The questions which lay at the root of the Republican a.s.sault 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, pa.s.sed 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 a.s.sertion that individual States might declare unconst.i.tutional 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 a.s.sault 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._ Madison[145] might never have been written; the Supreme Court might have remained nothing more than the comparatively powerless inst.i.tution that ultimate appellate judicial establishments are in other countries; and the career of John Marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. But the Republican condemnations of the severe punishment that the Federalists inflicted upon anybody who criticized the Government, raised fundamental issues and created conditions that forced action on those issues.

FOOTNOTES:

[1] Gallatin to his wife, Jan. 15, 1801, Adams: _Life of Albert Gallatin_, 252; also Bryan: _History of the National Capital_, I, 357-58.

[2] _First Forty Years of Washington Society_: Hunt, 11.

[3] _Ib._; and see Wolcott to his wife, July 4, 1800, Gibbs: _Administrations of Washington and John Adams_, II, 377.

[4] Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.

[5] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 252-53.

[6] Hunt, 10.

[7] Gallatin to his wife, _supra_.

[8] Bryan, I, 357-58.

[9] A few of these are still standing and occupied.

[10] Gallatin to his wife, _supra_; also Wharton: _Social Life in the Early Republic_, 58-59.

[11] Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304.

[12] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.

[13] Otis to his wife, Feb. 28, 1815, Morison: _Life and Letters of Harrison Gray Otis_, II, 170-71. This letter is accurately descriptive of travel from the National Capital to Baltimore as late as 1815 and many years afterward.

"The Bladensburg _run, before we came to the bridge_, was happily in no one place _above_ the Horses bellies.--As we pa.s.sed thro', the driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled us by shewing the tree, on which all the Pa.s.sengers _but one_, were saved. Whether that one was gouty or not, I did not enquire....

"We ... arriv'd safe at our first stage, Ross's, having gone at a rate rather exceeding two miles & an half per hour.... In case of a _break Down_ or other accident, ... I should be sorry to stick and freeze in over night (_as I have seen happen to twenty waggons_) for without an extraordinary thaw I could not be dug out in any reasonable dinner-time the next day."

Of course conditions were much worse in all parts of the country, except the longest and most thickly settled sections.

[14] Parton: _Life of Thomas Jefferson_, 622.

[15] Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.

[16] _Memoirs of John Quincy Adams_: Adams, IV, 74; and see Quincy: _Life of Josiah Quincy_, 186.

Bayard wrote to Rodney: "four months [in Washington] almost killed me."

(Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, IV, 230.)

[17] Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs.

Smith to her husband, July 8, 1803, _ib._ 41; and Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304-05.

[18] King to Gore, Aug. 20, 1803, _Life and Correspondence of Rufus King_: King, IV, 294; and see Adams: _History of the United States_, IV, 31.

[19] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[20] Wharton: _Social Life_, 60.

[21] See _infra_, chap. IV.

[22] Plumer to Lowndes, Dec. 30, 1805, Plumer: _Life of William Plumer_, 244.

"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805, Plumer MSS. Lib. Cong.)

[23] Story to Fay, Feb. 16, 1808, _Life and Letters of Joseph Story_: Story, I, 161.

[24] This was a little Presbyterian church building, which was abandoned after 1800. (Bryan, I, 232; and see Hunt, 13-14.)

[25] _Memoirs of Lieut.-General Scott_, 9-10. Among the ma.s.ses of the people, however, a profound religious movement was beginning. (See Semple: _History of the Rise and Progress of the Baptists in Virginia_; and Cleveland: _Great Revival in the West_.)

A year or two later, religious services were held every Sunday afternoon in the hall of the House of Representatives, which always was crowded on these occasions. The throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting-place for gossip, flirtation, and social gayety. The plan was soon abandoned and the hall left entirely to profane usages. (Bryan, I, 606-07.)

[26] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[27] Wharton: _Social Life_, 72.

[28] Hunt, 12.

[29] See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: _U.S._ II, 362.

Public men seldom brought their wives to Washington because of the absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec.

6, 1805, Hunt, 48.)

"I do not perceive how the members of Congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, II, 377.)

[30] Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see _Annals_, 8th Cong. 1st Sess. 282-88. The debate is instructive. The bill was lost by 9 yeas to 19 nays.

[31] Hildreth: _History of the United States_, V, 516-17.

[32] Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.

[33] Channing: _History of the United States_, IV, 245.

[34] Bryan, I, 438.

[35] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.