Part 13 (1/2)

The _original_ jurisdiction of the Supreme Court was limited to cases affecting amba.s.sadors and those in which a State was a party. This branch of its jurisdiction has, it is well known, occupied but little of the time of the court, and has been withal very unimportant either in its character or consequences. Deprived of the influence and _eclat_ it has derived from the exercise of its appellate jurisdiction, the court would have stood as a pageant in the federal system of but little account for good or evil. With the addition of that obtained from appeals and writs of error from the inferior tribunals of the United States, its position before the country would still have been one of little consideration.

Both branches of the jurisdiction in these respects taken collectively, their results would not have been any thing like the power and influence and dignity which the Supreme Court of the United States derived from a single clause in the Judiciary Act of 1789, extending its appellate jurisdiction to the decisions of the State courts. The a.s.semblage of cases for its application arrayed in that pregnant section, aided by the power derived from the construction given to the provision in the Federal Const.i.tution prohibiting the pa.s.sage of State laws violating the obligation of contracts--a provision always understood to have been introduced to prevent State obstructions to the collection of British debts, but now made to override the insolvent systems of the States, etc.,--gave the Supreme Court the supervision and control of the most valuable and hitherto the most cherished portion of the legislation and jurisprudence of the State governments. To secure this control was an object always near to Hamilton's heart. He attempted it openly in the Convention by his proposition for a negative upon State laws, etc. But in the hands of the court the control of the Federal Government over State legislation was equally effective, less likely to become obnoxious, and infinitely more secure; for if it had been placed, as he proposed, in the hands of the President, or of the President and Senate, or of Congress, it would still have been deposited in places accessible to the people, and at short and stated periods liable to be overruled by their will. But here it was in the only sanctuary in a republican government he deemed safe against popular inroads, and it was this provision _in the Judiciary Act_ which, more than all other things combined, made that department--which Montesquieu described as next to nothing in point of power, and upon the weakness of which Hamilton, before the pa.s.sage of that act, descanted so freely--the most formidable and overshadowing branch of the government. The section bears the impress of his mind, and if not the work of his pen was beyond all doubt the result of his suggestions. Hamilton was not a member then, but we have seen that he made speeches in Congress through another, and I have not a doubt that, if the truth could now be known, it would appear that but few things were said or done on one side, in either branch of that body, of which he did not make a part in some form. Is it not pa.s.sing strange that not a word is to be found in the Const.i.tution to authorize Congress to confer such a jurisdiction upon the Supreme Court? Can it be for a moment supposed that such a power,--one so nearly akin to the proposition to place a veto in the hands of the Federal Government upon State legislation, one so eminently calculated to alarm the State-rights party,--would have been allowed, if it had been by anybody believed to be in the Const.i.tution, to pa.s.s the State Conventions _sub silentio_?

What is said in the Const.i.tution about the appellate jurisdiction of the Supreme Court is not only satisfied by referring it to the inferior courts which Congress were authorized to ”ordain and establish,” but is, by the terms employed, fairly confined to them. The place in the Const.i.tution where the authority is given to establish inferior courts to exercise those parts of the judicial power of which no original jurisdiction was given to the Supreme Court, and which were to const.i.tute the basis for the operation of that which was to be appellate only, would have been, one would suppose, the very place in which the authority to extend that jurisdiction to the State courts would have been inserted if it was intended to be given. Again, the whole judicial power of the United States is by the Const.i.tution vested in the Supreme Court, and in _such inferior courts as the Congress may from time to time ordain and establish_. That the words used embrace, and seem intended to embrace, the _whole power_, is apparent from the face of the Const.i.tution, and was, besides, demonstrated by Hamilton in the first number of his ”Pacificus.” Madison said in the Virginia Convention, that it would be in the power of Congress to _vest the inferior Federal jurisdiction in the State courts_; and Pendleton and Mason intimated an expectation that this would be done; whilst Grayson said that State judges formed the princ.i.p.al defense of the rights of the States, and that Congress should not take from them their ”only defensive armor;”

and Patrick Henry, who in the days of his political orthodoxy could snuff danger to State rights in almost every breeze, apprehended that ”by construction the Supreme Court would completely annihilate the State courts.” Had Congress invested the inferior Federal jurisdiction in the State courts, and had they accepted the extension, the appellate jurisdiction of the Supreme Court to those courts in the cases enumerated would have been in all respects proper. But the Congress, a majority of whose members were Hamiltonian Federalists, were not, for reasons it is now unnecessary to consider, willing to admit the State courts to a partic.i.p.ation in the administration of the judicial power reserved to the Federal Government, and proceeded at once to ordain and establish inferior courts of their own. These consisting of district courts, circuit courts and the one Supreme Court named in the Const.i.tution, completed the organization of the Federal judiciary. Their respective jurisdictions were wisely separated and accurately defined. A small portion of that which was original was, for well-understood reasons, vested in the Supreme Court. The residue was separated and distributed among the inferior tribunals, subject to an appellate jurisdiction and supervisory power in the Supreme Court over all their proceedings. The system thus arranged was not only complete but harmonious in all its parts. The courts were clothed with the entire judicial power of the Government; were only authorized to act upon one cla.s.s of subjects--those which appertained to the judicial power of the United States. The judges received their appointments from the same source, and were responsible for their conduct to one head. Looking only to judicial objects this might well be regarded as the judicial system designed by the framers of the Const.i.tution.

If ours had been a consolidated government these provisions would have embraced the whole subject, and satisfied the wants of the whole country. But in the actual state of things in that regard they were inadequate to the accomplishment of that end. Instead of one consolidated government ours was a confederacy of sovereign States, presided over by a Federal Government which they had themselves created and clothed with such powers as they deemed necessary to its efficiency and usefulness, and as would be most likely to conduce to the freedom, prosperity, and happiness of all.

With no other bond of union during the first years of the Revolutionary contest than common danger, and obliged to struggle with a defective Federal organization, these States succeeded in constructing for themselves republican const.i.tutions, and in several instances, before the establishment of our Independence, sustained the brunt of that struggle and came out of it with inst.i.tutions fully adequate to all the purposes of good government, including systems of jurisprudence and competent tribunals for their administration. The administrators of these inst.i.tutions, driven to desperation by great public and private distress,--the direct results of the oppression of the mother country,--may in a few cases, and for a short period, have forgotten that interests liable to sequestration in war were inviolable in peace, and failed to interpose with sufficient alacrity a judicial barrier against the attempts of some of the State legislatures to throw obstructions in the way of the collection of British debts. But those were limited and temporary aberrations, which would soon have yielded to proper treatment on the part of the Federal Government. At the period of the pa.s.sage of the Judiciary Act the judges who presided in most of the State courts might be compared without discredit to those who filled the benches of the Federal courts, and this relative equality has ever since been well maintained. Such has certainly been the case in the State of New York. The name of Chancellor Livingston, who was then at the head of our equity system, would lose nothing from a comparison with Chief Justice Jay, when the latter was placed at the head of the Federal courts. Our equity and common-law courts have since been graced by Chancellor Lansing, Chief Justices Lewis and Kent, and Judges Brockholst Livingston, Smith Thompson, Ambrose Spencer, Wm. W. Van Ness, and others, all men of great talents and acquirements. Nor have the courts of our sister States been wanting in this regard. The names of Theophilus Parsons of Ma.s.sachusetts, Tappan Reeves of Connecticut, and Pendleton, Wythe and Roane of Virginia, with numerous others, might be added to the list. It would not be an easy matter to match these by selections from the bench of the Supreme Court of the United States, highly distinguished as its inc.u.mbents have been.

The State courts had, for nearly fifteen years before the pa.s.sage of the Judiciary Act of 1789, performed, as well in peace as in war, most of the duties which the new Const.i.tution devolved upon the Federal judiciary. The Federal Government was authorized, by the articles of Confederation, to establish inferior courts for the trial of piracies and felonies committed on the high seas, and courts for the trial of Admiralty cases, yet these powers had been carried into effect through the State judiciaries. But all at once the State courts were deemed unworthy of trust. Whence this change? Had the State courts degenerated?

No such thing; they were constantly improving, the supineness of a few in respect to the interests of the mother country, blamable as it certainly was, to the contrary notwithstanding. No, the State courts had not become worse, but the implacable opponents of those whose judicial power they represented had become stronger! The old Anti-Federal party, the inflexible and powerful champion for the rights of the States, had been overthrown--forever demolished, at least in that array. The State governments were for a season helpless. Those who were always hostile to their power--who, in the language of Hamilton after the Convention, and in the act of foreshadowing the effects of such an administration as actually succeeded, were desirous of a ”triumph altogether over the State governments, and to reduce them to an entire subordination”--were all powerful in Congress. Nor was their power confined to Congress or to any particular branch of the Government. The result of the question of ratification in the different State Conventions, and the idea present to every mind that material prosperity, public and private, would be much promoted by that result, produced a great change in public sentiment adverse to the authority and influence of the State governments. It was made fas.h.i.+onable to deride them. The organization of the Federal judiciary was the very first opportunity that was afforded after the adoption of the Const.i.tution to make the States feel the power which their inveterate opponents had acquired by that event, and most unsparingly was that power exercised.

The few members of that Congress who had not been entirely carried away by this current, and had the boldness to stand by the States and their tribunals--among whom that firm and incorruptible republican, James Jackson of Georgia, was by far the most effective--were willing that a right to supervise and reverse the decisions of the State tribunals in all matters of Federal jurisdiction, should be conferred on the Supreme Court of the United States, provided only that the State courts were intrusted, as they had hitherto been, with the administration of the inferior Federal jurisdiction in lieu of the inferior Federal courts which the Bill proposed to establish. This they contended would make the system an harmonious and consistent one, and preserve the respect and consideration which was due to the State tribunals.

The proposition was literally scouted in debate and rejected by a vote of two to one in the House, and in the Senate by a still larger majority. The Bill was so constructed as to clothe the Supreme Court and the inferior courts it established with all the judicial power allowed to the Federal Government by the Const.i.tution, with unimportant reservations which did not diminish their authority and do not require to be noticed. Ample means were thus provided for its practical extension to every party ent.i.tled to its protection, and if those who regulated the action of Congress had not been influenced by any views other than such as related to the administration of justice, its legislation would have terminated there. But that body went further. A clause was added to the Judiciary Bill professing to give to the Supreme Court appellate jurisdiction over the final judgments and decrees of the highest courts of law and equity of a State, whoever might be the parties to the suit, or whatever might have been the objects for which it had been brought, provided only that the relative powers of the Federal and State governments under the Federal Const.i.tution in respect to several enumerated subjects had in the course of prosecution of such suit been ”drawn in question,” and decided against the Federal power. No matter to what extent the rights of the parties were concluded by that question, or in what form or how incidentally it had been introduced, it was sufficient that it had been raised and decided against the Federal, or in favor of the State authority, to subject the judgment or decree given by the State court to be reexamined or reversed in the Supreme Court of the United States. To confer upon that tribunal, the anomalous authority of issuing writs of error to the highest courts of other States confessedly sovereign, and which in all such matters might well be regarded as foreign States,--courts which were not established by the Federal Government, and between which and it there existed no judicial relations,--commanding those courts to send to it for reexamination, reversal, or affirmance, the record of judgments and decrees which had neither been made under Federal authority nor by judges in any sense amenable to it for the discharge of their official duties, was an idea never broached in the Federal Convention, or in the slightest degree alluded to in the Const.i.tution it adopted.

Disputes in respect to the boundaries of power between the Federal and State governments were foreseen, and the means for acquisition and defense sought after by the special friends of each. Both looked to their respective legislatures as the theatres of encroachment, and a very serious effort was made to obtain authority for the Federal Government to confer important State appointments, and to interpose a negative upon State laws. These concessions were sternly refused by the friends of the State authorities, and if they had been granted the new Const.i.tution would never have been ratified. No efforts have been made by Congress through direct legislation to restrain the State legislatures from encroaching on the power of the Federal Government, and it would not be an easy matter--the Const.i.tution being silent on the subject--to establish a right on the part of the judicial power to interfere in that direction which would not also devolve on the Federal legislature, the power more particularly interested in the matter. The clause referred to in the Federal Judiciary Act looks in an especial manner to the legislative acts of each government, and seeks to establish the supremacy in the Federal system. It is possible that the framers of the Const.i.tution intended to give Congress a right to confer such a power on the Supreme Court, but it is certainly most extraordinary if that was so that the subject should have remained unnoticed in the Convention, and have been so entirely excluded from the face of the Const.i.tution. Be that as it may, it is well known that the authority given to the court by the statute for a long time lay in its hands a dormant power. Those who conferred it had too much their own way in the administration of the Federal Government, during the first twelve years of its existence, to require extraneous aid to push its power to the extremes they desired. It was when they had been expelled from its executive and legislative departments by the uprising of the people that their attention was more earnestly turned to that of the judiciary as one which--as well from the peculiarity of its const.i.tution as from the views of those who were in possession of it--was best qualified for the protection of rights which they, no doubt honestly, believed in danger.

Hence the movement in the case of Marbury _v._ Madison.

We cannot now form a complete estimate of the extent to which the character of our inst.i.tutions, in view of that step and of measures of which it might have been the opening wedge, hinged upon the character and disposition of those whom the people had then just raised to power.

The respect and reverence with which the minds of a vast majority of our citizens were impressed for their courts of justice, the confidence which had been reposed in their purity as indicated by the tenure of their offices, and the imposing character of those who filled them at the moment combined to deter feeble and irresolute minds from resistance to the authority of the Supreme Court of the United States, however unfavorable their estimation of the course upon which it was entering.

No unauthorized exercise of power would, for any considerable period, have pa.s.sed unchecked by a people like ours, then yet fresh from a national struggle for principles better defined and defended with more steadiness and by purer means than any the world had ever witnessed in revolutionary contests. But the cla.s.s of men, in any community where deference for the ermine is habitual, who will meet danger at the very threshold, and oppose resistance to judicial usurpation at the instant of its appearance, is not likely to be numerous.

Hostile to every a.s.sumption of power over the conduct or mind of man not originally authorized by man himself, however plausible the pretences upon which it might be exerted, an opposition deeply seated in his nature, matured and confirmed by study and by all the observation and experience of his eventful career, Jefferson was not the man to submit to encroachments upon inst.i.tutions he had sworn to protect, and more especially upon that branch of them which a great and free people had confided to his particular care. It was no matter to a man of his knowledge of the world and approved moral courage from what quarter such encroachments proceeded, they were certain to meet with a firm and spirited opposition on his part.

The course pursued by the State department was by his express direction, and of course upon his responsibility. This he always avowed, and this would have appeared in the report of the case of Marbury and Madison, if the fact had not been designedly and for obvious reasons suppressed. It was to accomplish this object that the statement of the case which accompanies the elaborate opinion of Chief Justice Marshall was made to present an appearance so ambiguous and unlawyer-like. Mr. Madison, it is stated, refused to deliver the commission. On what grounds? That is not stated, only that his explanations were not satisfactory to the relator.

If they had been given the fact referred to would have appeared on the face of the record, and would have gone down to posterity as an answer to the reasoning of the opinion. The refusal of the witnesses--clerks in the department--to be sworn or to answer, and the decision of the court that they should be sworn and answer under certain restrictions, and that they were sworn, are all stated with much particularity, but what they said is not stated. Here, again, the fact is suppressed that the commission was retained in the executive department by the orders of the President, who, in the exercise of executive discretion, regarded it as the evidence of an appointment not completed, and which he decided not to complete.

But this was only a foretaste of the spirit with which the scheme of the Federal party to raise the judicial department of the Federal Government, not only over the States and their judicatories but over the two other departments of the General Government, was to be met. Two months had not elapsed after the delivery of the opinion of the Chief Justice in Marbury _v._ Madison, before the entire judicial fabric which that party had erected during the last moments of their expiring power, by which twenty-one additional federal judges were appointed, eighteen in the States and three in the District of Columbia, with large salaries and still larger power, to hold their offices virtually for life, was overthrown by the vote of a majority of Congress, a majority more confiding, more harmonious, and better disposed to second and sustain the measures of the executive than any we have ever had.

This measure--the least important effect of which was to relieve the national treasury from the payment of salaries to some twenty-seven or thirty gentlemen, whose services an experience of more than half a century has shown to have been unnecessary--was a.s.sailed with unprecedented violence. Gouverneur Morris said it had stricken down the sanct.i.ty of the judiciary, and his political a.s.sociates in Congress denounced it as a gross infraction of the Const.i.tution. He spoke of it with the same vehemence and heat with which he taunted the men who had pa.s.sed it and their successors, twelve years afterwards, at the federal celebration of the restoration of the Bourbons, when he invited them, by the appellation of the ”savage and wild democracy,” to see, ”though it should blast their eye-b.a.l.l.s, royal princes surrounded by loyal subjects!” The attempts of Mr. Morris and his coadjutors to exasperate the public mind against the repeal of the midnight Judiciary Act recoiled upon their party. The only effects they produced were to rivet the convictions of a large majority of the people that they had acted wisely in changing their rulers, and to evoke a determination to sustain the men in power as long as they adhered to the course upon which they had entered. To the Chief Justice, his a.s.sociates on the bench, and the leaders of the defeated party, this condition of public opinion presented considerations of the gravest import. The court had decided, and their decision was sustained by the latter with perfect unanimity, that the appointment of Marbury had been completed before Mr. Jefferson came into office, that the Secretary of State had therefore no right to withhold his commission, and that he could be compelled to deliver it by _mandamus_, provided only that the proceedings should originate in an inferior court. There was no ground for question in respect to the legality of the appointments of the midnight judges, or their clerks, if the repealing law was unconst.i.tutional, nor of their right to their salaries. This was certainly a question for the judiciary in respect to private rights; and if the courts could compel the one Secretary by _mandamus_ to deliver a commission wrongfully withheld, _a fortiori_ could they compel another to pay salaries undeniably due if the repealing law was unconst.i.tutional. The field for the writ of _mandamus_ was thus greatly enlarged. If the withholding of a few justices'

commissions const.i.tuted good ground for the inst.i.tution of such proceedings as those we have referred to, the case now presented was one of much greater magnitude, and no party was ever more deeply committed before the country on a public question than they were in regard to the unconst.i.tutionality of the Repealing Act. If they were right in that, and also in their views in respect to the powers of the Supreme Court, a _mandamus_ would of course have been authorized to compel the treasury to pay the judges their salaries. Should they resume the Marbury and Madison case in the inferior courts, and proceed in this also, or should they abandon both and submit themselves to the stigma of having been the authors of false pretences and unfounded clamor, was the question to be met.

The Republican party of the Union, as then const.i.tuted, was for the first time in possession of two departments of the Federal Government.

Whilst in a minority they had not been regarded by their high-reaching opponents with feelings of much respect. Whatever might still have been the federal impressions of their principles or designs, there was no longer room for two opinions, in respect to their determination, their firmness and their capacity to carry out the measures they deemed necessary to the public service. Such being the circ.u.mstances in which they were placed, the Chief Justice, his a.s.sociates and friends, surveyed the exposures and defenses of the only department that was left under their control, and it was natural that they should ponder upon possible consequences before they proceeded another step in a course which the other departments regarded as one of aggression.

The supervision and control of the Supreme Court of the United States over the largest portion of the legislation and jurisprudence of the State governments, designed to be secured by the twenty-fifth section of the Federal Judiciary Act and the extent to which they might be carried, were, in their political aspects, looked upon by Hamilton and his followers as const.i.tuting the only remaining sheet-anchor of the government, in the sense in which they desired to see it administered.

This lay completely at the mercy of their opponents. No matter what might be their confidence in the const.i.tutionality of the provision, the whole appellate jurisdiction of the Supreme Court is, by the express letter of the Const.i.tution, to be exercised subject to ”such exceptions and such regulations as the Congress shall make.” An act of three lines repealing the clause of the Judiciary Act would except writs of error to State courts from the appellate jurisdiction of the Supreme Court, and another might abolish the use of the writ of _mandamus_. The members of that court had seen too much of the temper and firmness of the President and Congress to doubt the immediate adoption of such measures if the contest in regard to the boundaries of power between the departments was continued, and were too sensible of the extent to which that high tribunal was indebted for its power and dignity to that branch of their jurisdiction to push so unprofitable a collision one step farther under their present auspices. The consequence was a suspension of all movements in that direction. No more was heard of Mr. Marbury's claims to his commission, and the new judges quietly submitted to expulsions from their life-estates in offices by a law they claimed to be unconst.i.tutional, with a court within their reach authorized to declare it such if it so believed.

Chief Justice Marshall remained at the head of the Supreme Court many years after the delivery of his opinion in the case of Marbury and Madison. During that long period he not only acquired, by the exercise of his great talent, the high distinction of which I have already spoken, but endeared himself by his personal demeanor to all who were drawn within the circle of his acquaintance. No generous mind could contemplate a man possessed of such towering intellect, placed in so elevated a position and bearing his honors with such modesty and unaffected simplicity as he habitually displayed, without being impressed with a deep interest in his character. I was not among the least cordial of his admirers, and would not for the world speak a wanton or unkind word in disparagement of his memory. But the public acts of public men are always and under all circ.u.mstances legitimate materials for history, and may be canva.s.sed with freedom, provided they are spoken of truly, and reviewed ”with good motives and for justifiable ends.” To this limitation it shall be my endeavor to confine myself on this as on all other occasions.

No part of the fame which Chief Justice Marshall acquired on the bench was due to his course and conduct in the case of Marbury and Madison, which may with truth be regarded as his judicial _debut_. He had been s.n.a.t.c.hed from the political caldron, heated to redness by human pa.s.sions, almost at the moment of his first appearance on the bench. In his rapid transition from the halls of Congress and the Departments of War and State to that of the Judiciary, he had, as it were, been driven to the bench as to a place of safety before a tempest of public indignation created by the abuses of the administration of which he had been a part. Among his first acts after reaching it, and before time had been allowed for his pa.s.sions to cool, before he had acquired judicial habits or had leisure to think even of the amenities that should distinguish his new position, was a severe blow at the wizard who, he believed, had raised the wind and directed the storm. But Jefferson, the ”dreaming Condorcet,” as Hamilton sometimes called him, proved an accomplished statesman. Wide awake, he made ample preparations for the a.s.sault, interposed effectual resistance, and the recoil and ultimate abandonment were the result. I have heretofore referred to the non-observance in these proceedings of due respect toward the acts of a coordinate department of the Government,--an obligation on the part of each from which no consideration can release them, and which in this case was rendered still more imperative by the relations, personal and political, that had existed between the President and the Chief Justice.

Whatever weaknesses I may be subject to,--and doubtless they are numerous,--dogmatism, I am very sure, is not one of them. My endeavor always is to state my positions with deference to the judgments of others. But on this point I cannot refrain from insisting that no man who can divest himself of prejudice to only a reasonable extent can review these proceedings without being satisfied that the objection I have made to the course of the Chief Justice in this regard is well founded. No such omission was ever chargeable to him at a more advanced period in his judicial career; whatever exception may have been taken to the course of his decisions no one ever had reason to complain of a want of courtesy toward any branch of the government or toward individuals.

CHAPTER VII.