The Life of John Marshall Volume III Part 18

The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly ill.u.s.trated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton in _John Marshall--Life, Character and Judicial Services_: Dillon, I, 198-99.) When the seat of government was transferred to Was.h.i.+ngton, the court crept into an humble apartment in the bas.e.m.e.nt beneath the Senate Chamber.

[351] _New York Review_, III, 347. The article on Chief Justice Marshall in this periodical was written by Chancellor James Kent, although his name does not appear.

[352] See vol. IV, chap. IX.

[353] See Tilghman to Smith, May 22, 1802, Morison: _Smith_, 148-49.

"A general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. It is not descrete to say more at present." (Bayard to Ba.s.sett, April 19, 1802, _Bayard Papers_: Donnan, 153.)

[354] See "Protest of Judges," _American State Papers, Miscellaneous_, I, 340.

Writing to Wolcott, now one of the displaced National circuit judges (Wolcott's appointment was secured by Marshall; see vol. II, 559, of this work), concerning "the outrage committed by Congress on the Const.i.tution" (Cabot to Wolcott, Dec. 20, 1802, Lodge: _Cabot_, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to Congress." He considered this to be "a manifest duty" of the judges, and gave Wolcott the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802, _ib._ 327-28.)

A proposition to submit to the Supreme Court the const.i.tutionality of the Repeal Act was rejected January 27, 1803. (_Annals_, 7th Cong. 2d Sess. 439.)

[355] See _infra_, 130, 131.

[356] See _supra_, 110.

[357] Marshall to James M. Marshall, March 18, 1801, MS.

[358] February, 1803.

[359] Jefferson to Johnson, June 12, 1823, _Works_: Ford, XII, footnote to 256.

[360] See 1 Cranch, 137-80.

[361] Section 13 provided, among other things, that "the Supreme Court ... shall have power to issue writs of prohibition to the district courts ... and writs of _mandamus_, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." (_U.S. Statutes at Large_, I, 73; _Annals_, 1st Cong. 2d Sess. 2245.)

[362] See _supra_, 53-54.

[363] See Dougherty: _Power of the Federal Judiciary over Legislation_, 82.

Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by a.n.a.logy, recognized the validity of it. (Corwin, 8-9.)

[364] U.S. _vs._ Ravara, 2 Dallas, 297.

[365] U.S. _vs._ Lawrence, 3 Dallas, 42.

[366] U.S. _vs._ Peters, _ib._ 121.

[367] In the argument of Marbury _vs._ Madison, Charles Lee called Marshall's attention to the case of U.S. _vs._ Hopkins, in the February term, 1794, in which a motion was made for a mandamus to Hopkins as loan officer for the District of Virginia, and to the case of one John Chandler of Connecticut, also in February, 1794, in which a motion was made in behalf of Chandler for a mandamus to the Secretary of War. These cases do not seem to have been reported, and Lee must have referred to ma.n.u.script records of them. (See 1 Cranch, 148-49.)

Samuel W. Dana of Connecticut also referred to the Chandler case during the Judiciary debate in the House, March, 1802. (See _Annals_, 7th Cong.

1st Sess. 903-04.)

[368] 1 Cranch, 308.

[369] Stuart _vs._ Laird, 1 Cranch, 309.

[370] The next case in which the Supreme Court overthrew an act of Congress was that of Scott _vs._ Sandford--the famous Dred Scott case, decided in 1857. In this case the Supreme Court held that Congress had no power to prohibit slavery in the territory purchased from France in 1803 (the Louisiana Purchase), and that the Act of March 6, 1820, known as the Missouri Compromise, was unconst.i.tutional, null, and void. (See Scott _vs._ Sandford, 19 Howard, 393 _et seq._)

[371] The President can veto a bill, of course, on the ground of unconst.i.tutionally; but, by a two thirds vote, Congress can pa.s.s it over the Executive's disapproval.

[372] Carson, I, 203; and see especially Adams: _U.S._ I, 192.

[373] 1 Cranch, 154.

[374] This seems to have been inaccurate. Compare Lee's argument with Marshall's opinion.

[375] 1 Cranch, 158.

[376] 1 Cranch, 160.

[377] _Ib._ 162.

[378] _Ib._ 163.

[379] _Ib._ 164.

[380] _Ib._ 165.

[381] 1 Cranch, 166-68.

[382] _Ib._ 169.

[383] 1 Cranch, 170.

[384] _Ib._ 173.

[385] 1 Cranch, 174.

[386] In all "other cases ... the Supreme Court shall have appellate jurisdiction ... with such exceptions ... as the Congress shall make."

[387] _Ib._ 174. (Italics the author's.)

[388] 1 Cranch, 176. This particular part of the text adopts Professor Edward S. Corwin's careful and accurate a.n.a.lysis of Marshall's opinion on this point. (See Corwin, 4-10.)

[389] 1 Cranch, 176.

[390] _Ib._ 176-77.

[391] 1 Cranch, 177.

[392] _Ib._ 178.

[393] 1 Cranch, 178-80.

[394] See vol. I, 323, of this work.