Volume III Part 7 (2/2)
[Ill.u.s.tration]
Morris expounded the conservative Federalist philosophy thus: ”Governments are made to provide against the follies and vices of men.... Hence, checks are required in the distribution of power among those who are to exercise it for the benefit of the people.” The most efficient of these checks was the power given the National Judiciary--”a check of the first necessity, to prevent an invasion of the Const.i.tution by unconst.i.tutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves.”[178]
Let the Republican Senators consider where their course would end, he warned. ”What has been the ruin of every Republic? The vile love of popularity. _Why are we here? To save the people from their most dangerous enemy; to save them from themselves_.”[179] Do not, he besought, ”commit the fate of America to the mercy of time and chance.”[180]
”Good G.o.d!” exclaimed Senator James Jackson of Georgia, ”is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia.[181]... I am more afraid of an army of judges, ...
than of an army of soldiers.... Have we not seen sedition laws?” The Georgia Senator ”thanked G.o.d” that the terrorism of the National Judiciary was, at last, overthrown. ”That we are not under dread of the patronage of judges, is manifest, from their attack on the Secretary of State.”[182]
Senator Uriah Tracy of Connecticut was so concerned that he spoke in spite of serious illness. ”What security is there to an individual,” he asked, if the Legislature of the Union or any particular State, should pa.s.s an _ex post facto_ law? ”None in the world” but revolution or ”an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconst.i.tutional and void.”[183]
That typical Virginian, Senator Stevens Thompson Mason, able, bold, and impetuous, now took up Gouverneur Morris's gage of battle. He was one of the most fearless and capable men in the Republican Party, and was as impressive in physical appearance as he was dominant in character. He was just under six feet in height, yet heavy with fat; he had extraordinarily large eyes, gray in color, a wide mouth with lips sternly compressed, high, broad forehead, and dark hair, thrown back from his brow. Mason had ”wonderful powers of sarcasm” which he employed to the utmost in this debate.[184]
It was true, he said, in beginning his address, that the Judiciary should be independent, but not ”independent of the nation itself.”
Certainly the Judiciary had not Const.i.tutional authority ”to control the other departments of the Government.”[185] Mason hotly attacked the Federalist position that a National judge, once appointed, was in office permanently; and thus, for the second time, Marbury _vs._ Madison was brought into the debate. ”Have we not heard this doctrine supported in the memorable case of the mandamus, lately[186] before the Supreme Court? Was it not there said [in argument of counsel] that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years?”[187]
The true principle, Mason declared, was that judicial offices like all others ”are made for the good of the people and not for that of the individual who administers them.” Even Judges of the Supreme Court should do something to earn their salaries; but under the Federalist Judiciary Act of 1801 ”what have they got to do? To try ten suits, [annually] for such is the number now on their docket.”
Mason now departed slightly from the Republican programme of ignoring the favorite Federalist theory that the Judiciary has the power to decide the const.i.tutionality of statutes. He fears that the Justices of the Supreme Court ”will be induced, from want of employment, to do that which they ought not to do.... They may ... hold the Const.i.tution in one hand, and the law in the other, and say to the departments of Government, so far shall you go and no farther.” He is alarmed lest ”this independence of the Judiciary” shall become ”something like supremacy.”[188]
Seldom in parliamentary contests has sarcasm, always a doubtful weapon, been employed with finer art than it was by Mason against Morris at this time. The Federalists, in the enactment of the Judiciary Act of 1801, had abolished two district courts--the very thing for which the Republicans were now a.s.sailed by the Federalists as destroyers of the Const.i.tution. Where was Morris, asked Mason, when his friends had committed that sacrilege? ”Where was the _Ajax Telamon_ of his party” at that hour of fate? ”Where was the hero with his seven-fold s.h.i.+eld--not of bull's hide, but of bra.s.s--prepared to prevent or to punish this Trojan rape?”[189]
Morris replied lamely. He had been criticized, he complained, for pointing out ”the dangers to which popular governments are exposed, from the influence of designing demagogues upon popular pa.s.sion.” Yet ”'tis for these purposes that all our Const.i.tutional checks are devised.”
Otherwise ”the Const.i.tution is all nonsense.” He enumerated the Const.i.tutional limitations and exclaimed, ”Why all these multiplied precautions, unless to check and control that impetuous spirit ... which has swept away every popular Government that ever existed?”[190]
Should all else fail, ”the Const.i.tution has given us ... an independent judiciary” which, if ”you trench upon the rights of your fellow citizens, by pa.s.sing an unconst.i.tutional law ... will stop you short.”
Preserve the Judiciary in its vigor, and in great controversies where the pa.s.sions of the mult.i.tude are aroused, ”instead of a resort to arms, there will be a happier appeal to argument.”[191]
Answering Mason's fears that the Supreme Court, ”having little else to do, would do mischief,” Morris avowed that he should ”rejoice in that mischief,” if it checked ”the Legislative or Executive departments in any wanton invasion of our rights.... I know this doctrine is unpleasant; I know it is more popular to appeal to public opinion--that equivocal, transient being, which exists nowhere and everywhere. But if ever the occasion calls for it, I trust the Supreme Court will not neglect doing the great mischief of saving this Const.i.tution.”[192]
His emotions wrought to the point of oratorical ecstasy, Morris now made an appeal to ”the good sense, patriotism, and ... virtue” of the Republic, in the course of which he became badly entangled in his metaphors. ”Do not,” he pleaded, ”rely on that popular will, which has brought us frail beings into political existence. That opinion is but a changeable thing. It will soon change. This very measure will change it.
You will be deceived. Do not ... commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compa.s.s and your charts into the ocean. Do not believe that its billows will waft you into port. Indeed, indeed, you will be deceived.
”Cast not away this only anchor of our safety. I have seen its progress.
I know the difficulties through which it was obtained. I stand in the presence of Almighty G.o.d, and of the world; and I declare to you, that if you lose this charter, never, no, never will you get another! We are now, perhaps, arrived at the parting point. Here, even here, we stand on the brink of fate. Pause--Pause! For Heaven's sake, pause!”[193]
Senator Breckenridge would not ”pause.” The ”progress” of Senator Morris's ”anchor,” indeed, dragged him again to ”the brink of fate.” The Senate had ”wandered long enough” with the Federalist Senators ”in those regions of fancy and of terror, to which they [have] led us.” He now insisted that the Senate return to the real subject, and in a speech which is a model of compact reasoning, sharpened by sarcasm, discussed all the points raised by the Federalist Senators except their favorite one of the power of the National Judiciary to declare acts of Congress unconst.i.tutional. This he carefully avoided.[194]
On January 15, 1802, the new Vice-President of the United States, Aaron Burr, first took the chair as presiding officer of the Senate.[195]
Within two weeks[196] an incident happened which, though seemingly trivial, was powerfully and dramatically to affect the course of political events that finally encompa.s.sed the ruin of the reputation, career, and fortune of many men.
Senator Jonathan Dayton of New Jersey, in order, as he claimed, to make the measure less objectionable, moved that ”the bill be referred to a select committee, with instructions to consider and report the alterations which may be proper in the judiciary system of the United States.”[197] On this motion the Senate tied; and Vice-President Burr, by his deciding vote, referred the bill to the select committee. In doing this he explained that he believed the Federalists sincere in their wish ”to ameliorate the provisions of the bill, that it might be rendered more acceptable to the Senate.” But he was careful to warn them that he would ”discountenance, by his vote, any attempt, if any such should be made, that might, in an indirect way, go to defeat the bill.”[198]
Five days later, one more Republican Senator, being present, and one Federalist Senator, being absent, the committee was discharged on motion of Senator Breckenridge; and the debate continued, the Federalists constantly accusing the Republicans of a purpose to destroy the independence of the National Judiciary, and a.s.serting that National judges must be kept beyond the reach of either Congress or President in order to decide fearlessly upon the const.i.tutionality of laws.
At last the steady but spirited Breckenridge was so irritated that he broke away from the Republican plan to ignore this princ.i.p.al article of Federalist faith. He did not intend to rise again, he said, but ”an argument had been so much pressed” that he felt it must be answered. ”I did not expect, sir, to find the doctrine of the power of the courts to annul the laws of Congress as unconst.i.tutional, so seriously insisted on.... I would ask where they got that power, and who checks the courts when they violate the Const.i.tution?”
The theory that courts may annul legislation would give them ”the absolute direction of the Government.” For, ”to whom are they responsible?” He wished to have pointed out the clause which grants to the National Judiciary the power to overthrow legislation. ”Is it not extraordinary,” said he, ”that if this high power was intended, it should nowhere appear?... Never were such high and transcendant powers in any Government (much less in one like ours, composed of powers specially given and defined) claimed or exercised by construction only.”[199]
Breckenridge frankly stated the Republican philosophy, repeating sometimes word for word the pa.s.sage which Jefferson at the last moment had deleted from his Message to Congress.[200] ”The Const.i.tution,” he declared, ”intended a separation of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it.... Those who made the laws are presumed to have an equal attachment to, and interest in the Const.i.tution; are equally bound by oath to support it, and have an equal right to give a construction to it.... The construction of one department of the powers vested in it, is of higher authority than the construction of any other department.
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