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

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428

For instance, in 1808, the United States District Court of Massachusetts, 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, Cæsar 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, Associate 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 unconstitutional, 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.

429

Giles was appointed Senator August 11, 1804, by the Governor to fill the unexpired term of Abraham Venable who resigned in order that Giles might be sent to the Senate. In December the Legislature elected him for the full term. Upon taking his seat Giles immediately became the Republican leader of the Senate. (See Anderson, 93.)

430

Dec. 21, 1804, Memoirs, J. Q. A.: Adams, i, 322-23.

431

Dec. 21, 1804. Memoirs, J. Q. A.: Adams, i, 322-23.

432

Plumer, 274-75; and see especially Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

433

The powerful Republican organ, the Aurora, of Philadelphia, thus indicted the National Judiciary: Because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors… It is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the Constitution." (Aurora, Jan. 28, 1805, as quoted in Corwin, 41.) Professor Corwin says that this utterance was approved by Jefferson.

434

"Mr. Giles from Virginia … is the Ministerial leader in the Senate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.)

"I considered M^r. Giles as the ablest practical politician of the whole party enlisted under M^r. Jefferson's banners." (Pickering to Marshall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.)

435

William Johnson of South Carolina, appointed March 26, 1804, vice William Moore, resigned. Johnson was a stanch Jeffersonian when appointed. He was thirty-three years old at the time he was made Associate Justice.

436

It is impossible to put too much emphasis on Giles's avowal. His statement is the key to the Chase impeachment.

437

Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, iii, 108.

438

Pickering to Lyman, Feb. 11, 1804, N.E. Federalism: Adams, 344; Lodge: Cabot, 444; also see Plumer, 275.

439

Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong.

440

Bayard to Bassett, Feb. 12, 1802, Bayard Papers: Donnan, 148.

441

Channing: Jeffersonian System, 119-20; Adams: U.S. ii, 225-27, 235; Anderson, 93, 95.

442

Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

443

See infra, 176-77, 196.

444

2 Cranch, 358-405.

445

See vol. ii, 481-82, of this work.

446

See vol. ii, 71-74, of this work.

447

Fifteen years passed before a critical occasion called for another assertion by Marshall of the doctrine of implied powers; and that occasion produced one of Marshall's greatest opinions – in the judgment of many, the greatest of all his writings. (See McCulloch vs. Maryland, vol. iv, chap. vi, of this work.)

448

Addison's address is historically important; it perfectly shows the distrust of democracy which all Federalist leaders then felt. Among other things, he pleaded for the independence of the Judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. (Addison Trial, 101-43.)

449

The petition praying for the impeachment of Addison was sent to the Pennsylvania House of Representatives on January 11, 1802. On March 23, 1802, that body transmitted articles of impeachment to the State Senate. The trial was held in early January, 1803. Addison was convicted January 26, 1803. (Ib.)

450

Jefferson's Message was transmitted to the House, February 4, 1803, nine days after the conviction of Addison. It enclosed a "letter and affidavits" setting forth Pickering's conduct on the bench in the case of the ship Eliza, and suggested that "the Constitution has confided [to the House] a power of instituting proceedings of redress." (Annals, 7th Cong. 2d Sess. 460.)

On March 2 the committee reported a resolution for Pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few Federalists tried to postpone a vote, the resolution was adopted immediately.

451

Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, Edward St. Loe Livermore. (Annals, 8th Cong. 1st Sess. 334-42.)

452

Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan Steele. (Ib. 351-56.)

453

The wise and comprehensive Federalist Judiciary Act of 1801 covered just such cases. It provided that when a National judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (See Annals, 6th Cong. 2d Sess. 1545.) This very thing had been done in the case of Judge Pickering (see McMaster: U.S. iii, 166). It is curious that, in the debate, the Republicans did not denounce this as unconstitutional.

454

Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

455

Annals, 8th Cong. 1st Sess. 328-30.

456

Memoirs, J. Q. A.: Adams, i, 299-300.

457

"This," records Adams, "had evidently been settled … out of court. And this is the way in which these men administer justice." (Ib.)

458

"In the House … speeches are making every day to dictate to the Senate how they are to proceed; and the next morning they proceed accordingly." СКАЧАТЬ