Although most Federalists were not bent on abolishing the states and all state sovereignty, they were eager to ensure that the national government had sufficient authority to govern. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts offered a broad “constructive” interpretation of treason in the Constitution by contending that mere armed opposition to a statute was equivalent to the levying of war against the United States. If the object of the insurrection was “to suppress the excise offices and to prevent the execution of an act of Congress, by force and intimidation,” declared Justice Paterson in the trial of the Whiskey rebels,“the offence in legal estimation is high treason; it is an usurpation of the authority of government; it is high treason by levying of war.” It did not matter to Paterson that the prosecution had failed to produce two witnesses to the defendant’s overt acts. The Federalists meant to put down disorder. The same thinking governed the trial of the Fries rebels of 1799 . Although John Fries and a mob did rescue eighteen men from a federal marshal and his deputies, no shots were fired, and the prisoners later made their way unescorted to Philadelphia, where they gave themselves up to the law. Nevertheless, Fries was charged and twice convicted of treason for levying war against the United States. Defining riot and rescue as treason was a stretch—a “novel experiment,” said the defense attorneys—but in the atmosphere of 1799 the Federalists were frightened.43
Equally important in strengthening the authority of the federal government were the Federalists’ efforts to create a bankruptcy law for the nation. The main purpose behind the uniform national bankruptcy law of 1799 was the Federalist desire, as Congressman James Bayard of Delaware put it, to “unite and naturalize the United States, and . . . cement together the different parts of the Union, and connect more closely the nation with the Federal Government.”44
Perhaps most important of the Federalists’ attempts to bolster national authority in the 1790s was their claim that the federal courts had jurisdiction over common law crimes. The Federalists contended that the federal courts could use something called an American common law—a body of precedents and practices drawn from the unwritten English common law and adapted to American conditions—to punish crimes against the United States and its government even in the absence of specific federal criminal statutes.
Chief Justice John Jay’s first charge to a grand jury in the spring of 1790 staked out a large area of national common law jurisdiction. He told the jurors that their duty extended “to the enquiry and presentment of all offences of every kind, committed against the United States,” by which he seems to have meant virtually any example of wrongdoing against the nation or its government whether proscribed by a federal criminal statute or not.45 In 1793 Justice James Wilson in a grand jury charge went even further in expanding the federal courts’ jurisdiction by claiming that the law of nations was part of what he called the “common law” of the United States.
In the 1790s most Federalist judges scarcely doubted the existence of a federal common law of crimes adapted to American circumstance. In fact, they assumed that no national government could rightly call itself a real government if it lacked the legal means of protecting itself by judicial proceedings alone. As Chief Justice Ellsworth declared in 1799, acts that were “clearly destructive of a government or its powers, which the people have ordained to exist, must be criminal.” It was not necessary to particularize these criminal acts by legislative statute, said Ellsworth,“because they are readily perceived, and are ascertained by known and established rules; I mean the maxims and principles of the common law of our land.”46
Probably no Federalist conception in the 1790s seemed to the Republicans more threatening in its implications than this notion that the common law of crimes ran in the federal courts. The common law, as the Republicans pointed out,“was a complete system for the management of all the affairs of a country. It . . . went to all things for which laws are necessary.” Common law jurisdiction relating to crimes, said Madison,“would confer on the judicial department a discretion little short of legislative power.” If the federal courts could use the “vast and multifarious” body of the common law to control American behavior, then, concluded Madison in his famous report of January 1800 to the Virginia assembly, the courts alone might “new model the whole political fabric of the country.”47
Although the federal judges denied that they were newly modeling the whole political fabric of the country, they did attempt to use the common law to expand national authority in a variety of ways. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts used the federal common law to justify the federal government’s trying and punishing the rebels’ violations of state law and state practices.“Although, in ordinary cases, it would be well to accommodate our practice with that of the state,” declared District Judge Richard Peters in the trial of the Whiskey rebels,“yet the judiciary of the United States should not be fettered and controlled in its operations, by a strict adherence to state regulations and practice.”48
When some of the Federalists began claiming that the federal courts could use the criminal common law to punish seditious libel even without a sedition act, the Republicans became truly alarmed. The claim that the federal judiciary could use the common law to punish crimes, Jefferson declared in 1799, was the “most formidable” doctrine that the Federalists had ever set forth. He told Edmund Randolph that all that the Federalist monocrats and aristocrats had done to tyrannize over the people—creating the Bank, Jay’s Treaty, even the Sedition Act of 1798—were “solitary, inconsequential timid things in comparison with the audacious, barefaced and sweeping pretension to a system of law for the US without the adoption of their legislature, and so infinitely beyond their power to adopt.”49 If the Federalists were ever able to establish this doctrine, Jefferson believed that the state courts would be put out of business. As far as he was concerned, there could be no law that existed apart from the popular will of the nation. And since that will had never established the common law for the United States, and indeed had no right to do so anyway for such a limited government, the federal government contained no such common law.50
WITH GOOD REASON, the Jeffersonian Republicans had become convinced by 1800 that the national judiciary had become little more than an agent for the promotion of the Federalist cause. Some Federalists in 1798–1799 had thought that the army might be used to put down the states, but shrewder Federalists knew better.“It is impossible, in this country, to render an army an engine of government,” Secretary of the Treasury Oliver Wolcott Jr. told Fisher Ames in December 1799; “there is no way to combat the state opposition but by an efficient and extended organization of judges, magistrates, and other civil offices.”51
Nothing seemed to give pause to the Federalist plans to control the judiciary—not even the election of Republicans to the presidency and the Congress in 1800; indeed, the election results only made the Federalists more desperate to hold on to the courts. If a free government could not tolerate a standing army to hold itself together, then, said the Federalists, the only thing left was “a firm, independent, and extensive Judiciary.”52
Although the Federalists had lost the election in the late fall of 1800, the new Republican administration did not take office until March 1801, and the new Congress would not be seated until December 1801 (not changed until the Twentieth Amendment adopted in 1933 eliminated the December to March lame-duck session of Congress). In February 1801, less than three weeks before its expiration, the lame-duck Federalist-controlled Congress passed a new judiciary act, which was designed to further consolidate national judicial authority. The act eliminated circuit court duty for the justices of the Supreme Court by creating six new circuit courts with sixteen new judges. It broadened the original jurisdiction of the circuit courts, especially in cases involving land titles, and provided for the easier removal of litigation from state to federal courts. It also recognized that the common law of crimes ran in
the federal courts. On the assumption that the work of the Supreme Court would be lessened, the Federalist Congress reduced the Court’s membership from six to five justices with the next vacancy. This meant that Jefferson would be prevented from naming a Supreme Court justice until two vacancies occurred.53
To add insult to injury, John Adams, before surrendering the presidency to Jefferson, appointed a number of Federalist judges to this newly enlarged federal judiciary, including incumbent Secretary of State John Marshall as chief justice of the United States. The act also provided for numerous offices of clerks, marshals, attorneys, and justices of the peace to which deserving Federalists were quickly appointed. Because Adams signed the commissions of many of these appointments on the eve of Jefferson’s inauguration, the new Federalist appointees were labeled “midnight judges.”54
Although the Federalists had been considering reform of the judiciary for some while, this last-minute action seemed desperate and designed to perpetuate their cause in spite of the popular will. Some Federalists admitted as much. Since the Federalists with the Republicans’ victory “are about to experience a heavy gale of adverse wind,” Gouverneur Morris explained,“can they be blamed for casting many anchors to hold their ship through the storm?”55
WHEN THE REPUBLICANS TOOK OVER the elective branches of the national government in 1801, it was inevitable that they would turn their attention to the judiciary. Jefferson believed that the Federalists had “retired into the judiciary as a stronghold . . ., and from that battery all the works of republicanism are to be beaten down and erased.”56 To complete the Republican “revolution,” therefore, as Virginia congressman William Branch Giles told Jefferson,“the enemy” had to be routed from “that strong fortress.”57
To the most extreme Republicans like Giles it was outrageous and anti-republican that the federal judges remained free of popular control under some sort of “misapplied idea of ‘independence.’” These zealous Democratic-Republicans would be satisfied with nothing less than “an absolute repeal of the whole Judiciary and terminating the present officers and creating a new system.”58 But Jefferson was more cautious. Realizing that there were many Republicans who valued an independent judiciary and even some who liked the features of the new Federalist Judiciary Act of 1801, he moved slowly at first. He knew that removing the Federalist judges would pose problems. Since their lifetime appointments were in “the nature of freeholds,” it was “difficult,” he said,“to undo what is done.” But at least he could appoint Republicans as other important officers of the courts who served at the pleasure of the president—the U.S. district attorneys who prosecuted the government cases and the marshals who selected the juries and executed the courts’ sentences. These officers would become “the only shield” protecting the people from the Federalist judges.59
Despite his sense of the difficulties involved, however, Jefferson had no doubt that the Federalist Judiciary Act of 1801 was a “parasitical plant engrafted at the last session on the judiciary body,” a plant that had to be lopped off.60 After a long and bitter debate in the Congress, the Republicans in 1802 repealed the Federalist law, thus at a stroke destroying the newly created circuit courts and for the first and only time in United States history revoking the tenure of federal judges as well. Of course, the Republicans said that they were not legislatively removing the judges, which would be a violation of their tenure during good behavior and thus unconstitutional, but they were simply abolishing the courts. Federalist Justice Samuel Chase was not amused.“The distinction of taking the Office from the Judge, and not the Judge from the Office,” was, said Chase,“puerile and nonsensical.”61
The Republicans then went on to amend the judicial system. Instead of three circuit courts there were now to be six, within each of which a justice of the Supreme Court was to serve on circuit twice a year with the various district judges. Instead of meeting two times a year for two weeks, the Supreme Court would meet only once a year for a term of four weeks. Since the Supreme Court had last met in December 1801, it could not legally reconvene until February 1803—a fourteen-month suspension that some Federalists believed might set a precedent for an even longer suspension, even virtual abolition, of the Court.62 But Jefferson did not want to destroy the Court, only republicanize it. The repeal and the new Judiciary Act of 1802, the president declared, were designed to “restore our judiciary to what it was while justice& not Federalism was its object.”63
Many were upset by these changes, which were designed to meet the most serious objections to the 1789 system. Even some moderate Republicans regretted the repeal of the 1801 Judiciary Act and the abolition of the new tier of federal circuit courts. Those involved in commerce especially had come to appreciate the integrity and efficiency of the federal courts in contrast to the state courts, where legally uneducated judges without secure tenure were not to be trusted to make even-handed judgments.64
Federalists saw the repeal as a threat to the Union itself. In May 1803 in a charge to a federal grand jury in Baltimore, Justice Samuel Chase assailed the Republicans for shaking the independence of the national judiciary to its foundations and threatening the security of all liberty and property. Many Federalists called for the Supreme Court to declare Congress’s repeal of the Judiciary Act of 1801 null and void because it had rescinded the tenure of the new circuit judges and deprived them of their salaries in violation of Article III, Section 1 of the Constitution. Others wanted the judges to ignore the act and go on strike. Still others were more pessimistic and predicted that armed resistance would be the only answer to the Republican assault on the judiciary.
For their part many of the Republicans were not satisfied with the mere repeal of the Judiciary Act of 1801 and the elimination of the new courts. Some, including President Jefferson, wanted the Constitution amended so that the president could remove any judge following a joint address of the majority of the Congress. But when this seemed too complicated, the Republicans fixed on impeachment for “high crimes and misdemeanors” as the best available constitutional device for getting rid of obnoxious Federalist judges. Although Jefferson complained that impeachment was “a bungling way” of dealing with the problem, he was reluctantly willing to give it a try.65
In 1804 the Republicans in the House of Representatives first impeached and the Senate convicted John Pickering, an alcoholic and probably insane judge of the federal district court of New Hampshire. Although Pickering had been violently partisan, he had committed no offense clearly recognized by the Constitution. As Senator William Plumer of New Hampshire pointed out, the Republicans were considering the “process of impeachment . . . in effect as a mode of removal, and not as a charge and conviction of high crimes and misdemeanors.” Congressman John Randolph of Virginia, the Republican leader in the House, was reported to have said that the provision in the Constitution that judges shall hold their offices during good behavior was intended to guard them against the executive alone. It did not apply to the Congress, which should be able to remove them by majority vote.66
On the very day in March 1804 that the Senate found Pickering guilty, the House passed a resolution for the impeachment of Justice Samuel Chase, the most overbearing Federalist on the Supreme Court. Although Jefferson had urged privately that some action be taken against Justice Chase for his grand jury charge in Baltimore in 1803, it was Randolph who assumed full control of the impeachment of Chase.
Early in the new Republican-dominated Congress, Randolph emerged as chairman of the Ways and Means Committee and majority leader. Although he had his successes, a more unlikely leader can hardly be imagined. To be sure, he had some important credentials: he was a member of the most distinguished family in Virginia, a cousin of Thomas Jefferson, a close friend of the Speaker of the House, North Carolina congressman Nathaniel Macon, and a religiously devout Republican. But he was arrogant and belligerent, and not temperamentally suited for the compromising and deal-making required of a majority leader. He appeared in the House booted a
nd spurred with a whip in hand, imitating what he assumed was the behavior of members of the British Parliament. He was pale, thin, and beardless with burning hazel eyes and a high piercing voice that he used with great effectiveness. He was a fascinating orator—an extemporaneous speaker, jumpy and excitable as a young filly, and quick to put men down with wit and sarcasm. His opponents in the House fumed and eventually wilted when he pointed his long bony finger at them and verbally abused them. Randolph saw corruption everywhere and was devoted to the Republican ideals of‘98—”jealousy of the State Governments toward the General Government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizen; jealousy, Argus-eyed jealousy of the patronage of the President.” He had little or no conception of the American nation:“when I speak of my country,” he said,“I mean the Commonwealth of Virginia.” When he took over the leadership of the Republicans’ impeachment of Justice Chase in 1804 he had just turned thirty.67
Randolph was no more equipped to handle the impeachment of Chase than he was to be majority leader. He had no legal experience, and his emotional and sarcastic style of speaking was inappropriate for the august trial held in the Senate in February 1805 . The Senate was draped in crimson and green and, according to one senator,“fitted up in a style beyond anything which has ever appeared in this country.” Most of official Washington was present, along with a thousand or more spectators.68
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