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

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334

See vol. i, 452, of this work.

335

The Virginia Resolutions.

336

Address of the Minority, Jan. 22, 1799, Journal of the House of Delegates of Virginia, 1798-99, 90-95.

337

Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington, Iredell: McRee, 293-96; and see letter of Jay to Washington, Aug. 8, 1793, Jay: Johnston, iii, 488-89.

338

See supra, 40, footnote 1.

339

Wharton: State Trials, 715-18.

340

Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 31-32.

341

Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 14-15. (Italics the author's.)

342

For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.

343

For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.

344

See vol. i, 323, of this work.

345

See Records Fed. Conv.: Farrand, i, Introduction, xii.

346

Elliot's Debates were not published until 1827-30.

347

Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.

348

The Federalist: Lodge, 485-86. Madison also upheld the same doctrine. Later he opposed it, but toward the end of his life returned to his first position. (See vol. iv, chap. x, of this work.)

349

John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (See supra, 55.) The first Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife, Jay: Johnston, iii, 420.) Jay had hesitated to accept the office as Chief Justice when Washington tendered it to him in 1789, and he had resigned it gladly in 1795 to become the Federalist candidate for Governor of New York.

Washington offered the place to Patrick Henry, who refused it. (See Henry: Patrick Henry – Life, Correspondence and Speeches, ii, 562-63; also Tyler, i, 183.) The office was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton: State Trials, 33.) So little was a place on the Supreme Bench esteemed that John Rutledge resigned as Associate Justice to accept the office of Chief Justice of the Supreme Court of South Carolina. (Ib. 35.)

Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal, iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams, i, 290.) Edmund Randolph, when Attorney-General, deplored the weakening of the Supreme Court, and looked forward to the time when it should be strengthened. (Randolph to Washington, Aug. 5, 1792, Writings of George Washington: Sparks, x, 513.)

The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated 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 Washington, the court crept into an humble apartment in the basement beneath the Senate Chamber.

350

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.

351

See vol. iv, chap. ix.

352

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 Bassett, April 19, 1802, Bayard Papers: Donnan, 153.)

353

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 Constitution" (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 constitutionality of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 2d Sess. 439.)

354

See infra, 130, 131.

355

See supra, 110.

356

Marshall to James M. Marshall, March 18, 1801, MS.

357

February, 1803.

358

Jefferson to Johnson, June 12, 1823, Works: Ford, xii, footnote to 256.

359

See 1 Cranch, 137-80.

360

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.)

361

See supra, 53-54.

362

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 analogy, recognized the validity of it. (Corwin, 8-9.)

363

U.S. vs. Ravara, 2 Dallas, 297.

364

U.S. vs. Lawrence, 3 Dallas, 42.

365

U.S. vs. Peters, ib. 121.

366

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 manuscript 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.)

367

1 Cranch, 308.

368

Stuart vs. Laird, СКАЧАТЬ