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Articles
for
September 1997
Chapter
11 -
Opinion of the Court
Chapter
12 -
The Gathering Storm
Chapter
13 -
Marbury v. Madison
© 1996-2003
DuPage County
Bar Association
All Rights Reserved.
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John Marshall - Definer of a Nation
Chapter 12 - The Gathering Storm
In 1801 the December term of the Court
coincided with the initial session of the Seventh Congress. For the first
time in the nation’s history, the Republicans controlled both the House
and the Senate.1 It had been almost a year since the watershed elections of
1800, and Jefferson’s followers had waited impatiently to correct what
they saw as the country’s wrong turnings. On Monday, December 7, with
Congress convening on the upper floors of the capitol, the Supreme Court,
still in drab Committee Room 2, met one floor below. Only Justices Cushing
and Paterson were on hand, and the Court immediately adjourned for the day.
The next day the Court got down to business.
All of the justices except Alfred Moore were present, and there were half a
dozen cases on the docket. Marshall called the Court to order, announced its
intention to hear argument in another prize case arising from the quasi-war,
United States v. Schooner Peggy2 and adjourned the proceedings
shortly after eleven so that the justices could listen to Jefferson’s
state of the union message.3 This was the president’s first opportunity
since his inauguration to announce his agenda. Breaking with tradition,
Jefferson did not appear before Congress as Washington and Adams had done,
but sent a written message through his secretary, Meriwether Lewis.4
Marshall, as chief justice, had donned a black robe to denote his
republicanism; Jefferson, not to be outdone, was understating the
president’s authority by departing from the speech-from-the-throne style
of delivery of his Federalist predecessors.5 Jefferson avoided stridency,
but his message lacked the eloquence of his inaugural address. He spoke of
the need to cut taxes, to reduce the size of the national government, and to
scale back the military. As Marshall had anticipated, the states rights
message was front and center.6 Jefferson made reference to the judiciary, a
continuing sore spot for the Republicans, but only in passing: "The
judiciary system of the United States, and especially that portion of it
recently erected, will of course present itself to the contemplation of
Congress...."7 Jefferson’s allusion was to the Judiciary Act of 1801,
passed during the closing days of Adams’s term. His comment was so mild,
however, that it triggered little alarm.8 Irreconcilable like Fisher Ames
smelled a rat,9 and Hamilton wrote that Jefferson’s comment was "the
symptom of a pigmy mind,’’10 but moderate Federalists were reassured.
John Quincy Adams wrote shortly afterward that a great tranquillity
prevailed throughout the country and that "the violence of party spirit
has very much subsided.’’11
Marshall and his colleagues evidenced little
concern about Jefferson’s remarks and, for the remainder of the week,
listened to argument in Schooner Peggy. Like Talbot v. Seeman,
the case pitted Federalists against Republicans, and it involved President
Jefferson directly. The Peggy was an armed French merchant vessel
captured during the quasi-war. It was condemned as a prize by the United
States circuit court in Connecticut on September 23, 1800, and ordered sold.
Seven days later, however, the Convention of Mortefontaine was signed in
Paris by Oliver Ellsworth.l2 Article 4 of the convention provided that
vessels that had been captured but "not yet definitively
condemned" should be restored to their original owners. Since the
circuit court judgment had not been executed when the convention was signed,
Jefferson believed the Peggy fell under the terms of Article 4.
Shortly after assuming office, he directed the United States attorney for
Connecticut, Pierrepont Edwards, to have the proceeds from the ship’s sale
paid over to its French owners. The court clerk holding the money refused to
comply, and Justice Cushing sustained him, ruling that the president’s
order was invalid. Jefferson saw the decision as another example of
political interference by Federalist judges.13
The case involved the application of the
Convention of Mortefontaine. It was complicated by the fact that the
convention had not been officially promulgated by the president and,
therefore, in a technical sense was not part of the supreme law of the
land.* Marshall, whose sympathies lay completely with Jefferson in this
matter, may have been the first to recognize the problem. He allowed the
argument to proceed through the week of December 7-12, continued it on
Monday, December 14, and again on Thursday, December 17.14 In the meantime,
Jefferson transmitted the convention to the Senate for approval.15 The
Senate gave its advice and consent by the required two-thirds majority on
December 19,16 and Jefferson promulgated the convention the morning of
December 21.17 Immediately thereafter, Marshall delivered the opinion of the
Court.l8
Just as in the aftermath of the XYZ affair,
when Marshall and Jefferson had tacitly worked together to avert a war with
France,l9 so too did they cooperate in the case of United States v.
Schooner Peggy. If Marshall had wanted to embarrass Jefferson, or if he
had shared the partisan Federalist view of the issue, he would not have
withheld the Court’s decision until the president was able to put the
Convention of Mortefontaine into effect. Once the convention was ratified, a
unanimous Court, speaking through the chief justice, upheld Jefferson’s
interpretation of the convention with a ringing restatement of the treaty
power. Marshall said that "Where a treaty is the law of the land, and
as such affects the rights of parties litigating in court, that treaty as
much binds those rights . . . as an act of congress." He noted that in
private cases between individual litigants, a court "ought to struggle
hard" to avoid an interpretation that would affect the rights of the
parties.
"But in great national concerns where
individual rights, acquired by war, are sacrificed for national purposes,
the contract, making the sacrifice, ought always to receive a construction
conforming to its manifest import; and if the nation has given up the vested
rights of its citizens, it is not for the court, but for the government, to
consider whether it be a case proper for compensation.20"
For Marshall, the case of the Schooner
Peggy gave the Court an opportunity to assert the authority of the
president and Congress to conduct the country’s foreign affairs. It also
provided an opportunity to distinguish between legal issues, which were
properly justifiable before the Court, and overriding international
obligations, which were not. The decision reflected a studied restraint and
manifested Marshall’s continuing determination to distance the Court from
partisan politics. For Jefferson, the Court’s decision was a vindication
of his desire to repair relations with France. It was also a potential olive
branch from the judiciary.
The next case on the docket was Wilson v.
Mason, an important case involving diversity jurisdiction that allowed
Marshall to assert the Supreme Court’s appellate authority despite state
laws to the contrary.21 The issue involved contested land titles in Kentucky
between George Wilson, a citizen of that state, and the Virginia heirs of
George Mason.22 According to a compact the two states had signed in 1794,
there could be no appeal from a trial court’s decision in land title
cases.23 The original suit was brought in the United States district court
in Kentucky, which in 1800 ruled in favor of the Mason claim. Wilson
appealed that judgment to the Supreme Court, as he was permitted to do under
federal legislation.24 The question for the Court was whether the appeal
could be maintained, given the compact between Virginia and Kentucky
prohibiting such an action.
Wilson v. Mason was Marshall’s first
constitutional case. It is important because it illustrates his
determination to uphold national authority. Speaking once again for a
unanimous Court, Marshall said: The Constitution of the United States, to
which the parties to this compact had assented, gave jurisdiction to the
federal courts in controversies between citizens of different states. The
same Constitution vested in this court an appellate jurisdiction in all
cases where original jurisdiction was given to the inferior courts, with
only "such exceptions" and "under such regulations as the
Congress shall make."25
Marshall noted that Congress, "in
pursuance of the Constitution," had passed legislation that gave the
Supreme Court appellate jurisdiction in cases such as this, and that
legislation was controlling. By contrast, he said that if the compact
between Virginia and Kentucky were permitted to govern the case, it would
mean that "the legislatures of any two states might, by agreement
between themselves, annul the Constitution of the United States."26 The
jurisdictional issue disposed of, the Court went on to reverse the holding
of the lower court and to find in favor of Wilson.27
Despite the best efforts of Marshall and
Jefferson to reduce partisan tension, a new storm was brewing on the
horizon. On Wednesday, December 16, 1801, the day after the decision in Wilson
v. Mason was announced, Charles Lee, who had been attorney general under
Washington and Adams, appeared before the Court to request an order
directing Secretary of State Madison to show cause why a writ of mandamus
should not be issued commending Madison to deliver certain justice of the
peace commissions for the District of Columbia.28 Lee was one of the
half-dozen lawyers who argued regularly before the Court, and his
appearance, in itself, was not out of the ordinary. But his seemingly
routine request launched litigation in what has been called the mother of
constitutional landmarks, Marbury v. Madison.29
The facts of this famous case are well known.
A week before Jefferson took office, the lame-duck Federalist Congress
enacted legislation authorizing the president to appoint a number of
justices of the peace in the nation’s capital.30 On March 2, 1801, two
days before his term expired, President Adams nominated forty-two persons
for that office. The nominees were duly confirmed by the Senate on March 3,
shortly before adjournment.31 Adams immediately signed the commissions, and
Marshall, as secretary of state, affixed the Great Seal of the United
States.32 In the last-minute rush of the transition, however, the
commissions were not delivered.33 When Jefferson assumed office, he found
them lying on a table in the State Department and instructed that they not
be sent out.34 Jefferson was greatly vexed by Adams’s so-called midnight
appointments,35 but these particular ones were minor, and his response was
measured. The act authorizing the justices of the peace permitted the
president to determine the number of appointments, and Jefferson, intent on
economy, decided merely to reduce the number by twelve.36 The following day
he gave recess appointments to thirty persons, including twenty-five of
those originally named by Adams, plus five of his own choosing.37 Among
those not reappointed was William Marbury, a prominent Federalist
businessman in Georgetown.38 The episode attracted little attention at the
time,39 although the National Intelligencer praised Jefferson’s generosity
in reappointing so many of Adams’s choices.40
It was now nine months later when Lee
appeared before the court to request a writ of mandamus compelling Madison
to give Marbury his undelivered commission.41 When Lee explained the purpose
of the order, Marshall asked Attorney General Levi Lincoln, who was present
in Court, whether he had anything to offer. Lincoln replied that he had no
instructions on the subject. He said Mr. Madison had just received notice of
Lee’s request and had not had time to consider it. Lincoln told Marshall
he would "leave the proceedings under the discretion of the
Court."42
There is no indication, either in the the
Court minutes or in newspaper reports, that Lincoln expressed any concern
over the request. Marshall consulted his colleagues on the bench and found
that only Chase was prepared to rule at the time. He then said that the
Court would take the question under advisement. Two days later, after an
opportunity to review the matter, Marshall announced the Court’s decision
to entertain the motion and issued a preliminary order to Secretary of State
Madison requesting him to show cause why a writ of mandamus should not be
granted. The chief justice set the fourth day of the next term of Court,
scheduled for June 1802, to hear argument.43
Thus far, the case had all the earmarks of a
routine judicial proceeding. A writ, authorized by statute, had been
requested, and the Court, conforming to normal practice, had requested the
person against whom the order was directed to respond with an explanation as
to why it should not be granted. This was the standard adversarial process
by which courts conducted their business. The only unusual feature of the
case was that the order was directed to the secretary of state. Marshall had
occupied that position, and if there had been anything irregular, he would
certainly have been aware of it. There is absolutely no evidence that the
chief justice sought to provoke a confrontation with Jefferson or the
administration.44 There is also no indication that either Jefferson or
Madison initially took umbrage at the request. Both men were avid letter
writers, and their correspondence from the period contains no reference to
the matter. James Monroe, who was governor of Virginia at the time and who
regularly wrote to Jefferson warning of impending Federalist plots, also
made no mention of the case in his correspondence.45 Extremists in both
parties would eventually escalate the issue, but in December 1801 Marshall
and Jefferson were still trying to moderate the partisanship that had
engulfed the nation.46 In fact, three days after granting Lee’s request,
the Court handed down its decision in United States v. Schooner Peggy,
a decision that could scarcely be described as hostile to the
administration.47
Regardless of Marshall’s intentions, a
collision between the Court and the administration may have been
unavoidable. The problem was not Marbury’s writ, but the Judiciary Act of
1801,48 which continued to rankle Jefferson’s supporters. In his message
to Congress, the president had obliquely recommended its review. But there
was no call for immediate action. The storm broke on January 6, 1802, when
Senator John Breckinridge of Kentucky moved the act’s repeal. The motion
was seconded by Stevens Thomson Mason of Virginia, the Senate majority
leader. Both men had Jefferson’s confidence, and it has often been assumed
that they were acting at the president’s behest.49 This may or may not
have been the case. Jefferson was certainly committed to repealing the
judiciary law,50 but whether he was prepared to move against it at the
beginning of the session is open to doubt. Such an action would rekindle
partisan passions and jeopardize the widespread popularity the Republican
party had acquired since assuming office.51 Indeed, Jefferson’s most
distinguished biographer has suggested that Breckinridge and Thomson may
have been self-starters in moving repeat. partisan zealots who left the
president no alternative.52
The issue of timing is more important than it
may seem. By acting precipitously, Breckinridge and Mason unleashed a storm
of opposition. A calibrated revision of the offending legislation became
impossible, and the desirable features of the act were jettisoned along with
its overtly partisan provisions. In addition, ordinary judicial processes,
like the Court’s order to Madison, came to be perceived in a different
light, and the political atmosphere in the United States was poisoned for
almost a decade.
Republican objections to the Judiciary Act of
1801 were well founded. Designed to correct long-recognized deficiencies in
the judicial system created by the Founding Fathers, the act was rammed
through Congress at the last moment by the outgoing Federalists. That gave
the act an unmistakably partisan flavor, and the manner in which it was
initially administered by President Adams tainted it further. But the act
itself was not without merit,53 and in a cooler political
climate—arguably, the one that Jefferson and Marshall were striving to
create—the political overgrowth might have been pruned without damaging
the measure’s root structure.
The act enlarged the jurisdiction of the
federal courts to the full extent provided by the Constitution54 and made
the courts more accessible to individual litigants.55 The old appellate
system, in which justices of the Supreme Court rode circuit, was replaced
with a new tier of sixteen circuit judges, and provisions were made for a
reorganization of the district courts. Because of the lessened workload, the
number of Supreme Court justices would be reduced from six to five when the
next vacancy occurred.56
These provisions did not spring forth
suddenly in the aftermath of the Republican victory in 1800 but had been the
subject of debate virtually since the creation of the federal judiciary in
1789.57 The two most controversial items were the expansion of federal court
jurisdiction and the addition of sixteen circuit judges. These struck at the
core of the continuing conflict between Republicans and Federalists. As in
1789, the conflict reflected fundamental economic differences: Creditors,
absentee landowners, and the commercial establishment believed their
interests would be better protected by federal authority, while most
farmers, artisans, and the settlers of new lands preferred the state courts
where judges were elected and the political power of local residents had a
correspondingly greater impact.
Few issues were more politically charged than
the question of land titles, which were in great confusion and the subject
of constant litigation. The situation was particularly acute in Georgia and
Kentucky, where there was widespread fear that the federal courts would
support the prior claims of nonresident land companies over the title deeds
of recent settlers.58 Marshall had grappled with that issue in Wilson v.
Mason59 and had upheld the rights of local Kentuckians against
out-of-state claimants. In so doing, however, he had established the
appellate authority of the Supreme Court as the ultimate arbiter of land
title cases involving nonresident litigants. That was a red flag to
legislators from Georgia and Kentucky, whose constituents clamored for
repeal of the 1801 Act. As Thomas Todd, then a judge on the Kentucky court
of appeals, wrote to John Breckinridge, I apprehend great danger and
mischief from the [Federal] Court in this State; a great part of the lands
here are claimed by non-residents, numberless disputes will arise between
them and our own citizens, they will bring their suits in the Federal Court
even when they have but little prospect of success here, with a
determination to appeal to the Supreme Court; the distance is so great, the
scarcity of money and [the] indigent circumstances of many of our citizens
such that they will not be able to follow the appeal, they must either give
up their lands or be forced into an ungenerous and unjust compromise.60 As a
result of the expansion of federal court jurisdiction, Republicans perceived
the 1801 Judiciary Act as a partisan measure. This impression was only
deepened by Adams’s midnight appointment of sixteen leading Federalists to
the judgeships on the newly created circuit courts. Although Adams did not
appoint any extremists to the bench,61 there was not one Republican judge in
the entire federal judiciary when Jefferson took office.* "The
Federalists have retired into the judiciary as a stronghold, and from that
battery all the works of republicanism are to be beaten down and
erased," the new president told John Dickinson.62 Congressman William
Branch Giles of Virginia, far more radical than Jefferson, wrote that
"the revolution is incomplete so long as the judiciary is in possession
of the enemy."63 For Giles the answer was clear: "an absolute
repeal of the whole judicial system, terminating the present offices. . .
and restraining to the proper constitutional extent the jurisdiction of the
courts."64
As chief justice, Marshall had done his
utmost to deflect Republican criticism, and with the December term complete,
he was well on his way to establishing the Supreme Court as a coherent voice
in national affairs. The justices spoke with newfound unanimity; the edge of
partisanship had been dulled; and the collective identity of the Court as
the nation’s highest tribunal had become increasingly manifest. But the
Republican onslaught could no longer be diverted. Years of resentment
against what many perceived as an oppressive Federalist judiciary had surged
forward and now expressed itself in a clamor to repeal the 1801 Judiciary
Act. Marshall was back in Richmond when Breckinridge introduced his motion
in the Senate, and there is no evidence that he played any role in the
debate that followed. Indeed, because of his judicial position, any
intervention by Marshall would have been singularly inappropriate. He
undoubtedly followed the discussion in the press, but if he wrote or
received any letters on the subject, that correspondence has been lost.65
Few debates in congressional history have
been as heated as the debate over the repeal of the judiciary law. The
Senate devoted the entire month of January to the issue, considering no
other legislation during this period. The Republicans, ably led by
Breckinridge and Mason, concentrated their attack on the expansion of
federal jurisdiction and the partisan nature of Adams’s appointments.
Litigation over land titles figured prominently in the debate,66 as did the
added cost of the new circuit judges. All the Republican speakers defended
Congress’s right to repeal the measure, but contrary to popular belief,
the Supreme Court’s order to Madison to show cause in the Marbury case was
mentioned only in passing and was in no way central to the debate.67 The
Federalists, who were led with equal effectiveness by Gouverneur Morris,
maintained that the newly appointed circuit judges were protected by the
Constitution, that their continued tenure was essential for an independent
judiciary, and that the only way they could be removed was by impeachment.
The nation’s press immediately took sides
in the debate, and the political temperature rose accordingly. In the
Senate, the battle was closely fought. The bill to repeal the Act of 1801
passed its second reading with the tie-breaking vote of Vice President Aaron
Burr. On the third reading, however, Burr defected and voted with the
Federalists to refer the bill to committee.. That decision was reversed two
days later with the arrival of a Republican absentee who had not voted
previously. Finally, on February 3, 1802, the bill received final reading
and passed by one vote, 1-15.68 In the House, where the Republican majority
was larger, the debate was sharper as both sides became increasingly
intemperate. Virginia’s hot tempered radical, William Branch Giles, led
the Republican forces and cast the struggle as one between despotism and
democracy. Giles built an extravagant case against judicial tyranny, but
when he attacked the Marshall Court for its show-cause order to Madison,69
Representative James A. Bayard of Delaware, the House minority leader,
quickly called him to task. A request to show cause was merely a preliminary
proceeding, Bayard reminded Giles, and involved no implication that a writ
of mandamus would be issued, or that the Court would assume jurisdiction.70
The debate in the House continued through the
month of February, and on March 3 the Republican leaders put the measure to
a vote. By 59-32, the House of Representatives supported the bill, and the
Judiciary Act of 1801 was repealed.71 In striking the act from the books,
Congress asserted its constitutional authority to determine the organization
of the federal courts.72 Nevertheless, the Federalists continued to argue
with great vehemence that in so doing, Congress had infringed upon two
equally pertinent provisions of the Constitution: the guarantee that
"Judges. . . shall hold their Offices during good Behavior," and
the stipulation that their salaries "shall not be diminished"
while in office.73 As a result, Alexander Hamilton suggested to Bayard that
the repeal be tested before the Supreme Court "as soon as
possible."74 Indeed, a fear that the issue would come before the Court
propelled the Republican majority in Congress to quickly pass substitute
legislation reorganizing the judiciary, requiring the justices to ride
circuit once more, abolishing the June and December terms of the Court
(created by the Act of 1801), and restoring the old February term but not
the August term. That meant that the Supreme Court would not meet again
until February 1803, a gap of fourteen months.75 This last action, in
particular, struck a raw nerve among the Federalists. "Are the
gentlemen afraid of the judges?" asked Bayard. "Are they afraid
that they will pronounce the repealing law void?"76
Marshall took the repeal calmly, and he
appears to have considered Congress’s action inevitable. When Oliver
Wolcott sent him a copy of the new judiciary act that the Republicans had
proposed, he expressed no concern. In fact, he told Wolcott that there were
"some defects in the system which I presume will be remedied as they
involve no party or political questions, but relate only to the mode of
carrying causes from the circuit to the supreme court." Marshall told
Wolcott that he regretted the cancelation of the June term of the Court,
"but I have no doubt that the immediate operation of the bill will be
insisted on."77
The following day, April 6, 1802, he wrote to
Justice Paterson about the bill then pending. "You have I doubt not
seen that arrangement of our future duties as marked out in the bill lately
reported to the Senate. They are less burdensome than heretofore, or than I
expected."78 Marshall was unconcerned about Congress’s repeal of the
Act of 1801, but he told Paterson that he was troubled by the provision that
the justices be required to sit on circuit. He considered that a conflict of
duty since the justices would be trying cases that they might later hear on
appeal. Marshall said that if the provision had been a new one, he would
have been unwilling to take up circuit duties without consulting his
colleagues. In light of the former practice of the justices to ride circuit,
however, "I consider it as decided and that whatever my own scruples
may be I am bound by the decision."79
The week afterward, Marshall wrote a lengthy
letter to James Bayard about some unsettled accounts from his tenure as
secretary of state. He made no mention of the bill before Congress but told
Bayard he would be in Washington the following week to wrap up his business
at the State Department.80 Marshall stayed in Alexandria during his visit
and met with Bayard on several occasions. The two were devoted friends. They
shared the tenets of moderate Federalism and had always worked together
easily. Like Marshall, Bayard was strenuously convivial and got along
famously with his political opponents—except for "the Monticello
crowd," whom he despised.81 His closest friend was his Republican rival
from Delaware, Caesar Rodney. In an Alexandria tavern that April, Bayard and
Marshall informally reviewed the political situation in Washington.
Bayard said that the Federalists wanted to
test the constitutionality of the Judiciary Act’s repeal. Marshall, who
could offer no official advice, gave Bayard his personal view that the
repeal was constitutional and that the new statute should be obeyed. He said
that the circuit judges appointed by Adams were now without authority and
that they should adjourn any proceedings then pending.82 Marshall’s advice
was consistent with his general view of the Constitution, and he was warning
his friend against tilting at windmills. He reminded Bayard that the text of
Article III gave Congress explicit authority to establish such inferior
courts as it thought proper and placed no limits on that power.83 Marshall
did indicate, however, that he had doubts about the renewed provision that
the justices of the Supreme Court ride circuit, and, at Bayard’s urging,
he agreed to consult his colleagues on the matter.84
Bayard immediately reported Marshall’s
views to a conclave of Federalist congressional leaders, including
Gouverneur Morris, Roger Griswold of Connecticut, and David Ogden of New
York.85 Morris noted: "I am neither surprised nor disappointed for it
accords with my idea of the Judge [Marshall].’’86 Bayard apparently
shared Marshall’s opinion, or so Morris reported.87 Nevertheless, the
party’s leadership decided to press on. "The business must not stop
here," wrote Morris.88 Just as Jefferson may have been propelled into
premature action by his congressional allies Breckinridge and Mason,
Marshall and the Court were about to be drawn into the fray by the
Federalist irreconcilable in Congress. Extremists in both parties had taken
control of the agenda, and the political temperature continued to rise.
As Marshall had promised, he wrote to his
fellow justices from Alexandria asking for their views on the renewed
requirement that they ride circuit. Marshall’s letter to Paterson is all
that survives,89 but the various replies he received makes it clear that
each of the justices was polled.90 Marshall told his colleagues: "This
is not a subject to be lightly resolved on. The consequences of refusing to
carry the law into effect may be very serious. For myself personally I
disregard them, and so I am persuaded does every other Gentleman on the
bench when put in competition with what he thinks his duty. But the
conviction of duty ought to be very strong before the measure is resolved
on."91 Marshall pointed out that because the justices had served on
circuit in the past, it "will detract very much in the public
estimation" if they should refuse to do so now.
Marshall was determined to keep the Court out
of partisan politics. His informal advice to Bayard that the repeal of the
Act of 1801 was constitutional was a clear signal to the Federalists to pull
in their horns, and his letters to his colleagues were so cautiously phrased
that it is clear the chief justice was making every effort to contain the
crisis. By placing his colleagues on record early, he was attempting to
minimize the possibility of future recriminations. Bushrod Washington, the
first to reply, told Marshall that the question of whether the justices
should ride circuit should be "considered as settled and should not
again be moved."92 Cushing said that "to be consistent. . . we
must abide by the old practice."93 Paterson told Marshall that he
agreed with Bushrod. "Practice has fixed construction, which it is too
late to disturb."94 Only the combative Chase thought the justices ought
not resume their duties on circuit, but even he observed that the position
would be difficult to sustain. "The burthen of deciding so momentous a
question, under the present circumstances of our country, would be very
great on all the Judges assembled, but an individual Judge, declining to
take a Circuit, must sink under it."95 Marshall was pleased with the
result. It was apparent that his colleagues did not want to pursue the
matter. He told Paterson that he was "privately gratified" and
that he would acquiesce "with much pleasure."96
That summer, when it came time for the
justices to join their district court colleagues on circuit, each dutifully
complied. The radical Republicans, who had feared that Marshall would head a
judicial revolt and might even overturn their legislation, now openly
commended him for his course of action.97 A break in the storm clouds
appeared to be in the offing, but it vanished quickly. Whether they realized
it or not, Marshall and Jefferson were on a collision course. Neither had
sought it. Marshall had worked assiduously to remove the Court from partisan
politics, and Jefferson, just as assiduously, had pursued a policy of
cautious moderation, intent on weaning the moderate Federalists from their
hard-core allies.98 But the repeal of the Judiciary Act of 1801 had
rekindled old animosities. The Federalist leadership perceived the
subsequent passage of the Judiciary Act of 1802 to be an act of vengeance.
Marshall, who deplored the increased bitterness, wrote to Rufus King,
somewhat in despair, that the disposition of the parties to come together,
"which was strongly displayed by the minority twelve months past,
exists no longer." He told King that, contrary to what he had hoped,
"our political tempests will long, very long, exist, after those who
are now tossed about by them shall be at rest."99
That melancholy mood persisted for several
months—a rare interlude for the usually ebullient Marshall. In November
1802 he wrote to his old friend Charles Cotesworth Pinckney, "There is
so much in the political world to wound honest men who have honorable
feelings that I am disgusted with it and begin to see things through a much
more gloomy medium than I once thought possible.’’100
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