departments of the Government a control "over legislation, execution, and decision, and irresponsible to the people." In the background of the active mind of this Virginian was hostility to the new courts "because of their tendency to produce a gradual demolition of State Courts." If this last were the real reason for the repeal of the act, consistency should have led the Republicans to revise the whole judi. ciary system from the Supreme Court down. But for such radical action few, if any, were prepared. The repealing act passed the House by a party vote of fifty-nine to thirty-two, and was signed by the President on March 8, 1802.

In the course of the acrimonious debate over the judiciary, Federalists had challenged the constitutional right and power of Congress to vacate the judgeships, asserting that the plain intent of the Constitution is to place the judges beyond the power of Congress by prescribing a tenure of office during good behavior. The challenge was disquieting, for with John Marshall on the bench of the Supreme Court, the Republican reformation of the courts might be brought to naught by an adverse decision. A supplementary act was therefore passed which prevented the Supreme Court from holding its usual session. It was hoped that when the court met in the following year, Federalist partisanship would have lost its violence.

Two obnoxious acts of the late Administration the Alien and the Sedition Acts-had expired by limitation. Congress suffered the Alien Enemies Act to remain upon the statute book, but insisted upon

the repeal of the Naturalization Act of the year 1798. The time of residence required of aliens before they could acquire citizenship was again fixed at five years. With these rather meager performances, the reforms of the Republicans came to an end.

Perhaps none of the last appointments of John Adams had so exasperated his successor as that of John Marshall as Chief Justice of the Supreme Court. Jefferson had an invincible repugnance for Marshall; and the feeling was cordially reciprocated. Between these men there were temperamental differences as wide as the ocean. Moreover, Jefferson entertained the belief that all appointments made by Adams after the results of the election were known were nullities, on the theory that a retiring President might not bind his successor. Two years later, in 1803, in the famous case of Marbury v. Madison, the Supreme Court, speaking through the Chief Justice, took sharp issue with the President. William Marbury had applied to the court for a mandamus to compel Madison, Secretary of State, to deliver his commission as justice of the peace, which, it was alleged, had been duly signed and sealed, but never delivered. The Supreme Court held that Marbury was entitled to his commission. "To withhold his commission, therefore," said Marshall, " is an act deemed by the Court not warranted by law, but violative of a legal vested right." Let President Thomas Jefferson take notice of his constitutional obligations.

The case of Marbury v. Madison, however, has a much deeper significance for constitutional history.

Having asserted the right of Marbury to his commission, the court disappointed expectations by refusing to issue the writ of mandamus, on the ground that the power to issue such writs was not conferred by the Constitution upon the Supreme Court as part of its original jurisdiction. And as the Judiciary Act of 1789 had conferred this authority, the court was impelled to declare this provision of the act unwarranted by the Constitution and therefore void. For the first time the Supreme Court asserted its power to pronounce an act of Congress repugnant to the Constitution not to be law, but void and of no effect. In substantiating its position, the court did not inquire into the difficult question whether the framers of the Constitution intended or expected the national judiciary to exercise this authority. It was enough for the purposes of the court that the Constitution was the supreme and paramount law of the land, established by the people of the United States. The Constitution defines and limits the powers of government: it must then control any legislative act repugnant to it. "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

With equal certitude the court declared that it was the province and duty of the judiciary to say what the law is. "Those who apply the rule to particular cases, must of necessity expound and inter pret that rule. If two laws conflict with each other,

the courts must decide on the operation of each." So if a law stood in opposition to the Constitution, the court must decide which of these conflicting rules governs the case. “This is of the very essence of judicial duty." Moreover, the judges may not shut their eyes to the Constitution and see only the law, for they are bound by oath to administer justice not according to the laws alone, but "agreeably to the Constitution and the laws of the United States." Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

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On two other occasions the hostility of the Republican Administration provoked a trial of strength with the Federalist judiciary. The impeachment in 1804 of John Pickering, District Judge in New Hampshire, on charges of intoxication and habits unfitting him for his duties, amounted to little short of a tragedy. When the trial opened, Judge Pickering did not appear, but representations made by his son showed beyond a doubt that he was and had been for two years of unsound mind. To convict a man of misdemeanors for which he was not morally responsible seemed a travesty on justice. Yet there was no other constitutional device for removing him. Though Pickering never appeared in person, the managers for the House pressed the prosecution; and rather than leave the administration of justice to a demented judge, the Senate pronounced the unhappy

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man 'guilty as charged," and resolved that he should be removed from office.

On the same day that the Senate reached this monstrous decision, March 12, 1804, the House voted to impeach Justice Samuel Chase, of the Supreme Court. While the defiant words of Chief Justice Marshall in the Marbury case were still rankling in Jefferson's bosom, Justice Chase had gone out of his way to attack the Administration, in addressing a grand jury at Baltimore. The repeal of the Judiciary Act, he had declared, had shaken the independence of the national judiciary to its foundations. "Our republican Constitution," said he," will sink into a mobocracy the worst of all possible governments." To appreciate the effect of this partisan outburst upon the President, one must recall that Chase was the judge who had presided at the trials of Fries and of Callender, and who had left the bench to electioneer for John Adams in the campaign of 1800. Jefferson immediately wrote to Nicholson, who was managing Pickering's impeachment, raising the question whether "this seditious and official attack on the principles of our Constitution" ought to go unpunished.

Such was Jefferson's way of initiating the measures of the Administration. His supporters in the House were not over-eager to take up the gauntlet, but as usual the wishes of the President prevailed. The management of the impeachment of Chase fell to John Randolph, who was as ill-fitted by temperament for the difficult task as a man could be. Instead of impeaching Chase for his indiscretion at