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A Constitutional History of the United States
Chapter XXI - The Election of 1800. The Repeal of the Judiciary Act of 1801
by McLaughlin, Andrew C.

The trouble with France, which had gone so far that battles had actually been fought on the sea, was in process of settlement by the capable diplomacy and common sense of the President. But as the excitement cooled, the Federalists appeared not to have won laurels. The war, it is true, had for a time given Adams popularity and appeared to revivify the Federalist party. Reaction was however inevitable, a reaction made more intense by the acts that sought to suppress discussion, by the taxation which was of course unpopular, and by the arrogance of the Federalist leaders. The party was ill-managed; its leaders found difficulty in working together in harmony; there were in fact too many leaders and too few privates in the array. Hamilton did not like or trust Adams and sought to prevent his reŽlection to the presidency. The popular tide had turned against the party whose leading members had done much to give the new government strength and stability. In the election of 1800 Adams was defeated; but to the consternation of many and to Jefferson's discomfort he and Aaron Burr received the same number of electoral votes.

As the Constitution then stood, each elector voted for two persons; the person having the highest number of votes, if such number was a majority of the whole, was to be president. If there should be more than one person with such a majority, and with an equal number of votes, then the House of Representatives, after the counting of the votes in the presence of both houses, should immediately choose one of them for president, but in such choice the votes should be taken by states, each state having one vote. The framers of the Constitution had supposed that the electors, appointed by the states, would act as free agents, each giving by his ballot his personal opinion as to the man best fitted for the presidency. The fathers foresaw neither parties, as we know parties, nor the formal processes of nomination and of intricate and effective party machinery. It was understood among the Republicans of 1800 that Jefferson was the candidate for the presidency, Burr the candidate for the vice-presidency. But the natural working of the party system resulted in every Republican elector's voting for both candidates; and the simplest mathematical product was the embarrassing tie.

When the result was seen, rumors began to fly. The House was made up of men elected during the excitement of the trouble with France. Would the Federalist members acting as automatons, without prejudice, quietly register what might be considered the desire of their opponents, choose Jefferson and leave the vice-presidency to Burr? To many Federalists, Jefferson was anathema; party spirit was acute, flaming, intolerant. The situation was disclosed by the first ballot taken in the House (February 11, 1801). There was no choice. The Federalists had on the whole decided to support Burr, the man whose elevation Hamilton said could "only promote the purposes of the desperate and profligate." From New England he received four votes; from the south he received the support of South Carolina and Delaware. Eight states voted for Jefferson, one less than a majority; one member from New Jersey who Jefferson at an earlier date had thought would "come over",[1] and the only member from Georgia (the other member having died) had made it possible to cast the vote of those two states for the man whom the Republicans considered their candidate. Vermont and Maryland were divided.

If this situation should continue, the election might be delayed indefinitely and the end of Adams's term would see the land without a chief magistrate. Various proposals were discussed; danger of an interregnum or conflict and chaos appeared imminent.[2] If there were no choice, could some officer, perhaps John Marshall, then Secretary of State, or some other person selected by the Federalist Congress, be authorized to assume the presidential office? The Republicans, to put the case mildly, were wroth; to any such measure they were not prepared to accede. Conditions are best presented in Jefferson's own words: "If they [the Federalists] could have been permitted", he wrote Monroe (February 15, 1801), "to pass a law for putting the government into the hands of an officer, they would certainly have

prevented an election. But we thought it best to declare openly and firmly, one & all, that the day such an act passed, the middle States would arm, & that no such usurpation, even for a single day, should be submitted to. This first shook them; and they were completely alarmed at the resource for which we declared, to wit, a convention to re-organize the government, & to amend it. The very word convention gives them the horrors, as in the present democratical spirit of America, they fear they should lose some of the favorite morsels of the constitution." [3]

Conditions were, however, not hopeless or so fraught with danger of civil tumult as the Jeffersonians feared. Hamilton was known to be unfavorable to Burr, and his influence still had some weight. Common sense, and probably a fear of serious consequences, began to take the place of besotted partisanship. So, after a week of anxiety, an end was reached (February 17, 1801). The Maryland Federalists put in blanks and the rest of the delegation voted for Jefferson. The same result was brought about in the Vermont delegation by the withdrawal of one of the members. Bayard, the only representative from Delaware, cast a blank ballot, and the South Carolina delegation did the same. Jefferson was thus chosen by a vote of ten states to four, the minority votes coming from the four old New England states.

Unquestionably the Federalists were justified constitutionally in voting for Burr. Technically their conduct was irreproachable. No one, however, can defend them, if they seriously thought of preventing an election by delay; and it is quite possible to impugn their judgment in preferring Burr to Jefferson. The significance of the situation lies in the fact that the Federalists acted as they did for party ends; that party candidates, distinctly so considered, had been presented; and that a question could actually arise whether or not individual members of the House could use their own judgment or must consider themselves bound in some vague way to recognize the intention of the electors, the intention also of those who had chosen the electors, and of those who had selected the candidates. Obviously the party system had wrought a change. If electors chosen to support candidates would vote for the party nominees, a tie was not only possible but inevitable; at every election, unless party machinery were so developed that word would go out from some central party organ to the electors, directing one of them not to cast his vote for the vice-presidential candidate, a tie would occur. Even then complications might arise. The one most obvious fact is that there were candidates; and each elector of a party would vote for both.

The method of choosing the president, which had been the subject of so much discussion in the Constitutional Convention, had broken down in one particular. Some modification which would adjust the Constitution to facts was necessary. The subject had been brought to attention four years before this, when Adams and Jefferson were chosen, though they were of differing political faiths. Proposals for amendment had been made in Congress at various times, but nothing had been done. Even after the election of 1800-1801 there was delay, caused in part by party dispute; but in December, 1803, the twelfth amendment providing for separate electoral ballots for president and vice-president was adopted by Congress and sent to the states for ratification. It was proclaimed in force September 25, 1804. Three states rejected it: Massachusetts, Connecticut, and Delaware. The New Hampshire legislature ratified it but the Governor vetoed the ratification.[4] The veto, however, probably did not invalidate the ratification, for the Constitution plainly gives the authority to the legislatures of the states.[5] The opposition of the Federalists to the amendment is an interesting example of sectional suspicion and petty partisanship.[6]

The defeat of the Federalists may be attributed to quite obvious causes; in part at least, it may be accounted for by impulsive reaction, one of those changes in public sentiment, sometimes quite unexpected, which have often come in our political history. But there were doubtless more serious and more meaningful reasons. The Federalist party had been a great party; its leaders were able men; under them the Constitution had been translated into an actual working system; but the party had its weakness in a country where the common voter had power. This power he was beginning to appreciate. The Federalist leaders were deficient because of a native inability to appeal, by and large, to the masses of the people. If they were wise statesmen, they were not very competent politicians. Their fundamental philosophy was benevolent leadership, accompanied by a distrust of those whom they would command. The capacity of their opponents, the Jeffersonians, to reach out to the people and, in the next few years after 1800, to form a party organization of a comprehensive character, was one which the Federalists did not possess, partly no doubt because of the very nature of their party and its social philosophy. Something new was coming into being, a well-articulated institution, the national party with its tentacles reaching out to the remotest hamlet, nationalistic in its character and influence. There was a new and growing loyalty, a sense of devotion to the party. The developing power of the Republicans came partly from the fact that their principles were in accord with the sentiments of the people, and partly from skill in the establishment and the management of party machinery.[7] There is something amusing, no doubt, in the sight of this party advocating local self-government and the right of the individual to fight his own way to comfort and happiness, and, nevertheless, creating an elaborate and powerful national organization; for nationalism and local rights are by nature hardly companionable bedfellows; and organization is hourly in opposition to actual individualism. But such are the processes of history; human affairs do not go forward in obedience to logic.

Jefferson in later years spoke of the election as the "revolution of 1800". But to what extent and in what respects there was a revolution is not evident on the surface. Events soon showed that when necessity arose the government was not conducted with loving adherence to the doctrine of strict construction, nor did it always show anxiety lest the rights of the states be encroached upon. It is difficult to find any material change in the character or activities of the government. But if we consider imponderable elements, the passing of the Federalist regime is of decided significance. Jefferson's idealistic political philosophy, his belief in the essentials of individualistic democracy, his confidence in the power and character of the common man, were, in essence, diametrically opposed to the political thinking and social attitude of the Federalists. Democracy was to make tremendous strides forward in the early decades of the new century; Jeffersonism was in many respects in keeping with the developing social forces of the time.

If the history of America is the history of a people entering upon the great adventure of popular government and marching forward with a considerable degree of achievement, nothing can be much more important than the accession to the presidency of a man who had faith and foresight. Jefferson's inaugural address was a great state paper, and can be read to-day as an incomparable presentation of the spirit and the essential meaning of democracy, especially democracy resting upon confidence in man's individual right to seek his own salvation. We must remember that America had to do more, or was to do more, than found a government, provide laws, establish order, and maintain national dignity. The land was to be the home of a confident, buoyant, and powerful people whose destiny was in their own hands. We cannot lose sight of the fact that for many decades, perhaps even to the present time, America meant to Europe a land in which people were seeking to build up a new political and social system, free from the stratifications of the old world; it was in the eyes of the European man, be he of high or low degree, a land whose success in democracy, if success be won, threatened and more than threatened the stability of privilege, superimposed authority, and all those suppositions concerning the superiority of upper class domination which the old world had inherited from a feudal past. In the opening months of the nineteenth century there came to the presidential chair a man who was permeated with confidence in the brightness of an alluring future.

In December, 1800, nearly three months before the end of Adams's administration, a bill was introduced in Congress, still in the hands of the Federalists, proposing extensive changes in the Judiciary Act of 1789. There were some good reasons for these changes; in fact, the year before, President Adams had recommended revision and amendment of the act, and a committee of the House had reported a bill. Under the existing system, the justices of the Supreme Court were obliged to hold circuit courts; and in those days traveling was neither comfortable nor expeditious; the duty involved actual hardship. '"... the First Magistrate," said Gouverneur Morris, "in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy." Under the prevailing system, too, a justice sitting in the Supreme Court might be called upon, unless he voluntarily refrained, to take part in the decision of a controversy on which he had already delivered an opinion when holding circuit court. Something also may be said for the need of increasing the number of districts and thereby making the federal courts more easily accessible — a consideration, however, which did not pleasantly affect the average Republican congressman.

The bill, which was enacted less than three weeks before Adams's retirement and the end of the Federalist regime, provided that from and after the next vacancy, the number of justices of the Supreme Court should be five, instead of six, and it relieved the justices of their duties as postboys. It increased the number of district courts and provided for circuit judges, sixteen in number, with corresponding marshals and attorneys. Here was a golden opportunity for the office-seeker and for the extension of party influence. The indignation of the Republicans might have been tempered, had they been given the chance of filling the new offices with their own party adherents. But no such opportunity was granted them. With an eye for detail, Adams patiently proceeded to appoint to the new positions none but members of his own party before he hurried away in his carriage, not lingering until the new President had taken the oath and delivered his inaugural address.[8] John Marshall, who had been appointed Chief Justice some time before, was left to bear the brunt of Republican suspicion and opprobrium.

The new Judiciary Act, however admirable it may appear, was passed at a most inopportune time. The Republicans were nursing their dislike of the judiciary, a dislike begotten by the harshness and arrogance of certain judges, notably Chase, in the sedition trials, and by the tendency to recognize the common law as a part of the national body of law. They could not quietly accept the new act; they were irritated at the sight of a party, beaten in the election and deprived of control in the political branches of the government, now taking refuge in the judiciary where they would be free from popular pressure and might be able to perpetuate their obnoxious and unpopular doctrines. So bitter was the feeling, so extreme the partisanship, that the freedom and the independence of the judiciary were endangered. "We have been asked," said Senator Jackson of Georgia, in a debate on the repeal of the act establishing the new courts, "if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers.... Have we not seen sedition laws? Have we not heard judges crying out through the land, sedition!" [9]

Jefferson was not willing to acquiesce in this extension of the judicial system. He had by no means recovered from his hostility to the Alien and Sedition Acts. He distrusted the judiciary in the hands of the Federalists. His message to Congress (December, 1801) contained this passage: "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, and, that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States and now lay before Congress an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid." This was plainly a gentle hint of the needlessness of more courts and more judges. Senator Breckenridge[10] of Kentucky offered a motion to repeal the new Judiciary Act. For two months the subject was before Congress. The debate is of importance, not as a mere exhibition of party strife, though that was conspicuous, but because certain fundamental constitutional problems were discussed with earnestness and ability.

The arguments of those who advocated repeal and defended the right of Congress to take such action amounted to this: legislation for the removal of a judge from office would be illegal, but there was a plain distinction between a removal from office and the abolition of the office itself; there were in the Constitution certain limitations of congressional competence in dealing with the judiciary, but there were only three: there must be one and only one Supreme Court, the judges should not be removed from office during good behavior, and their compensation while in office should not be diminished. The advocates of repeal, when they discussed constitutional authority at all, also laid special emphasis upon the right of Congress to establish inferior courts; such courts, they claimed, being created by Congress could be abolished at the discretion of the body which created them. This argument can scarcely be considered totally unreasonable and only the offspring of party passion and prejudice. Concerning the general validity of this reasoning, no dogmatic assertion is desirable. The opponents of repeal stoutly maintained the constitutional impropriety of destroying the office, and thus by indirection removing the newly-appointed judges. But the Federalists may be charged with their full share of partisanship and with the sin of disregarding the spirit of the Constitution; for to use judicial positions for purely partisan purposes or for some ulterior reason is an offense against the spirit. The Constitution plainly does not contemplate making the judiciary the plaything of party politics.[11]

In the course of the debate, the right of a court to declare a congressional act void was discussed. This matter was brought into the debate chiefly, not from the expressed announcement by the Federalists that the Supreme Court would declare the repeal of the Judiciary Act void, but as evidence of the independence of the judiciary, an independence which would be destroyed if the inferior judges should be considered as only the creatures of Congress, and if, to promote the will of a majority of Congress, judicial positions could be abolished. "On examination," said Senator Mason of Massachusetts, "it will be found that the people, in forming their Constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the Constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the Constitution." [12]

In the Senate, Breckenridge clearly and cogently gave the basis for repudiating this doctrine: "My idea of the subject ... is, that the Constitution intended a separation of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it.... That those who made the laws are presumed to have an equal attachment to, and interest in the Constitution; are equally bound by oath to support it, and have an equal right to give a construction to it. That the construction of one department of the powers vested in it, is of higher authority than the construction of any other department; and that, in fact, it is competent to that department to which powers are confided exclusively to decide upon the proper exercise of those powers: that therefore the Legislature have the exclusive right to interpret the Constitution, in what regards the law-making power, and the judges are bound to execute the laws they make."[13]

When Breckenridge closed, Gouverneur Morris rose and congratulated the Senate and America "that we have at length got our adversaries upon the ground where we can fairly meet [them]...." "... the honorable member last up has told us in so many words, that the Legislature may decide exclusively on the Constitution, and that the judges are bound to execute the laws which the Legislature enact.... If this doctrine be sustained ... what possible mode is there to avoid the conclusion that the moment the Legislature of the Union declare themselves supreme, they become so? ... The sovereignty of America will no longer reside in the people, but in the Congress, and the Constitution is whatever they choose to make it." [14] In the House, John Randolph, with characteristic vehemence, announced principles similar to those of Breckenridge: "Here", he exclaimed, "is a new power.... But, sir, are we not as deeply interested in the true exposition of the Constitution as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are?" [15]

In these discussions, it should be noticed, those denying the power of a court to pronounce an act void did not suggest that the Constitution was not binding on both Congress and the courts. Their strongest pronouncement was in defense of the right of the legislators, in wielding powers confided to them by the Constitution, to judge, without judicial interference or check, of the extent of those powers. The winter passed before the final vote was taken; the debating was earnest and intelligent. In early March (1802) the act of repeal was passed and signed by the President. It provided that acts in force before the enactment of the Judiciary Act of 1801 were revived and in full operation.

Near the end of April an amendatory act was passed which made sundry alterations in the existing system; it provided that there should be but one term of the Supreme Court each year, which should begin on the first Monday in February. No session of the Court could be held, therefore, until some nine months had passed. If John Marshall and his colleagues should contemplate finding the repeal of the Judiciary Act of 1801 void, they would have to wait for a time, and meanwhile the public excitement would be abated. That this was the purpose of the Republicans in passing the act is by no means certain, though it is often asserted; but the act contained many other provisions, and there was comparatively little attention paid in the debates to the postponement of the Court's session. At all events, delay made a declaration of the unconstitutionality of the repeal difficult, perhaps impossible;[16] it also postponed the decision of a case to be discussed on later pages — the famous case of Marbury v. Madison.

[1] Letter from Jefferson to Madison, December 19, 1800, in Jefferson, Works (federal ed.), IX, p. 158.

[2] That the crisis was trying is indicated by the following item from The National Intelligencer (February 16, 1801), as the situation disclosed itself: "All the accounts received from individuals at a distance, as well as the feelings of citizens on the spot, concur in establishing the conviction that the present is among the most solemn eras which have existed in the annals of our country."

[3] Jefferson, Works (federal ed.), IX, p. 179. See also, James Monroe, Writings (S. M. Hamilton, ed.), III, pp. 256-257.

[4] H. V. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History (Am. Hist. Asso. Report for 1896, II), p. 79, note 7.

[5] On this matter there is no authoritative decision; but probably, on the whole, both reason and practice indicate that the governor's consent is not necessary. "It is believed that the framers of the Constitution did not anticipate that the chief executives of the States would participate with the legislative bodies in the approval or disapproval of amendments submitted, for at the time the Constitution was framed but one of the States conferred upon the governor the veto power." Ibid., p. 297. The reason above given is only one of the reasons for thinking the governor does not participate. The same principle appears to obtain with reference to the president, whose signature to a proposed amendment is unnecessary. Ibid., pp. 295-296. See Hollingsworth v. Virginia, 3 Dallas 378, 381, note 1 (1798). In that case Justice Chase appears to have said, "The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution." In this connection it is interesting to notice that the opponents of the twelfth amendment in the federal House declared the resolution not constitutionally passed in the Senate because not two-thirds of the senators but only two-thirds of those present voted for it. Ames, The Proposed Amendments, loc. cit., p. 79. In the National Prohibition Cases, 253 U. S. 350 (1920), the Court held that the required two-thirds vote is two-thirds of the members present. For an excellent survey of the amending process, see H. V. Ames, "The Amending Provision of the Federal Constitution in Practice," Am. Philosophical Society Proceedings, LXIII, pp. 62-75.

[6] After the twelfth amendment to the federal Constitution no other was passed and accepted by the states until the thirteenth, the immediate product of the Civil War. Two amendments proposed by Congress were not accepted — one proposed in 1810 and one in 1861, the latter being intended to protect slavery in the states.

[7] The skill with which the Republicans so organized their forces as to give the appearance of carrying out popular behests, and at least to gather popular backing, is to be distinguished from the Federalist system, which appeared to consist in talking down to the plain people and pointing the way they should go. The more elaborate organizing was done early in the nineteenth century. Of great interest in this connection is G. D. Luetscher, Early Political Machinery in the United States.

[8] Channing says that Adams's yielding to the pressure for office in the last two months of his administration was "most unfortunate, but it should be attributed to the goodness of his heart rather than to any selfish desire to defraud Jefferson of any of his rights." See Edward Channing, A History of the United States, IV, p. 241. If Adams's heart was on the right side, it was the Federalist side! Channing also says that the recent death of his son was the reason for Adams's "seemingly discourteous departure" before Jefferson's inauguration. Ibid., IV, p. 243, note 2.

[9] Annals of Congress, 7 Cong., 1 sess., col. 47.

[10] There is some variation in the spelling of this name. The form used here is that which appears in the Annals of Congress.

[11] One has to confess that there may be at times sound reason for filling judicial positions with men who have certain theories of the Constitution. Like so many other questions, this is not purely an abstract constitutional matter. In recent days we have seen senators opposing the appointment to judicial positions of men who have particular attitudes toward matters of pressing interest; we have seen men, like Lincoln in 1858, declaring that a certain tendency in the Supreme Court must be checked or counteracted. In all such matters, the degree of impropriety needs to be taken into consideration. If we say that all such plans and purposes are unconstitutional, if we contend that only a man's personal honor and legal learning need be considered, we are demanding as constitutional standards what conditions of practical statesmanship will probably make untenable. At all events, we are faced with a problem of ethics rather than one of constitutional power. And as long as men continue to be political beings and as long as judges are thought of as human, presidents and senators will be likely to consider more than mere intellectual acumen in appointees for the bench.

[12] Annals of Congress, 7 Cong., 1 sess., col. 32. "To my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our State courts and State Legislatures, and Federal courts, and Federal Legislature, that the judges of the United States, sitting in court, have the power, and by oath are bound to pronounce, that an act contrary to the Constitution, is void.... The concentrating the branches of power either Executive and Legislative, or Legislative and Judiciary, in the same hands, is the very essence of tyranny...." John Stanley in the House. Ibid., col. 576.

[13] Ibid., col. 179. How this principle could be accepted, if the question was whether or not a president was to be the sole judge of his own authority and quite free from judicial restraint, it is not easy to see.

[14] Ibid., cols. 180-181.

[15] Ibid., col. 661.

[16] "The chief alterations made from the old system consist in the holding the Supreme Court only once a year by four justices, and the establishment of six circuits, within each district of which circuit courts are to be holden twice a year, composed of one justice of the Supreme Court and the judge of the district, in which said court is held." Annals of Congress, 7 Cong., 1 sess., col. 1160. It is often said that the act in question postponed a session for fourteen months: "... the Supreme Court ... was practically abolished for fourteen months." A. J. Beveridge, The Life of John Marshall, III, p. 97. As a matter of fact, after the passage of the act of April, 1802, about nine months passed without a session of the Court. It is true that about fourteen months passed between the meeting of the Court, which had been held in December, 1801, and the meeting in February provided for by the act of April, 1802. That the act was passed by the Republicans with the intention of preventing a decision by the Court on the validity of the repeal of the Judiciary Act of 1801, may be true, as has been suggested; that motive was touched on in the debates in the House by Bayard and was denied by Nicholson. The chief attack of the Federalists was against the impropriety of providing only one session per year.


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