Treasury. In protests which they filed with the President, the judges stated the dilemma which confronted them: either the new duty was a judicial one or it was not; if the latter, they could not perform it, at least not in their capacity as judges; if the former, then their decisions were not properly reviewable by an executive officer. Washington promptly sent the protests to Congress, whereupon some extremists raised the cry of impeachment; but the majority hastened to amend the Act so as to meet the views of the judges.*** Four years later, in the Carriage Tax case,**** the only question argued before the Court was that of the validity of a congressional excise. Yet as late as 1800 we find Justice Samuel Chase of Maryland, who had succeeded Blair in 1795, expressing skepticism as to the right of the Court to disallow acts of Congress on the ground of their unconstitutionality, though at the same time admitting that the prevailing opinion among bench and bar supported the claim.

* 2 Dallas, 419.

** Ware vs. Hylton, 3 ib., 199.

*** See 2 Dallas, 409.

**** Hylton vs. United States, 3 Dallas, 171.

The great lack of the Federal Judiciary during these early years, and it eventually proved well-nigh fatal, was one of leadership. Jay was a satisfactory magistrate, but he was not a great force on the Supreme Bench, partly on account of his peculiarities of temperament and his ill-health, and partly because, even before he resigned in 1795 to run for Governor in New York, his judicial career had been cut short by an important diplomatic assignment to England. His successor, Oliver Ellsworth, also suffered from ill health, and he too was finally sacrificed on the diplomatic altar by being sent to France in 1799. During the same interval there were also several resignations among the associate justices. So, what with its shifting personnel, the lack of business, and the brief semiannual terms, the Court secured only a feeble hold on the imagination of the country. It may be thought, no doubt, that judges anxious to steer clear of politics did not require leadership in the political sense. But the truth of the matter is that willy-nilly the Federal Judiciary at this period was bound to enter politics, and the only question was with what degree of tact and prudence this should be done. It was to be to the glory of Marshall that he recognized this fact perfectly and with mingled boldness and caution grasped the leadership which the circumstances demanded.

The situation at the beginning was precarious enough. While the Constitution was yet far from having commended itself to the back country democracy, that is, to the bulk of the American people, the normal duties of the lower Federal Courts brought the judges into daily contact with prevalent prejudices and misconceptions in their most aggravated forms. Between 1790 and 1800 there were two serious uprisings against the new Government: the Whisky Rebellion of 1794 and Fries's Rebellion five years later. During the same period the popular ferment caused by the French Revolution was at its height. Entrusted with the execution of the laws, the young Judiciary "was necessarily thrust forward to bear the brunt in the first instance of all the opposition levied against the federal head," its revenue measures, its commercial restrictions, its efforts to enforce neutrality and to quell uprisings. In short, it was the point of attrition between the new system and a suspicious, excited populace.

Then, to make bad matters worse, Congress in 1798 passed the Sedition Act. Had political discretion instead of party venom governed the judges, it is not unlikely that they would have seized the opportunity presented by this measure to declare it void and by doing so would have made good their censorship of acts of Congress with the approval of even the Jeffersonian opposition. Instead, they enforced the Sedition Act, often with