From James A. Bayard1
Washington 25. April 1802
I have considered with a great deal of Attention the project recommended in your last letter of connected associations in the different States for the support of our Constitution & religion. The plan is marked with great ingenuity, but I am not inclined to think that it is applicable to the state of things in this Country. Such an association must be bottomed upon a stronger & more active principle than reason or even a sense of common interest to render it successful. There is more material for such an association upon the other side than upon ours.
We have the greater number of political Calculators & they of political fanaticks.
An attempt at association organized into clubs on the part of the Federalists would revive a thousand jealousies & suspicions which now begin to slumber.
Let us not be too impatient and our adversaries will soon demonstrate to the world the soundness of our doctrines and the imbecility and folly of their own. Without any exertion upon our part in the course of two or three years they will render every honest man in the country our Proselyte.
A degree of agitation & vibration of opinion must forever prevail under a government so free as that of the U States.
Under such a government in the nature of things it is impossible to fix public opinion. It is still left to the exertions of good men to prevent infinite evils to which the country is exposed from the selfish and ambitious intrigues of Demagogues.
The Presidents Party in Congress is much weaker than you would be led to judge from the printed state of the votes. Here we plainly discern that there is no confidence nor the smallest attachment prevails among them.
An occasion is only wanting for Virginia to find herself abandoned by all her auxiliaries and she would be abandoned upon the ground of her inimical principles to an efficient federal government.
Upon the subject of the judiciary I have had an opportunity of learning the opinions of the Chief J. He considers the late repealing act as operative in depriving the Judges of all power, derived under the act repealed. The office still remains which he holds to be a mere capacity, without a new appointment to receive & exercise any new judicial powers which the Legislature may confer.2 It has been considered here that the most adviseable course for the Circuit Courts to pursue will be at the end of their ensuing Session to adjourn generally, & to leave what remains to be done to the Supreme Court.
I am with great respect, &c
ALS, Hamilton Papers, Library of Congress.
2. On April 19, 1802, John Marshall wrote to William Cushing: “A bill is now before congress which will I am persuaded pass into a law by which the June term of the supreme court will be done away & the Judges directed to ride the circuits before they will again assemble.
“For myself I more than doubt the constitutionality of this measure & of performing circuit duty without a commission as a circuit Judge. But I shall hold myself bound by the opinions of my brothers. I am not of opinion that we can under our present appointments hold circuit courts, but I presume a contrary opinion is held by the court & if so I shall conform to it. I am endeavoring to collect the opinion of the Judges & will when I shall have done so communicate the result.…” (ALS, Massachusetts Historical Society, Boston). The bill to which Marshall is referring became “An Act to amend the Judicial System of the United States” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 156–67 [April 29, 1802]), which reinstated the circuit court duties of the justices of the Supreme Court of the United States abolished by the Judiciary Act of 1801. In 1802 Congress did not issue specific appointments and commissions to the Supreme Court justices acting as inferior court judges.