The bill was an amalgam of power play and reform, with Marshall’s Supreme Court faring badly on both counts. Supreme Court justices would again ride circuit—that had been ensured by the repeal—with circuit courts sitting twice yearly. Court sessions were reduced from two two-week sessions to one four-week session, to be held each February, a month that had conveniently just passed. Both the June and August 1802 terms would thus be eliminated, creating a hiatus of fourteen months between the previous Court session and the first meeting in the future. Elimination of the two terms also meant that Madison would not be required to answer the show-cause order—or choose to ignore it—for another ten months.
But for the judiciary as a whole, some substantial improvements had been made as well. Republicans retained the Federalists’ six-circuit plan—up from three—and a justice assigned to a circuit had to reside within it. (Marshall was assigned the Virginia–North Carolina circuit, within which his home in Richmond was roughly in the center.) Kentucky, Tennessee, and Maine were not included in the circuit court plan, thus eliminating trips to the wilderness.37 The three-judge District of Columbia circuit court, unaffected by the repeal, was left intact but downgraded to a district court. In their zeal to limit judicial power, Republicans had made no provision in the bill to extend the circuit court system westward as the nation expanded. Circuit-riding to the Mississippi was not an issue that Republicans were anxious to raise, an omission that the Louisiana Purchase would soon bring into stark relief.
The bill moved to the House in the second week of April. Led by Bayard, Federalists stalled, proposed amendments, debated minutiae, but mostly railed against the injustice perpetrated by a Republican majority that cared nothing for a nation’s liberty, but were simply interested in grasping power. The arguments were, not coincidentally, exactly those made by Republicans in the previous Congress during the debates on the Judiciary Act so recently repealed.
Nonetheless, Federalists made some telling points. On April 23, after the third reading of the bill, Bayard inveighed against the measure with a mixture of logic, sarcasm, and indignation.38 He attacked everything from the true aim of the bill to its new name. “This act is not designed to amend the Judicial system,” he exclaimed. “That is but pretense. If amendment had been in view, gentlemen would have contrived a better plan than the present bill proposes, which I panegyrize, by calling a miserable piece of patchwork. No sir; the design of this bill is to prevent the usual session of the Supreme Court in next June. It is to prevent that court from expressing their opinion upon the validity of the act lately passed, which abolished the offices of the judges of the circuit courts, until the act has gone into full execution. . . . May it not lead to the abolition of a court, the existence of which is required by Constitution?”39
As Federalists had had no answer—nor needed one—to justify the midnight appointments, Republicans had no answer—nor needed one—for Bayard’s accusations. That Congress had just put the Supreme Court on hold for fourteen months to save the justices the rigors of travel when it had also just reinstituted the more extreme rigors of circuitriding was quite beside the point. In the end, Republicans did just what Federalists had done—they simply passed their bill and sent it on to the president. Jefferson signed the measure on April 29, and the “Bill to Amend the Judicial System” became law, known popularly as the Judiciary Act of 1802.
Marshall, who had been in Richmond during the congressional debates, was immediately pressed to both give his opinion as to the constitutionality of the Congress’s actions and to reveal whether or not he would accede to the new law. He did not equivocate on the circuitriding provision, condemning the rule that would once again put the justices in the position of hearing cases on the Supreme Court that they had already decided on circuit.40 Nor did he make a secret of his distaste for the reduction in prestige that accompanied the traveling judicial show. On the constitutional issue, however, he was far less easy to pin down. While privately Marshall expressed doubts as to the constitutionality of repeal, he mentioned to Bayard during a trip to Alexandria in April that he thought the question probably fell within Congress’s purview. Marshall told Bayard—whose father-in-law, Richard Bassett, was one of the midnight judges—that anyone appointed under the 1801 act was now without power and should step aside from any case before them not yet resolved.41 In defending repeal, it should be noted, Marshall was also asserting the right of Congress to interpret the Constitution—to say what the law is— a right that could not, it seemed, be superseded by the Supreme Court.42 When Bayard related Marshall’s comments to Gouverneur Morris, Morris was disgusted, but thought Marshall’s equivocating to be quite in character.43
Marshall would not, however, be required to take a more defined position any time in the near future, as there was to be no Court term for another nine months. In rendering moot, at least for the moment, the question of the constitutionality of repeal, Republicans had bought time for Marshall as well as for themselves. The first practical test of the new laws would come in early autumn, not in the courtroom but on the roads, as that was when the justices were due to ride circuit. If they refused, they were, in effect, passing on the constitutionality of the repeal act by fiat, without hearing a case. Marshall polled his associates by letter, asking whether or not they wished to show up.44
Predictably, Chase was the most outspoken among the associates in his denunciations of the repeal law—denunciations that he had issued publicly—and he wrote back that on no account should any justice agree to ride circuit. Whether or not Chase wished to precipitate a challenge to the Constitution, he saw such a crisis as inevitable. “I believe a day of severe trial is fast approaching,” he wrote, “and we, I fear, must be principal actors, and may be sufferers, therein.”45 The other four associates were prepared to swallow their objections and follow the new law if Marshall agreed to do so.
Chase wanted to fight, but Marshall wanted to win.46 If he eschewed retreat and refused to ride circuit—chose this moment for his counterattack— Republicans would almost certainly move to impeach the entire Court. Marshall’s own position, along with that of the fulminating Chase, was the most precarious. Jefferson’s mantle of conciliation had eroded substantially with the passage of the two judiciary acts, and he had of late made little secret of his desire to eventually get Marshall off the Court in favor of his friend and colleague, Spencer Roane.47 If, on the other hand, Marshall and his fellow justices continued to give ground and agreed to ride circuit, while it might signal temporary acquiescence to Republican authority—again—the Court might preserve the right to rule on constitutionality later. Marshall instructed the associates to resume circuit-riding.
In Marshall’s subsequent apotheosis, the calm with which he greeted both the repeal and reorganization acts, his comments later that the bill was an improvement on the previous system, the willingness with which he accepted the return to circuitriding, are said to prove that he was fair-minded and simply interested in “keeping the Court free of partisan politics.”48 But what choice did he have? Jefferson was spoiling for a chance to rid the courts of as many Federalist judges as he could, and Marshall, whether for personal or ideological reasons, wanted more than anything to keep his job. As the chief justice had demonstrated in Talbot and Schooner Peggy, and was to prove even more profoundly in events to come, he was a master of going limp. That he would say nothing about a situation in which he could do nothing was the very essence of the man.
Many Federalists, particularly in the Hamiltonian wing of the party, were furious with Marshall for what they saw as a cowardly capitulation. They wanted protest, confrontation, and exposure. If Marshall was not their ally, they reasoned, he must be their adversary. If Marshall would not confront Jefferson on his own, he would be compelled to do so. High Federalists launched a campaign to provoke a constitutional crisis that would inevitably place the chief justice and the Supreme Court in the path of the Republican locomotive and render Justice Chase’s warning prophetic.
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* The Federalists, broad constructionists when they were in power and could interpret the Constitution to their benefit, had now become strict constructionists to deny Republicans the same opportunity. This was not the first occasion, or remotely the last, when philosophy shifted to match political necessity.
* Although Jefferson could have little complaint on that score, having been something less than a loyal vice president himself.
* If the Court returned to the old rules after July 1, there would technically have been an August term as well.
TWENTY
SUICIDE SQUEEZE: HAMILTON V. MARSHALL
IF MARSHALL HAS TENDED to be lauded for his acquiescence to the new Republican majority, just the opposite has been true of Hamilton and the extreme wing of the tattered Federalist Party. The Hamiltonians, it has been said, frustrated and bitter at being turned out of power, simply flailed about blindly, not so much to gain a tangible victory as simply for spite.1 That view, however, grossly underestimates the political acumen of men such as Gouverneur Morris, James Bayard, and even Alexander Hamilton himself.2
Certainly, Federalists were playing a desperately weak hand, made all the weaker since everyone’s cards had already been turned up. Their only choice in such a circumstance was to find some way to have the game called off, and the best way to achieve that was to prove that the winners had cheated. No Federalist could be unaware that, as reluctant to do so as it now appeared, only the judiciary held any possibility of initiating such an action.
But the Marshall Court had proved itself to be less than even a reluctant ally. Despite anything the president might have said, Hamiltonians did not see their party as having strategically fallen back behind the barricade of the judiciary. That had been the plan, certainly, but Federalists had been frustrated by what they deemed a cowardly, equivocating Marshall, who was clearly more interested in retaining his job than upholding the principles under which he had gotten that job in the first place. Compelling the chief justice to take the honorable course, therefore, was going to take a combination of extremely clever politics and a sustained public outcry.
High Federalists decided on a plan that consisted of three interlocking strategies, designed to ultimately isolate the renegade Court and force it to publicly confront the very constitutional issues that Marshall had to this point been so deft in evading. Since the Supreme Court would not sit until February 1803, the battle was begun in circuit court in the fall of 1802.
On September 18, 1802, when Bushrod Washington convened the second circuit court in Hartford, Connecticut, Roger Griswold, a local Federalist congressman who had achieved substantial notoriety for trying to bash a fellow legislator’s head in with a hickory stick on the floor of the House of Representatives, issued a challenge to the court’s authority to rule on the cases on the docket, since the presence of Supreme Court justices in circuit court violated the Constitution.3 If Washington ruled for Griswold, he would thus declare the repeal of the Judiciary Act of 1801 unconstitutional.
This same action was initiated in four of the six circuits, Federalists demanding that the Supreme Court justices sitting in those courts declare their own participation void. Regardless of the degree to which the justices loathed circuitriding, the petitioners could not have expected to prevail in any of these actions—in agreeing to once again ride circuit, the justices had already announced their position.
In Connecticut, Justice Washington dismissed Griswold’s motion out of hand. Federalists had the same result in Boston, although they did succeed in persuading Justice Cushing to adjourn for a day. The third test was launched in New Jersey, where Justice Paterson ruled as had his two brethren.
The fourth test case, while sure to receive the same summary treatment in circuit court as the other three, engaged the chief justice himself. Whether or not the parties were aware of it at the time—and there is some indication that they were—this petition placed Marshall in the very political vise the Federalists had sought, and resulted in one of the most crucial Supreme Court decisions—or, more precisely, non-decisions—in the nation’s history.
The matter itself was innocuous. In late 1800, John Laird of Maryland had filed suit in circuit court against Virginians Hugh Stuart and Charles Carter for breach of contract in a land dispute.4 At that point, Supreme Court justices still rode circuit, as specified in the Judiciary Act of 1789. Before the case could be heard, however, the Judiciary Act of 1801 was passed, establishing the new fourth circuit court, consisting of three of Adams’s midnight judges. That court had found for Laird and awarded damages in the form of property to be sold, with the proceeds going to Laird. The judges also required Stuart and Carter to post a bond guaranteeing delivery of the property.
In July 1802, before the property could actually be sold and the judgment discharged, the repeal act had been passed and the fourth circuit court as established under the Judiciary Act abolished, so oversight of the case was transferred to the new fifth circuit court, Chief Justice Marshall presiding. That was when Charles Lee—the same Charles Lee who was representing Marbury et al.—stepped in, representing Stuart. Lee instructed his client to default on delivery of the property, sending Laird back to circuit court to recover the bond.
In December 1802, one year after he had thrown Marbury into Marshall’s lap, Lee appeared in front of the chief justice in Richmond. By this time, the midterm congressional elections had been completed. Where the Seventh Congress had been solidly Republican, the Eighth Congress was overwhelmingly so. Jefferson’s party enjoyed a 63-vote majority in the House and controlled well over two thirds of the Senate. If confrontation was foolhardy before, it might well be suicidal now.
With even less to lose, Lee stood before the chief justice and claimed that the new, Marshall-led circuit court had no right to hear the case, since only the judges who had originally instituted the judgment could order the release of the bond. These judges, Lee asserted, retained their authority since their removal had violated the Constitution, and, since it also violated the Constitution to require Supreme Court justices to ride circuit, Marshall therefore had no power to rule in their place.
This last point was particularly sore, since Marshall had made no secret that he also thought the circuitriding provision was unconstitutional, a position of which Lee was doubtlessly aware when he raised the question in court. Still, after months of maneuvering to avoid a direct confrontation with Jefferson, Lee certainly also knew that Marshall had no intention of precipitating a battle from circuit court, a disinclination by now buttressed by the three associates who had also declined to rule against repeal. So, surprising no one, least of all Lee, Marshall avoided the constitutional question, dismissed Lee’s assertion, found for Laird, and ordered the bond vacated.* Lee then announced his intention to appeal the ruling before the Supreme Court at the next term, February 1803, the same term in which the Marbury mandamus hearing was scheduled.
Before the Supreme Court term could begin, however, Federalists unveiled the second prong of their attack. On Thursday, January 27, 1803, eleven of the deposed circuit court judges—including Bassett, whose protest had received wide circulation in the Federalist press—petitioned the House of Representatives for a return to duty and back pay. They argued that, as a result of the repeal of the Judiciary Act of 1801, the “rights secured to them by the Constitution as members of the Judicial department have been impaired,” and that, “influenced by a sense of public duty,” they needed to ask Congress to review their actions.5 To justify the petition, the eleven judges resurrected the same arguments that had been rejected—or, more accurately, ignored—the previous spring.
Griswold, who had returned to Washington after his failure with Bushrod Washington in Hartford, immediately moved that the petition be sent to a select committee, and the Republican Andrew Gregg of Pennsylvania just as quickly proposed sending it to the Republican-dominated Court of Claims instead. Neither prevailed. Most Republicans wanted the petition summarily disposed of and vo
ted to debate it on the floor that very day. The House put aside its other business and once more weighed in on the judiciary.
During the course of the debate, each side evoked the Constitution and asserted its applicability to its position. Griswold properly pointed out that in repealing the 1801 law, Republicans “had decided that the Legislature had the constitutional right to deprive then judges of all judicial power,” in other words, to decide what Article III meant.6 Republicans at first tried to dance around the constitutional question, but when John Smilie, a Republican from Pennsylvania, ingenuously asked “whether in a case such as this the Supreme Court could be denominated as an impartial tribunal,” his fellow Republicans were forced to take a specific position on constitutionality. This they did once again by asserting the Blackstonian argument that the legislature was the proper venue to decide constitutionality. Wilson Cary Nicholas of Virginia stated: “The people constituted the great tribunal before whom the constitutionality of all laws of Congress should be brought.”7 The debate raged on the entire day, characterized by the same partisan sniping and invective of the previous spring, and the outcome was no more in doubt in this session than in the former. Nicholas’s fellow Republican congressmen agreed that they had the right to interpret Article III, and the petition of the eleven judges was soundly rejected.
The following day, Friday, January 28, before the Senate had a chance to debate the petition, the Federalists initiated their third phase. John Howard of Maryland introduced a petition from William Marbury and two of his co-claimants “praying that the Secretary of the Senate may be directed to deliver them a certified copy of their nominations to be justices of the peace for the counties of Washington and Alexandria.”8 In theory, the petition was simply an attempt to gain documentary evidence of the appointments to be used in judicial proceedings, which Marbury and the other two noted “your Secretary has declined giving without leave of the Senate.” In fact, of course, the issue was far more inflammatory, another thinly veiled attempt by Charles Lee to induce the Senate to assert prerogative over the executive. Moreover, the records that the petitioners sought were contained in the Senate Executive Journal, whose contents were confidential except to the senators themselves.
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