Volume III Part 73 (1/2)

Nor is it incompatible with the ”good behaviour” tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.

The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a const.i.tution, because it depends on variable circ.u.mstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the ”good behaviour” tenure.

If this principle should disable congress from erecting tribunals which temporary circ.u.mstances might require, without entailing them upon the society after these circ.u.mstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.

Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the const.i.tution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.

With respect to going into the judiciary system farther at present, the length of this trespa.s.s forbids it, and perhaps all ideas tending towards the revision of our const.i.tution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the const.i.tution. He will not leave historians to say ”this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repet.i.tions of those oppressions after his death, which he had himself felt and healed during his life.”

And yet my hopes are abated by some essays signed ”Solon” published at Was.h.i.+ngton, and recommending amendments to the const.i.tution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?

Nothing can exceed our exultation on account of the president's message, and the countenance of congress--nothing can exceed the depression of the monarchists. They deprecate political happiness--we hope for the president's aid to place it on a rock before he dies.

It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir

Yr: mo: ob^{t:} Sev^{t.} JOHN TAYLOR[1513]

FOOTNOTES:

[1512] See footnote to 58 of this volume.

[1513] Breckenridge MSS. Lib. Cong.

APPENDIX C

CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON.[1514] ALSO RECENT BOOKS AND ARTICLES ON THE DOCTRINE OF JUDICIAL REVIEW OF LEGISLATION

Holmes _vs._ Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in American _Historical Review_, IV, 456 _et seq._) If Marshall ever heard of this case, it was only because Paterson, who was a.s.sociate Justice with Marshall when the Supreme Court decided Marbury _vs._ Madison, was attorney-general in New Jersey at the time Holmes _vs._ Walton was decided. Both Brearly and William Paterson were members of the Const.i.tutional Convention of 1787. (See Corwin, footnote to 41-42.)

Commonwealth _vs._ Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merely _obiter dicta_; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Const.i.tutional Convention. Blair was appointed by President Was.h.i.+ngton as one of the a.s.sociate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett _vs._ Weeden (September, 1786; see Arnold: _History of Rhode Island_, II, 525-27, Varnum's pamphlet, _Case of Trevett vs. Weeden_, and Chandler's _Criminal Trials_, II, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident--for it can hardly be called a case--could scarcely have had any circulation outside of New England. It was referred to in the Const.i.tutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marbury _vs._ Madison was decided.

It is unlikely that the recently discussed case of Bayard _vs._ Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see _Annals_, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's a.n.a.lysis in the _American Historical Review_ (XIII, 283-84), which is the only satisfactory treatment of it. See also Thayer: _Cases on Const.i.tutional Law_ (1, footnote to 105).

Kamper _vs._ Hawkins (November, 1793, 1 Va. Ca. 20 _et seq._), a case which came directly under Marshall's observation.

Van Horne's Lessee _vs._ Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marbury _vs._ Madison upon the power of the Judiciary to declare legislation void.

Calder _vs._ Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper _vs._ Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.