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APPENDIX

APPENDIX A
The Paragraph Omitted from the Final Draft of Jefferson's Message to Congress, December 8, 1801 ¹⁵⁰⁸

Applications from different persons suffering prosecution under the act usually called the Sedition act, claimed my early attention to that instrument. our country has thought proper to distribute the powers of it's government among three equal & independent authorities, constituting each a check on one or both of the others, in all attempts to impair it's constitution. to make each an effectual check, it must have a right in cases which arise within the line of it's proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it's own judgment, & uncontrouled by the opinions of any other department. we have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, & no ill ensue. the constitution moreover, as a further security for itself, against violation even by a concurrence of all the departments, has provided for it's own reintegration by a change of the persons exercising the functions of those department. Succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. On my accession to the administration, reclamations against the Sedition act were laid before me by individual citizens, claiming the protection of the constitution against the Sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, I took the act into consideration, compared it with the constitution, viewed it under every aspect of which I thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them & to my duty, I do declare that I hold that act to be in palpable & unqualified contradiction to the constitution. considering it then as a nullity, I have relieved from oppression under it those of my fellow-citizens who were within the reach of the functions confided to me. in recalling our footsteps within the limits of the Constitution, I have been actuated by a zealous devotion to that instrument. it is the ligament which binds us into one nation. It is, to the national government, the law of it's existence, with which it began, and with which it is to end. infractions of it may sometimes be committed from inadvertence, sometimes from the panic, or passions of a moment. to correct these with good faith, as soon as discovered, will be an assurance to the states that, far from meaning to impair that sacred charter of it's authorities, the General government views it as the principle of it's own life.¹⁵⁰⁹

APPENDIX B
Letter of John Taylor "of Caroline" to John Breckenridge containing arguments for the Repeal of the Federalist National Judiciary Act of 1801 ¹⁵¹⁰

Virginia – Caroline – Dec^r 22^ḍ 1801

Dear Sir

An absence from home, when your letter arrived, has been the cause which delayed this answer.

I confess that I have not abstracted myself from the political world, but I must at the same time acknowledge, that this kind of world, of which I am a member, is quite distinct from that in which your country has placed you. Mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited – yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & thorny. And a most prosperous traveller into the political world which I inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. Yet, as a solicitation for the continuance of your correspondence, I will venture upon a short excursion out of my own atmosphere, in relation to the subject you state.

By way of bringing the point into plain view, I will suppose some cases. Suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. Or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. Are all these evils originating either in fraud or error, remediless under the principles of your constitution?

The first question is, whether the office thus established, is to continue.

The second, whether the officer is to continue, after the office is abolished, as being unnecessary.

Congress are empowered "from time to time to ordain & establish inferior courts."

The law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress may abolish as well as create these judicial offices; because it does expressly abolish the then existing inferior courts, for the purpose of making way for the present.

It is probable that this construction is correct, but it is equally pertinent to our object, whether it is or not. If it is, then the present inferior courts may be abolished, as constitutionally as the last; if it is not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and being so, is undoubtedly repealable.

Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.

The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.

The constitution declares "that the judge shall hold his office during good behavior." Could it mean, that he should hold this office after it was abolished? Could it mean that his tenure should be limited by behaving well in an office, which did not exist?

It must either have intended these absurdities, or admit of a construction which will avoid them. This construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the constitution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.

The article of the constitution under consideration closes with an idea, which strongly supports my construction.

The salary is to be paid "during their continuance in office." This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. There must have been some other mode by which the officer should cease to be in office, than that of bad behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices and salaries during good behaviour," instead of directing "that they should" hold the salaries during their continuance in office. This could only be an abolition of the office itself, by which the salary would cease with the office, tho' the judge might have conducted himself unexceptionably.

This construction certainly coincides with the public opinion, and the principles of the constitution. By neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.

Nor is it incompatible with the "good behaviour" tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.

The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure.

If this principle should disable congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.

Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.

With respect to going into the judiciary system farther at present, the length of this trespass forbids it, and perhaps all ideas tending towards the revision of our constitution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the constitution. He will not leave historians to say "this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repetitions of those oppressions after his death, which he had himself felt and healed during his life."

And yet my hopes are abated by some essays signed "Solon" published at Washington, and recommending amendments to the constitution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?

Nothing can exceed our exultation on account of the president's message, and the countenance of congress – nothing can exceed the depression of the monarchists. They deprecate political happiness – we hope for the president's aid to place it on a rock before he dies.

It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir

Yr: mo: ob^t: Sev^ṭ

John Taylor¹⁵¹¹

APPENDIX C
Cases of which Chief Justice Marshall may have heard before he delivered his Opinion in Marbury vs. Madison. ¹⁵¹² Also Recent Books and Articles on the Doctrine of Judicial Review of Legislation

Holmes vs. Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in American Historical Review, iv, 456 et seq.) If Marshall ever heard of this case, it was only because Paterson, who was Associate Justice with Marshall when the Supreme Court decided Marbury vs. Madison, was attorney-general in New Jersey at the time Holmes vs. Walton was decided. Both Brearly and William Paterson were members of the Constitutional Convention of 1787. (See Corwin, footnote to 41-42.)

Commonwealth vs. Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merely obiter dicta; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Constitutional Convention. Blair was appointed by President Washington as one of the Associate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett vs. Weeden (September, 1786; see Arnold: History of Rhode Island, ii, 525-27, Varnum's pamphlet, Case of Trevett vs. Weeden, and Chandler's Criminal Trials, ii, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident – for it can hardly be called a case – could scarcely have had any circulation outside of New England. It was referred to in the Constitutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marbury vs. Madison was decided.

It is unlikely that the recently discussed case of Bayard vs. Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see Annals, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's analysis in the American Historical Review (xiii, 283-84), which is the only satisfactory treatment of it. See also Thayer: Cases on Constitutional Law (1, footnote to 105).

Kamper vs. Hawkins (November, 1793, 1 Va. Ca. 20 et seq.), a case which came directly under Marshall's observation.

Van Horne's Lessee vs. Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marbury vs. Madison upon the power of the Judiciary to declare legislation void.

Calder vs. Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper vs. Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.

Whittington vs. Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin: The Courts, the Constitution, and Parties, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marbury vs. Madison to show the power of courts to declare invalid legislative acts that violate the Constitution.

The old Court of Appeals, under the Articles of Confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.¹⁵¹³

As to the statement of Chief Justice, later Governor Thomas Hutchinson of Massachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in the American Law Review (xxix, 711-25), it is positive that Marshall never had an intimation that any such pronouncements ever had been made.

Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgers vs. Waddington, decided by a New York justice of the peace in 1784 (see American Law Review, xix, 180), and the case of Bowman vs. Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, State vs. – , decided in April, 1794 (1 Haywood, 28-40), and of Lindsay et al vs. Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.

For a scholarly treatment of the matter from an historical and legally professional point of view, see Doctrine of Judicial Review by Professor Edward S. Corwin of the Department of History and Politics, Princeton University; also The Courts, the Constitution, and Parties, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marbury vs. Madison.

The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Constitution," in the American Law Review (xix, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Constitution," in the American Political Science Review (viii, 167-203).

Professor Charles A. Beard's The Supreme Court and the Constitution contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.

Judicial Power and Unconstitutional Legislation, by Brinton Coxe, although published in 1893, is still highly valuable. And Power of Federal Judiciary over Legislation, by J. Hampden Dougherty, will be profitable to the student.

Marbury vs. Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in the North American Review (clxxxv, 848 et seq.), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the American Law Review (xlvi, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Document No. 610, 63d Congress, 2d Session.)

With regard to the possible effect on American law of foreign assertions of the supremacy of the Judiciary, particularly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar Association on June 29, 1915, and reported in the Twenty-first Annual Report of that Association (222-51), is a careful and exhaustive study.

APPENDIX D
Text, as generally accepted, of the Cipher Letter of Aaron Burr to James Wilkinson, dated July 29, 1806 ¹⁵¹⁴

Your letter postmarked thirteenth May, is received. At length I have obtained funds, and have actually commenced. The Eastern detachments, from different points and under different pretences, will rendezvous on the Ohio first of November. Everything internal and external favors our views. Naval protection of England is secured. Truxtun is going to Jamaica to arrange with the admiral on that station. It will meet us at the Mississippi. England, a navy of the United States, are ready to join, and final orders are given to my friends and followers. It will be a host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward first August, never to return. With him goes his daughter; her husband will follow in October, with a corps of worthies. Send forthwith an intelligent and confidential friend with whom Burr may confer; he shall return immediately with further interesting details; this is essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our object, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. Burr's plan of operation is to move down rapidly from the Falls, on the fifteenth of November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to meet you; there to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge. On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with Burr, say that if we will protect their religion, and will not subject them to a foreign Power, that in three weeks all will be settled. The gods invite us to glory and fortune; it remains to be seen whether we deserve the boon. The bearer of this goes express to you. He is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of Burr, and will disclose to you as far as you require, and no further. He has imbibed a reverence for your character, and may be embarrassed in your presence; put him at ease, and he will satisfy you.