hat
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 gratuitous rigor, while some of them even entertained
prosecutions under a supposed Common Law of the United States. The
immediate sequel to their action was the claim put forth in the Virginia
and Kentucky Resolutions that the final authority in interpreting
the National Constitution lay with the local legislatures. Before the
principle of judicial review was supported by a single authoritative
decision, it had thus become a partisan issue! *

* See Herman vs. Ames, "State Documents on Federal Relations,"
Nos. 7-15.

A few months later Jefferson was elected President, and the Federalists,
seeing themselves about to lose control of the Executive and Congress,
proceeded to take steps to convert the Judiciary into an avowedly
partisan stronghold. By the Act of February 18, 1801, the number of
associate justiceships was reduced to four, in the hope that the new
Administration