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                    The Politics and Law of 1801-02, Second Essay

                                                          The Plot Thickens 

As I have shown, Jefferson was enraged at the Federalist attempt to "retreat into the Judiciary" after it had been trounced at the polls in Fall 1800. Actually, though the House was firmly in Republican hands (about 67-38) after March 4, 1801, the Senate remained in Federalist hands until some crucial Republican appointments as the year 1801 progressed (i.e., two Federalist Senators had been appointed to the US District Courts by Adams; they were replaced by Republicans in the Senate).* But by the time that Congress met in December 1801, both House and Senate were firmly (the Senate was now 17-15 Republican) in Republican hands. It was a triple-play for the Republicans

[*A poignant footnote to all the political wrangling in 1801 is provided by R. Ackerman in a very fine section in The Failure of the Founding Fathers (2005), pp. 137-140. He mentions that Rhode Island Senator Ray Greene resigned from the Senate in order to be appointed by President Adams to the federal District Court judgeship in RI. This would give Greene a guaranteed lifetime salary of $1,500 per year. But his commission had to be signed by the President, with the Great Seal of the United States affixed by Secretary of State (and recently confirmed Chief Justice of the US Supreme Court) John Marshall, and then delivered to him by a clerk. All this duly happened. But later, after Jefferson became President, Greene decided to look at his commission and realized that it said he was appointed to the Circuit Court rather than District Court. Seeking to correct this oversight, he went to Jefferson's Secretary of State, James Madison, to correct this "clerical" error. Madison refused (as he refused to forward William Marbury's commission). Greene was out of luck. He left the Senate, and now he had no official judicial appointment at all. Ah, the vagaries of life. . .] 

                                 The Debate over Repealing the Judiciary Act of 1801 

One of the first items on the agenda of the Seventh Congress was to repeal the hated (from the perspective of the Republicans) Judiciary Act of 1801. But the text of the US Constitution should have invited caution. It provides, in Article III, Section 1: 

     "The judicial Power of the United States, shall be vested in one supreme Court, and in        such inferior Courts as the Congress may from time to time ordain and establish. The          Judges, both of the supreme and inferior Courts, shall hold their Offices during good          Behaviour, and shall, at stated Times, receive for their Services, a Compensation,              which shall not be diminished during their Continuance in Office"


Well, when you talk about repealing the Judiciary Act of 1801, do you mean also to get rid of the 16 circuit judges who were provided for in that Act? The Jeffersonians definitely meant to do that. That is, they wanted to throw these 16 guys out of  office, figuratively on the streets. But does the Constitution, just quoted, permit you to do that? Look at the language.


One side argued that once a Congress had created a court and staffed it with Article III judges, then the only way that these judges could be replaced was if they didn't show "good Behaviour." The whole purpose of giving federal judges lifetime appointments was to remove them from the winds and tides of political machinations and contrary Administrations. If one Congress could create courts and staff them and the next could dismantle its predecessor's work, then the judges would simply be political pawns in the Congressional struggle. A co-equal branch would be completely at the mercy of its companion branch. The early nineteenth century language to describe this position was the theory of "vested rights." Once the subordinate courts were created and appointments were made, these rights to lifetime service (with "good Behaviour") became "vested rights." If something "vests" in the common law, it means that it adheres, it "sticks," it is ineffaceable. 

Yet, an alternative reading of this text was also advanced. Rather than seeing "vested" rights in this provision, this other reading emphasized the "time to time" phrase in the first sentence. That is, this approach stressed the Congressional power to set up courts at its pleasure and when it wanted. The hand of Congress giveth and can taketh away. Congress, then, retains the ultimate power to determine the number and shape of these "inferior Courts."  The two sides squared off with each other, then, beginning early in 1802.

                                               The Chronology of the Debates 

The bill to repeal the 1801 Act began in earnest with a speech and motion of Senator John Breckinridge (R-KY) urging repeal on January 6, 1802. It is here that Ackerman's account (p. 156) becomes foggy, and I have to repair to other sources. That is, Ackerman talks about a motion to commit to a subcommittee, a motion supported by VP Aaron Burr (who broke a voting tie), but then he says that this action left him despised by the Republicans. But even his abbreviated explanation doesn't make sense. Why would an effort to keep the repeal bill alive win him the obloquy of Republicans? 

Even though all things aren't clear to me, here is what I understand. As Lomask argues in his biography of Burr, cited below, the issues were a bit more complex (vol. 1, p. 310-311). The Republican majority in the Senate was razor-thin. When the repeal of the Judiciary Act of 1801 came up for its second reading in the Senate on Tuesday, January 26, 1802, the vote to allow such a reading (i.e., continue to "hear" the bill) was a tie. A tie vote would effectively have killed the repeal bill. Thus, Burr was in a spot as President of the Senate. Would he permit the bill to go forward? Of course, as a Republican Vice-President, he would cast the decisive vote to let the bill continue. So he did. Had he voted "No," the Federalists would immediately have probably proclaimed him "King Aaron" and he could have been elected President in 1804. The latter, at least, was the opinion of New York Federalist Senator Gouverneur Morris. 

Then, after the bill was continued by Burr, which should have won him Republican plaudits, on January 27, the next day, NJ Federalist Senator Jonathan Dayton moved that (quoted in Lomask, Aaron Burr, vol. 1, p. 310):

     "the bill be referred to a select committee, with instructions to consider and report the        alterations which may be proper in the Judiciary system of the United States"

Dayton said that he proposed this measure as a "conciliatory" one. But the Jeffersonians, of course, saw it only as a wily attempt to try to "gut" the measure by having a special committee so go over it that nothing of its original fervor and clarity was left. The Senate again came to a tie on the issue of committal to the select committee. 

Again, VP Aaron Burr was put on the spot. For some reason, he broke the tie in the favor of the committee. He believed the Federalists were sincere. But from that moment on, the oppobrium cast on him by Republican colleagues was immense. Burr would never recover. 


But, the short of the matter (since I have become rather long), is that the measure returned from the select committee still as a repeal of the 1801 Act, though with many qualifying amendments. The bill returned to the Senate floor on February 2, but this time one Federalist was absent from his seat and one previously absent Republican had returned, and so the repeal bill sailed through the Senate on February 3, after the niggling amendments were removed. The House, controlled by a huge Republican majority, quickly followed suit, and a triumphant Jefferson signed the repeal into law on March 8, 1802. 

But, now the plot really thickens. 

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