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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.
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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 reëlection 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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