along the Ohio and the Mississippi, and the spread of democratic principles had undermined Federalism. The change manifested in the triumphant election of Jefferson in 1800 was more than political; the whole habit of the people, the system of government and of social conditions had shifted. The history of that change has been many times written at large; it was the triumph of the new-made American democracy, the manifestation in America of the radicalism of the French Revolution, the success of the party of strict construction that had put forth the Virginia and Kentucky Resolutions of 1798 and 1799 and believed the constitution a compact to which the states were the integral parties having the power to determine and remedy its violations, even by nullification. At such a time Marshall became Chief Justice. From every other department of government Federalism was ousted and from that day began the rapid disintegration of the Federalist party.

Marbury

V.

Madison

Up to that time, the Supreme Court had played but little part in the governmental system. Its jurisdiction was limited, its judges had been men of little calibre, or had despaired of creating an efficient court; but the whole character of the tribunal was changed by a single step which Marshall took almost on the threshold of his service. At the end of Adams' term, with their last moments of power, the Federalists had passed an amendment to the Judiciary Act creating a new system of inferior Federal courts, relieving

the Supreme Court judges from service on circuit, and providing, inter alia, that the next vacancy in the Supreme Court should not be filled. New judges were created for the District of Columbia in so great a hurry that their appointments were confirmed on the last day of Adams' term, and their commissions were signed on the very night of his retirement, but never delivered. It was but natural that the first act of the Jeffersonians was to repeal the amendment to the Judiciary Act and to deny commissions to the "midnight judges." In 1801, one of these judges, Marbury, applied for a mandamus, to require the issue of his commission, and in 1803 Marshall delivered his opinion on that application. (See note Marbury v. Madison, infra, Vol. I., p. 1.) That opinion is the beginning of the American system of constitutional law. In it Marshall announced the right of the Supreme Court to review the constitutionality of acts of the national legislature and the executive, the co-ordinate branches of the government. Such a power had been spoken of in certain opinions, and indeed occasionally acted on in unimportant cases in the state courts,' but never in the Federal courts. Common as this conception of the powers of our courts now is, it is hard. to comprehend the amazing quality of it then. No court in England had such a power; there was no express warrant for it in the words of the constitution; the existence of it was denied by every other branch of the government and by the dominant

1 Stuart v. Laird, 1 Cranch 299. Hayburn's Case, 2 Dallas 409.

majority of the country. Moreover, no such power had been clearly anticipated by the framers of the constitution, nor was it a necessary implication from the scheme of government they had established.1

If that doctrine were to be law, the Supreme Court was indeed a final power in a democracy beyond the reach of public opinion.

The Im

2

It is not surprising that Marbury v. Madison infuriated Jefferson to the last degree, nor was his temper improved by the fact that the docpeachment trine so announced was stated and explained Trials with gratuitous strength and vigor where it might, perhaps, have been passed over. The case was made the signal for an immediate counter attack, the importance of which has usually been curiously overlooked. On February 3, 1803, Jefferson recommended the impeachment of John Pickering, District Judge of New Hampshire, for drunkenness and incompetency. On February 24, Marshall gave his opinion on Marbury's case, and immediately afterwards Pickering was impeached by the House. At the next session of Congress, Jefferson aimed a final blow at the independence of the Federal judiciary by

This aspect of Marshall's doctrine, i.e., that it was in no sense a necessary implication from the constitution, has, in the course of time, as Marshall's theory has become accepted been generally overlooked. The best consideration of it, and of the position of the case in our system of constitutional law, is found in the work of the late Professor Thayer. (See Thayer's Cases on Constitutional Law, vol. i., p. 146, an article in Harvard Law Review, vii. p. 129, et seq., and in John Marshall, p. 61, et seq.)

The portion of the opinion bearing on the right of the Court to pass on the constitutionality of acts of the executive branch of the government, which is the main theme of the opinion, is not the point on which the case turned.

the process of impeachment, a method of controlling the judges which was still open. If that were unsuccessful, then it was apparent that, as Martin Van Buren pungently remarked long after,1 the Federalist party had been "conducted to the judicial department of the government, as to an ark of future safety which the constitution placed beyond the reach of public opinion."

The most hated of all the Federalist judges was Samuel Chase, of Maryland, and he had earned that hatred. He had been most prominent and most violent in the enforcement of the obnoxious Alien and Sedition laws, and had ever preached Federalist politics from the bench; after the impeachment of Pickering, he had made a charge to the grand jury in Baltimore full of intemperate, vituperative attack on Jefferson and the government. At the beginning of the session in 1804, he was impeached. The action of the Senate on that case, though then merely a chapter in a political controversy, is second in importance only to Marbury v. Madison. At the time of Pickering's trial he was hopelessly insane, no counsel appeared for him, and he was summarily removed. Far different from that drumhead court martial was the trial of Chase. There were then nine Federalists in the Senate and twenty-five Republicans; the vote of twenty-three was necessary to convict. Vice-President Aaron Burr was its presiding

1 Political Parties in the United States, p. 278.

2 The best account of the trial of Chase is in Henry Adams' History of the United States, vol. ii., chap. x., p. 218.

officer. The manager of an ill-planned prosecution was John Randolph, of Virginia, assisted by six second-rate men. For Chase appeared the best lawyers of the Federalist party, first, Luther Martin, then Robert Goodloe Harper, Charles Lee, P. B. Key, and Joseph Hopkinson. No act of Chase which was made the basis of impeachment came within any definition of a crime; and the theory of the defence was that, under the constitution, no judge could be impeached save for an act which the law had made criminal. The greatest number of votes for removal on any charge was nineteen, and the impeachment failed ingloriously. But the principle there established, that the Senate sits in impeachment trials as a criminal court, meant that the Federal judiciary was permanently free from control of the dominant party, and that, as Mr. Adams says, impeachment was a "scarecrow."

" 1

Marshall again infuriated Jefferson in the case of Ex parte Bollman and Swartwout (see note to that

1 The importance of that trial of Chase seems too little noted. Recalling the impeachment of Hastings, a dozen years before, Mr. Adams says (History of the United States, vol. ii., p. 218):

but in the infinite possibilities of American democracy, the questions to be decided in the Senate Chamber had a weight for future ages beyond any that were settled in the House of Lords. Whether Judge Chase should be removed from the bench was a trifling matter; whether Chief Justice Marshall and the Supreme Court should hold their power and principles against this combination of State rignts conservatives and Pennsylvania democrats was a subject for grave reflection."

Immediately after the failure of the impeachment trial, Randolph proposed an amendment to the constitution that the judges of the Supreme Court of the United States shall be removed by the President on the joint address of both Houses of Congress."