Albert J. Beveridge

“ The powerful Republican organ, the Aurora, of Philadelphia, thus indicted the National Judiciary: Because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors.... It is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the Constitution." ”

“ Many months after the decision in the Marbury case, Jefferson first broke his silence. "Nothing in the Constitution has given them [the Supreme Court] a right to decide for the Executive, more than to the Executive to decide for them," he wrote. "The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch." ”

“ So General James Wilkinson, as head of the Army of the United States, began a reign of lawless violence that has no parallel in American history. To such base uses can authority be put—with such peril to life and liberty is it invested—when unchecked by Constitutional limitation enforced by fearless and unprejudiced judges! Men were arrested and thrown into prison on Wilkinson's orders, wholly without warrant of law. ”

“ From that moment the popular mind was made up, and the popular voice demanded the life of Aaron Burr. No mere trial in court, no adherence to rules of evidence, no such insignificant fact as the American Constitution, must be permitted to stand between the people's aroused loyalty and the miscreant whom the Chief Executive of the Nation had pronounced guilty of treason. ”

“ Everybody was at last awake to the fact that Marshall had become the controlling spirit of the Supreme Court and of the whole National Judiciary.
Every one knew, too, that he was the most determined Nationalist in the entire country, and that Jefferson and the Republican Party had no more unyielding enemy than the Chief Justice. And he had shown by his management of the Supreme Court and by his opinion in Marbury vs. Madison, how powerful that tribunal could be made. The downfall of Samuel Chase was a matter of small importance compared with the removal of John Marshall. ”

“ When considering the events that took place in the National Capital as narrated in these volumes,—the debates in Congress, the proclamations of Presidents, the opinions of judges, the intrigues of politicians,—when witnessing the scenes in which Marshall and Jefferson and Randolph and Burr and Pinckney and Webster were actors, we must think of Washington as a dismal place, where few and unattractive houses were scattered along muddy openings in the forests. ”

“ If the Constitution is supreme, then an act of Congress violative of it is not law; if the Constitution is not supreme, then "written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable." Three times in a short space Marshall insists that, for Congress to ignore the limitations which the Constitution places upon it, is to deny the whole theory of government under written constitutions. ”

“ Neither human events nor Thomas Jefferson had waited upon the convenience of John Marshall. The Federalist Party was being reduced to a grumbling company of out-of-date gentlemen, leaders in a bygone day, together with a scattered following who, from force of party habit, plodded along after them, occasionally encouraged by some local circumstance or fleeting event in which they imagined an "issue" might be found. They had become anti-National, and, in their ardor for Great Britain, had all but ceased to be American. ”

“ Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd! So shocking to the soul! So revolting to reason! Let Aaron Burr then not shrink from the high destination which he has courted, and having already ruined Blennerhassett in fortune, character and happiness forever, let him not attempt to finish the tragedy by thrusting that ill-fated man between himself and punishment. ”

“ The sending of that dispatch was to give Wilkinson his opportunity to save himself by assuming the disguise of patriotism and of fealty to Jefferson, and, clad in these habiliments, to denounce his associates in the Mexican adventure as traitors to America. Soon, very soon, Wilkinson was to use Burr's letter in a fashion to bring his friend and many honest men to the very edge of execution—a fate from which only the fearlessness and penetrating mind of John Marshall was to save them. ”

“ When the laughter of the Senate had subsided, Martin, dropping his sarcasm, once more emphasized the vital necessity of the independence of the Judiciary. "We boast" that ours is a "government of laws. But how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution?" Only independent judges can do this. "Our property, our liberty, our lives, can only be protected and secured by such judges. ”

“ Just how should Marshall declare the Supreme Court to be the ultimate arbiter of conflicts between statutes and the Constitution? What occasion could he find to justify, and seemingly to require, the pronouncement as the judgment of the Supreme Court of that opinion now imperatively demanded, and which he had resolved at all hazards to deliver? ”

“ George Cabot was the ablest, most moderate and far-seeing of the New England Federalists. He feared and detested what he called "excessive democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. Cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like Madison, Gallatin, Hamilton, and Marshall. ”

“ Freedom of speech on the one hand and Nationalism on the other hand, the crushing of "sedition" as against that license which Localism permitted—such were the issues which the imprudence and hot-headedness of the Federalist judges had brought up for settlement. Thus, unhappily, democracy marched arm in arm with State Rights, while Nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism. ”

“ The name of an American Bacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed a death wound to the Constitution of the United States will rot above ground and be unsavoury to the nostrils of every lover of Republican freedom. ”

“ The most efficient of these checks was the power given the National Judiciary—"a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws—a check which might prevent any faction from intimidating or annihilating the tribunals themselves." [178]
Let the Republican Senators consider where their course would end, he warned. "What has been the ruin of every Republic? The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save them from themselves." ”

“ Madison, Marshall made the principle of judicial supremacy over legislation as much a part of our fundamental law as if the Constitution contained these specific words: the Supreme Court shall have the power to declare invalid any act of Congress which, in the opinion of the court, is unconstitutional. ”

“ Yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace, thus confounded in the toils that were deliberately spread for him and overwhelmed by the mastering spirit and genius of another—this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, [Pg 618] while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? ”

“ To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talents—merciful God what a Spectacle did I behold—Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant." [1160]
Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. ”

“ Hay's mind is "harder than Ajax's seven fold shield of bull's hide"; Edmund Randolph came into court "with mysterious looks of awe and terror ... as if he had something to communicate which was too horrible to be told"; Hay is always "on his heroics"; he "hopped up like a parched pea"; the object of Burr's counsel is "to prejudice the surrounding multitude against General Wilkinson"; one newspaper tale is "as impudent a falsehood as ever malignity had uttered"—such was the language with which the arguments were adorned. ”

“ Hopkinson dwelt upon the true function of the Judiciary under free institutions. "All governments require, in order to give them firmness, stability, and character, some permanent principle, some settled establishment. The want of this is the great deficiency in republican institutions." In the American Government an independent, permanent Judiciary supplied this vital need. Without it "nothing can be relied on; no faith can be given either at home or abroad." ”

“ Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 1780 [1235] by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn. ”

“ Take, for example, the crime of treason: the Constitution emphatically prescribes that nobody can be convicted of this offense "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The Judiciary particularly are addressed—"it prescribes, directly for them, a rule of evidence not to be departed from." Suppose that Congress should enact a law providing that a citizen might be convicted of treason upon the testimony of one witness or by a confession out of court? ”