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

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СКАЧАТЬ the grand juries and trial juries. These officers of the National courts were, without exception, Federalists; in many cases Federalist politicians. When making up juries they selected only persons of the same manner of thinking as that of the marshals and judges themselves.132 So it was that the juries were nothing more than machines that registered the will, opinion, or even inclination of the National judges and the United States District Attorneys. In short, in these prosecutions, trial by jury in any real sense was not to be had.133

      Certain State judges of the rabid Federalist type, apostles of "the wise, the rich, and the good" political religion, were as insulting in their bearing, as immoderate in their speech, and as intolerant in their conduct as some of the National judges; and prosecutions in some State courts were as bad as the worst of those in the National tribunals.

      In Boston, when the Legislature of Massachusetts was considering the Kentucky and Virginia Resolutions, John Bacon of Berkshire, a Republican State Senator, and Dr. Aaron Hill of Cambridge, the leader of the Republicans in the House, resisted the proposed answer of the Federalist majority. Both maintained the ground upon which Republicans everywhere now stood – that any State might disregard an act of Congress which it deemed unconstitutional.134 Bacon and Hill were supported by the solid Republican membership of the Massachusetts Legislature, which the Columbian Centinel of Boston, a Federalist organ, called a "contemptible minority," every member of which was "worse than an infidel."135

      The Independent Chronicle, the Republican newspaper of Boston, observed that "It is difficult for the common capacities to conceive of a sovereignty so situated that the Sovereign shall have no right to decide on any invasion of his constitutional powers." Bacon's speech, said the Chronicle, "has been read with delight by all true Republicans, and will always stand as a monument of his firmness, patriotism, and integrity… The name of an American Bacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed a death wound to the Constitution of the United States will rot above ground and be unsavoury to the nostrils of every lover of Republican freedom."136

      The Massachusetts Mercury of February 22, 1799, reports that "On Tuesday last … Chief Justice Dana … commented on the contents of the Independent Chronicle of the preceding day. He properly stated to the Jury that though he was not a subscriber to the paper, he obtained that one by accident, that if he was, his conscience would charge him with assisting to support a traitorous enmity to the Government of his Country."

      Thereupon Thomas Adams, the publisher, and Abijah Adams, a younger brother employed in the office, were indicted under the common law for attempting "to bring the government into disrespect, hatred, and contempt," and for encouraging sedition. Thomas Adams was fatally ill and Abijah only was brought to trial. Under the instructions of the court he was convicted. In pronouncing sentence Chief Justice Dana delivered a political lecture.

      The Virginia and Kentucky Resolutions, he said, had attempted "to establish the monstrous position" that the individual States had the right to pass upon the constitutionality of acts of Congress. He then gave a résumé of the reply of the majority of the Massachusetts Legislature to the Virginia Resolutions. This reply asserted that the decisions of all questions arising under the Constitution and laws of the United States "are exclusively vested in the Judicial Courts of the United States," and that the Sedition Act was "wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine the whole fabric of government." The irate judge declared that the Chronicle's criticism of this action of the majority of the Legislature and its praise of the Republican minority of that body was an "indecent and outrageous calumny."

      "Censurable as the libel may be in itself," Dana continued, the principles stated by Adams's counsel in conducting his defense were equally "dangerous to public tranquility." These daring lawyers had actually maintained the principle of the liberty of the press. They had denied that an American citizen could be punished under the common law of England. "Novel and disorganizing doctrines," exclaimed Dana in the midst of a long argument to prove that the common law was operative in the United States.137

      In view of the fact that Abijah Adams was not the author of the libel, nor even the publisher or editor of the Chronicle, but was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month's imprisonment, but required him to find sureties for his good behavior for a year, and to pay the costs of the trial.138

      Alexander Addison, the presiding judge of one of the Pennsylvania State courts, was another Federalist State judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into disrepute. Some of his charges to grand juries were nothing but denunciations of Republican principles.139

      His manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. In one case,140 Addison forbade the Associate Judge to address the jury, and prevented him from doing so.141

      Nor did the judges stop with lecturing everybody from the bench. Carrying with them the authority of their exalted positions, more than one of them, notably Justice Chase and Judge Addison, took the stump in political campaigns and made partisan speeches.142

      So it fell out that the manners, language, and conduct of the judges themselves, together with their use of the bench as a political rostrum, their partisanship as to the European belligerents, their merciless enforcement of the common law – aroused that public fear and hatred of the courts which gave Jefferson and the Republicans their opportunity. The questions which lay at the root of the Republican assault upon the Judiciary would not of themselves, and without the human and dramatic incidents of which the cases mentioned are examples, have wrought up among citizens that fighting spirit essential to a successful onslaught upon the National system of justice, which the Federalists had made so completely their own.143

      Those basic questions thus brought theatrically before the people's eyes, had been created by the Alien and Sedition Laws, and by the Virginia and Kentucky Resolutions which those undemocratic statutes called forth. Freedom of speech on the one hand and Nationalism on the other hand, the crushing of "sedition" as against that license which Localism permitted – such were the issues which the imprudence and hot-headedness of the Federalist judges had brought up for settlement. Thus, unhappily, democracy marched arm in arm with State Rights, while Nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism.

      Had not the Federalists, arrogant with power and frantic with hatred of France and fast becoming zealots in their championship of Great Britain, passed the drastic laws against liberty of the press and freedom of speech; had not the Republican protest against these statutes taken the form of the assertion that individual States might declare unconstitutional and disregard the acts of the National Legislature; and finally, had not National tribunals and some judges of State courts been so harsh and insolent, the Republican assault upon the National Judiciary,144 the echoes of which loudly sound in our ears even to the present day, probably never would have been made.

      But for these things, Marbury vs. Madison145 might never have been written; the Supreme Court СКАЧАТЬ