tution, mainly through Federal agency, the union of the Anti-Federalists and Republicans and the cordial acceptance of the Constitution, after its amendment, by both, presented, at the commencement of Washington's administration, the fairest opportunity for a real "era of good feeling" that the country has ever known. All controversy upon fundamental questions having been removed, the doors seemed to be thrown open for an amalgamation of parties like that of which so much was said, and with so little result, during the administration of Mr. Monroe. Without any open question affecting permanently every interest, and all the people and all alike, as is the case with such as relate to and embrace the sources of power and the foundations of the government, if the Constitution had been upheld in good faith on both sides partisan contests must of necessity have been limited to local or temporary and evanescent measures and to popular excitements and opposing organizations as shifting and short-lived as the subjects which gave rise to them. But Hamilton took especial care that such halcyon days should not even dawn on the country. He had a riveted conviction-a conviction he took no pains to conceal that the Constitution must prove a signal failure, unless it could be made to bear measures little dreamed of by those who made and had adopted it; and in his view of the welfare of the country that question could not be too soon decided. The name and influence of Washington was an element of strength toward the accomplishment of his project in that regard, upon which he had expressed a strong reliance in the letter now published by his son, without date but written between the formation and ratification of the Constitution, and he was, of course, desirous to bring all such questions to an early decision, as Washington's long continuance in office was far from probable. He, therefore, promptly

seized his opportunity, and at the earliest suitable moment after the organization of the new Government, proposed the incorporation of a national bank. I have already said, and given my reasons for the assertion, that in the whole range of the affairs of the government committed to his charge, he could not have taken a single step which would have afforded such unmistakable evidence of his determination not to be controled in his administration of the government under the new Constitution by the intentions of those who framed, or of those who ratified it; not one more likely to revive former distrusts, and to infuse new jealousies among the Anti-Federalists in respect to his hostility to republican principles, or better calculated to give new strength to their energies when the proper time arrived for the blast of the trumpet that called every man to his tent. His old friend, Madison, was one of the first to take up the gauntlet thus boldly thrown before the sincere friends of the Constitution. This was done by his masterly and unanswerable speech in Congress against the constitutionality of the bank. No one can make himself acquainted with Mr. Madison's course, and with the state of his feeling towards President Washington at that period, and fail to appreciate the regret and pain he suffered from the performance of that act of duty, not on his own account but from his extreme reluctance to be placed in the attitude of opposition to one for whom he cherished feelings of such unbounded respect and affection, and whose confidence he fully enjoyed. But for the strong and audacious movements of Hamilton, there is every reason to believe that Mr. Madison would have coöperated very cordially in the support of President Washington's admininistration throughout. In respect to mere questions of expediency, he would have done all in his power to give them the most desirable form and direction, and, if disappointed, would, doubtless, have been silent as to the result.

CHAPTER VI.

Glance at the General Subject as heretofore discussed in this Essay One important Topic not yet touched upon, viz.: the Effort that has been made to secure to the Judicial Department a Superior Controlling and Dangerous Power over the Executive and Legislative Departments - The constant Aim of the leading Federalists to give undue Influence to one of the Three Great Departments The Judicial not the Department originally preferred by Hamilton as the Depository of this Power- How that Department came to be selected for that Purpose - The Election of Jefferson the Overthrow of the Federalists in the Executive and Legislative Departments - Efforts of the latter to retain Control of the Judicial Department- Character and Career of Chief Justice Marshall His Efforts to control the Action of the Executive by Mandamus Resistance by Jefferson Account of the Proceeding by Mandamus against the Secretary of State, Madison - Opinion of the Court in Marbury v. Madison Merits and Result of the caseJurisdiction of the Supreme Court under the Constitution Great Addition tits Power conferred by the Judiciary Act of 1789- Encroachment by the Federal Judiciary upon the Jurisdiction of State Courts, the Distinct Policy of the Federalists Popular Respect for the Court and Judges favorable to the Success of that Policy - Jefferson directed the Resistance which was made to Orders of the Supreme Court, in Marbury v. Madison → His Action sustained by Congress and approved by the People - The Federalists hesitate and abandon their Attempt to carry the Encroachment they had undertaken in the Case of Marbury v. Madison High Character of Marshall.

I HAVE proceeded thus far in my endeavor to search

out the origin, trace the progress, and define the principles of political parties in the United States. To accomplish these objects the measures they have from time to time advocated have been brought into view; opinions they have advanced partially discussed, and the means that have been employed to make them effectual considered.

The general subject, considering the interest and thei importance attached to it in several aspects, has been but

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has

little canvassed, and is at best but imperfectly understood. The most important points put in issue, so far as they have arisen out of principles advanced or pretenses set up by either party prior to the election of 1800, have, it is believed, been fully, and, it is hoped, fairly presented. Here, on account of the unforeseen extent to which the subject grown upon my hands, it would be my wish to dismiss it and to resume the thread of my Memoirs at the point at which I left it for the consideration of what I then regarded as incidental matter. To do so has been my intention through the last two hundred pages of my manuscript. But, at the stage to which I had looked as the termination of this branch of my labors, I am met by the reflection that in all I have said in respect to the doctrines, theories, and acts of parties, I have not even touched upon a great principle subsequently advanced for the action of the Federal Government, which, for reasons that will be seen and appreciated as we proceed, is of equal interest, and which, from considerations of recent application, is perhaps of more urgent importance than those upon which my attention has been bestowed.

I allude to the effort which has been made to secure to one of the three great departments of the Government -the judicial—a superior and controlling power over its departmental associates, the executive and the legislative, all of which were designed by the Constitution to be coördinate, and, in respect to their relative powers, independent of each other. This pretension, though successfully discouraged at its origin, instead of sharing the fate of other constitutional heresies which sprang from the same source, has been revived with increased earnestness at critical periods, and at this time seems to threaten to exert a dangerous influence upon our political system.

I have not noticed it before, because it was not set up until after the great struggle of 1800, and was thus separated from the questions which originated under the previous administration, most of which have been agitated to the present day, and because the period of its most imposing if not its first introduction into the political arena, unconnected with judicial proceedings, that of President Jackson's veto against the passage of the Bank Bill, — occurred at a later period than that to which my account of political movements has been brought in my Me

moirs.

It has from the beginning been the constant aim of the leading Federalists to select some department, or some nook or corner in our political system, and to make it the depository of power which public sentiment could not reach nor the people control. The judicial was not the department which Hamilton deemed the best adapted to that end, and his opinion upon such points seldom failed to become that of his party. He liked the judiciary as well on account of its being the only branch of the Government that was constituted, in regard to the tenure of office, upon the principles he preferred, and which he had proposed in the Convention for other offices also, as on account of its usefulness in protecting the rights of persons and property against vicious legislation or lawless violence. But regarding the exercise of its powers in no other light than through its judgments in cases "in law and equity" that were brought before it by parties litigant, the only sense in which they were regarded by the framers of the Constitution, he thought it too weak a department for his purpose. This was nominally to influence, but really to control, the action of the public mind an object which, he never hesitated to declare, could only be effected by appeals to the interests or the fears of the people, and the judicial power