Volume III Part 7 (1/2)

To a.s.sist Senators and Representatives in determining ”the proportion which the inst.i.tution bears to the business it has to perform” Jefferson had ”procured from the several states ... an exact statement of all the causes decided since the first establishment of the courts and of the causes which were pending when additional courts and judges were brought to their aid.” This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the President suggested Congressional inquiry as to whether jury trials had not been withheld in many cases, and advised the investigation of the manner of impaneling juries.[148]

Thus far and no farther went the comments on the National Judiciary which the President laid before Congress. The status of the courts--a question that filled the minds of all, both Federalists and Republicans--was not referred to. But the thought of it thrilled Jefferson, and only his caution restrained him from avowing it. Indeed, he had actually written into the message words as daring as those of his cherished Kentucky Resolutions; had boldly declared that the right existed in each department ”to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other department”; had a.s.serted that he himself, as President, had the authority and power to decide the const.i.tutionality of National laws; and had, as President, actually p.r.o.nounced, in official form, the Sedition Act to be ”in palpable and unqualified contradiction to the Const.i.tution.”[149]

This was not merely a part of a first rough draft of this Presidential doc.u.ment, nor was it lightly cast aside. It was the most important paragraph of the completed Message. Jefferson had signed it on December 8, 1801, and it was ready for transmission to the National Legislature.

But just before sending the Message to the Capitol, he struck out this pa.s.sage,[150] and thus notes on the margin of the draft his reason for doing so: ”This whole paragraph was omitted as capable of being chicaned, and furnis.h.i.+ng something to the opposition to make a handle of. It was thought better that the message should be clear of everything which the public might be made to misunderstand.”

Although Jefferson's programme, as stated in the altered message which he finally sent to Congress, did not arouse the rank and file of Federalist voters, it did alarm and anger the Federalist chieftains, who saw the real purpose back of the President's colorless words. Fisher Ames, that delightful reactionary, thus interpreted it: ”The message announces the downfall of the late revision of the Judiciary; economy, the patriotism of the shallow and the trick of the ambitious.... The U.

S. Gov't ... is to be dismantled like an old s.h.i.+p.... The state gov'ts are to be exhibited as alone safe and salutary.”[151]

The Judiciary Law of 1801, which the Federalist majority enacted before their power over legislation pa.s.sed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party.[152] Almost from the time of the organization of the National Judiciary the National judges had complained of the inadequacy and positive evils of the law under which they performed their duties.

The famous Judiciary Act of 1789, which has received so much undeserved praise, did not entirely satisfy anybody except its author, Oliver Ellsworth. ”It is a child of his and he defends it ... with wrath and anger,” wrote Maclay in his diary.[153]

In the first Congress opposition to the Ellsworth Act had been sharp and determined. Elbridge Gerry denounced the proposed National Judiciary as ”a tyranny.”[154] Samuel Livermore of New Hamps.h.i.+re called it ”this new fangled system” which ”would ... swallow up the State Courts.”[155]

James Jackson of Georgia declared that National courts would cruelly hara.s.s ”the poor man.”[156] Thomas Sumter of South Carolina saw in the Judiciary Bill ”the iron hand of power.”[157] Maclay feared that it would be ”the gunpowder plot of the Const.i.tution.”[158]

When the Ellsworth Bill had become a law, Senator William Grayson of Virginia advised Patrick Henry that it ”wears so monstrous an appearance that I think it will be _felo-de-se_ in the execution.... Whenever the Federal Judiciary comes into operation, ... the pride of the states ...

will in the end procure its destruction”[159]--a prediction that came near fulfillment and probably would have been realized but for the courage of John Marshall.

While Grayson's eager prophecy did not come to pa.s.s, the Judiciary Act of 1789 worked so badly that it was a source of discontent to bench, bar, and people. William R. Davie of North Carolina, a member of the Convention that framed the Const.i.tution and one of the most eminent lawyers of his time, condemned the Ellsworth Act as ”so defective ...

that ... it would disgrace the composition of the meanest legislature of the States.”[160]

It was, as we have seen,[161] because of the deficiencies of the original Judiciary Law that Jay refused reappointment as Chief Justice.

”I left the bench,” he wrote Adams, ”perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”[162]

The six Justices of the Supreme Court were required to hold circuit courts in pairs, together with the judge of the district in which the court was held. Each circuit was to be thus served twice every year, and the Supreme Court was to hold two sessions annually in Was.h.i.+ngton.[163]

So great were the distances between places where courts were held, so laborious, slow, and dangerous was all travel,[164] that the Justices--men of ripe age and studious habits--spent a large part of each year upon the road.[165] Sometimes a storm would delay them, and litigants with their a.s.sembled lawyers and witnesses would have to postpone the trial for another year or await, at the expense of time and money, the arrival of the belated Justices.[166]

A graver defect of the act was that the Justices, sitting together as the Supreme Court, heard on appeal the same causes which they had decided on the Circuit Bench. Thus, in effect, they were trial and appellate judges in identical controversies. Moreover, by the rotation in riding circuits different judges frequently heard the same causes in their various stages, so that uniformity of practice, and even of decisions, was made impossible.

The admirable Judiciary Act, pa.s.sed by the Federalists in 1801, corrected these defects. The members.h.i.+p of the Supreme Court was reduced to five after the next vacancy, the Justices were relieved of the heavy burden of holding circuit courts, and their duties were confined exclusively to the Supreme Bench. The country was divided into sixteen circuits, and the office of circuit judge was created for each of these. The Circuit Judge, sitting with the District Judge, was to hold circuit court, as the Justices of the Supreme Court had formerly done.

Thus the prompt and regular sessions of the circuit courts were a.s.sured.

The appeal from decisions rendered by the Supreme Court Justices, sitting as circuit judges, to the same men sitting as appellate judges, was done away with.[167]

In establis.h.i.+ng these new circuits and creating these circuit judges, this excellent Federalist law gave Adams the opportunity to fill the offices thus created with stanch Federalist partisans. Indeed, this was one motive for the enactment of the law. The salaries of the new circuit judges, together with other necessary expenses of the remodeled system, amounted to more than fifty thousand dollars every year--a sum which the Republicans exaggerated in their appeals to the people and even in their arguments in Congress.[168]

Chiefly on the pretext of this alleged extravagance, but in reality to oust the newly appointed Federalist judges and intimidate the entire National Judiciary, the Republicans, led by Jefferson, determined to repeal the Federalist Judiciary Act of 1801, upon the faith in the pa.s.sage of which John Marshall, with misgiving, had accepted the office of Chief Justice.

On January 6, 1802, Senator John Breckenridge of Kentucky pulled the lanyard that fired the opening gun.[169] He was the personification of anti-Nationalism and aggressive democracy. He moved the repeal of the Federalist National Judiciary Act of 1801.[170] Every member of Senate and House--Republican and Federalist--was uplifted or depressed by the vital importance of the issue thus brought to a head; and in the debate which followed no words were too extreme to express their consciousness of the gravity of the occasion.[171]

In opening the debate, Senator Breckenridge confined himself closely to the point that the new Federalist judges were superfluous. ”Could it be necessary,” he challenged the Federalists, ”to _increase_ courts when suits were _decreasing_? ... to multiply judges, when their duties were diminis.h.i.+ng?” No! ”The time never will arrive when America will stand in need of thirty-eight Federal Judges.”[172] The Federalist Judiciary Law was ”a wanton waste of the public treasure.”[173] Moreover, the fathers never intended to commit to National judges ”subjects of litigation which ... could be left to State Courts.” Answering the Federalist contention that the Const.i.tution guaranteed to National judges tenure of office during ”good behavior” and that, therefore, the offices once established could not be destroyed by Congress, the Kentucky Senator observed that ”sinecure offices, ... are not permitted by our laws or Const.i.tution.”[174]

James Monroe, then in Richmond, hastened to inform Breckenridge that ”your argument ... is highly approved here.” But, anxiously inquired that foggy Republican, ”Do you mean to admit that the legislature [Congress] has not a right to repeal the law organizing the supreme court for the express purpose of dismissing the judges when they cease to possess the public confidence?” If so, ”the people have no check whatever on them ... but impeachment.” Monroe hoped that ”the period is not distant” when any opposition to ”the sovereignty of the people” by the courts, such as ”the application of the principles of the English common law to our const.i.tution,” would be considered ”good cause for impeachment.”[175] Thus early was expressed the Republican plan to impeach and remove Marshall and the entire Federal members.h.i.+p of the Supreme Court so soon to be attempted.[176]

In reply to Breckenridge, Senator Jonathan Mason of Ma.s.sachusetts, an accomplished Boston lawyer, promptly brought forward the question in the minds of Congress and the country. ”This,” said he, ”was one of the most important questions that ever came before a Legislature.” Why had the Judiciary been made ”as independent of the Legislature as of the Executive?” Because it was their duty ”to expound not only the laws, but the Const.i.tution also; in which is involved the power of checking the Legislature in case it should pa.s.s any laws in violation of the Const.i.tution.”[177]

The old system which the Republicans would now revive was intolerable, declared Senator Gouverneur Morris of New York. ”Cast an eye over the extent of our country” and reflect that the President, ”in selecting a character for the bench, must seek less the learning of a judge than the agility of a post boy.” Moreover, to repeal the Federal Judiciary Law would be ”a declaration to the remaining judges that they hold their offices subject to your [Congress's] will and pleasure.” Thus ”the check established by the Const.i.tution is destroyed.”