"The Legislature," he continued, "have the exclusive right to interpret the Const.i.tution, in what regards the law-making power, and the judges are bound to execute the laws they make. For the Legislature would have at least an equal right to annul the decisions of the courts, founded on their construction of the Const.i.tution, as the courts would have to annul the acts of the Legislature, founded on their construction.[201]... In case the courts were to declare your revenue, impost and appropriation laws unconst.i.tutional, would they thereby be blotted out of your statute book, and the operations of Government arrested?... Let gentlemen consider well before they insist on a power in the Judiciary which places the Legislature at their feet."[202]
The candles[203] now dimly illuminating the little Senate Chamber shed scarcely more light than radiated from the broad, round, florid face of Gouverneur Morris. Getting to his feet as quickly as his wooden leg would permit, his features beaming with triumph, the New York Senator congratulated "this House, and all America, that we have at length got our adversaries upon the ground where we can fairly meet."[204]
The power of courts to declare legislation invalid is derived from "authority higher than this Const.i.tution ... from the const.i.tution of man, from the nature of things, from the necessary progress of human affairs,"[205] he a.s.serted. In a cause on trial before them, it becomes necessary for the judges to "declare what the law is. They must, of course, determine whether that which is produced and relied on, has indeed the binding force of law."
Suppose, said Morris, that Congress should pa.s.s an act forbidden by the Const.i.tution--for instance, one laying "a duty on exports," and "the citizen refuses to pay." If the Republicans were right, the courts would enforce a collection. In vain would the injured citizen appeal to the Supreme Court; for Congress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." According to the Republican doctrine, "the moment the Legislature ... declare themselves supreme, they become so ... and the Const.i.tution is whatever they choose to make it."[206] This time Morris made a great impression. The Federalists were in high feather; even the Republicans were moved to admiration. Troup reported to King that "the democratical paper at Washington p.r.o.nounced his speech to be the greatest display of eloquence ever exhibited in a deliberative a.s.sembly!"[207]
Nevertheless, the Federalist politicians were worried by the apparent indifference of the rank and file of their party. "I am surprized,"
wrote Bayard, "at the public apathy upon the subject. Why do not those who are opposed to the project, express in the public papers or by pet.i.tions their disapprobation?... It is likely that a public movement would have great effect."[208] But, thanks to the former conduct of the judges themselves, no "public movement" developed. Conservative citizens were apprehensive; but, as usual, they were lethargic.
On February 3, 1802, the Senate, by a strictly party vote[209] of 16 to 15, pa.s.sed the bill to repeal the Federalist Judiciary Act of 1801.[210]
When the bill came up in the House, the Federalist leader in that body, James A. Bayard of Delaware, moved to postpone its consideration to the third Monday in March, in order, as he said, to test public opinion, because "few occasions have occurred so important as this."[211] But in vain did the Federalists plead and threaten. Postponement was refused by a vote of 61 to 35.[212] Another plea for delay was denied by a vote of 58 to 34.[213] Thus the solid Republican majority, in rigid pursuance of the party plan, forced the consideration of the bill.
The Federalist organ in Washington, which Marshall two years earlier was supposed to influence and to which he probably contributed,[214] saw little hope of successful resistance. "What will eventually be the issue of the present high-handed, overbearing proceedings of Congress it is impossible to determine," but fear was expressed by this paper that conditions would be created "which impartial, unbiased and reflecting men consider as immediately preceding the total destruction of our government and the introduction of disunion, anarchy and civil war."[215]
This threat of secession and armed resistance, already made in the Senate, was to be repeated three times in the debate in the House which was opened for the Federalists by Archibald Henderson of North Carolina, whom Marshall p.r.o.nounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the Nation."[216] "The monstrous and unheard of doctrine ... lately advanced, that the judges have not the right of declaring unconst.i.tutional laws void," was, declared Henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy." If the Republican theory of the Const.i.tution should prevail, "better at once to bury it with all our hopes."[217]
Robert Williams of the same State, an extreme but unskillful Republican, now uncovered his party"s scheme to oust Federalist judges, which thus far had carefully been concealed:[218] "Agreeably to our Const.i.tution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of Congress unconst.i.tutional. "However he may err, he commits no crime; how, then, can he be impeached?"[219]
Philip R. Thompson of Virginia, a Republican, was moved to the depths of his being: "Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and void, ... and in vain have the people placed you upon this floor to legislate.[220]... This is the tree where despotism lies concealed.... Nurture it with your treasure, stop not its ramifications, and ... your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root."[221]
Thomas T. Davis of Kentucky, deeply stirred by this picture, declared that the Federalists said to the people, you are "incapable" of protecting yourselves; "in the Judiciary alone you find a safe deposit for your liberties." The Kentucky Representative "trembled" at such ideas. "The sooner we put men out of power, who [_sic_] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary."[222] Thus again was revealed the Republican purpose of dragging from the National Bench all judges who dared a.s.sert the right, and to exercise the power to declare an act of Congress unconst.i.tutional.[223]
The contending forces became ever more earnest as the struggle continued. All the cases then known in which courts directly or by inference had held legislative acts invalid were cited;[224] and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again.
All the reasons for the opinion which John Marshall, exactly one year later, p.r.o.nounced in Marbury _vs._ Madison were given during this debate. Indeed, the legislative struggle now in progress and the result of it, created conditions which forced Marshall to execute that judicial _coup d"etat_. It should be repeated that an understanding of Marbury _vs._ Madison is impossible without a thorough knowledge of the debate in Congress which preceded and largely caused that epochal decision.
The alarm that the repeal was but the beginning of Republican havoc was sounded by every Federalist member. "This measure," said John Stanley of North Carolina, "will be the first link in that chain of measures which will add the name of America to the melancholy catalogue of fallen Republics."[225]
William Branch Giles, who for the next five years bore so vital a part in the stirring events of Marshall"s life, now took the floor and made one of the ablest addresses of his tempestuous career.[226] He was Jefferson"s lieutenant in the House.[227] When the Federalists tried to postpone the consideration of the bill,[228] Giles admitted that it presented a question "more important than any that ever came before this house."[229] But there was no excuse for delay, because the press had been full of it for more than a year and the public was thoroughly informed upon it.[230]
Giles was a large, robust, "handsome" Virginian, whose lightest word always compelled the attention of the House. He had a very dark complexion, black hair worn long, and intense, "retreating" brown eyes.
His dress was "remarkably plain, and in the style of Virginia carelessness." His voice was "clear and nervous," his language "powerfully condensed."[231]
This Republican gladiator came boldly to combat. How had the Federalists contrived to gain their ends? Chiefly by "the breaking out of a tremendous and unprecedented war in Europe," which had worked upon "the feelings and sympathies of the people of the United States" till they had neglected their own affairs. So it was, he said, that the Federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic Alien and Sedition Laws. But at last, when, as the result of their maladministration, the Federalists saw their doom approaching, they began to "look out for some department of the government in which they could entrench themselves ...
and continue to support those favorite principles of irresponsibility which they could never consent to abandon."
For this purpose they had selected the Judiciary Department: "Not only because it was already filled" with rabid Federalists, "but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people than either of the other departments." Thus came the Federalist Judiciary Act of 1801 which the Republicans were about to repeal.
Giles could not resist a sneer at Marshall. Referring to the European war, to which "the feelings and sympathies of the people of the United States were so strongly attracted ... that they considered their own internal concerns in a secondary point of view," Giles swiftly portrayed those measures used by the Federalists as a pretext. They had, jeered the sharp-tongued Virginia Republican, "pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned ...
the A, B, C, of the principles of the [Federalist] Administration."[232]
But now, when blood was no longer flowing on European battle-fields, the interests of the American people in that "tremendous and unprecedented"
combat of nations "no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the Const.i.tution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers!"[233] So "the American people and their Congress, in their real persons, and original American characters" were at last "engaged in the transaction of American concerns."[234]
Federalist despotism lay prostrate, thank Heaven, beneath the conquering Republican heel. Should it rise again? Never! Giles taunted the Federalists with the conduct of Federalist judges in the sedition cases,[235] and denounced the attempt to fasten British law on the American Nation--a law "unlimited in its object, and indefinite in its character," covering "every object of legislation."
Think, too, of what Marshall and the Supreme Court have done! "They have sent a ... process leading to a mandamus, into the Executive cabinet, to examine its concerns."[236] The real issue between Federalists and Republicans, declared Giles, was "the doctrine of irresponsibility against the doctrine of responsibility.... The doctrine of despotism in opposition to the representative system." The Federalist theory was "an express avowal that the people were incompetent to govern themselves."
A handsome, florid, fashionably attired man of thirty-five now took the floor and began his reply to the powerful speech of the tempestuous Virginian. His complexion and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things Republican marked him as the equal of Gouverneur Morris in oratorical finish and Federalist distrust of the people.[237] It was James A. Bayard, the Federalist leader of the House.
He a.s.serted that the Republican "designs [were] hostile to the powers of this government"; that they flowed from "state pride [which]
extinguishes a national sentiment"; that while the Federalists were in charge of the National Administration they struggled "to maintain the Const.i.tutional powers of the Executive" because "the wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizers, who saw no difference between a King and a President; and, as the people of France had put down their King, they thought the people of America ought to put down their President.
"They [Federalists] who considered the Const.i.tution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the Government and the people, and the friends of the Government [Federalists] were marked as the enemies of the people."[238] This was the spirit that was now triumphant; to what lengths was it to carry the Republicans? Did they include the downfall of the Judiciary in their plans of general destruction? Did they propose to make judges the mere creatures of Congress?[239]
Bayard skillfully turned the gibe at Marshall into a tribute to the Chief Justice. What did Giles mean by his cryptic X. Y. Z. reference?
"Did he mean that the dispatches ... were impostures?" Though Giles "felt no respect" for Marshall or Pinckney--"two characters as pure, as honorable, and exalted, as any the country can boast of"--yet, exclaimed Bayard, "I should have expected that he would have felt some tenderness for Mr. Gerry."[240]
The Republicans had contaminated the country with falsehoods against the Federalist Administrations; and now the target of their "poisoned arrows" was the National Judiciary. "If ... they [the judges] have offended against the Const.i.tution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence."[241]
In detail Bayard explained the facts in the case of Marbury _vs._ Madison. That the Supreme Court had been "hardy enough to send their mandate into the Executive cabinet"[242] was, said he, "a strong proof of the value of that Const.i.tutional provision which makes them independent. They are not terrified by the frowns of Executive power, and dare to judge between the rights of a citizen and the pretensions of a President."[243]
Contrast the defects of the Judiciary Act of 1789 with the perfection of the Federalist law supplanting it. Could any man deny the superiority of the latter?[244] The truth was that the Republicans were "to give notice to the judges of the Supreme Court of their fate, and to bid them to prepare for their end."[245] In these words Bayard charged the Republicans with their settled but unavowed purpose to unseat Marshall and his Federalist a.s.sociates.[246]
Bayard hotly denied the Republican accusation that President Adams had appointed to the bench Federalist members of Congress as a reward for their party services; but, retorted he, Jefferson had done that very thing.[247] He then spoke at great length on the nature of the American Judiciary as distinguished from that of British courts, gave a vivid account of the pa.s.sage of the Federalist Judiciary Act under attack, and finally swung back to the subject which more and more was coming to dominate the struggle--the power of the Supreme Court to annul acts of Congress.
Again and again Bayard restated, and with power and eloquence, all the arguments to support the supervisory power of courts over legislation.[248] At last he threatened armed resistance if the Republicans dared to carry out their plans against the National Judiciary. "There are many now willing to spill their blood to defend that Const.i.tution. Are gentlemen disposed to risk the consequences?...
Let them consider their wives and children, their neighbors and their friends." Destroy the independence of the National Judiciary and "the moment is not far when this fair country is to be desolated by civil war."[249]
Bayard"s speech aroused great enthusiasm among the leaders of his party.
John Adams wrote: "Yours is the most comprehensive masterly and compleat argument that has been published in either house and will have, indeed ... has already had more effect and influence on the public mind than all other publications on the subject."[250] The _Washington Federalist_ p.r.o.nounced Bayard"s performance to be "far superior, not only to ... the speeches of Mr. Morris and Mr. Tracy in the Senate, but to any speech of a Demosthenes, a Cicero, or a Chatham."[251]
Hardly was Bayard"s last word spoken when the man who at that time was the Republican master of the House, and, indeed, of the Senate also, was upon his feet. Of medium stature, thin as a sword, his straight black hair, in which gray already was beginning to appear, suggesting the Indian blood in his veins, his intense black eyes flaming with the pa.s.sion of combat, his high and shrilling voice suggesting the scream of an eagle, John Randolph of Roanoke--that haughty, pa.s.sionate, eccentric genius--personified the aggressive and ruthless Republicanism of the hour. He was clad in riding-coat and breeches, wore long riding-boots, and if the hat of the Virginia planter was not on his head, it was because in his nervousness he had removed it;[252] while, if his riding-whip was not in his hand, it was on his desk where he had cast it, the visible and fitting emblem of this strange man"s mastery over his partisan followers.[253]
"He did not rise," he said, his voice quivering and body trembling,[254]
"for the purpose of a.s.suming the gauntlet which had been so proudly thrown by the Goliah of the adverse party; not but that he believed even his feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-a-pie as he was." Randolph sneered, as only he could sneer, at the unctuous claims of the Federalists, that they had "n.o.bly sacrificed their political existence on the altar of the general welfare"; he refused "to revere in them the self-immolated victims at the shrine of patriotism."[255]
As to the Federalist a.s.sertion that "the common law of England is the law of the United States in their confederate capacity," Randolph observed that the meaning of such terms as "court," "jury," and the like must, of course, be settled by reference to common-law definitions, but "does it follow that that indefinite and undefinable body of law is the irrepealable law of the land? The sense of a most important phrase, "direct tax," as used in the Const.i.tution, has been ... settled by the acceptation of Adam Smith; an acceptation, too, peculiar to himself.
Does the Wealth of Nations, therefore, form a part of the Const.i.tution of the United States?"
And would the Federalists inform the House what phase of the common law they proposed to adopt for the United States? Was it that "of the reign of Elizabeth and James the first; or ... that of the time of George the Second?" Was it that "of Sir Walter Raleigh and Captain Smith, or that which was imported by Governor Oglethorpe?" Or was it that of some intermediate period? "I wish especially to know," asked Randolph, "whether the common law of libels which attaches to this Const.i.tution, be the doctrine laid down by Lord Mansfield, or that which has immortalized Mr. Fox?" Let the Federalists reflect on the persecution for libel that had been made under the common law, as well as under the Sedition Act.[256]
Proper restraint upon Congress, said Randolph, was not found in a pretended power of the Judiciary to veto legislation, but in the people themselves, who at the ballot box could "apply the Const.i.tutional corrective. That is the true check; every other is at variance with the principle that a free people are capable of self-government." Then the imperious Virginian boldly charged that the Federalists intended to have John Marshall and his a.s.sociates on the Supreme Bench annul the Republican repeal of the Federalist Judiciary Act.
"Sir," cried Randolph, "if you pa.s.s the law, the judges are to put their veto upon it by declaring it unconst.i.tutional. Here is a new power of a dangerous and uncontrollable nature.... The decision of a Const.i.tutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible?... From whom is a corrupt decision most to be feared?... The power which has the right of pa.s.sing, without appeal, on the validity of your laws, is your sovereign.... Are we not as deeply interested in the true exposition of the Const.i.tution as the judges can be?" inquired Randolph.
"Is not Congress as capable of forming a correct opinion as they are?
Are not its members acting under a responsibility to public opinion which can and will check their aberrations from duty?"
Randolph referred to the case of Marbury _vs._ Madison and then recalled the prosecution of Thomas Cooper in which the National court refused "to a man under criminal prosecution ... a subpoena to be served on the President, as a witness on the part of the prisoner.[257]... This court, which it seems, has lately become the guardian of the feeble and oppressed, against the strong arm of power, found itself dest.i.tute of all power to issue the writ....
"No, sir, you may invade the press; the courts will support you, will outstrip you in zeal to further this great object; your citizens may be imprisoned and amerced, the courts will take care to see it executed; the helpless foreigner may, contrary to the express letter of your Const.i.tution, be deprived of compulsory process for obtaining witnesses in his defense; the courts in their extreme humility cannot find authority for granting it."
Again Marbury _vs._ Madison came into the debate:[258] "In their inquisitorial capacity," the Supreme Court, according to Marshall"s ruling in that case, could force the President himself to discharge his executive functions "in what mode" the omnipotent judges might choose to direct. And Congress! "For the amus.e.m.e.nt of the public, we shall retain the right of debating but not of voting."[259] The judges could forestall legislation by "inflammatory pamphlets," as they had done.[260]
As the debate wore on, little that was new was adduced. Calvin G.o.ddard of Connecticut reviewed the cases in which judges of various courts had a.s.serted the Federalist doctrine of the judicial power to decide statutes unconst.i.tutional,[261] and quoted from Marshall"s speech on the Judiciary in the Virginia Convention of 1788.[262]