The formation and ratification of the Federal Const.i.tution, mainly through Federal agency, the union of the Anti-Federalists and Republicans and the cordial acceptance of the Const.i.tution, after its amendment, by both, presented, at the commencement of Washington's administration, the fairest opportunity for a real "era of good feeling"

that the country has ever known. All controversy upon fundamental questions having been removed, the doors seemed to be thrown open for an amalgamation of parties like that of which so much was said, and with so little result, during the administration of Mr. Monroe. Without any open question affecting permanently every interest, and all the people and all alike, as is the case with such as relate to and embrace the sources of power and the foundations of the government, if the Const.i.tution had been upheld in good faith on both sides partisan contests must of necessity have been limited to local or temporary and evanescent measures and to popular excitements and opposing organizations as shifting and short-lived as the subjects which gave rise to them. But Hamilton took especial care that such halcyon days should not even dawn on the country. He had a riveted conviction--a conviction he took no pains to conceal--that the Const.i.tution must prove a signal failure, unless it could be made to bear measures little dreamed of by those who made and had adopted it; and in his view of the welfare of the country that question could not be too soon decided. The name and influence of Washington was an element of strength toward the accomplishment of his project in that regard, upon which he had expressed a strong reliance in the letter now published by his son, without date but written between the formation and ratification of the Const.i.tution, and he was, of course, desirous to bring all such questions to an early decision, as Washington's long continuance in office was far from probable. He, therefore, promptly seized his opportunity, and at the earliest suitable moment after the organization of the new Government, proposed the incorporation of a national bank. I have already said, and given my reasons for the a.s.sertion, that in the whole range of the affairs of the government committed to his charge, he could not have taken a single step which would have afforded such unmistakable evidence of his determination not to be controlled in his administration of the government under the new Const.i.tution by the intentions of those who framed, or of those who ratified it; not one more likely to revive former distrusts, and to infuse new jealousies among the Anti-Federalists in respect to his hostility to republican principles, or better calculated to give new strength to their energies when the proper time arrived for the blast of the trumpet that called every man to his tent. His old friend, Madison, was one of the first to take up the gauntlet thus boldly thrown before the sincere friends of the Const.i.tution. This was done by his masterly and unanswerable speech in Congress against the const.i.tutionality of the bank. No one can make himself acquainted with Mr. Madison's course, and with the state of his feeling towards President Washington at that period, and fail to appreciate the regret and pain he suffered from the performance of that act of duty, not on his own account but from his extreme reluctance to be placed in the att.i.tude of opposition to one for whom he cherished feelings of such unbounded respect and affection, and whose confidence he fully enjoyed. But for the strong and audacious movements of Hamilton, there is every reason to believe that Mr. Madison would have cooperated very cordially in the support of President Washington's administration throughout. In respect to mere questions of expediency, he would have done all in his power to give them the most desirable form and direction, and, if disappointed, would, doubtless, have been silent as to the result.

CHAPTER VI.

Glance at the General Subject as heretofore discussed in this Essay--One important Topic not yet touched upon, viz.: the Effort that has been made to secure to the Judicial Department a Superior Controlling and Dangerous Power over the Executive and Legislative Departments--The constant Aim of the leading Federalists to give undue Influence to one of the Three Great Departments--The Judicial not the Department originally preferred by Hamilton as the Depository of this Power--How that Department came to be selected for that Purpose--The Election of Jefferson the Overthrow of the Federalists in the Executive and Legislative Departments--Efforts of the latter to retain Control of the Judicial Department--Character and Career of Chief Justice Marshall--His Efforts to control the Action of the Executive by Mandamus--Resistance by Jefferson--Account of the Proceeding by Mandamus against the Secretary of State, Madison--Opinion of the Court in Marbury _v._ Madison--Merits and Result of the case--Jurisdiction of the Supreme Court under the Const.i.tution--Great Addition to its Power conferred by the Judiciary Act of 1789--Encroachment by the Federal Judiciary upon the Jurisdiction of State Courts, the Distinct Policy of the Federalists--Popular Respect for the Court and Judges favorable to the Success of that Policy--Jefferson directed the Resistance which was made to Orders of the Supreme Court, in Marbury _v._ Madison--His Action sustained by Congress and approved by the People--The Federalists hesitate and abandon their Attempt to carry the Encroachment they had undertaken in the Case of Marbury _v._ Madison--High Character of Marshall.

I have proceeded thus far in my endeavor to search out the origin, trace the progress, and define the principles of political parties in the United States. To accomplish these objects the measures they have from time to time advocated have been brought into view; opinions they have advanced partially discussed, and the means that have been employed to make them effectual considered.

The general subject, considering the interest and the importance attached to it in several aspects, has been but little canva.s.sed, and is at best but imperfectly understood. The most important points put in issue, so far as they have arisen out of principles advanced or pretenses set up by either party prior to the election of 1800, have, it is believed, been fully, and, it is hoped, fairly presented. Here, on account of the unforeseen extent to which the subject has grown upon my hands, it would be my wish to dismiss it and to resume the thread of my Memoirs at the point at which I left it for the consideration of what I then regarded as incidental matter. To do so has been my intention through the last two hundred pages of my ma.n.u.script. But, at the stage to which I had looked as the termination of this branch of my labors, I am met by the reflection that in all I have said in respect to the doctrines, theories, and acts of parties, I have not even touched upon a great principle subsequently advanced for the action of the Federal Government, which, for reasons that will be seen and appreciated as we proceed, is of equal interest, and which, from considerations of recent application, is perhaps of more urgent importance than those upon which my attention has been bestowed.

I allude to the effort which has been made to secure to one of the three great departments of the Government--the judicial--a superior and controlling power over its departmental a.s.sociates, the executive and the legislative, all of which were designed by the Const.i.tution to be coordinate, and, in respect to their relative powers, independent of each other. This pretension, though successfully discouraged at its origin, instead of sharing the fate of other const.i.tutional heresies which sprang from the same source, has been revived with increased earnestness at critical periods, and at this time seems to threaten to exert a dangerous influence upon our political system.

I have not noticed it before, because it was not set up until after the great struggle of 1800, and was thus separated from the questions which originated under the previous administration, most of which have been agitated to the present day, and because the period of its most imposing if not its first introduction into the political arena, unconnected with judicial proceedings,--that of President Jackson's veto against the pa.s.sage of the Bank Bill,--occurred at a later period than that to which my account of political movements has been brought in my Memoirs.

It has from the beginning been the constant aim of the leading Federalists to select some department, or some nook or corner in our political system, and to make it the depository of power which public sentiment could not reach nor the people control. The judicial was not the department which Hamilton deemed the best adapted to that end, and his opinion upon such points seldom failed to become that of his party.

He liked the judiciary as well on account of its being the only branch of the Government that was const.i.tuted, in regard to the tenure of office, upon the principles he preferred, and which he had proposed in the Convention for other offices also, as on account of its usefulness in protecting the rights of persons and property against vicious legislation or lawless violence. But regarding the exercise of its powers in no other light than through its judgments in cases "in law and equity" that were brought before it by parties litigant, the only sense in which they were regarded by the framers of the Const.i.tution, he thought it too weak a department for his purpose. This was nominally to influence, but really to control, the action of the public mind--an object which, he never hesitated to declare, could only be effected by appeals to the interests or the fears of the people, and the judicial power did not possess the means to make either effectual. This opinion of the weakness of the judicial power he frequently avowed, and particularly in the 78th No. of the "Federalist." The judiciary, he there said, "was incontestibly the weakest of the three departments of power;"--that "though individual oppression might now and then proceed from the courts of justice, the general liberty of the people could never be endangered from that quarter;"--that it had "no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.

It may truly be said to have neither _force_ nor _will_, but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty." In support of these views he cited Montesquieu, who, speaking of them says: "_Of the three powers above mentioned, the Judiciary is next to nothing._" Thus regarding the judicial department, Hamilton selected the executive and legislative as those best adapted to his purposes. Of the means which those departments possessed he spoke in the same number of the "Federalist" in the following strain: "The executive not only dispenses the honors, but holds the sword of the community; the legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated." These were the departments, through the instrumentality of which, invigorated as he designed to invigorate them by his construction of the Const.i.tution, he hoped to make ours a practicable government. Sustained by a Congress, a majority of whom stood ready to follow his lead, and by the almost unbounded confidence of the executive, he for a season carried out his plans with great success, and enjoyed that momentary confidence which produced his jubilant remark to Mr. Jefferson.

But he soon found that, like the scriptural foolish man, he had built his house upon the sand, and the rain descended and the floods came and the winds blew, and it fell. Within the short period that he remained in the Government, some of the measures that he had brought into existence were already discredited by an offended public sentiment, and toward the close of Mr. Adams' administration--one still guided by his superintending genius--the political fabric which he had created was, by the same power, blown into atoms. It was this great overthrow that brought home to him the unwelcome conviction that other const.i.tutional foundations than those which the Federal Convention, the people, and the States had laid, no man, without the same aid, could lay. It presented to his mind, under circ.u.mstances the most impressive, a truth which he had overlooked in the eagerness of his pursuit after power, viz., that the people were enabled by the popular provisions of the Const.i.tution in respect to the executive and legislative departments, to break down the greater part of such structures as those which he had reared, by dismissing from their places those who had a.s.sisted in their construction, and subst.i.tuting others, who, knowing their wishes, would feel it their interest to respect them; and what was pa.s.sing before his eyes afforded the most reliable evidence that they would not be slow in the exercise of the rights that belonged to them. This was the handwriting on the wall that foretold the fate of all his plans, and called forth, during the brief period of his subsequent existence, his continued denunciation of the Const.i.tution as "a frail and worthless fabric."

It was at the moment of this great disaster, when dismay prevailed in the Federal councils, whilst Hamilton was brooding over a defective Const.i.tution which he knew the States would not alter to suit his wishes and which it was evident the people would not permit him to pervert, that the Federal party was conducted to the judicial department of the Government, as to an ark of future safety which the Const.i.tution placed beyond the reach of public opinion. The man who planned this retreat was John Marshall--a statesman of great power, one who partook largely of Hamilton's genius, was better acquainted with the character of the people, and possessed more control over his own actions.

The period when this once powerful party was thus counseled and guided was one well calculated to cause its members to embrace the advice given to them with avidity. They had just been expelled, root and branch, from those departments of the government which the Const.i.tution had made accessible to public opinion and subject to the voice of the people; whilst over that to which they were recommended to extend their preference and favor, the people possessed but little if any control.

This difference, so acceptable to their most cherished feelings, was besides greatly increased in value by the grossly irrational apprehensions under which they labored in regard to the course of the President elect and to the dispositions of the party by which he had been elevated to power. That he partic.i.p.ated largely in the feelings and views of the Jacobins of France, and was prepared for the introduction of their opinions and practices in this country; that religion, the rights of persons and property, and all the interests which are regarded as sacred under well regulated governments, were put in jeopardy by his election, were opinions to which there were but few dissentients in the Federal ranks. I have elsewhere referred to a letter, written during the then recent canva.s.s by Hamilton to Washington, in which he avowed in the most solemn and deliberate manner his conviction that the Republican party desired to make our Government subservient to the policy of that of France, and would, in all probability, rally under her banner if it was unfurled in force on our sh.o.r.es. Similar sentiments were fulminated from pulpit and press; and there are yet, here and there, living witnesses, who will not partake of the surprise this description of the then condition of the public mind is calculated to excite on the part of the present generation because they know it to be true, and yet remember how often and with what solemnity the warning was uttered from sacred desks that Jefferson's election would be the signal for the prostration of our pulpits, the burning of our Bibles, and the subst.i.tution of some G.o.ddess of Reason.

The promises of the mild sway of reason and justice, installed and enforced by that great statesman, with no other limitation than the removal from office of factious inc.u.mbents whose violence was calculated to obstruct the successful action of the principles he was elected to sustain, and the revocation of judicial trusts created in the last moments of a power already condemned by the people, and which were designed to counteract their will--a sway which bore upon its wings the repeal of odious taxes, the reduction of superfluous expense, the payment of the public debt, and the avoidance of all unnecessary public burdens, with a zealous concern for the rights of the States as well as for those of individuals,--made impressions upon the public mind in favor of the principles upon which it was founded, which now, after the lapse of more than half a century, are as fixed and as powerful as they were then; but at the time were scouted by Federal leaders and presses as false pretences designed to deceive the people and to clear the way for destructive changes.

Under such impressions the first object of solicitude on the part of the Federalists was to strengthen the existing organization of the judiciary by increasing the number of its tribunals and those employed in its administration, and thus to place it before the country in a more imposing att.i.tude; and the second to enlarge its powers beyond the bounds intended to be a.s.signed to them by the Const.i.tution. To accomplish the first object they resorted to a stretch of power which now, when the feelings it excited have long since died away and the actors concerned in it have without exception descended to their tombs, will not, I feel confident, find a justification in the breast of a single upright man, whatever disposition he may entertain to excuse it on account of the violence of public feeling prevalent at the time.

After the fiat of the people had p.r.o.nounced the absolute expulsion from office of the Federal executive within a brief and fixed period, and virtually that of the Federal party from power, they availed themselves of the remnant of authority unavoidably left to them by the forms of the Const.i.tution to establish new courts, embracing within the jurisdiction a.s.signed to them all the States of the Confederacy, and the district which had been set apart for the seat of the Federal Government; appointed three judges for each court, to hold their offices nominally during good behavior, virtually for life, with liberal salaries,--making in all twenty-one judges, besides clerks, etc.,--all designed to be placed beyond the power of the government that had been selected by the people to succeed them. Thus, much was done toward the accomplishment of their first object. The enlargement of the judicial power of the department was to be effected by a different process.

Among the "_midnight appointments_" by President Adams, (a stigma attached to them at the time, and from which they have never been rescued,) were forty-two magistrates, nominated for the District of Columbia. The list, though containing many highly respectable names, was in the main made up of opponents of the President elect, not a few of them strongly imbued with the partisan _furor_ of the day. They were to hold their offices for a period extending beyond that for which the President himself was elected, and it was upon their cooperation Mr.

Adams and his cabinet intended that his successor should be mainly dependent for the discharge of the high duty imposed upon him by the Const.i.tution--that of causing the laws to be executed in the Federal District. The nominations were sent to the Senate on the second of March, confirmed during the night of the third, and Mr. Jefferson entered upon the duties of his office the next morning. The commissions were found on the table in the State Department with its seal attached, signed by President Adams, and if signed also by a Secretary it must have been by a _loc.u.m tenens_, as Mr. Marshall had some days before been transferred from the office of Secretary of State to that of Chief Justice of the Supreme Court of the United States. The commissions had not been delivered,--an act which Mr. Jefferson, as the head of the executive department of the Government, decided to be necessary to the completion of the appointment. Under such circ.u.mstances, and, doubtless, stung by the ungraciousness of the treatment he had received, he directed that the commissions should neither be recorded nor delivered, but treated as nullities. Believing the number far too large, he issued new commissions during the recess to twenty of those selected by Mr.

Adams and to five others designated by himself, nominated them to the Senate at its next session, by which body they were confirmed.

This transaction furnished the desired occasion to apply the opening wedge for the enlargement of the judicial power of the Federal Government, and it was promptly and fully embraced through the proceedings that were had in the celebrated case of Marbury and Madison.

The judges of the Supreme Court were to a man Federalists, and at the head of them stood, as chief justice, President Jefferson's persevering and consistent old political antagonist--John Marshall.

The Chief Justice may not have been the severest student or the most learned lawyer, but he was certainly, all things considered, the ablest judge that had ever occupied a seat upon the bench of the Supreme Court of the United States. No man was ever more rigidly just or strictly impartial in all cases of _meum and tuum_ that were brought before him for adjudication. Under a disposition the most genial, and a childlike simplicity and frankness of manner he cherished during his whole life, as all his race have done, Federal principles and Federal prejudices of the most ultra character. These, though ordinarily kept in due check by a commendable and exemplary self-command,--a virtue he shared with, if he had not in some degree imbibed it from, his friend and neighbor, General Washington,--had nevertheless been warmed by the circ.u.mstances of the moment to a high temperature. The inducements by which he was almost forced into public life by the General, shortly before the death of the latter, have been narrated in the account I have given of my conversation with his nephew, Judge Washington, at Mount Vernon.[32]

Unhappily impressed with the idea that his own as well as the interests of the country depended upon the support of Mr. Adams' administration, General Washington for once, and fortunately only for a brief season, lent himself to partisan movements and used his controlling influence to induce Mr. Marshall to offer for Congress, and in no other case has the high estimate he formed of a man's capacity been more signally verified by the result. Marshall became at once, through the influence of a single speech of extraordinary power, a leader in the House of Representatives during the most stormy period of the administration of John Adams, was subsequently appointed Secretary of War and Secretary of State by Mr. Adams, and held the latter office until his party, and the administration with it, were overthrown by the Republicans under the lead of Mr. Jefferson. He was then transferred by Mr. Adams to the place of Chief Justice. Other circ.u.mstances lent their influence to infuse ill-will into the personal relations of Jefferson and Marshall. They were natives of the same State, and although they had stood as Whigs side by side in the Revolution, the political principles maintained by Mr. Jefferson, after the establishment of our Independence, were so much more in harmony with those of Virginia as to place Marshall's views ever after under the ban of her opinion, notwithstanding the qualified sanction they received front General Washington. On the part of Mr.

Jefferson, the unfriendly feelings which he believed were entertained toward him by the Chief Justice were, for him, quite earnestly reciprocated. This is shown by the following pointed extract from his letter to myself, in which, speaking of the alterations and other uses that had been made of his letter to Mazzei, he adds, "and even Judge Marshall makes history descend from its dignity and the ermine from its sanct.i.ty to exaggerate, to record, and to sanction this forgery."[33]

[32] See Note on p. 9.

[33] See Appendix.

Mr. Jefferson, apprised that steps were being taken to bring his acts in respect to the commissions under the supervision of the Supreme Court, at once penetrated the design that lay behind the particular measure, and, with that moral courage that never deserted him, prepared to defend the department committed to his charge. The head of the State Department was advised, and the clerks instructed, to make themselves parties to no act which would justly be regarded as recognizing the authority of the court to meddle in the affair, and his views were, of course, faithfully carried out by Mr. Madison, as well as by the subordinates in the department. A motion was made at the December term of the court in 1801, for a rule requiring James Madison to show cause why a mandamus should not issue commanding him to deliver those commissions to the nominees. Notice of motion was served upon Mr.

Madison, but he declined to appear. He was asked by the relator whether the commissions were signed and sealed, but declined to respond to such inquiries, as did also the officers of the department. Application was also made to the Secretary of the Senate for a certificate that the nominations had been confirmed, which was also refused. A resolution was offered in the Senate directing the Secretary of the Senate to give the certificate. It was laid upon the table and no further acted upon. Upon affidavits stating these facts, except the last, a rule was obtained requiring the Secretary to show cause why the mandamus should not be issued on a day certain, of which he took no notice. The court, notwithstanding, proceeded to an _ex parte_ hearing. "Two clerks were summoned from the department as witnesses, who objected to be sworn because they were not bound to disclose any facts relating to the business or transactions of the office. The court ordered the witnesses to be sworn, and their testimony taken in writing; but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been Acting Secretary of State when the circ.u.mstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing. The Court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer that, nor was he obliged to state any thing which would criminate himself."[34]

[34] Taken from the report of the case.

The testimony that was given is not set forth in the report of the case.

The counsel for the relator argued the questions he presented for the consideration of the court in the following order, viz.:

1st. Whether the Supreme Court can award the writ of mandamus in any case.

2d. Whether it would lie to a Secretary of State in any case whatever.

3d. Whether in the present case the court may award a mandamus to James Madison, Secretary of State.

The point involving the question of jurisdiction was, according to the invariable course of legal proceeding, the first in order of consideration, upon the plain and simple principle that if the court have no right to act definitively in the matter there is neither use nor propriety in considering even, and much less in making a decision upon, the merits of the case. That belongs to the tribunal that possesses jurisdiction. No point was clearer than the want of jurisdiction on the part of the Supreme Court, and such it will be seen was the unanimous and unhesitating opinion of the court itself. The Const.i.tution divides the jurisdiction conferred on that high tribunal into that which may be exercised as original, and that which shall only be appellate, and separates the two in terms which leave no room for misapprehension or mistake. The language of the Const.i.tution is--"In all cases affecting amba.s.sadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction" both as to the law and fact, with such exceptions and under such regulations as Congress shall make. The motion before the court was clearly an original proceeding in a matter in which it confessedly had no original jurisdiction; so the court was obliged to say, and so it ultimately said.

A pretense was set up by the relator's counsel that the court might claim the desired authority under that part of the Judiciary Act providing necessary means to enforce its appellate jurisdiction, which, after specifying the cases in which such jurisdiction may be exercised, and pointing out the way in which it may be carried into effect, adds to the authority to issue writs of prohibition to the district courts in certain cases--"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." Now the plain intention of this clause of the sentence was to extend the right of issuing a mandamus, in the exercise of its _appellate jurisdiction_, to any subordinate authorities upon whom Congress might confer judicial power, whether that power was given to a court, or to a single officer not const.i.tuting a court according to the ordinary interpretation of that word. The commissioners subsequently appointed under the Fugitive Slave Act are officers of that description. To think otherwise is to suppose that the men who framed the Judiciary Act of 1789 designed by the terms they employed to give to the Supreme Court original jurisdiction in cases in which it was denied to it by the Const.i.tution--a design too absurd and too disingenuous to have found even a momentary resting-place in the minds of those great men. The court so far countenanced this interpretation as to a.s.sume, for the sake of the argument, that the words "or persons holding office," might embrace the case before it. But it immediately proceeded to disprove the a.s.sumption by saying, "It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a _mandamus_ should be issued for that purpose that will must be obeyed. _This is true_; yet the jurisdiction must be _appellate_ not _original_,"--and the court goes on to show that this proceeding would in no sense be regarded as an exercise of appellate jurisdiction; adding to that demonstrative refutation the declaration, that if the act would bear the interpretation given to it by the counsel, it would be directly contrary to the Const.i.tution and therefore void. That the court had not the slightest right to do what it was asked to do, or to take original jurisdiction of the matter in any form, was a point upon which it expressed no doubt; and if it had decided the questions in the order in which they were presented by the relator's counsel, the necessity of dismissing the motion before coming to the consideration of the merits of the case would have been too imperative to be overcome.

Under these circ.u.mstances what was the course pursued by the Chief Justice, who gave the opinion of the court, and who alone of its members appears, in the report, to have taken part in the case? He reversed the order in which the relator's counsel had presented their client's case and subst.i.tuted the following:--

1st. Has the applicant a right to the commission he demanded?

2d. If he has a right and that right has been violated, do the laws of his country afford him a remedy?

3d. If they do afford him a remedy, is it a mandamus from this court?

That the question of jurisdiction is always the first in order is a proposition too plain and too well-established to be discussed. It is not only a rule in our judicial system and in that from which ours has been derived, but must of necessity be a feature in every enlightened system of jurisprudence.

This order was observed by the counsel for the relator, but was so changed in the opinion of the court as to make the consideration of the merits precede the question of jurisdiction--an arrangement for which no good reason could be given, and for which therefore none was attempted to be given. The motive lay on the face of the transaction. It was the only way in which the court could avoid the necessity of saying that they had no jurisdiction over the subject before proceeding to discuss and decide upon its merits. It was to avoid, though in appearance only, this judicial deformity that the Chief Justice reversed the order of the questions, and then in an opinion, which occupies some twenty-six pages in Cranch's Reports,[35] he attempted to prove that the withholding of the commissions was an act not warranted by law, but a violation of a vested legal right which the court p.r.o.nounced it to be; yet wound up with an admission that the court had no jurisdiction of the subject, and of course no right to act upon it.

[35] See Cranch's _Supreme Court Reports_, Vol. I. p. 137.

If this statement is not in all respects true, then I do injustice to the Chief Justice and his a.s.sociates, and the inferences I draw from it are to be turned not only from them but against myself. But if the matter, as described by the Chief Justice himself, stood in every respect as I have here narrated, then I insist--and I cannot, I am very sure, deceive myself in believing that every ingenuous mind, whatever may be its political bias, will concur with me in the position--that the course pursued by the Chief Justice and sanctioned by his a.s.sociates was exceptionable in the highest degree. With the Const.i.tution before them, it was entirely clear at the first introduction of the matter that they had no original jurisdiction of the subject, and could not, under any state of facts, comply with the application of the relator. The course should therefore have been, and doubtless under ordinary circ.u.mstances would have been, to direct the relator's counsel to confine their argument to that preliminary point and at its close, with the want of jurisdiction as apparent to the court as it proved to be, to have discharged the rule. But if the court had for any reason thought it desirable to hear the whole case, the same course should have been pursued when it came to their decision, and the merits of the case should have been left unacted upon. No end could be answered by an unauthorized decision on the merits, other than to show to the inferior tribunals what the Supreme Court would do if the case was brought before it on appeal; and that was the design attributed to the Chief Justice by Mr. Jefferson and severely reprobated. Such is not the way in which it is admissible for superior tribunals to treat such subjects; but if it could in any case be deemed excusable, it could never be so on an _ex parte_ hearing. For myself I cannot, with equal and great respect for the princ.i.p.al actors, help regarding the proceedings, from the granting of the rule to show cause to the final decision, as exhibiting a culpable want of courtesy on the part of one of the three great departments of the Federal Government toward a coordinate member, at least equal in dignity and power, greatly aggravated by the political relations in which the President and the Chief Justice stood toward each other, and by the temper of the times in which they occurred.

I apply the remark to them individually, because Chief Justice Marshall was the princ.i.p.al, and seemingly the sole actor, in the proceedings on the part of the court, and because the retention of the commissions--the grievance those proceedings were designed to redress--was not merely an executive act, but one committed in pursuance of the specific direction of President Jefferson. This was always avowed by the latter, and the guarded manner in which the replies of Mr. Madison are stated in the report of the case is, to my mind at least, sufficient proof that the President was throughout considered and treated by the Chief Justice as the actual offender in the matter.

In respect to the soundness of the volunteer opinion of the court it would be superfluous, considering the fate that awaited it, to do more than to restate the question. This may certainly be done with more brevity and perhaps with equal distinctness.

It will not be denied that President Jefferson had the same power over the subject on the 4th March that Mr. Adams would have possessed if his term of office had not expired on the 3d. The President under our system, like the king in a monarchy, never dies. Let us then suppose that Mr. Adams, after he had signed the commission and caused the seal to be affixed to it, but before it had been recorded or delivered, had discovered that the appointee was a felon, or for any reason an obviously improper person to be made a conservator of the public peace, was he not authorized to withhold it? The appointment is made by the Const.i.tution to consist of three acts--the nomination, the approval by the Senate, and the commissioning. The first and last devolve on the President. The signatures to them must necessarily be his own act; but Congress supplies him with a Secretary of State subject to his own directions, to do whatever else is necessary, viz.: to affix the seal to the commission; to record it; and to cause it to be delivered or transmitted to the appointee. The President is apprised of the impropriety of the appointment,--an act which the Const.i.tution had devolved on him alone,--the commission is yet in his possession, for the office of Secretary of State is, for all such purposes, his office, and the question would not have been changed if the seal had been affixed at the President's House; can it be for a moment supposed that the Const.i.tution intended that his power over the commission ceased the moment he attached his signature, or the Secretary the public seal, and that after that he had no right to arrest further proceedings, however strong his reasons for so doing? Can it be presumed that its framers intended to invest the President in the discharge of his responsible duty to "commission all the officers of the United States" with an authority so precise and technical? It is on all sides conceded that he is not bound to commission after the Senate has approved, but has still a right to withhold the commission at his pleasure; and it would be strange, indeed, if it was not intended to give him the power also to arrest its being put on record and delivered after he had signed it, if he saw good cause to do so. But it is not now important to weigh accurately the reasoning of the Chief Justice, which certainly partakes largely of the art and precision of special pleading; as the case was abandoned then, and no similar case has arisen for more than half a century. That the claim of Mr. Marbury and his a.s.sociates, with ample facilities for its prosecution in the inferior tribunals within their reach, (Judge Cranch, the reporter of the case of Marbury _v._ Madison, a full believer in the judicial as well as the political infallibility of the Chief Justice, being the Federal judge in the District) should have been given up, after the determination with which it had been a.s.serted, and the care and favor with which it had been considered and elaborated by the Chief Justice, would at the first blush seem not a little unaccountable. The fact of abandonment, in the absence of other explanation, would justify the inference that it was the result of a subsequent conviction that the proceedings were erroneous. But changes of opinion or disposition under such circ.u.mstances seldom arise, and the solution of their subsequent course is, I think, to be found in other considerations. The course pursued by the President afforded unmistakable evidence of his determination to resist at the threshold, and to the bitter end, the supervisory power of the judiciary over the other great departments of the Government, which was then for the first time sought to be introduced through the _ex parte_ proceedings in the case of Marbury _v._ Madison.

With such a demonstration before them it became the Supreme Court and its supporters, before it committed itself more deeply in the attempt it had entered upon to control the action of the aroused democracy of the country represented in the executive and legislative departments of the Federal Government, to survey, with more care than had perhaps been hitherto used, the means of offense and defense with which the Const.i.tution had invested each.

The result of such a scrutiny could not have failed to satisfy sensible men that the President elect, the new Senate, and the new House of Representatives,--who in their respective positions had frustrated the effort of the late President to subject his successor to a dependence during his entire official term, for the performance of a highly important part of his official duties in the Federal District, upon a magistracy not of his own selection, and had thus far also defeated an attempt, springing from the same spirit and upon an enlarged scale, to saddle the country with an uncalled-for and enormous addition to the existing judicial corps, clothed with extensive authority, and to all substantial purposes irresponsible to the people,--were also invested by the Const.i.tution with ample power not only to defeat a new effort to carry into effect before the appropriate tribunal the hostile views indicated by the proceedings in the case of Marbury _v._ Madison, but to reduce the power and dignity of the Supreme Court itself to a standard far inferior to those it then possessed.

The Federal Const.i.tution declares, that "all the appellate jurisdiction conferred on the Supreme Court shall in all cases be subject to such exceptions and under such regulations as Congress shall make." Thus by the words of the Const.i.tution the whole subject is placed under the revision of Congress and is made subject to its action. If any attempt had been made to set up anew the importance that had been constructively attached, in the case of Marbury _v._ Madison, to the words "or persons holding office" in the Judiciary Act, that body would instantly have relieved that act and its authors from the preposterous aspersions which had been cast upon them.

But there was matter in the background of far greater moment.