to "have swept the supreme judicial bench clean at a stroke." 1

For a long time everybody had understood that the impeachment of Chase was only the first step in the execution of the Republican plan to replace with Republicans Marshall and the four Federalist Associate Justices. "The judges of the Supreme Court are all Federalists," wrote Pickering six weeks before Johnson's appointment. "They stand in the way of the ruling power... The Judges therefore, are, if possible, to be removed," by impeachment.2

Nearly two years before, Senator William Plumer of New Hampshire had accurately divined the Republican plan: "The judges of the Supreme Court must fall," he informed Jeremiah Mason. "They are denounced by the Executive, as well as the House. They must be removed; they are obnoxious unyielding men; & why should they remain to awe & embarrass the administration? Men of more flexible nerves can be found to succeed them. Our affairs seem to approach an important crisis.” 3 The Federalists rightly believed that Jefferson was the directing mind in planning and effecting the subjugation of the National Judiciary. That, said Bayard, "has been an object on which Mr. Jefferson has long been resolved, at least ever since he has been in office." 4

1 Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, III, 108.

2 Pickering to Lyman, Feb. 11, 1804, N.E. Federalism: Adams, 344; Lodge: Cabot, 444; also see Plumer, 275.

3 Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong. Bayard to Bassett, Feb. 12, 1802, Bayard Papers: Donnan, 148.

John Marshall especially must be overthrown.1 He had done all the things of which Giles and the Republicans complained. He had "dared to declare an act of Congress unconstitutional," had "dared" to order Madison to show cause why he should not be compelled to do his legal duty. Everybody was at last awake to the fact that Marshall had become the controlling spirit of the Supreme Court and of the whole National Judiciary.

Every one knew, too, that he was the most determined Nationalist in the entire country, and that Jefferson and the Republican Party had no more unyielding enemy than the Chief Justice. And he had shown by his management of the Supreme Court and by his opinion in Marbury vs. Madison, how powerful that tribunal could be made. The downfall of Samuel Chase was a matter of small importance compared with the removal of John Marshall.

"They hate Marshall, Paterson, etc. worse than they hate Chase because they are men of better character," asserted Judge Jeremiah Smith of New Hampshire. "To be safe in these times good men must not only resign their offices but they must resign their good names. . . They will be obnoxious as long as they retain either. If they will neither die nor resign they give Mr J the trouble of correcting the procedure... Tell me what the judges say — are they frightened?" he anxiously inquired of Plumer.2 Frightened they were- and very badly

1 Channing: Jeffersonian System, 119-20; Adams: U.S. 11, 225-27, 235; Anderson, 93, 95.

2 Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

frightened. Even John Marshall, hitherto imperturbable and dauntless, was shaken.1

In addition to his "heretical" opinion in Marbury vs. Madison, Marshall had given the Republicans, and Jefferson especially, another cause for complaint. A year after the decision of that case, he had again gone out of his way to announce from the Supreme Bench the fallacy of Jefferson's Constitutional views and the soundness of the Nationalist theory. During the February term of the Supreme Court for the year 1804, that tribunal, in the case of the United States vs. Fisher,2 was called upon to decide whether the United States was a preferred creditor of an insolvent, under the Bankruptcy Act of 1800, which Marshall had helped to draw.3 Among other objections, it was suggested by counsel for Fisher, the insolvent, that the Bankruptcy Law was unconstitutional and that the priority which that act gave the Nation over other creditors of the bankrupt would prevent the States from making similar laws for their own protection.

But, said Marshall, this is "the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of the United States extends... The Constitution did not prohibit Congress" from enacting a bankruptcy law and giving the Nation preference as a creditor. On the contrary, Congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers 1 See infra, 176–77, 196. 22 Cranch, 358-405. See vol. II, 481-82, of this work.