The Life of John Marshall Volume III Part 73

Nor is it incompatible with the "good behaviour" tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.

The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a const.i.tution, because it depends on variable circ.u.mstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure.

If this principle should disable congress from erecting tribunals which temporary circ.u.mstances might require, without entailing them upon the society after these circ.u.mstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.

Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the const.i.tution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.

With respect to going into the judiciary system farther at present, the length of this trespa.s.s forbids it, and perhaps all ideas tending towards the revision of our const.i.tution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the const.i.tution. He will not leave historians to say "this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repet.i.tions of those oppressions after his death, which he had himself felt and healed during his life."

And yet my hopes are abated by some essays signed "Solon" published at Was.h.i.+ngton, and recommending amendments to the const.i.tution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?

Nothing can exceed our exultation on account of the president's message, and the countenance of congress--nothing can exceed the depression of the monarchists. They deprecate political happiness--we hope for the president's aid to place it on a rock before he dies.

It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir

Yr: mo: ob^{t:} Sev^{t.} JOHN TAYLOR[1513]

FOOTNOTES:

[1512] See footnote to 58 of this volume.

[1513] Breckenridge MSS. Lib. Cong.

APPENDIX C

CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON.[1514] ALSO RECENT BOOKS AND ARTICLES ON THE DOCTRINE OF JUDICIAL REVIEW OF LEGISLATION

Holmes _vs._ Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in American _Historical Review_, IV, 456 _et seq._) If Marshall ever heard of this case, it was only because Paterson, who was a.s.sociate Justice with Marshall when the Supreme Court decided Marbury _vs._ Madison, was attorney-general in New Jersey at the time Holmes _vs._ Walton was decided. Both Brearly and William Paterson were members of the Const.i.tutional Convention of 1787. (See Corwin, footnote to 41-42.)

Commonwealth _vs._ Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merely _obiter dicta_; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Const.i.tutional Convention. Blair was appointed by President Was.h.i.+ngton as one of the a.s.sociate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett _vs._ Weeden (September, 1786; see Arnold: _History of Rhode Island_, II, 525-27, Varnum's pamphlet, _Case of Trevett vs. Weeden_, and Chandler's _Criminal Trials_, II, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident--for it can hardly be called a case--could scarcely have had any circulation outside of New England. It was referred to in the Const.i.tutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marbury _vs._ Madison was decided.

It is unlikely that the recently discussed case of Bayard _vs._ Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see _Annals_, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's a.n.a.lysis in the _American Historical Review_ (XIII, 283-84), which is the only satisfactory treatment of it. See also Thayer: _Cases on Const.i.tutional Law_ (1, footnote to 105).

Kamper _vs._ Hawkins (November, 1793, 1 Va. Ca. 20 _et seq._), a case which came directly under Marshall's observation.

Van Horne's Lessee _vs._ Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marbury _vs._ Madison upon the power of the Judiciary to declare legislation void.

Calder _vs._ Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper _vs._ Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.

Whittington _vs._ Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin: _The Courts, the Const.i.tution, and Parties_, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marbury _vs._ Madison to show the power of courts to declare invalid legislative acts that violate the Const.i.tution.

The old Court of Appeals, under the Articles of Confederation, denounced as unconst.i.tutional the law that a.s.signed circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.[1515]

As to the statement of Chief Justice, later Governor Thomas Hutchinson of Ma.s.sachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in the _American Law Review_ (XXIX, 711-25), it is positive that Marshall never had an intimation that any such p.r.o.nouncements ever had been made.

Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgers _vs._ Waddington, decided by a New York justice of the peace in 1784 (see _American Law Review_, XIX, 180), and the case of Bowman _vs._ Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, State _vs._ ----, decided in April, 1794 (1 Haywood, 28-40), and of Lindsay _et al vs._ Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.

For a scholarly treatment of the matter from an historical and legally professional point of view, see _Doctrine of Judicial Review_ by Professor Edward S. Corwin of the Department of History and Politics, Princeton University; also _The Courts, the Const.i.tution, and Parties_, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marbury _vs._ Madison.

The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Const.i.tution," in the _American Law Review_ (XIX, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Const.i.tution," in the _American Political Science Review_ (VIII, 167-203).

Professor Charles A. Beard's _The Supreme Court and the Const.i.tution_ contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.

_Judicial Power and Unconst.i.tutional Legislation_, by Brinton c.o.xe, although published in 1893, is still highly valuable. And _Power of Federal Judiciary over Legislation_, by J. Hampden Dougherty, will be profitable to the student.

Marbury _vs._ Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in the _North American Review_ (CLx.x.xV, 848 _et seq._), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the _American Law Review_ (XLVI, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Doc.u.ment No. 610, 63d Congress, 2d Session.)

With regard to the possible effect on American law of foreign a.s.sertions of the supremacy of the Judiciary, particularly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar a.s.sociation on June 29, 1915, and reported in the Twenty-first Annual Report of that a.s.sociation (222-51), is a careful and exhaustive study.

FOOTNOTES:

[1514] See 118-19 of this volume.

[1515] See footnote 5 to p. 74 of this volume.

APPENDIX D

TEXT, AS GENERALLY ACCEPTED, OF THE CIPHER LETTER OF AARON BURR TO JAMES WILKINSON, DATED JULY 29, 1806[1516]

Your letter postmarked thirteenth May, is received. At length I have obtained funds, and have actually commenced. The Eastern detachments, from different points and under different pretences, will rendezvous on the Ohio first of November. Everything internal and external favors our views. Naval protection of England is secured. Truxtun is going to Jamaica to arrange with the admiral on that station. It will meet us at the Mississippi. England, a navy of the United States, are ready to join, and final orders are given to my friends and followers. It will be a host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward first August, never to return. With him goes his daughter; her husband will follow in October, with a corps of worthies.

Send forthwith an intelligent and confidential friend with whom Burr may confer; he shall return immediately with further interesting details; this is essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our object, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. Burr's plan of operation is to move down rapidly from the Falls, on the fifteenth of November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to meet you; there to determine whether it will be expedient in the first instance to seize on or pa.s.s by Baton Rouge. On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with Burr, say that if we will protect their religion, and will not subject them to a foreign Power, that in three weeks all will be settled. The G.o.ds invite us to glory and fortune; it remains to be seen whether we deserve the boon. The bearer of this goes express to you. He is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of Burr, and will disclose to you as far as you require, and no further. He has imbibed a reverence for your character, and may be embarra.s.sed in your presence; put him at ease, and he will satisfy you.

FOOTNOTES:

[1516] See 307-09, 352-55, of this volume.

APPENDIX E

EXCERPT FROM SPEECH OF WILLIAM WIRT AT THE TRIAL OF AARON BURR[1517]