he repeal of the Judiciary Act of 1801 was the second task which the
President laid upon the shoulders of Congress. No act of the outgoing
Administration had given greater offense. Jefferson expressed a general
impression when he declared that the Federalists, driven from the
legislative and executive branches of the Government, had retreated into
the judiciary as their stronghold. "There the remains of federalism are
to be preserved and fed from the Treasury; and from that battery all the
works of republicanism are to be beaten down and destroyed." But no
suggestion of this animus toward the Federalist judges appeared in the
studied moderation of the President's message. The President contented
himself with presenting a record of the causes decided by the courts, in
order that Congress might "judge of the proportion which the institution
bears to the business it has to perform."

[Map: Vote on Repeal of the Judiciary Act House of
Representatives March 2, 1802]

Taking their cue from the President, the Republican leaders in Congress
urged the repeal of the Judiciary Act on the ground that the new courts
had not justified their existence. Republican economy required that
unnecessary, and therefore improper, institutions should be abolished.
Certain bolder spirits like William Giles, of Virginia, however, frankly
admitted a fear of the "ultimate censorial and controlling power" of the
courts over all the departments of the Government--a control "over
legislation, execution, and decision, and irresponsible to the people."
In the background of the active mind of this Virginian was hostility to
the new courts "because of their tendency to produce a gradual
demolition of State Courts." If this last were the real reason for the
repeal of the act, consistency should have led the Republicans to revise
the whole judiciary system from the Supreme Court down. But for such
radical action few, if any, were prepared. The repealing act passed the
House by a party vote of fifty-nine to thirty-two, and was signed by the
President on March 8, 1802.

In the course of the acrimonious debate over the judiciary, Federalists
had challenged the constitutional right and power of Congress to vacate
the judgeships, asserting that the plain intent of the Constitution is
to place the judges beyond the power of Congress by prescribing a tenure
of office during good behavior. The challenge was disquieting, for with
John Marshall on the bench of the