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   Chapter 96 1805).

Formation of the Union By Albert Bushnell Hart Characters: 3314

Updated: 2017-12-06 00:02

[Sidenote: Repeal of the Judiciary Act.]

Moderation in Jefferson's mind did not extend to the judiciary which had been forced upon the country by the Federalists in 1801. At his suggestion Breckenridge, in 1802, moved to repeal the recent Act, and thus to get rid at once of the new courts and of the incumbents. The Federalists protested that the Constitution was being destroyed. "I stand," said Gouverneur Morris, "in the presence of Almighty God and of the world, and I declare to you that if you lose this charter, never, no, never, will you get another. We are now, perhaps, arrived at the parting point." The repeal was plainly intended to remove the last bulwark of the Federalist party in the government. It was made more obnoxious by a clause suspending the sessions of the Supreme Court until February, 1803. It was passed by a majority of one in the Senate, and by a party vote of fifty-nine to thirty-two in the House. The President signed it, and all the new circuit judges and judicial officers were thus struck from the roll of the government.

[Sidenote: Impeachments.]

[Sidenote: Marbury vs. Madison.]

The narrow majority in the Senate warned Jefferson not to proceed farther with such statutes; but the judiciary could be affected in another way. Several of the supreme and district judges were ardent Federalists, and had expressed strong political opinions from the bench. In February, 1803, the House impeached John Pickering, district judge in New Hampshire; his offence was drunkenness and violence on the bench; but the purpose to intimidate the other judges was unmistakable. Two of them accepted the issue. The Supreme

Court had resumed its session only a few days, when, in 1803, Marshall made a decision in the case of Marbury vs. Madison. Marbury was one of Adams's "midnight appointments;" the suit was brought for his commission, which had not been delivered, and was retained by Madison when he became Secretary of State. Marshall decided that "to withhold his commission is an act deemed by the court not warranted by law, but violative of a legal vested right." Upon a technical point, however, the complaint was dismissed.

[Sidenote: Chase trial.]

[Sidenote: Appointments.]

Further defiance came from another justice of the Supreme Court, Samuel Chase of Maryland. His prejudice against Callender on his trial for sedition had exasperated the Republicans (§ 89), and on May 2, 1803, while the Pickering impeachment was impending, Chase harangued the grand jury as follows: "The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it…. Our republican constitution will sink into a mobocracy,… the worst of all possible governments." Pickering was convicted March 12, 1804, and on the same day the House impeached Chase. By this time the Republicans had overshot the mark, and notwithstanding Chase's gross partisanship, on March 1, 1805, the impeachment failed for want of a two-thirds vote. The only hope of controlling the Supreme Court was therefore to fill vacancies, as they occurred, with sound Republicans. Three such opportunities occurred in Jefferson's administration. To his great chagrin, the new judges showed themselves as independent, though not as aggressive, as Marshall.

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