The Life of John Marshall Volume III Part 19

[395] It must be borne in mind that the American Const.i.tution declares that, in and of itself, it is law--the supreme law of the land; and that no other written const.i.tution makes any such a.s.sertion.

[396] See _infra_, chap. IV.

[397] Jefferson to Mrs. Adams, Sept. 11, 1804, _Works_: Ford, X, footnote to 89.

[398] See _infra_, chap. VIII.

[399] Jefferson to Jarvis, Sept. 28, 1820, _Works_: Ford, XII, 162. Yet, at the time when he was founding the Republican Party, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Const.i.tution of the United States." (Jefferson to Rowan, Sept. 26, 1798, _ib._ VIII, 448.)

[400] Jefferson to Gallatin, July 12, 1803, _Works_: Ford, X, 15-16. It should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer matter of "practical politics," the President cannot be fairly criticized for thus trying to weaken his remorseless foes.

[401] See Channing: _U.S._ IV, 313-14.

[402] Talleyrand to Decres, May 24, 1803, as quoted in Adams: _U.S._ II, 55.

[403] Morison: _Otis_, I, 262; see also Adams: _U.S._ II, 56.

[404] See instructions to Livingston and Monroe, _Am. State Papers, Foreign Relations_, II, 540.

[405] Adams: _U.S._ I, 442-43.

[406] _Ib._ II, 120-28.

[407] _Works_: Ford, X, 3-12.

[408] American Insurance Company _et al._ _vs._ Canter, 1 Peters, 511-46, and see vol. IV, chap. III, of this work.

[409] See _U.S. Statutes at Large_, II, 283; and _Annals_, 8th Cong. 2d Sess. 1597.

[410] For instance, Senator Plumer, two years later, thus stated the old Republican doctrine which the Federalists, in defiance of their party's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the United States, without the consent, first obtained, of each of the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer, 328.)

[411] Jefferson to Nicholas, Sept. 7, 1803, _Works_: Ford, X, 10.

[412] Jefferson to Breckenridge, Aug. 12, 1803, _ib._ 7.

[413] Jefferson to Madison, Aug. 18, 1803, _ib._ 8.

[414] "The medicine for that State [North Carolina] must be very mild & secretly administered." (Jefferson to Nicholas, April 7, 1800, _ib._ IX, 129; and see Adams: _U.S._ III, 147.)

[415] "The millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (Eaton's account of a call on President Jefferson, 1803, _Life of the Late Gen. William Eaton_: Prentiss, 263; also quoted in Adams: _U.S._ II, 431.)

[416] Cabot to King, July 1, 1803, King, IV, 279. The Louisiana Purchase was first publicly announced through the press by the _Independent Chronicle_ of Boston, June 30, 1803. (Adams: _U.S._ II, 82-83.)

[417] Ames to Gore, Oct. 3, 1803, Ames, I, 323-24.

[418] Tracy to McHenry, Oct. 19, 1803, Steiner: _Life and Correspondence of James McHenry_, 522.

[419] Oct. 20, 1803, Plumer, 285.

[420] Ames to Dwight, Oct. 26, 1803, Ames, I, 328.

[421] Reeve to Tracy, Feb. 7, 1804, _N.E. Federalism_: Adams, 342; and see Adams: _U.S._ II, 160.

Members of Congress among the Federalists and Republicans became so estranged that they boarded in different houses and refused to a.s.sociate with one another. (Plumer, 245, 336.)

[422] Pickering to Cabot, Jan. 29, 1804, Lodge: _Cabot_, 338.

[423] Griswold to Wolcott, March 11, 1804, _N.E. Federalism_: Adams, 356.

[424] Morse to Plumer, Feb. 3, 1804, Plumer, 289.

[425] Plumer to Morse, March 10, 1804, _ib._

[426] Cabot to King, March 17, 1804, Lodge: _Cabot_, 345.

[427] See Morison: _Otis_, I, 262.

[428] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 177.

[429] For instance, in 1808, the United States District Court of Ma.s.sachusetts, in the decision of a case requiring all possible precedents like that of Marbury _vs._ Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marbury _vs._ Madison, long afterwards, was added in a footnote to the printed report. (McLaughlin, 30, citing _Am. Law Journal_, old series, II, 255-64.)

Marshall's opinion in Marbury _vs._ Madison was first referred to by counsel in a legal controversy in _Ex Parte_ Burford, 1806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and see _infra_, chap. VII). Marshall referred to it in his opinion in that case, and Justice William Johnson commented upon it at some length.

A year later Marshall's opinion in Marbury _vs._ Madison was cited by Jefferson's Attorney-General, Caesar A. Rodney. In the case _Ex Parte_ Gilchrist _et al. vs._ The Collector of the Port of Charleston, S.C. (5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, a.s.sociate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the Judiciary Act which Marshall and the entire court had, five years before, declared to be unconst.i.tutional, so far as it conferred original jurisdiction upon the Supreme Court in applications for mandamus.

Rodney wrote to the President a letter of earnest protest, pointing out the fact that the court's action in the Gilchrist case was in direct antagonism to the opinion in Marbury _vs._ Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (see _infra_, chaps. VII, VIII, IX) that he was, at last, giving public expression of his disapproval of the opinion of the Chief Justice in Marbury _vs._ Madison. He did not even answer Rodney's letter.

CHAPTER IV

IMPEACHMENT

The judges of the Supreme Court must fall. Our affairs approach an important crisis. (William Plumer.)

These articles contained in themselves a virtual impeachment of not only Mr. Chase but of all the Judges of the Supreme Court.

(John Quincy Adams.)

We shall bring forward such a specimen of judicial tyranny, as, I trust in G.o.d, will never be again exhibited in our country.

(John Randolph.)

We appear for an ancient and infirm man whose better days have been worn out in the service of that country which now degrades him. (Joseph Hopkinson.)

Our property, our liberty, our lives can only be protected by independent judges. (Luther Martin.)

"We _want your offices_, for the purpose of giving them to men who will fill them better." In these frank words, Senator William Branch Giles[430] of Virginia stated one of the purposes of the Republicans in their determined attack on the National Judiciary. He was speaking to the recently elected young Federalist Senator from Ma.s.sachusetts, John Quincy Adams.[431]