The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah

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      Philip R. Thompson of Virginia, a Republican, was moved to the depths of his being: "Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and void, … and in vain have the people placed you upon this floor to legislate.220… This is the tree where despotism lies concealed… Nurture it with your treasure, stop not its ramifications, and … your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root."221

      Thomas T. Davis of Kentucky, deeply stirred by this picture, declared that the Federalists said to the people, you are "incapable" of protecting yourselves; "in the Judiciary alone you find a safe deposit for your liberties." The Kentucky Representative "trembled" at such ideas. "The sooner we put men out of power, who [sic] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary."222 Thus again was revealed the Republican purpose of dragging from the National Bench all judges who dared assert the right, and to exercise the power to declare an act of Congress unconstitutional.223

      The contending forces became ever more earnest as the struggle continued. All the cases then known in which courts directly or by inference had held legislative acts invalid were cited;224 and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again.

      All the reasons for the opinion which John Marshall, exactly one year later, pronounced in Marbury vs. Madison were given during this debate. Indeed, the legislative struggle now in progress and the result of it, created conditions which forced Marshall to execute that judicial coup d'état. It should be repeated that an understanding of Marbury vs. Madison is impossible without a thorough knowledge of the debate in Congress which preceded and largely caused that epochal decision.

      The alarm that the repeal was but the beginning of Republican havoc was sounded by every Federalist member. "This measure," said John Stanley of North Carolina, "will be the first link in that chain of measures which will add the name of America to the melancholy catalogue of fallen Republics."225

      William Branch Giles, who for the next five years bore so vital a part in the stirring events of Marshall's life, now took the floor and made one of the ablest addresses of his tempestuous career.226 He was Jefferson's lieutenant in the House.227 When the Federalists tried to postpone the consideration of the bill,228 Giles admitted that it presented a question "more important than any that ever came before this house."229 But there was no excuse for delay, because the press had been full of it for more than a year and the public was thoroughly informed upon it.230

      Giles was a large, robust, "handsome" Virginian, whose lightest word always compelled the attention of the House. He had a very dark complexion, black hair worn long, and intense, "retreating" brown eyes. His dress was "remarkably plain, and in the style of Virginia carelessness." His voice was "clear and nervous," his language "powerfully condensed."231

      This Republican gladiator came boldly to combat. How had the Federalists contrived to gain their ends? Chiefly by "the breaking out of a tremendous and unprecedented war in Europe," which had worked upon "the feelings and sympathies of the people of the United States" till they had neglected their own affairs. So it was, he said, that the Federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic Alien and Sedition Laws. But at last, when, as the result of their maladministration, the Federalists saw their doom approaching, they began to "look out for some department of the government in which they could entrench themselves … and continue to support those favorite principles of irresponsibility which they could never consent to abandon."

      For this purpose they had selected the Judiciary Department: "Not only because it was already filled" with rabid Federalists, "but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people than either of the other departments." Thus came the Federalist Judiciary Act of 1801 which the Republicans were about to repeal.

      Giles could not resist a sneer at Marshall. Referring to the European war, to which "the feelings and sympathies of the people of the United States were so strongly attracted … that they considered their own internal concerns in a secondary point of view," Giles swiftly portrayed those measures used by the Federalists as a pretext. They had, jeered the sharp-tongued Virginia Republican, "pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned … the A, B, C, of the principles of the [Federalist] Administration."232

      But now, when blood was no longer flowing on European battle-fields, the interests of the American people in that "tremendous and unprecedented" combat of nations "no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the Constitution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers!"233 So "the American people and their Congress, in their real persons, and original American characters" were at last "engaged in the transaction of American concerns."234

      Federalist despotism lay prostrate, thank Heaven, beneath the conquering Republican heel. Should it rise again? Never! Giles taunted the Federalists with the conduct of Federalist judges in the sedition cases,235 and denounced the attempt to fasten British law on the American Nation – a law "unlimited in its object, and indefinite in its character," covering "every object of legislation."

      Think, too, of what Marshall and the Supreme Court have done! "They have sent a … process leading to a mandamus, into the Executive cabinet, to examine its concerns."236 The real issue between Federalists and Republicans, declared Giles, was "the doctrine of irresponsibility against the doctrine of responsibility… The doctrine of despotism in opposition to the representative system." The Federalist theory was "an express avowal that the people were incompetent to govern themselves."

      A handsome, florid, fashionably attired man of thirty-five now took the floor and began his reply to the powerful speech of the tempestuous Virginian. His complexion and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things Republican marked him as the equal of Gouverneur Morris in oratorical finish and Federalist distrust of the people.237 It was James A. Bayard, the Federalist leader of the House.

      He asserted that the Republican "designs [were] hostile to the powers of this government"; that they flowed from "state pride [which] extinguishes a national sentiment"; that while the Federalists were in charge of the National Administration they struggled "to maintain the Constitutional powers of the Executive" because "the wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizers, who saw no difference between a King and a President; and, as the people of France had put down their King, they thought the people of America ought to put down their President.

      "They [Federalists] who considered the Constitution as СКАЧАТЬ