The Life of John Marshall Volume III Part 6

[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.

Ma.s.s. 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 Const.i.tution, 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 const.i.tutionality of a law could not be determined by a jury, but belonged exclusively to the Judicial Department. For a brief _precis_ 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 Vand.y.k.e, 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 pa.s.sed 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, a.s.semblyman from Otsego County, N.Y., circulated among his neighbors a pet.i.tion 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 a.s.sert that any State ought to protest against and resist any act of Congress that the Commonwealth believed to be in violation of the National Const.i.tution. (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 pet.i.tion 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 ent.i.tled: "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 Hamps.h.i.+re 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 c.o.ke and Blackstone--but common sense"

controlled American judges. (Warren, 227.)

[144] See next chapter.

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

CHAPTER II

THE a.s.sAULT ON THE JUDICIARY

The angels of destruction are making haste. Our judges are to be as independent as spaniels. (Fisher Ames.)

The power which has the right of pa.s.sing, without appeal, on the validity of your laws, is your sovereign. (John Randolph.)

On January 6, 1802, an atmosphere of intense but suppressed excitement pervaded the little semi-circular room where the Senate of the United States was in session.[146] The Republican a.s.sault upon the Judiciary was about to begin and the Federalists in Congress had nerved themselves for their last great fight. The impending debate was to prove one of the permanently notable engagements in American legislative history and was to create a situation which, in a few months, forced John Marshall to p.r.o.nounce the first of those fundamental opinions which have helped to shape and which still influence the destiny of the American Nation.

The decision of Marbury _vs._ Madison was to be made inevitable by the great controversy to which we are now to listen. Marshall's course, and, indeed, his opinion in this famous case, cannot be understood without a thorough knowledge of the notable debate in Congress which immediately preceded it.[147]

Never was the effect of the long years of party training which Jefferson had given the Republicans better manifested than now. There was unsparing party discipline, perfect harmony of party plan. The President himself gave the signal for attack, but with such skill that while his lieutenants in House and Senate understood their orders and were eager to execute them, the rank and file of the Federalist voters, whom Jefferson hoped to win to the Republican cause in the years to come, were soothed rather than irritated by the seeming moderation and reasonableness of the President's words.

"The Judiciary system ... and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress," was the almost casual reference in the President's first Message to the Republican purpose to subjugate the National Judiciary.