, which was abandoned after 1800. (Bryan, I, 232; and see Hunt, 13-14.)

[25] _Memoirs of Lieut.-General Scott_, 9-10. Among the masses of the people, however, a profound religious movement was beginning. (See Semple: _History of the Rise and Progress of the Baptists in Virginia_; and Cleveland: _Great Revival in the West_.)

A year or two later, religious services were held every Sunday afternoon in the hall of the House of Representatives, which always was crowded on these occasions. The throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting-place for gossip, flirtation, and social gayety. The plan was soon abandoned and the hall left entirely to profane usages. (Bryan, I, 606-07.)

[26] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[27] Wharton: _Social Life_, 72.

[28] Hunt, 12.

[29] See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: _U.S._ II, 362.

Public men seldom brought their wives to Washington because of the absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec. 6, 1805, Hunt, 48.)

"I do not perceive how the members of Congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, II, 377.)

[30] Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see _Annals_, 8th Cong. 1st Sess. 282-88. The debate is instructive. The bill was lost by 9 yeas to 19 nays.

[31] Hildreth: _History of the United States_, V, 516-17.

[32] Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.

[33] Channing: _History of the United States_, IV, 245.

[34] Bryan, I, 438.

[35] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.

"The workmen are the refuse of that class and, nevertheless very high in their demands." (La Rochefoucauld-Liancourt: _Travels Through the United States of North America_, III, 650.)

[36] "To Thomas Hume, Esq., M.D.," Moore: _Poetical Works_, II, 83.

[37] See Jefferson to Short, Sept. 6, 1790, _Works of Thomas Jefferson_: Ford, VI, 146; same to Mrs. Adams, July 7, 1785, _ib._ IV, 432-33; same to Peters, June 30,1791, _ib._ VI, 276; same to Short, April 24, 1792, _ib._ 483; same to Monroe, May 26, 1795, _ib._ VIII, 179; same to Jay, Oct. 8, 1787, _Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson_: Randolph, II, 249; also see Chastellux: _Travels in North America in the Years 1780-81-82_, 299.

[38] See Singleton: _Story of the White House_, I, 42-43.

[39] Plumer to his wife, Dec. 25, 1802, Plumer, 246.

[40] "Mr. Granger [Jefferson's Postmaster-General] ... after a few bottles of champagne were emptied, on the observation of Mr. Madison that it was the most delightful wine when drank in moderation, but that more than a few glasses always produced a headache the next day, remarked with point that this was the very time to try the experiment, as the next day being Sunday would allow time for a recovery from its effects. The point was not lost upon the host and bottle after bottle came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)

[41] At that time it was called "The Executive Mansion" or "The President's Palace."

[42] Bryan, I, 44; also see La Rochefoucauld-Liancourt, III, 642-51.

[43] See vol. I, chaps. VI and VII, of this work.

[44] Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S. Thayer of Baltimore.

[45] Cabot to Wolcott, Aug. 3, 1801, Lodge: _Life and Letters of George Cabot_, 322.

George Cabot was the ablest, most moderate and far-seeing of the New England Federalists. He feared and detested what he called "excessive democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. Cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like Madison, Gallatin, Hamilton, and Marshall.

[46] Hale to King, Dec. 19, 1801, King, IV, 39.

[47] Sedgwick to King, Dec. 14, 1801, _ib._ 34-35.

[48] Dwight's oration as quoted in Adams: U.S. I, 225.

[49] J. Q. Adams to King, Oct. 8,1802, _Writings of John Quincy Adams_: Ford, III, 8-9. Within six years Adams abandoned a party which offered such feeble hope to aspiring ambition. (See _infra_, chap, IX.)

[50] J. Russell's _Gazette-Commercial and Political_, January 28, 1799.

[51] _History of the Last Session of Congress Which Commenced 7th Dec. 1801_ (taken from the _National Intelligencer_). Yet at that time in America manhood suffrage did not exist excepting in three States, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. Hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned.

[52] Wirt: _Letters of the British Spy_, 10-11.

These brilliant articles, written by Wirt when he was about thirty years old, were published in the Richmond _Argus_ during 1803. So well did they deceive the people that many in Gloucester and Norfolk declared that they had seen the British Spy. (Kennedy: _Memoirs of the Life of William Wirt_, I, 111, 113.)

[53] Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.

[54] Jefferson to Rush, Oct. 4, 1803, _Works_: Ford, X, 32.

Immediately after his inauguration, Jefferson restated the American foreign policy announced by Washington. It was the only doctrine on which he agreed with Marshall.

"It ought to be the very first object of our pursuits to have nothing to do with European interests and politics. Let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form.... To take part in their conflicts would be to divert our energies from creation to destruction." (Jefferson to Logan, March 21, 1801, _Works_: Ford, IX, 219-20.)

[55] Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, _Works_: Ford, IX, 249.

The democratic revolution that overthrew Federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. But in the first years of Republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of France.

[56] See _infra_, chaps. III and VI; also vol. IV, chap. I.

[57] 1 Cranch, 1 _et seq._

[58] Wilson _vs._ Mason, 1 Cranch, 45-101.

[59] 1 Cranch, 102-10.

[60] Turner _vs._ Fendall, 1 Cranch, 115-30.

[61] See vol. II, 531-47, of this work.

[62] See Adams: _U.S._ I, chaps. IX and X, for account of the revolutionary measures which the Republicans proposed to take.

[63] Marshall to Pinckney, March 4, 1801, "four o'clock," MS.

[64] "It is the sole object of the Administration to acquire popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: _Cabot_, 325.)

"The President has ... the itch for popularity." (J. Q. Adams to his father, November, 1804, _Writings, J. Q. A._: Ford, III, 81.)

"The mischiefs of which his immoderate thirst for ... popularity are laying the foundation, are not immediately perceived." (Adams to Quincy, Dec. 4, 1804, Quincy, 64.)

"It seems to be a great primary object with him never to pursue a measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer MSS. Lib. Cong.)

"In dress, conversation, and demeanor he studiously sought and displayed the arts of a low demagogue seeking the gratification of the democracy on whose voices and votes he laid the foundation of his power." (Quincy's Diary, Jan. 1806, Quincy, 93.)

[65] Ames to Gore, Dec. 13, 1802, _Works of Fisher Ames_: Ames, I, 309.

[66] Dodd in _American Historical Review_, XII, 776; and see next chapter.

[67] Jefferson to Dickinson, Dec. 19, 1801, _Writings of Thomas Jefferson_: Washington, IV, 424.

[68] "The only shield for our Republican citizens against the federalism of the courts is to have the attorneys & Marshals republicans." (Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 248.)

[69] "The judge of course stands until the law [Judiciary Act of 1801] shall be repealed which we trust will be at the next Congress." (Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 247.) For two weeks Jefferson appears to have been confused as to the possibility of repealing the Judiciary Act of 1801. A fortnight before he informed Stuart that this course would be taken, he wrote Giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in _American Political Science Review_, IX, 522.)

But the repeal had been determined upon within six weeks after Jefferson's inauguration as his letter to Stuart shows.

[70] Giles to Jefferson, March 16, 1801, Anderson: _William Branch Giles--A Study in the Politics of Virginia 1790-1830_, 77.

[71] Same to same, June 1, 1801, _ib._ 80.

[72] Sedgwick to King, Dec. 14, 1801, King, IV, 36.

[73] Hale to King, Dec. 19, 1801, King, IV, 39.

[74] It must be carefully kept in mind that from the beginning of the Revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (See vol. I, 297-99, of this work.)

Braintree, Mass., in 1786, in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws ... as may crush or, at least, put a proper check of restraint" upon them.

Dedham, Mass., instructed its members of the Legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of Lawyers be totally abolished." (Warren: _History of the American Bar_, 215.) All this, of course, was the result of the bitter hardships of debtors.

[75] For an able defense of the adoption by the National courts of the British common law, see _Works of the Honourable James Wilson_: Wilson, III, 384.

[76] _Columbian Centinel_, July 11, 1801, as quoted in Warren, 225-27.

[77] _Correspondence and Public Papers of John Jay_: Johnston, III, 478-85.

[78] Wharton: _State Trials of the U.S. during the Administrations of Washington and Adams_, 60 _et seq._; and see Wilson's law lecture on the subject, Wilson, III, 384.

[79] 2 Dallas, 297-99.

[80] _Ib._ Ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and Exequatur." (Wharton: _State Trials_, 90-92.)

[81] For the documents preceding the arrest and prosecution of Henfield, see Wharton: _State Trials_, footnotes to 49-52.

[82] See Wilson's charge, Wharton: _State Trials_, 59-66.

[83] See Wharton's summary of Wilson's second charge, _ib._ footnote to 85.

[84] _Ib._ 88.

[85] Marshall: _Life of George Washington_, 2d ed. II, 273-74. After the Henfield and Ravara cases, Congress passed a law applicable to such offenses. (See Wharton: _State Trials_, 93-101.)

[86] Wharton: _State Trials_, 653-54.

[87] This was the British defense for impressment of seamen on American ships. It was one of the chief points in dispute in the War of 1812. The adherence of Federalists to this doctrine was one of the many causes of the overthrow of that once great party. (See _infra_, vol. IV, chap. I, of this work.)

[88] Wharton: _State Trials_, 654. Upon another indictment for having captured a British ship and crew, Williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (_Ib._; see also vol II, 495, of this work.)

[89] U.S. _vs._ Hudson, 7 Cranch, 32-34. "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion.... The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (Justice William Johnson delivering the opinion of the majority of the court, _ib._)

Joseph Story was frantic because the National judges could not apply the common law during the War of 1812. (See his passionate letters on the subject, vol. IV, chap. I, of this work; and see his argument for the common law, Story, I, 297-300; see also Peters to Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)

[90] The opinion of Justice Chase, of the Supreme Court of Philadelphia, sitting with Peters, District Judge, in the case of the United States _vs._ Robert Worral, indicted under the common law for attempting to bribe a United States officer. Justice Chase held that English common law was not a part of the jurisprudence of the United States as a Nation. (Wharton: _State Trials_, 189-99.)

[91] This was notably true of Justice James Wilson, of the Supreme Court, and Alexander Addison, President Judge of the Fifth Pennsylvania (State) Circuit, both of whom were born and educated in the United Kingdom. They were two of the ablest and most learned men on the bench at that period.

[92] Message of Governor John Tyler, Dec. 3, 1810, Tyler: _Letters and Times of the Tylers_, I, 261; and see Tyler to Monroe, Dec. 4, 1809, _ib._ 232.

[93] Jefferson to Randolph, Aug. 18, 1799, _Works_: Ford, IX, 73.

[94] See vol. II, chaps. X and XI, of this work.

[95] The National judges, in their charges to grand juries, lectured and preached on religion, on morality, on partisan politics.

"On Monday last the Circuit Court of the United States was opened in this town. The Hon. Judge Patterson ... delivered a most elegant and appropriate charge.

"The _Law_ was laid down in a masterly manner: _Politics_ were set in their true light by holding up the Jacobins [Republicans] as the disorganizers of our happy country, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. _Religion & Morality_ were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws; for 'when the righteous [Federalists] are in authority, the people rejoice.'...

"After the charge was delivered the Rev. Mr. Alden addressed the Throne of Grace in an excellent and well adapted prayer." (_United States Oracle of the Day_, May 24, 1800, as quoted by Hackett, in _Green Bag_, II, 264.)

[96] Adams's War Speech of 1798; see vol. II, 351, of this work.

[97] Wharton: _State Trials_, 333-34.

[98] _Ib._ 339.

[99] _Ib._ 337. Paterson sat with District Judge Hitchcock and delivered the charge in this case. Luther Martin in the trial of Justice Chase (see _infra_, chap. IV) said that Paterson was "mild and amiable," and noted for his "suavity of manners." (_Trial of the Hon. Samuel Chase_: Evans, stenographer, 187-88.)

[100] See Lyon to Mason, Oct. 14, 1798, Wharton: _State Trials_, 339-41.

[101] Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong.

[102] Wharton: _State Trials_, 684.

[103] _Ib._ 685.

[104] _Ib._ 685-86.

[105] Wharton: _State Trials_, 661-62. Cooper was referring to the case of Jonathan Robins. (See vol. II, 458-75, of this work.)

[106] Cooper afterward became a State judge.

[107] See _infra_, chap. VIII.

[108] Wharton: _State Trials_, 679. Stephen Girard paid Cooper's fine. (McMaster: _Life and Times of Stephen Girard_, I, 397-98.)

[109] Wharton: _State Trials_, 466-69.

[110] See vol. II, 429 _et seq._ of this work.

[111] Wharton: _State Trials_, 598-609.

[112] For sketch of Lewis see Wharton: _State Trials_, 32-33.

[113] _Independent Chronicle_, Boston, May 12, 1800.

[114] Wharton: _State Trials_, 641 et seq.

[115] See vol. II, 429 _et seq._ of this work.

[116] Jefferson to Mason, Oct. 11, 1798, _Works_: Ford, VIII, 449-50; same to Callender, Sept. 6, 1799, _ib._ IX, 81-82; same to same, Oct. 6, 1799, _ib._ 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS. Mass. Hist. Soc.

[117] War speech of Adams to Congress in 1798, see vol. II, 351, of this work.

[118] Testimony of James Winchester (_Annals_, 8th Cong. 2d Sess. 246-47); of Luther Martin (_ib._ 245-46); and of John T. Mason (_ib._ 216); see also _Chase Trial_, 63.

[119] Testimony of James Triplett, _Chase Trial_, 44-45, and see _Annals_, 8th Cong. 2d Sess. 217-19.

[120] Jefferson to Monroe, May 26, 1800, _Works_: Ford, IX, 136. By "public interference" Jefferson meant an appropriation by the Virginia Legislature. (_Ib._ 137.)

[121] The trial of Aaron Burr, see _infra_, chaps. VI, VII, VIII, and IX.

[122] See testimony of George Hay,_ Annals_, 8th Cong. 2d Sess. 203; and see especially Luther Martin's comments thereon, _infra_, chap. IV.

[123] The public mind was well prepared for just such appeals as those that Hay and Wirt planned to make. For instance, the citizens of Caroline County subscribed more than one hundred dollars for Callender's use.

The subscription paper, probably drawn by Colonel John Taylor, in whose hands the money was placed, declared that Callender "has a cause closely allied to the preservation of the Constitution, and to the freedom of public opinion; and that he ought to be comforted in his bonds."

Callender was "a sufferer for those principles." Therefore, and "because also he is poor and has three infant children who live by his daily labor" the contributors freely gave the money "to be applied to the use of James T. Callender, and if he should die in prison, to the use of his children." (_Independent Chronicle_, Boston, July 10, 1800.)

[124] See _infra_, chap. IV.

[125] Wharton: _State Trials_, 692.

[126] _Ib._ 696-98; and see testimony of Taylor, _Chase Trial_, 38-39.

[127] Wharton: _State Trials_, 717-18. Chase's charge to the jury was an argument that the constitutionality of a law could not be determined by a jury, but belonged exclusively to the Judicial Department. For a brief _précis_ of this opinion see chap. III of this volume. Chase advanced most of the arguments used by Marshall in Marbury _vs._ Madison.

[128] _Ib._ 718. When Jefferson became President he immediately pardoned Callender. (See next chapter.)

[129] Wharton: _State Trials_, footnote to 718.

[130] See testimonies of Gunning Bedford, Nicholas Vandyke, Archibald Hamilton, John Hall, and Samuel P. Moore, _Chase Trial_, 98-101.

[131] For example, one Charles Holt, publisher of a newspaper, _The Bee_, of New London, Connecticut, had commented on the uselessness of enlisting in the army, and reflected upon the wisdom of the Administration's policy; for this he was indicted, convicted, and sentenced to three months' imprisonment, and the payment of a fine of two hundred dollars. (Randall: _Life of Thomas Jefferson_, II, 418.)

When President Adams passed through Newark, New Jersey, the local artillery company fired a salute. One of the observers, a man named Baldwin, idly remarked that "he wished the wadding from the cannon had been lodged in the President's backside." For this seditious remark Baldwin was fined one hundred dollars. (Hammond: _History of Political Parties in the State of New York_, I, 130-31.)

One Jedediah Peck, Assemblyman from Otsego County, N.Y., circulated among his neighbors a petition to Congress to repeal the Alien and Sedition Laws. This shocking act of sedition was taken up by the United States District Attorney for New York, who procured the indictment of Peck; and upon bench warrant, the offender was arrested and taken to New York for trial. It seems that such were the demonstrations of the people, wherever Peck appeared in custody of the officer, that the case was dropped. (Randall, II, 420.)

[132] They were supposed to select juries according to the laws of the States where the courts were held. As a matter of fact they called the men they wished to serve.

[133] McMaster: _History of the People of the United States_, II, 473; and see speech of Charles Pinckney in the Senate, March 5, 1800, _Annals_, 6th Cong. 1st and 2d Sess. 97.

[134] See speech of Bacon in the _Independent Chronicle_, Feb. 11-14, 1799; and of Hill, _ib._ Feb. 25, 1799.

[135] _Columbian Centinel_, Feb. 16, 1799; also see issue of Jan. 23, 1799. For condensed account of this incident see Anderson in _Am. Hist. Rev._ V, 60-62, quoting the _Centinel_ as cited. A Federalist mob stoned the house of Dr. Hill the night after he made this speech. (_Ib._) See also _infra_, chap. III.

[136] _Independent Chronicle_, Feb. 18, 1799.

[137] _Columbian Centinel_, March 30, 1799. The attorneys for Adams also advanced the doctrines of the Kentucky and Virginia Resolutions, so far, at least, as to assert that any State ought to protest against and resist any act of Congress that the Commonwealth believed to be in violation of the National Constitution. (Anderson, in _Am. Hist. Rev._ V, 226-27.)

[138] _Columbian Centinel_, March 27, 1799.

Another instance of intolerant and partisan prosecutions in State courts was the case of Duane and others, indicted and tried for getting signatures to a petition in Congress against the Alien and Sedition Laws. They were acquitted, however. (Wharton: _State Trials_, 345-89.)

[139] These charges of Judge Addison were, in reality, political pamphlets. They had not the least reference to any business before the court, and were no more appropriate than sermons. They were, however, written with uncommon ability. It is doubtful whether any arguments more weighty have since been produced against what George Cabot called "excessive democracy." These grand jury charges of Addison were entitled: "Causes and Error of Complaints and Jealousy of the Administration of the Government"; "Charges to the Grand Juries of the County Court of the Fifth Circuit of the State of Pennsylvania, at December Session, 1798"; "The Liberty of Speech and of the Press"; "Charge to Grand Juries, 1798"; "Rise and Progress of Revolution," and "A Charge to the Grand Juries of the State of Pennsylvania, at December Session, 1800."

[140] Coulter _vs._ Moore, for defamation. Coulter, a justice of the peace, sued Moore for having declared, in effect, that Coulter "kept a house of ill fame." (_Trial of Alexander Addison, Esq._: Lloyd, stenographer, 38; also Wharton: _State Trials_, 32 _et seq._)

[141] This judge was John C. B. Lucas. He was a Frenchman speaking broken English, and, judging from the record, was a person of very inferior ability. There seems to be no doubt that he was the mere tool of another judge, Hugh H. Brackenridge, who hated Addison virulently. From a study of the case, one cannot be surprised that the able and erudite Addison held in greatest contempt the fussy and ignorant Lucas.

[142] Wharton: _State Trials_, 45; Carson: _Supreme Court of the United States, Its History_, I, 193.

[143] The uprising against the Judiciary naturally began in Pennsylvania where the extravagance of the judges had been carried to the most picturesque as well as obnoxious extremes. For a faithful narrative of these see McMaster: _U.S._ III, 153-55.

On the other hand, wherever Republicans occupied judicial positions, the voice from the bench, while contrary to that of the Federalist judges, was no less harsh and absolute.

For instance, the judges of the Supreme Court of New Hampshire refused to listen to the reading of British law reports, because they were from "musty, old, worm-eaten books." One of the judges declared that "not Common Law--not the quirks of Coke and Blackstone--but common sense" controlled American judges. (Warren, 227.)

[144] See next chapter.

[145] See _infra_, chap. III, for a résumé of the conditions that forced Marshall to pronounce his famous opinion in the case of Marbury _vs._ Madison, as well as for a full discussion of that controversy.