Page:The Supreme Court in United States History vol 1.djvu/262

284 defeat of the motion and Marbury was thus obliged to secure his evidence in some other fashion. An editorial in the National Intelligencer of February 2, 1803, gives a lively picture of the Jeffersonian point of view : ^

When Mr. Jefferson entered upon the duties of the Presi- dency, he found himself under the necessity, during the recess of the Senate, of making new appointments, or of being instrumental in the giving effect to an exercise of power by his predecessor, which, if it did not violate the letter, certainly did violate the spirit and the end of the Constitution. Between these alternatives, he could make no other choice than the adoption of the former course. For the sake of harmony, he appointed the greater part of the gentlemen nominated by Mr. Adams, notwithstanding their federal politics. Those whom he neglected to appoint, fired with party vengeance, immediately made application to the Supreme Court (that paramount tribunal!) to issue a mandamus to the Secretary of State to deUver to them their commissions. The Supreme Court ought to have refused any instrumentaUty into this meditated, and, we may add, party invasion of Executive functions. But they so far sustained it as to allow a rule to show cause why a mandamus should not issue. Contemplating a decision on this point, the aforesaid individuals some days since addressed a memorial to the Senate of the United States, requesting permission to obtain ... a transcript of the proceedings on their nomination by Mr. Adams. This memorial was why Uiese justices of the peace, whose terms of office were only for five years, were so insisteiit in pressing their case. A letter from Francis Peyton of Alexandria, in Breckenridge Papers M8S, April 4, 1802, possibly gives the explanation; he complains strongly of the statute which made these Justices members of the Levy Courts of the Counties, and entitled to such Court fees "by which they may meet as often as they think proper and may demand from the county two dollars for each day they attend ; they are compelled to sit twenty days and hear and determine appeals from the returns of the assessors."

^ See savage attack on this artide in WashingUm Federalist, Vfh, 4, 1803. This paper was extremely virulent in its politics ; and it was stated by the National Intelligeneer, Jan. 2, 1804, to be edited by Ellas B. CaldweU, the Clerk of the Supreme Court of the United States. The Aurora, May 16, 1803, also charged that it was under the patronage of Chief Justice Marshall. To this, the Washington Federalist replied. May 25, 1803, that it would be gratified if it were under the patronage "of that great, amiable and worthy man" but "we enjoy from him no other patronage than that afforded us by every punctual subscribe."