The Life of John Marshall Volume III Part 10

[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 ill.u.s.trated by the experiences of six members of Congress, when journeying to Philadelphia in 1790. "Burke was s.h.i.+pwrecked 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 pa.s.sage of sixteen days with perpetual storms."

(Letter of William Smith, as quoted by Johnson: _Union and Democracy_, 105-06.)

On his way to Was.h.i.+ngton 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 reenacted 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 c.o.c.ke of Tennessee a.s.serted 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 const.i.tuents 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 pa.s.sing 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 a.s.sociates 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.