Chapter II: The Assault on the Judiciary (2)

"FAREWELL, A LONG FAREWELL, TO ALL OUR GREATNESS."

The paper despaired of the Republic--nobody could tell "what other acts, urged by the intoxication of power and the fury of party rage" would be put through. But it announced that the Federalist judges would disregard the infamous Republican law: "The judges will continue to hold their courts as if the bill had not passed. 'Tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it. By the judges this bill will be declared null and void.... And we now ask the mighty victors, what is your triumph?... What is the triumph of the President? He has gratified his malice towards the judges, but he has drawn a tear into the eye of every thoughtful patriot ... and laid the foundation of infinite mischief." The Federalist organ declared that the Republican purpose was to force a "dissolution of the Union," and that this was likely to happen.

This significant editorial ended by a consideration of the Republican purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring forward a resolution to repeal the law establishing the Supreme Court of the United States, we should only consider it a part of the system to be pursued.... We sincerely expect it will be done next session.... Such is democracy."[283]

Senator Plumer declared, before the final vote, that the passage of the Republican Repeal Bill and of other Republican measures meant "anarchy."[284]

The ultra-Federalist _Palladium_ of Boston lamented: "Our army is to be less and our navy nothing: Our Secretaries are to be aliens and our Judges as independent as spaniels. In this way we are to save everything, but our reputation and our rights[285]... Has Liberty any citadel or fortress, has mob despotism any impediments?"[286]

The _Independent Chronicle_, on the other hand, "congratulated the public on the final triumph of _Republicanism_, in the repeal of the late obnoxious judiciary law."[287] The Republicans of Boston and Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle of ... disorganizing ... goes on with a destructive zeal. Internal Taxes--Judicial Sanctity--all are to be overset."[288] Sedgwick was sure that no defense was left against "legislative usurpation."[289] "The angels of destruction ... are making haste," moaned Fisher Ames.[290]

"The angels of destruction" lost no time in striking their next blow. On March 18, two weeks after the threat of the _Washington Federalist_ that the Supreme Court would declare unconstitutional the Republican Repeal Act, a Senate committee was appointed to examine further the National Judiciary establishment and report a bill for any improvements considered necessary.[291] Within a week the committee laid the measure before the Senate,[292] and on April 8 it was passed[293] without debate.

When it reached the House, however, the Federalists had taken alarm. The Federalist Judiciary Act of 1801 had fixed the terms of the Supreme Court in December and June instead of February and August. This new bill, plainly an afterthought, abolished the June session of the Supreme Court, directed that, thereafter, that tribunal should convene but once each year, and fixed the second Monday of February as the time of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the opportunity to pass upon the repeal of the Federalist Judiciary Act of 1801 until the old and defective system of 1789, which it restored, was again in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.[294] John Marshall should have no early opportunity to overturn the Repeal Act, as the Republicans believed he would do if given the chance. Neither should he proceed further with the case of Marbury _vs._ Madison for many months to come.[295]

Bayard moved that the bill should not go into effect until July 1, thus permitting the Supreme Court to hold its June session; but, said Nicholson, that was just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard. "The effect of the present bill will be, to have no court for fourteen months.... Are gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void?"[296]

Nicholson did not care whether the Supreme Court "pronounced the repealing law unconstitutional or not." The Republican postponement of the session for more than a year "does not arise from any design ... to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to suppose gentlemen on the other side are as anxious for a session in June, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise."[297]

Griswold could not credit the Republicans with so base a purpose: "I know that it has been said, out of doors, that this is the great object of the bill. I know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supreme Court to hold its summer session. He frankly avowed a wish for an early decision that the Repeal Act was void. "I think the speedier it [usurpation] is checked the better."[298]

Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconstitutional. "This act is not designed to amend the Judicial system," he asserted; "that is but pretense.... It is to prevent that court from expressing their opinion upon the validity of the act lately passed ... until the act has gone into full execution, and the excitement of the public mind is abated.... Could a less motive induce gentlemen to agree to suspend the sessions of the Supreme Court for fourteen months?"[299]

But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Court of the United States was practically abolished for fourteen months.[300]

At that moment began the movement that finally developed into the plan for the secession of the New England States from the Union. It is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extreme New England Federalist leaders from the time Theodore Sedgwick threatened it in the debate over the Assumption Bill.[301]

Hints of withdrawing from the Union if Virginia should become dominant crop out in their correspondence. The Republican repeal of the Judiciary Act immediately called forth many expressions in Federalist papers such as this from the Boston _Palladium_ of March 2, 1802: "Whether the rights and interests of the Eastern States would be perfectly safe when Virginia rules the nation is a problem easy to solve but terrible to contemplate.... As ambitious _Virginia_ will not be just, let valiant _Massachusetts_ be zealous."

Fisher Ames declared that "the federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins."[302] He thought the Federalists had neglected the press. "It is practicable," said he, "to rouse our sleeping patriotism--sleeping, like a drunkard in the snow.... The newspapers have been left to the lazy or the ill-informed, or to those who undertook singly work enough for six."[303]

Pickering, the truculent, brave, and persistent, anticipated "a new confederacy.... There will be--and our children at farthest will see it--a separation.... The British Provinces, even with the assent of Britain, will become members of the Northern Confederacy."[304]

The more moderate George Cabot, on the contrary, thought that the strong defense made by the Federalists in Congress would induce the Republicans to cease their attacks on the National courts. "The very able discussions of the Judiciary Question," he wrote, "& great superiority of the Federalists in all the debates & public writings have manifestly checked the career of the _Revolutionists_."[305] But for once Cabot was wrong; the Republicans were jubilant and hastened to press their assault more vigorously than ever.

The Federalist newspapers teemed with long arguments against the repeal and laboriously strove, in dull and heavy fashion, to whip their readers into fighting humor. These articles were little more than turgid repetitions of the Federalist speeches in Congress, with a passage here and there of the usual Federalist denunciation. For instance, the _Columbian Centinel_, after restating the argument against the Repeal Act, thought that this "refutes all the absurd doctrines of the Jacobins upon that subject, ... and it will be sooner or later declared by the people, in a tone terrible to the present disorganizing party, to be the true construction of their constitution, and the only one compatible with their safety and happiness."[306]

The _Independent Chronicle_, on the other hand, was exultant. After denouncing "the impudence and scurrility of the Federal faction," a correspondent of that paper proceeded in this fashion: "The Judiciary! The Judiciary! like a wreck on Cape Cod is dashing at every wave"; but, thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing by the grace of God in the Washington _Frigate_--our judges are as at first and Mr. Jefferson has thought fit to practice the old navigation and steer with the same compass by which _Admiral Washington_ regulated his log book. The Essex Junto may be afraid to trust themselves on board but every true Washington American will step on board in full confidence of a prosperous voyage. Huzza for the _Washington Judiciary_--no windows broke--no doors burst in--free from leak--tight and dry."[307]

Destiny was soon again to call John Marshall to the performance of an imperative duty.

FOOTNOTES:

[146] The Senate then met in the chamber now occupied by the Supreme Court.

[147] See _infra_, chap. III.

[148] Jefferson to Congress, Dec. 8, 1801, _Works_: Ford, IX, 321 _et seq._; also _Messages and Papers of the Presidents_: Richardson, I, 331.

[149] Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: _Economic Origins of Jeffersonian Democracy_, 454-55.

[150] For full text of this exposition of Constitutional law by Jefferson see Appendix A.

[151] Ames to King, Dec. 20, 1801, King, IV, 40.

Like most eminent Federalists, except Marshall, Hamilton, and Cabot, Fisher Ames was soon to abandon his Nationalism and become one of the leaders of the secession movement in New England. (See vol. IV, chap. I, of this work.)

[152] See vol. II, 531, 547-48, 550-52, of this work.

[153] _Journal of Samuel Maclay_: Meginness, 90.

[154] _Annals_, 1st Cong. 1st Sess. 862.

[155] _Ib._ 852.

[156] _Ib._ 833-34.

[157] _Ib._ 864-65.

[158] _Maclay's Journal_, 98.

[159] Grayson to Henry, Sept. 29, 1789, Tyler, I, 170-71.

[160] Davie to Iredell, Aug. 2, 1791, _Life and Correspondence of James Iredell_: McRee, II, 335.

[161] Vol. II, 552-53, of this work.

[162] Jay to Adams, Jan. 2, 1801, _Jay_: Johnston, IV, 285.

[163] _Annals_, 1st Cong. 2d and 3d Sess. 2239.

[164] See vol. I, chap. VI, of this work. The conditions of travel are well illustrated by the experiences of six members of Congress, when journeying to Philadelphia in 1790. "Burke was shipwrecked off the Capes; Jackson and Mathews with great difficulty landed at Cape May and traveled one hundred and sixty miles in a wagon to the city; Burke got here in the same way. Gerry and Partridge were overset in the stage; the first had his head broke, ... the other had his ribs sadly bruised.... Tucker had a dreadful passage of sixteen days with perpetual storms." (Letter of William Smith, as quoted by Johnson: _Union and Democracy_, 105-06.)

On his way to Washington from Amelia County in 1805, Senator Giles was thrown from a carriage, his leg fractured and his knee badly injured. (Anderson, 101.)

[165] This arrangement proved to be so difficult and vexatious that in 1792 Congress corrected it to the extent of requiring only one Justice of the Supreme Court to hold circuit court with the District Judge; but this slight relief did not reach the serious shortcomings of the law. (_Annals_, 2d Cong. 1st and 2d Sess. 1447.)

See Adams: _U.S._ I, 274 _et seq._, for good summary of the defects of the original Judiciary Act, and of the improvements made by the Federalist Law of 1801.

[166] See statement of Ogden, _Annals_, 7th Cong. 1st Sess. 172; of Chipman, _ib._ 123; of Tracy, _ib._ 52; of Griswold, _ib._ 768; of Huger, _ib._ 672.

[167] Of course, to some extent this evil still continued in the appeals to the Circuit Bench; but the ultimate appeal was before judges who had taken no part in the cause.

The soundness of the Federalist Judiciary Act of 1801 was demonstrated almost a century later, in 1891-95, when Congress reënacted every essential feature of it. (See "Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," March 3, 1891, chap. 517, amended Feb. 18, 1895, chap. 96.)

[168] For example, Senator Cocke of Tennessee asserted the expense to be $137,000. (_Annals_, 7th Cong. 1st. Sess. 30.) See especially Prof. Farrand's conclusive article in _Am. Hist. Rev._ V, 682-86.

[169] It was to Breckenridge that Jefferson had entrusted the introduction of the Kentucky Resolutions of 1798 into the Legislature of that State. It was Breckenridge who had led the fight for them. At the time of the judiciary debate he was Jefferson's spokesman in the Senate; and later, at the President's earnest request, resigned as Senator to become Attorney-General.

[170] Breckenridge's constituents insisted that the law be repealed, because they feared that the newly established National courts would conflict with the system of State courts which the Legislature of Kentucky had just established. (See Carpenter, _Am. Pol. Sci. Rev._ IX, 523.)

Although the repeal had been determined upon by Jefferson almost immediately after his inauguration (see Jefferson to Stuart, April 8, 1801; _Works_: Ford, IX, 247), Breckenridge relied upon that most fruitful of Republican intellects, John Taylor "of Caroline," the originator of the Kentucky Resolutions (see vol. II, 397, of this work) for his arguments. See Taylor to Breckenridge, Dec. 22, 1801, _infra_, Appendix B.

[171] _Annals_, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530.

[172] _Annals_, 7th Cong. 1st Sess. 26.

[173] _Ib._ 25.

[174] _Ib._ 28.

[175] Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib. Cong.

[176] See _infra_, chaps. III and IV.

[177] _Annals_, 7th Cong. 1st Sess. 31-32.

[178] _Annals_, 7th Cong. 1st Sess. 38.

[179] This unfortunate declaration of Morris gave the Republicans an opportunity of unlimited demagogic appeal. See _infra_. (Italics the author's.)

[180] _Annals_, 7th Cong. 1st Sess. 40-41.

Morris spoke for an hour. There was a "large audience, which is not common for that House." He prepared his speech for the press. (_Diary and Letters of Gouverneur Morris_: Morris, II, 417.)

[181] _Annals_, 7th Cong. 1st Sess. 49.

[182] _Ib._ 47-48. Senator Jackson here refers to the case of Marbury _vs._ Madison, then pending before the Supreme Court. (See _infra_, chap. III.) This case was mentioned several times during the debate. It is plain that the Republicans expected Marshall to award the mandamus, and if he did, to charge this as another act of judicial aggression for which, if the plans already decided upon did not miscarry, they would make the new Chief Justice suffer removal from his office by impeachment. (See _infra_, chap. IV.)

[183] _Annals_, 7th Cong. 1st Sess. 58. Tracy's speech performed the miracle of making one convert. After he closed he was standing before the glowing fireplace, "half dead with his exertions." Senator Colhoun of South Carolina came to Tracy, and giving him his hand, said: "You are a stranger to me, sir, but by ---- you have made me your friend." Colhoun said that he "had been told a thousand lies" about the Federalist Judiciary Act, particularly the manner of passing it, and he had, therefore, been in favor of repealing it. But Tracy had convinced him, and Colhoun declared: "I shall be with you on the question." "May we depend upon you?" asked Tracy, wringing the South Carolina Senator's hand. "By ---- you may," was the response. (Morison: _Life of the Hon. Jeremiah Smith_, footnote to 147.) Colhoun kept his word and voted with the Federalists against his party's pet measure. (_Annals_, 7th Cong. 1st Sess. 185.)

The correct spelling of this South Carolina Senator's name is _Colhoun_, and not C_a_lhoun, as given in so many biographical sketches of him. (See _South Carolina Magazine_ for July, 1906.)

[184] See Grigsby: _Virginia Convention of 1788_, II, 260-262.

This was the same Senator who, in violation of the rules of the Senate, gave to the press a copy of the Jay Treaty which the Senate was then considering. The publication of the treaty raised a storm of public wrath against that compact. (See vol. II, 115, of this work.) Senator Mason's action was the first occurrence in our history of a treaty thus divulged.

[185] _Annals_, 7th Cong. 1st Sess. 59.

[186] In that case Marshall had issued a rule to the Secretary of State to show cause why a writ of mandamus should not be issued by the court ordering him to deliver to Marbury and his associates commissions as justices of the peace, to which offices President Adams had appointed them. (See _infra_, chap. III.)

[187] _Annals_, 7th Cong. 1st Sess. 61.

[188] _Annals_, 7th Cong. 1st Sess. 63.

[189] _Annals_, 7th Cong. 1st Sess. 66. The eloquence of the Virginia Senator elicited the admiration of even the rabidly Federalist _Columbian Centinel_ of Boston. See issue of February 6, 1802.

[190] _Ib._ 77.

[191] _Ib._ 83.

[192] _Annals_, 7th Cong. 1st Sess. 89.

[193] _Ib._ 91-92.

[194] _Annals_, 7th Cong. 1st Sess. 99.

[195] Morris notes in his diary that, on the same day, the Senate resolved "to admit a short-hand writer to their floor. This is the beginning of mischief." (Morris, II, 416-17.)

[196] January 27, 1802.

[197] _Annals_, 7th Cong. 1st Sess. 149.

[198] _Annals_, 7th Cong. 1st Sess. 150.

Burr's action was perfectly correct. As an impartial presiding officer, he could not well have done anything else. Alexander J. Dallas, Republican Attorney-General of Pennsylvania, wrote the Vice-President a letter approving his action. (Dallas to Burr, Feb. 3, 1802, Davis: _Memoirs of Aaron Burr_, II, 82.) Nathaniel Niles, a rampant Republican, sent Burr a letter thanking him for his vote. As a Republican, he wanted his party to be fair, he said. (Niles to Burr, Feb. 17, 1802, _ib._ 83-84.) Nevertheless, Burr's vote was seized upon by his enemies as the occasion for beginning those attacks upon him which led to his overthrow and disgrace. (See chaps. VI, VII, VIII, and IX of this volume.)

[199] _Annals_, 7th Cong. 1st Sess. 178-79.

[200] See Appendix A to this volume.

[201] _Annals_, 7th Cong. 1st Sess. 179.

[202] _Ib._ 180.

[203] It was five o'clock (_ib._ 178) when Senator Breckenridge began to speak; it must have been well after six when Senator Morris rose to answer him.

[204] _Ib._ 180.

[205] _Ib._ 180.

[206] _Annals_, 7th Cong. 1st Sess. 181.

[207] Troup to King, April 9, 1802, King, IV, 103.

[208] Bayard to Bassett, Jan. 25, 1802, _Papers of James A. Bayard_: Donnan, 146-47.

[209] Except Colhoun of South Carolina, converted by Tracy. See _supra_, 62.

[210] _Annals_, 7th Cong. 1st Sess. 183.

[211] _Ib._ 510. A correspondent of the _Columbian Centinel_, reporting the event, declared that "the stand which the Federal Senators have made to preserve the Constitution, has been manly and glorious. They have immortalized their names, while those of their opposers will be execrated as the assassins of the Constitution." (_Columbian Centinel_, Feb. 17, 1802.)

[212] _Annals_, 7th Cong. 1st Sess. 518-19.

[213] _Ib._ 521-22.

[214] See vol. II, 532, 541.

[215] _Washington Federalist_, Feb. 13, 1802.

[216] Henderson in _North Carolina Booklet_, XVII, 66.

[217] _Annals_, 7th Cong. 1st Sess. 529-30.

[218] See _infra_, chap. IV.

[219] _Annals_, 7th Cong. 1st Sess. 531.

[220] _Annals_, 7th Cong. 1st Sess. 552-53.

[221] _Ib._ 554.

[222] _Ib._ 558.

[223] See _infra_, chap. IV.

[224] See, for example, the speeches of Thomas Morris of New York (_Annals_, 7th Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut (_ib._ 727-34); John Stanley of North Carolina (_ib._ 569-78); Roger Griswold of Connecticut (_ib._ 768-69).

[225] _Annals_, 7th Cong. 1st Sess. 579.

[226] Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him (Giles) the ablest debater of the age." His speech on the Repeal Act, Grigsby declares to have been "by far his most brilliant display." (Grigsby: _Virginia Convention of 1829-30_, 23, 29.)

[227] Anderson, 76-82.

[228] See _supra_, 72.

[229] This statement, coming from the Virginia radical, reveals the profound concern of the Republicans, for Giles thus declared that the Judiciary debate was of greater consequence than those historic controversies over Assumption, the Whiskey Rebellion, the Bank, Neutrality, the Jay Treaty, the French complication, the army, and other vital subjects. In most of those encounters Giles had taken a leading and sometimes violent part.

[230] _Annals_, 7th Cong. 1st Sess. 512.

[231] Story's description of Giles six years later: Story to Fay, Feb. 13, 1808, Story, I, 158-59. Also see Anderson, frontispiece and 238.

Giles was thirty-nine years of age. He had been elected to the House in 1790, and from the day he entered Congress had exasperated the Federalists. It is an interesting though trivial incident that Giles bore to Madison a letter of introduction from Marshall. Evidently the circumspect Richmond attorney was not well impressed with Giles, for the letter is cautious in the extreme. (See Anderson, 10; also _Annals_, 7th Cong. 1st Sess. 581.)

[232] _Annals_, 7th Cong. 1st Sess. 580-81.

[233] _Annals_, 7th Cong. 1st Sess. 582.

[234] _Ib._ 583.

[235] See _supra_, chap. I.

[236] Marbury _vs._ Madison (see _infra_, chap. III). For Giles's great speech see _Annals_, 7th Cong. 1st Sess. 579-602.

[237] Bayard is "a fine, personable man ... of strong mental powers.... Nature has been liberal to him.... He has, in himself, vast resources ... a lawyer of high repute ... and a man of integrity and honor.... He is very fond of pleasure ... a married man but fond of wine, women and cards. He drinks more than a bottle of wine each day.... He lives too fast to live long.... He is very attentive to dress and person." (Senator William Plumer's description of James A. Bayard, March 10, 1803, "Repository," Plumer MSS. Lib. Cong.)

[238] _Annals_, 7th Cong. 1st Sess. 605.

[239] _Ib._ 606.

[240] _Ib._ 609.

[241] _Ib._ 611.

[242] _Ib._ 614.

[243] _Annals_, 7th Cong. 1st Sess. 615.

[244] Bayard's summary of the shortcomings of the Ellsworth Act of 1789 and the excellence of the Judiciary Act of 1801 (_Annals_, 7th Cong. 1st Sess. 616-27) was the best made at that time or since.

[245] _Ib._ 632.

[246] See _infra_, chap. IV.

[247] Bayard pointed out that Charles Pinckney of South Carolina, whose "zeal and industry" decided the Presidential vote of his State, had been appointed Minister to Spain; that Claiborne of Tennessee held the vote of that State and cast it for Jefferson, and that Jefferson had conferred upon him "the high degree of Governor of the Mississippi Territory"; that Mr. Linn of New Jersey, upon whom both parties depended, finally cast his deciding vote in favor of Jefferson and "Mr. Linn has since had the profitable office of supervisor of his district conferred upon him"; and that Mr. Lyon of Vermont neutralized the vote of his State, but since "his character was low ... Mr. Lyon's son has been handsomely provided for in one of the Executive offices." (_Annals_, 7th Cong. 1st Sess. 640.) Bayard named other men who had influenced the vote in the House and who had thereafter been rewarded by Jefferson.

[248] _Annals_, 7th Cong. 1st Sess. 645-48.

[249] _Ib._ 648-50. This was the second open expression in Congress of the spirit that led the New England Federalist leaders into their futile secession movement. (See _infra_, chaps. III and VI; also vol. IV, chap. I, of this work.)

[250] Adams to Bayard, April 10, 1802; _Bayard Papers_: Donnan, 152.

[251] _Washington Federalist_, Feb. 20, 1802.

[252] Members of Congress wore their hats during the sessions of House and Senate until 1828. For a description of Randolph in the House, see Tyler, I, 291. Senator Plumer pictured him as "a pale, meagre, ghostly man," with "more popular and effective talents than any other member of his party." (Plumer to Emery, Plumer, 248.) See also Plumer's letter to his son, Feb. 22, 1803, in which the New Hampshire Senator says that "Randolph goes to the House booted and spurred, with his whip in his hand, in imitation, it is said, of members of the British Parliament. He is a very slight man, but of the common stature." At a distance he looks young, but "upon a nearer approach you perceive his wrinkles and grey hairs. He is, I believe, about thirty." (_Ib._ 256.)

[253] The personal domination which John Randolph of Roanoke wielded over his party in Congress, until he broke with Jefferson (see _infra_, chaps. IV and X), is difficult to realize at the present day. Nothing like it has since been experienced, excepting only the merciless rule of Thaddeus Stevens of Pennsylvania from 1862 until 1868. (See Woodburn: _Life of Thaddeus Stevens_, 247 _et seq._)

[254] _Washington Federalist_, Feb. 22, 1802.

[255] _Annals_, 7th Cong. 1st Sess. 650-51.

[256] _Annals_, 7th Cong. 1st Sess. 652.

[257] See _supra_, chap. I, 33; also _infra_, chap. IX, where Marshall, during the trial of Aaron Burr, actually issued such a subpoena. Randolph was now denouncing the National court before which Cooper was tried, because it refused to grant the very writ for the issuing of which Marshall in a few years was so rancorously assailed by Jefferson personally, and by nearly all Republicans as a party.

[258] At the time Marshall issued the rule against Madison he apparently had no idea that Section 13 of the Ellsworth Judiciary Act was unconstitutional. (See next chapter.)

[259] _Annals_, 7th Cong. 1st Sess. 662-63.

[260] The Federalist organ tried, by ridicule, to minimize Randolph's really strong speech. "The speech of Mr. Randolph was a jumble of disconnected declamation.... He was horribly tiresome to the ear and disgusting to the taste." (_Washington Federalist_, Feb. 22, 1802.)

[261] _Annals_, 7th Cong. 1st Sess. 727.

[262] _Ib._ 737. See also vol. I, 452, of this work.

[263] _Annals_, 7th Cong. 1st Sess. 747-55.

[264] _Ib._ 759.

[265] _Ib._ 760.

[266] See _infra_, chap. X.

[267] _Annals_, 7th Cong. 1st Sess. 760.

[268] _Ib._ 760.

[269] See _infra_, chaps. III and VI.

[270] _Annals_, 7th Cong. 1st Sess. 767-94.

[271] _Ib._ 793.

[272] _Ib._ 805-06.

[273] In sour disgust Morris notes in his diary: "The House of Representatives have talked themselves out of self-respect, and at headquarters [White House] there is such an abandonment of manner and such a pruriency of conversation as would reduce even greatness to the level of vulgarity." (March 10, 1802, Morris, II, 421.)

[274] _Annals_, 7th Cong. 1st Sess. 904.

Dana's statement is of first importance and should be carefully noted. It was at the time the universally accepted view of the power of the Supreme Court to issue writs of mandamus. Neither Federalists nor Republicans had ever questioned the Constitutional right of the Supreme Court to entertain original jurisdiction of mandamus proceedings in proper cases. Yet just this was what Marshall was so soon to deny in Marbury _vs._ Madison. (See _infra_, chap. III.)

[275] _Annals_, 7th Cong. 1st Sess. 920.

[276] _Ib._ 923-26.

[277] See _supra_, chap, I, 43.

[278] _Annals_, 7th Cong. 1st Sess. 983.

[279] Hildreth, V, 441.

[280] Bayard to Bassett, March 3, 1802, _Bayard Papers_: Donnan, 150; and see _Annals_, 7th Cong. 1st Sess. 982. One Republican, Dr. William Eustis of Boston, voted with the Federalists.

[281] _Hist. Last Sess. Cong. Which Commenced 7th Dec. 1801_ (taken from the _National Intelligencer_), 71.

[282] Tucker: _Life of Thomas Jefferson_, II, 114.

[283] _Washington Federalist_, March 3, 1802. Too much importance cannot be attached to this editorial. It undoubtedly expressed accurately the views of Federalist public men in the Capital, including Marshall, whose partisan views and feelings were intense. It should not be forgotten that his relations with this newspaper were believed to be intimate. (See vol. II, 532, 541, of this work.)

[284] Plumer to Upham, March 1, 1802, Plumer MSS. Lib. Cong.

[285] March 12, 1802.

[286] March 23, 1802.

[287] March 15, 1802.

[288] Vans Murray to King, April 5, 1802, King, IV, 95.

[289] Sedgwick to King, Feb. 20, 1802, _ib._ 73.

[290] Ames to Dwight, April 16, 1802, Ames, I, 297.

[291] _Annals_, 7th Cong. 1st Sess. 201.

[292] _Ib._ 205.

[293] _Ib._ 257.

[294] They never occupied the bench under the Federalist Act of 1801. They were appointed, but the swift action of Jefferson and the Republicans prevented them from entering upon the discharge of their duties.

[295] This case was before the Supreme Court in December, 1801, and, ordinarily, would have been decided at the next term, June, 1802.

[296] _Annals_, 7th Cong. 1st Sess. 1228-29.

[297] _Annals_, 7th Cong. 1st Sess. 1229.

[298] _Ib._ 1229-30.

[299] _Annals_, 7th Cong. 1st Sess. 1235-36.

[300] _Ib._ 1236. See also Channing, _U.S._ IV, 280-81.

[301] See vol. II, 62, of this work.

[302] Ames to Gore, Dec. 13, 1802, Ames, I, 310.

[303] _Ib._ Here is another characteristic passage from Ames, who accurately expressed New England Federalist sentiment: "The second French and first American Revolution is now commencing.... The extinction of Federalism would be followed by the ruin of the wise, rich, and good." (Ames to Smith, Dec. 14, 1802, _ib._ 313-16.)

[304] Pickering to Peters, Dec. 24, 1803, _New-England Federalism_: Adams, 338.

[305] Cabot to King, March 27, 1802, King, IV, 94.

[306] _Columbian Centinel_, April 7, 1802.

[307] "Bowling" in the _Independent Chronicle_ of April 26, 1802. An example of Jefferson's amazing skill in directing public opinion is found in the fact that the people were made to feel that the President was following in Washington's footsteps.