[323] March 2, 1801.

[324] _Journal of the Executive Proceedings of the Senate_, I, 388.

[325] _Ib._ 390.

[326] _Ib._ 404. Jefferson did this because, as he said, the appointees of Adams were too numerous.

[327] _Journal, Exec. Proc. Senate_, I, 417.

[328] See _supra_, 94-97.

[329] See _infra_, chap. IV.

[330] This belief is strikingly shown by the comment of the Republican press. For example, just before Marshall delivered his opinion, a correspondent of the _Independent Chronicle_ of Boston sent from Washington this article:

"The efforts of _federalism_ to exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the Judiciary.

"Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party pa.s.sions and prejudices.

"The _attempt_ of the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the const.i.tuted departments.

"The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But our _Republican_ frame of Government is so firm and solid, that there is reason to hope it will remain unshaken by the a.s.saults of opposition, & the conflicts of interfering departments.

"The will of the nation, deliberately and const.i.tutionally expressed, must and will prevail, the predictions and exertions of _federal_ monarchists and aristocrats to the contrary notwithstanding."

(_Independent Chronicle_, March 10, 1803.)

Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in the _Chronicle_ was probably sent while Marbury _vs._ Madison was being argued.

[331] Dodd, in _Am. Hist. Rev._ XII, 776. Under the law Marshall's successor must come from Virginia or North Carolina.

[332] As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he a.s.sailed Marshall and his principles of Nationalism with unsparing rigor. (See vol. IV, chaps. III, and VI, of this work.)

[333] For example, in Fletcher _vs._ Peck, Roane would have held that the National Courts could not annul a State statute; in Martin _vs._ Hunter's Lessees and in Cohen _vs._ Virginia, that the Supreme Court could not review the judgment of a State court; in McCulloch _vs._ Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Const.i.tution, etc.

All this we know positively from Roane's own writings. (See vol. IV, chaps. III, VI, and VII, of this work.)

[334] It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconst.i.tutional acts of Congress. (See Corwin: _Doctrine of Judicial Review_, 10-11; Beard: _Supreme Court and the Const.i.tution_, 16-18; McLaughlin: _The Courts, the Const.i.tution and Parties_, 32-35.)

In the Const.i.tutional Convention, Elbridge Gerry of Ma.s.sachusetts a.s.serted that the judicial function of expounding statutes "involved a power of deciding on their Const.i.tutionality." (_Records of the Federal Convention of 1787_: Farrand, I, 97.) Rufus King of Ma.s.sachusetts--later of New York--was of the same opinion. (_Ib._ 109.)

On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law pa.s.sed by the Legislature because it would give him the controul of the Legislature." (_Ib._)

Madison felt "that no Man would be so daring as to place a veto on a Law that had pa.s.sed with the a.s.sent of the Legislature." (_Ib._) Later in the debate, Madison modified his first opinion and declared that "a law violating a const.i.tution established by the people themselves, would be considered by the Judges null & void." (_Ib._ II, 93.)

George Mason of Virginia said that the Judiciary "could declare an unconst.i.tutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (_Ib._ 78.)

Gouverneur Morris of Pennsylvania--afterwards of New York--dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (_Ib._ 299.)

Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. (_Ib._ I, 100-01.)

James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconst.i.tutional "did not go far enough"--the judges should also have "Revisionary power" to pa.s.s on bills in the process of enactment. (_Ib._ II, 73.)

Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconst.i.tutional laws. (_Ib._ 76.)

John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Const.i.tution should have authority to declare a law void." (_Records, Fed. Conv._: Farrand, 298.)

John d.i.c.kinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to subst.i.tute." (_Ib._ 299.)

Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." (_Ib._ 298.)

The above is a condensed _precis_ of all that was said in the Const.i.tutional Convention on this vital matter.

[335] See vol. I, 452, of this work.

[336] The Virginia Resolutions.

[337] Address of the Minority, Jan. 22, 1799, _Journal of the House of Delegates of Virginia, 1798-99_, 90-95.

[338] 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.

[339] See _supra_, 40, footnote 1.

[340] Wharton: _State Trials_, 715-18.

[341] Jefferson to Meusnier, Jan. 24, 1786, _Works_: Ford, V, 31-32.

[342] Jefferson to Meusnier, Jan. 24, 1786, _Works_: Ford, V, 14-15.

(Italics the author's.)

[343] For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the p.r.o.nouncement 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.

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

[345] See vol. I, 323, of this work.

[346] See _Records Fed. Conv._: Farrand, I, Introduction, XII.

[347] Elliot's _Debates_ were not published until 1827-30.

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

[349] _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.)

[350] 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 a.s.sociate 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 a.s.sociate 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.)