Background - Declaration of Independence

Background

Thomas Jefferson, the principal author of the Declaration, argued that Parliament was a foreign legislature that was unconstitutionally trying to extend its sovereignty into the colonies.
Believe me, dear Sir: there is not in the British empire a man who more cordially loves a union with Great Britain than I do. But, by the God that made me, I will cease to exist before I yield to a connection on such terms as the British Parliament propose; and in this, I think I speak the sentiments of America. —Thomas Jefferson, November 29, 1775[5]

By the time the Declaration of Independence was adopted in July 1776, the Thirteen Colonies and Great Britain had been at war for more than a year. Relations between the colonies and the mother country had been deteriorating since the end of the Seven Years' War in 1763. The war had plunged the British government deep into debt, and so Parliament enacted a series of measures to increase tax revenue from the colonies. Parliament believed that these acts, such as the Stamp Act of 1765 and the Townshend Acts of 1767, were a legitimate means of having the colonies pay their fair share of the costs to keep the colonies in the British Empire.[6]

Many colonists, however, had developed a different conception of the empire. Because the colonies were not directly represented in Parliament, colonists argued that Parliament had no right to levy taxes upon them, despite some British claims of "virtual representation." This tax dispute was part of a larger divergence between British and American interpretations of the British Constitution, the historic rights of Englishmen, and the extent of Parliament's authority in the colonies.[7] The orthodox British view, dating from the Glorious Revolution of 1688, was that Parliament was the supreme authority throughout the empire, and so by definition anything Parliament did was constitutional.[8] In the colonies, however, the idea had developed that the British Constitution recognized certain fundamental rights, that no government—not even Parliament—could violate.[9] After the Townshend Acts, some essayists even began to question whether Parliament had any legitimate jurisdiction in the colonies at all.[10] Anticipating the arrangement of the British Commonwealth,[11] by 1774 American writers such as Samuel Adams, James Wilson, and Thomas Jefferson were arguing that Parliament was the legislature of Great Britain only, and that the colonies, which had their own legislatures, were connected to the rest of the empire only through their allegiance to the Crown.[12]

Congress convenes

The issue of Parliament's authority in the colonies became a crisis after Parliament passed the Coercive Acts in 1774 to punish the Province of Massachusetts for the Boston Tea Party. Many colonists saw the Coercive Acts as a violation of the British Constitution and thus a threat to the liberties of all of British America. In September 1774, the First Continental Congress convened in Philadelphia to coordinate a response. Congress organized a boycott of British goods and petitioned the king for repeal of the acts. These measures were unsuccessful because King George III and the North ministry were determined not to retreat on the question of parliamentary supremacy. As the king wrote to Prime Minister Lord North in November 1774, "blows must decide whether they are to be subject to this country or independent".[13]

Even after fighting in the American Revolutionary War began at Lexington and Concord in April 1775, most colonists still hoped for reconciliation with Great Britain.[14] When the Second Continental Congress convened at the Pennsylvania State House in Philadelphia in May 1775, some delegates hoped for eventual independence, but no one yet advocated declaring it.[15] Although many colonists no longer believed that Parliament had any sovereignty over them, they still professed loyalty to King George, whom they hoped would intercede on their behalf. They were to be disappointed: in late 1775, the king rejected Congress's second petition, issued a Proclamation of Rebellion, and announced before Parliament on October 26 that he was even considering "friendly offers of foreign assistance" to suppress the rebellion.[16] A pro-American minority in Parliament warned that the government was driving the colonists towards independence.[17]

Towards independence

In January 1776, just as it became clear in the colonies that the king was not inclined to act as a conciliator, Thomas Paine's pamphlet Common Sense was published.[18] Paine, who had only recently arrived in the colonies from England, argued in favor of colonial independence, advocating republicanism as an alternative to monarchy and hereditary rule.[19] Common Sense introduced no new ideas,[20] and probably had little direct effect on Congress's thinking about independence; its importance was in stimulating public debate on a topic that few had previously dared to openly discuss.[21] Public support for separation from Great Britain steadily increased after the publication of Paine's enormously popular pamphlet.[22]

Although some colonists still held out hope for reconciliation, developments in early 1776 further strengthened public support for independence. In February 1776, colonists learned of Parliament's passage of the Prohibitory Act, which established a blockade of American ports and declared American ships to be enemy vessels. John Adams, a strong supporter of independence, believed that Parliament had effectively declared American independence before Congress had been able to. Adams labeled the Prohibitory Act the "Act of Independency", calling it "a compleat Dismemberment of the British Empire".[23] Support for declaring independence grew even more when it was confirmed that King George had hired German mercenaries to use against his American subjects.[24]

Despite this growing popular support for independence, Congress lacked the clear authority to declare it. Delegates had been elected to Congress by thirteen different governments—which included extralegal conventions, ad hoc committees, and elected assemblies—and were bound by the instructions given to them. Regardless of their personal opinions, delegates could not vote to declare independence unless their instructions permitted such an action.[25] Several colonies, in fact, expressly prohibited their delegates from taking any steps towards separation from Great Britain, while other delegations had instructions that were ambiguous on the issue.[26] As public sentiment for separation from Great Britain grew, advocates of independence sought to have the Congressional instructions revised. For Congress to declare independence, a majority of delegations would need authorization to vote for independence, and at least one colonial government would need to specifically instruct its delegation to propose a declaration of independence in Congress. Between April and July 1776, a "complex political war"[27] was waged to bring this about.[28]

Revising instructions

In the campaign to revise Congressional instructions, many Americans formally expressed their support for separation from Great Britain in what were effectively state and local declarations of independence, including more than ninety such declarations that were issued throughout the Thirteen Colonies from April to July 1776.[29] These "declarations" took a variety of forms. Some were formal, written instructions for Congressional delegations, such as the Halifax Resolves of April 12, with which North Carolina became the first colony to explicitly authorize its delegates to vote for independence.[30] Others were legislative acts that officially ended British rule in individual colonies, such as on May 4, when the Rhode Island legislature became the first to declare its independence from Great Britain.[31] Many "declarations" were resolutions adopted at town or county meetings that offered support for independence. A few came in the form of jury instructions, such as the statement issued on April 23, 1776, by Chief Justice William Henry Drayton of South Carolina: "the law of the land authorizes me to declare...that George the Third, King of Great Britain...has no authority over us, and we owe no obedience to him."[32] Most of these declarations are now obscure, having been overshadowed by the declaration approved by Congress on July 4.[33]

Some colonies held back from endorsing independence. Resistance was centered in the middle colonies of New York, New Jersey, Maryland, Pennsylvania, and Delaware.[34] Advocates of independence saw Pennsylvania as the key: if that colony could be converted to the pro-independence cause, it was believed that the others would follow.[35] On May 1, however, opponents of independence retained control of the Pennsylvania Assembly in a special election that had focused on the question of independence.[36] In response, on May 10 Congress passed a resolution, which had been introduced by John Adams, calling on colonies without a "government sufficient to the exigencies of their affairs" to adopt new governments.[37] The resolution passed unanimously, and was even supported by Pennsylvania's John Dickinson, the leader of the anti-independence faction in Congress, who believed that it did not apply to his colony.[38] This Day the Congress has passed the most important Resolution, that ever was taken in America. —John Adams, May 15, 1776[39]

May 15 preamble

As was the custom, Congress appointed a committee to draft a preamble that would explain the purpose of the resolution. John Adams wrote the preamble, which stated that because King George had rejected reconciliation and was even hiring foreign mercenaries to use against the colonies, "it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed".[40] Everyone understood that Adams's preamble was meant to encourage the overthrow of the governments of Pennsylvania and Maryland, which were still under proprietary governance.[41] Congress passed the preamble on May 15 after several days of debate, but four of the middle colonies voted against it, and the Maryland delegation walked out in protest.[42] Adams regarded his May 15 preamble as effectively an American declaration of independence, although he knew that a formal declaration would still have to be made.[43]

Lee's resolution and the final push

On the same day that Congress passed Adams's radical preamble, the Virginia Convention set the stage for a formal Congressional declaration of independence. On May 15, the Convention instructed Virginia's congressional delegation "to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain".[44] In accordance with those instructions, Richard Henry Lee of Virginia presented a three-part resolution to Congress on June 7. The motion, which was seconded by John Adams, called on Congress to declare independence, form foreign alliances, and prepare a plan of colonial confederation. The part of the resolution relating to declaring independence read:

Resolved, that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.[45]
Lee's resolution met with resistance in the ensuing debate. Opponents of the resolution, while conceding that reconciliation with Great Britain was unlikely, argued that declaring independence was premature, and that securing foreign aid should take priority.[46] Advocates of the resolution countered that foreign governments would not intervene in an internal British struggle, and so a formal declaration of independence was needed before foreign aid was possible. All Congress needed to do, they insisted, was to "declare a fact which already exists".[47] Delegates from Pennsylvania, Delaware, New Jersey, Maryland, and New York were still not yet authorized to vote for independence, however, and some of them threatened to leave Congress if the resolution were adopted. Congress therefore voted on June 10 to postpone further discussion of Lee's resolution for three weeks.[48] Until then, Congress decided that a committee should prepare a document announcing and explaining independence in the event that Lee's resolution was approved when it was brought up again in July.

Support for a Congressional declaration of independence was consolidated in the final weeks of June 1776. On June 14, the Connecticut Assembly instructed its delegates to propose independence, and the following day the legislatures of New Hampshire and Delaware authorized their delegates to declare independence.[49] In Pennsylvania, political struggles ended with the dissolution of the colonial assembly, and on June 18 a new Conference of Committees under Thomas McKean authorized Pennsylvania's delegates to declare independence.[50] On June 15, the Provincial Congress of New Jersey, which had been governing the province since January 1776, resolved that Royal Governor William Franklin was "an enemy to the liberties of this country" and had him arrested.[51] On June 21, they chose new delegates to Congress and empowered them to join in a declaration of independence.[52]

Only Maryland and New York had yet to authorize independence. When the Continental Congress had adopted Adams's radical May 15 preamble, Maryland's delegates walked out and sent to the Maryland Convention for instructions.[53] On May 20, the Maryland Convention rejected Adams's preamble, instructing its delegates to remain against independence, but Samuel Chase went to Maryland and, thanks to local resolutions in favor of independence, was able to get the Maryland Convention to change its mind on June 28.[54] Only the New York delegates were unable to get revised instructions. When Congress had been considering the resolution of independence on June 8, the New York Provincial Congress told the delegates to wait.[55] But on June 30, the Provincial Congress evacuated New York as British forces approached, and would not convene again until July 10. This meant that New York's delegates would not be authorized to declare independence until after Congress had made its decision.[56]

Draft and adoption

While political maneuvering was setting the stage for an official declaration of independence, a document explaining the decision was being written. On June 11, 1776, Congress appointed a "Committee of Five", consisting of John Adams of Massachusetts, Benjamin Franklin of Pennsylvania, Thomas Jefferson of Virginia, Robert R. Livingston of New York, and Roger Sherman of Connecticut, to draft a declaration. Because the committee left no minutes, there is some uncertainty about how the drafting process proceeded—accounts written many years later by Jefferson and Adams, although frequently cited, are contradictory and not entirely reliable.[57] What is certain is that the committee, after discussing the general outline that the document should follow, decided that Jefferson would write the first draft.[58] Considering Congress's busy schedule, Jefferson probably had limited time for writing over the next seventeen days, and likely wrote the draft quickly.[59] He then consulted the others, made some changes, and then produced another copy incorporating these alterations. The committee presented this copy to the Congress on June 28, 1776. The title of the document was "A Declaration by the Representatives of the United States of America, in General Congress assembled."[60] Congress ordered that the draft "lie on the table".[61]

On Monday, July 1, having tabled the draft of the declaration, Congress resolved itself into a committee of the whole and resumed debate on Lee's resolution of independence.[63] John Dickinson made one last effort to delay the decision, arguing that Congress should not declare independence without first securing a foreign alliance and finalizing the Articles of Confederation.[64] John Adams gave a speech in reply to Dickinson, restating the case for an immediate declaration.

After a long day of speeches, a vote was taken. As always, each colony cast a single vote; the delegation for each colony—numbering two to seven members—voted amongst themselves to determine the colony's vote. Pennsylvania and South Carolina voted against declaring independence. The New York delegation, lacking permission to vote for independence, abstained. Delaware cast no vote because the delegation was split between Thomas McKean (who voted yes) and George Read (who voted no). The remaining nine delegations voted in favor of independence, which meant that the resolution had been approved by the committee of the whole. The next step was for the resolution to be voted upon by the Congress itself. Edward Rutledge of South Carolina, who was opposed to Lee's resolution but desirous of unanimity, moved that the vote be postponed until the following day.[65]

On July 2, South Carolina reversed its position and voted for independence. In the Pennsylvania delegation, Dickinson and Robert Morris abstained, allowing the delegation to vote three-to-two in favor of independence. The tie in the Delaware delegation was broken by the timely arrival of Caesar Rodney, who voted for independence. The New York delegation abstained once again, since they were still not authorized to vote for independence, although they would be allowed to do so by the New York Provincial Congress a week later.[66] The resolution of independence had been adopted with twelve affirmative votes and one abstention. With this, the colonies had officially severed political ties with Great Britain.[67] In a now-famous letter written to his wife on the following day, John Adams predicted that July 2 would become a great American holiday.[68] Adams thought that the vote for independence would be commemorated; he did not foresee that Americans—including himself—would instead celebrate Independence Day on the date that the announcement of that act was finalized.[69]

After voting in favor of the resolution of independence, Congress turned its attention to the committee's draft of the declaration. Over several days of debate, Congress made a few changes in wording and deleted nearly a fourth of the text, most notably a passage critical of the slave trade, changes that Jefferson resented.[70] On July 4, 1776, the wording of the Declaration of Independence was approved and sent to the printer for publication.

Influences

Thomas Jefferson considered English political philosopher John Locke (1632–1704) to be one of "the three greatest men that have ever lived".[72]
Historians have often sought to identify the sources that most influenced the words of the Declaration of Independence. By Jefferson's own admission, the Declaration contained no original ideas, but was instead a statement of sentiments widely shared by supporters of the American Revolution. As he explained in 1825:
Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.[73]

Jefferson's most immediate sources were two documents written in June 1776: his own draft of the preamble of the Constitution of Virginia, and George Mason's draft of the Virginia Declaration of Rights. Ideas and phrases from both of these documents appear in the Declaration of Independence.[74] They were in turn directly influenced by the 1689 English Declaration of Rights, which formally ended the reign of King James II.[75] During the American Revolution, Jefferson and other Americans looked to the English Declaration of Rights as a model of how to end the reign of an unjust king.[76]

English political theorist John Locke is usually cited as a primary influence on the Declaration. As historian Carl L. Becker wrote in 1922, "Most Americans had absorbed Locke's works as a kind of political gospel; and the Declaration, in its form, in its phraseology, follows closely certain sentences in Locke's second treatise on government."[77] The extent of Locke's influence on the American Revolution was questioned by some subsequent scholars, however, who emphasized the influence of republicanism rather than Locke's classical liberalism.[78] Historian Garry Wills argued that Jefferson was influenced by the Scottish Enlightenment, particularly Francis Hutcheson, rather than Locke,[79] an interpretation that has been strongly criticized.[80] The Scottish Declaration of Arbroath (1320) and the Dutch Act of Abjuration (1581) have also been offered as models for Jefferson's Declaration, but these arguments have been disputed.[81]

Signing

The date when the Declaration was signed has long been the subject of debate. Within a decade after the event, Thomas Jefferson, Benjamin Franklin, and John Adams all wrote that the Declaration had been signed by Congress on July 4, 1776.[82] This seemed to be confirmed by the signed copy of the Declaration, which is dated July 4. Additional support was provided by the Journals of Congress, the official public record of the Continental Congress. When the proceedings for 1776 were first published in 1777, the entry for July 4, 1776, stated that the Declaration was engrossed (carefully handwritten) and signed on that date.[83]

In 1796, signer Thomas McKean disputed that the Declaration had been signed on July 4, pointing out that some signers were not then present, including several who were not even elected to Congress until after that date.[84] "[N]o person signed it on that day nor for many days after", he later wrote.[85] Although Jefferson and Adams disagreed with McKean, his claim gained support when the Secret Journals of Congress were published in 1821.[86] The Secret Journals contained two previously unpublished entries about the Declaration. The entry for July 19 reads:
Resolved That the Declaration passed on the 4th be fairly engrossed on parchment with the title and stile of "The unanimous declaration of the thirteen united states of America" & that the same when engrossed be signed by every member of Congress.[87]
The entry for August 2 stated:
The declaration of Independence being engrossed & compared at the table was signed by the Members.[88]

In 1884, historian Mellen Chamberlain argued that these entries indicated that the famous signed version of the Declaration had been created following the July 19 resolution, and had not been signed by Congress until August 2.[89] Historian John Hazelton confirmed in 1906 that many of the signers had not been present in Congress on July 4, that the fifty-six signers had never been together as a group, and that some delegates must have added their signatures even after August 2.[90] While it is possible that Congress signed a document on July 4 that has since been lost, historians do not think that this is likely.[91]

Although most historians have accepted the argument that the Declaration was not signed on July 4, and that the engrossed copy was not created until after July 19, legal historian Wilfred Ritz wrote in 1986 that "the historians and scholars are wrong".[92] Ritz argued that the engrossed copy of the Declaration was signed by Congress on July 4, as Jefferson, Adams, and Franklin had stated, and that it was implausible that all three men had been mistaken.[93] Ritz believed that McKean's testimony was questionable,[94] and that historians had misinterpreted the July 19 resolution. According to Ritz, this resolution did not call for a new document to be created, but rather for the existing one to be given a new title, which was necessary after New York had joined the other twelve states in declaring independence. Ritz argued that the phrase "signed by every member of Congress" in the July 19 resolution meant that delegates who had not signed the Declaration on the 4th were now required to do so.[95]

Ritz argued that about thirty-four delegates signed the Declaration on July 4, and that the others signed on or after August 2.[96] Historians who reject a July 4 signing maintain that most delegates signed on August 2, and that those eventual signers who were not present added their names later.[97]

Battle of the Alamo

In 1836, those living in Texas and beyond learned about this event (and the general course of the Texas Revolution) through published newspaper accounts. The information contained in these articles was gathered from named and unnamed sources such as Almaron Dickinson’s wife, Susanna; William Barret Travis’s slave, Joe; Ben, the servant to the Mexican officer Colonel Almonte; and Andres Barsena and Anselmo Bergara, Tejanos who based their statements on testimony given by Antonio Pérez, who was in San Antonio on March 6.

The second page of the Telegraph and Texas Register from March 24, 1836. The article about the Alamo begins on the right-hand column under the heading "More Particulars Respecting the Fall of the Alamo."

The DRT Library’s newspaper collection includes papers published in the spring of 1836 containing “news from Texas.” While the majority of these materials were published in American cities, also included is a photocopy of the Telegraph and Texas Register published in San Felipe, Texas, on March 24, 1836. According to Todd Hansen, editor of The Alamo Reader, this document “is probably the most influential single account of the fall of the Alamo by virtue of being the first in print, its access to authoritative sources, and its near universal dissemination” (551). Indeed, argues Hansen, this account “would be the picture of the fall for Texans (and the United States) and the starting point for all later secondhand accounts” (565).

According to Todd Hansen, the casualty list included in the Telegraph and Texas Register account is "particularly valuable" because it was "based on the most authoritative sources known in Washington-on-the-Brazos" at the time (565).

Another important newspaper account of the fall of the Alamo in the library’s collections can be found in the Diario del Gobierno de la Republica Mexicana published on March 21, 1836. The draft of a 1968 press release announcing the library’s acquisition of the document states that it is “a rare copy of a Mexican newspaper containing the earliest known official announcement of the fall of the Alamo.”

Front page of the Diario del Gobierno de la Republica Mexicana from March 21, 1836.

As the official newspaper of the Mexican government, the Diario celebrated the bravery and success of Mexican officers and soldiers in achieving what is described as a complete and brilliant victory. “Long Live the Mexican Republic!” proclaimed the headline of this article, “Long live General Santa Anna and the brave army, victors of the Fort of the Alamo in Texas!”

The report on the fall of the Alamo appears on the fourth page of the March 24th Diario.

A supplement to this edition of the newspaper contained additional details about the Alamo, specifically General Santa Anna’s report about the battle, his March 5th General Order outlining the plan for the assault, and a March 3rd letter from General Urrea to Santa Anna describing the former’s victory over James Grant’s men at San Patricio. The article also includes a Spanish translation of Robert McAlpin Williamson’s March 1st letter to Travis. Taken from Travis’s body or his quarters, the letter concludes with Williamson’s impassioned statement, “For God’s sake hold out until we can assist you.” The Diario supplement may be the first printing of the text of the letter; since the original manuscript of this letter has never been found, the publication is significant for revealing its existence.

First page of the "Suplemento al Diario del Gobierno de la Republica Mexicana" for March 24, 1836.

Like other primary sources describing the siege and battle of the Alamo, newspaper accounts contain some confusing, problematic, and contradictory statements that researchers are still exploring, analyzing, and debating. For example, the report published in the Diario del Gobierno de la Republica Mexicana claimed that more than 600 Texans were killed, an estimation three times the actual number. Additionally, while only seventy deaths are attributed to the Mexican force, actual losses are estimated to be up to 600 soldiers.

An inventory for the entire newspaper collection can be accessed by visiting the DRT library; we are in the process of editing the guide so that it can be accessed and searched via the library’s online catalog.

Click here for a full citation of documents and images included in this entry.

Independence Day Speech at Rochester, 1841

Frederick Douglass -A former slave himself, Frederick Douglass became a leader in the 19th Century Abolitionist Movement.

"Fellow citizens, pardon me, allow me to ask, why am I called upon to speak here today? What have 1, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am 1, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?

Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions! Then would my task be light, and my burden easy and delightful. For who is there so cold that a nation's sympathy could not warm him? Who so obdurate and dead to the claims of gratitude that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish that would not give his voice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that the dumb might eloquently speak and the "lame man leap as an hart."

But such is not the state of the case. I say it with a sad sense of the disparity between us. am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice are not enjoyed in common. The rich inheritance of justice, liberty, prosperity, and independence bequeathed by your fathers is shared by you, not by me. The sunlight that brought light and healing to you has brought stripes and death to me. This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me by asking me to speak today? If so, there is a parallel to your conduct. And let me warn that it is dangerous to copy the example of nation whose crimes, towering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrevocable ruin! I can today take up the plaintive lament of a peeled and woe-smitten people.

"By the rivers of Babylon, there we sat down. Yea! We wept when we remembered Zion. We hanged our harps upon the willows in the midst thereof. For there, they that carried us away captive, required of us a song; and they who wasted us required of us mirth, saying, Sing us one of the songs of Zion. How can we sing the Lord's song in a strange land? If I forget thee, O Jerusalem, let my right hand forget her cunning. If do not remember thee, let my tongue cleave to the roof of my mouth."

Fellow citizens, above your national, tumultuous joy, I hear the mournful wail of millions! Whose chains, heavy and grievous yesterday, are, today, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorry this day, "may my right hand cleave to the roof of my mouth"! To forget them, to pass lightly over their wrongs, and to chime in with the popular theme would be treason most scandalous and shocking, and would make me a reproach before God and the world. My subject, then, fellow citizens, is American slavery. I shall see this day and its popular characteristics from the slave's point of view. Standing there identified with the American bondman, making his wrongs mine. I do not hesitate to declare with all my soul that the character and conduct of this nation never looked blacker to me than on this Fourth of July! Whether we turn to the declarations of the past or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity which is outraged, in the name of liberty which is fettered, in the name of the Constitution and the Bible which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery-the great sin and shame of America! "I will not equivocate, I will not excuse"; I will use the severest language I can command; and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, shall not confess to be right and just....

For the present, it is enough to affirm the equal manhood of the Negro race. Is it not as astonishing that, while we are plowing, planting, and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, and secretaries, having among us lawyers doctors, ministers, poets, authors, editors, orators, and teachers; and that, while we are engaged in all manner of enterprises common to other men, digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hillside, living, moving, acting, thinking, planning, living in families as husbands, wives, and children, and above all, confessing and worshiping the Christian's God, and looking hopefully for life and immortality beyond the grave, we are called upon to prove that we are men!...

What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employment for my time and strength than such arguments would imply....

What, to the American slave, is your Fourth of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass-fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy-a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States at this very hour.

Go where you may, search where you will, roam through all the monarchies and despotisms- of the Old World, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me that, for revolting barbarity and shameless hypocrisy, America reigns without a rival."

The Declaration of Sentiments

The Declaration of Sentiments, also known as the Declaration of Rights and Sentiments, is a document signed in 1848 by 68 women and 32 men, 100 out of some 300 attendees at the first women's rights convention, in Seneca Falls, New York, now known to Americans as the Seneca Falls Convention. The principal author of the Declaration of Rights and Sentiments was Elizabeth Cady Stanton, who based it on the form of the United States Declaration of Independence. According to the North Star, published by Frederick Douglass, whose attendance at the convention and support of the Declaration helped pass the resolutions put forward, the document was the "grand basis for attaining the civil, social, political, and religious rights of women."

At a time when traditional roles were still very much in place, the Declaration caused much controversy. Many people respected the courage and abilities behind the drafting of the document, but were unwilling to abandon conventional mindsets. An article in the Oneida Whig published soon after the convention described the document as "the most shocking and unnatural event ever recorded in the history of womanity." Many newspapers insisted that the Declaration was drafted at the expense of women's more appropriate duties. At a time when temperance and female property rights were major issues, even many supporters of women's rights believed the Declaration's endorsement of women's suffrage would hinder the nascent women's rights movement, causing it to lose much needed public support.

Opening paragraphs of the Declaration

“

When, in the course of human events, it becomes necessary for one portion of the family of man to assume among the people of the earth a position different from that which they have hitherto occupied, but one to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes that impel them to such a course. We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of those who suffer from it to refuse allegiance to it, and to insist upon the institution of a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their duty to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled. The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.

Sentiments

• He has never permitted her to exercise her inalienable right to the elective franchise.
• He has compelled her to submit to laws, in the formation of which she had no voice.
• He has withheld from her rights which are given to the most ignorant and degraded men - both natives and foreigners.
• Having deprived her of this first right as a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.
• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has made her morally, an irresponsible being, as she can commit many crimes with impunity, provided they be done in the presence of her husband. In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master - the law giving him power to deprive her of her liberty, and to administer chastisement.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women - the law, in all cases, going upon a false supposition of the supremacy of a woman, and giving all power into his hands.
• After depriving her of all rights as a married woman, if single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.
• He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration.
• He closes against her all the avenues to wealth and distinction, which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known.
• He has denied her the facilities for obtaining a thorough education - all colleges being closed against her.
• He allows her in church, as well as State, but a subordinate position, claiming Apostolic authority for her exclusion from the ministry, and, with some exceptions, from any public participation in the affairs of the Church.
• He has created a false public sentiment by giving to the world a different code of morals for men and women, by which moral delinquencies which exclude women from society, are not only tolerated but deemed of little account in man.
• He has usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action, when that belongs to her conscience and her God.
• He has endeavored, in every way that he could to destroy her confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.

Closing Remarks

Now, in view of this entire disfranchisement of one-half the people of this country, their social and religious degradation—in view of the unjust laws above mentioned, and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of these United States.

In entering upon the great work before us, we anticipate no small amount of misconception, misrepresentation, and ridicule; but we shall use every instrumentality within our power to effect our object. We shall employ agents, circulate tracts, petition the State and national Legislatures, and endeavor to enlist the pulpit and the press in our behalf. We hope this Convention will be followed by a series of Conventions, embracing every part of the country.

Tecumseh's "We Must Be United"

Tecumseh allegedly delivered this speech to a band of Osages to solicit support for a pan-Indian confederacy to fight U.S. encroachment on their lands. The sole account of this speech is by John Dunn Hunter (1798?–1827), an Anglo-American, who claimed to have been raised among the Osages. Because Hunter’s Memoirs of a Captivity Among the Indians of North America (1823) prompted criticism of U.S. Indian policies, American officials quickly concerted counterattacks to discredit the author. Consequently, the authenticity of the speech has been widely questioned. However, United States War Department records validate that Tecumseh did visit the Osages in 1811 and Tecumseh’s reference to a great mid-western earthquake date the speech to roughly that same year. Though his trip was to end after meeting with the Osages, Tecumseh extended his campaigning northward up the Mississippi River after learning about the battle of Tippecanoe and the destruction of Prophetstown. Weakened by defeat and enjoying only marginal success in recruiting allies, Tecumseh and his confederacy fought the War of 1812 alongside the British. He was shot and killed by American troops in 1813 while continuing a stand on the Thames River, despite being abandoned by allied British troops on the battlefield.
–Benjamin Reiss

Bibliography: John Sugden, Tecumseh: A Life (New York: Henry Holt and Co., 1998).

[1] Brothers, we all belong to one family; we are all children of the Great Spirit; we walk in the
same path; slake our thirst at the same spring; and now affairs of the greatest concern lead us to
smoke the pipe around the same council fire!

[2] Brothers, we are friends; we must assist each other to bear our burdens. The blood of many of our fathers and brothers has run like water on the ground, to satisfy the avarice of the white men. We, ourselves, are threatened with a great evil; nothing will pacify them but the destruction of all the red men.

[3] Brothers, when the white men first set foot on our grounds, they were hungry; they had no
place on which to spread their blankets, or to kindle their fires. They were feeble; they could do
nothing for themselves. Our fathers commiserated their distress, and shared freely with them
whatever the Great Spirit had given his red children. They gave them food when hungry,
medicine when sick, spread skins for them to sleep on, and gave them grounds, that they might
hunt and raise corn. Brothers, the white people are like poisonous serpents: when chilled, they
are feeble and harmless; but invigorate them with warmth, and they sting their benefactors to
death.

[4] The white people came among us feeble; and now that we have made them strong, they wish
to kill us, or drive us back, as they would wolves and panthers. Brothers, the white men are not
friends to the Indians: at first, they only asked for land sufficient for a wigwam; now, nothing will
satisfy them but the whole of our hunting grounds, from the rising to the setting sun.

[5] Brothers, the white men want more than our hunting grounds; they wish to kill our old men,
women, and little ones.

[6] Brothers, many winters ago there was no land; the sun did not rise and set; all was darkness.
The Great Spirit made all things. He gave the white people a home beyond the great waters. He
supplied these grounds with game, and gave them to his red children; and he gave them strength
and courage to defend them.

[7] Brothers, my people wish for peace; the red men all wish for peace; but where the white
people are, there is no peace for them, except it be on the bosom of our mother.

[8] Brothers, the white men despise and cheat the Indians; they abuse and insult them; they do
not think the red men sufficiently good to live. The red men have borne many and great injuries;
they ought to suffer them no longer. My people will not; they are determined on vengeance; they
have taken up the tomahawk; they will make it fat with blood; they will drink the blood of the
white people.

[9] Brothers, my people are brave and numerous; but the white people are too strong for them
alone. I wish you to take up the tomahawk with them. If we all unite, we will cause the rivers to
stain the great waters with their blood.

[10] Brothers, if you do not unite with us, they will first destroy us, and then you will fall an easy
prey to them. They have destroyed many nations of red men, because they were not united,
because they were not friends to each other.

[11] Brothers, The white people send runners amongst us; they wish to make us enemies, that
they may sweep over and desolate our hunting grounds, like devastating winds, or rushing
waters.

[12] Brothers, our Great Father [the King of England] over the great waters is angry with the
white people, our enemies. He will send his brave warriors against them; he will send us rifles,
and whatever else we want—he is our friend, and we are his children.

[13] Brothers, who are the white people that we should fear them? They cannot run fast, and are
good marks to shoot at: they are only men; our fathers have killed many of them: we are not
squaws, and we will stain the earth red with their blood.

[14] Brothers, the Great Spirit is angry with our enemies; he speaks in thunder, and the earth
swallows up villages, and drinks up the Mississippi. The great waters will cover their lowlands;
their corn cannot grow; and the Great Spirit will sweep those who escape to the hills from the
earth with his terrible breath.

[15] Brothers, we must be united; we must smoke the same pipe; we must fight each other’s
battles; and, more than all, we must love the Great Spirit: he is for us; he will destroy our
enemies, and make all his red children happy.

Missouri Compromise of 1820

The Missouri Compromise was an agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in the former Louisiana Territory north of the parallel 36°30' north except within the boundaries of the proposed state of Missouri. Prior to the agreement, the House of Representatives had refused to accept this compromise and a conference committee was appointed. The United States Senate refused to concur in the amendment, and the whole measure was lost.

During the following session (1819-1820), the House passed a similar bill with an amendment, introduced on January 26, 1820 by John W. Taylor of New York, allowing Missouri into the union as a slave state. The question had been complicated by the admission in December of Alabama, a slave state, making the number of slave and free states equal. In addition, there was a bill in passage through the House (January 3, 1820) to admit Maine as a free state.

The Senate decided to connect the two measures. It passed a bill for the admission of Maine with an amendment enabling the people of Missouri to form a state constitution. Before the bill was returned to the House, a second amendment was adopted on the motion of Jesse B. Thomas of Illinois, excluding slavery from the Missouri Territory north of the parallel 36°30' north (the southern boundary of Missouri), except within the limits of the proposed state of Missouri.

Impact on political discourse

These disputes involved the competition between the southern and northern states for power in Congress and for control over future territories. There were also different factions emerging as the Democratic-Republican party began to lose its coherence.

In an April 21 letter to John Holmes, Thomas Jefferson wrote that the division of the country created by the Compromise line would eventually lead to the destruction of the Union:

“

...but this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. it is hushed indeed for the moment. but this is a reprieve only, not a final sentence. a geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.

”

Congress's consideration of Missouri's admission also raised the issue of sectional balance, for the country was equally divided between slave and free states, with eleven each. To admit Missouri as a slave state would tip the balance in the Senate (made up of two senators per state) in favor of the slave states. For this reason, northern states wanted Maine to be admitted as a free state. The people of Dedham, Massachusetts were against the compromise and sent a petition to Senator Edward Everett addressing their grievance. Everett presented the petition on the floor of the Senate on April 6, 1854.

On the constitutional side, the Compromise of 1820 was important as the first instance of Congressional exclusion of slavery from public territory acquired since the adoption of the Constitution.

Following Maine 1820 and Missouri's 182 admissions to the Union, no other states were admitted until 1836. Arkansas was admitted as a slave state, followed by Michigan in 1837 as a free state.

Second Missouri Compromise

The two houses were at odds not only on the issue of slavery, but also on the parliamentary question of the inclusion of Maine and Missouri within the same bill. The committee recommended the enactment of two laws, one for the admission of Maine, the other an enabling act for Missouri. They recommended against having restrictions on slavery but for including the Thomas amendment. Both houses agreed, and the measures were passed on March 5, 1820, and ratified by President James Monroe on March 6.

The question of the final admission of Missouri came up during the session of 1820-1821. The struggle was revived over a clause in its new constitution (1820) requiring the exclusion of "free negroes and mulattoes" from the state. Through the influence of Henry Clay, an act of admission was finally passed, upon the condition that the exclusionary clause of the Missouri constitution should "never be construed to authorize the passage of any law" impairing the privileges and immunities of any U.S. citizen. This deliberately ambiguous provision is sometimes known as the Second Missouri Compromise.

Monroe Doctrine

The Monroe Doctrine was a United States policy introduced on December 2, 1823, which said that further efforts by European governments to colonize land or interfere with states in the Americas would be viewed by the United States of America as acts of aggression requiring US intervention.^[1] The Monroe Doctrine asserted that the Western Hemisphere was not to be further colonized by European countries, and that the United States would not interfere with existing European colonies nor in the internal concerns of European countries. The Doctrine was issued at the time when many Latin American countries were on the verge of becoming independent from Spain, and the United States, reflecting concerns echoed by Great Britain, hoped to avoid having any European power take Spain's colonies.^[2]

US President James Monroe first stated the doctrine during his seventh annual State of the Union Address to Congress. It became a defining moment in the foreign policy of the United States and one of its longest-standing tenets, invoked by U.S. presidents, Calvin Coolidge, Herbert Hoover, John F. Kennedy, and others.

The Roosevelt Corollary to the Monroe Doctrine (added during the presidency of Theodore Roosevelt) was invoked to intervene militarily in Latin America to stop the spread of European influence^[3].

It would have been nearly impossible for Monroe to envision that its intent and impact would persist with minor variations for almost two centuries. Its primary objective was to free the newly independent colonies of Latin America from European intervention and control. The doctrine advocated that the New World and the Old World were to remain distinctly separate spheres of influence, for they were comprised of entirely separate and independent nations.^[4]

President Monroe claimed the United States of America, although only a fledgling nation at the time, would not interfere in European wars or internal dealings, and in turn, expected Europe to stay out of the affairs of the New World. The Western Hemisphere was never to be colonized again and any attempt by a European power to oppress or control any nation in the Western Hemisphere would be perceived as a direct threat to the U.S.^[5]. This quid pro quo was presumptuous on its face, yet has stood the test of time.

The formalized document known as the Monroe Doctrine essentially served to inform the powers of the Old World that the Americas were no longer open to European colonization, and that any effort to extend European political influence into the New World would be considered by the United States "as dangerous to our peace and safety." Basically, the doctrine warned the European powers “to leave America for the Americans.” It also created a sphere of influence that would grow stronger with the addition of the Roosevelt Corollary.

Because the U.S. lacked both a credible navy and army at the time, the doctrine was largely disregarded internationally.^[4] However, the Doctrine met with tacit British approval, and the Royal Navy mostly enforced it tacitly, as part of the wider Pax Britannica, which enforced the neutrality of the seas.

Text of the Monroe Doctrine is located here.

John Marshall - Marbury v. Madison

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.

This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.

Background of the case

In the presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third President of the United States. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, the lame-duck Adams and the Federalist-controlled 6th Congress were still in power. Congress passed the Judiciary Act of 1801. This act modified the Judiciary Act of 1789, establishing ten new district courts, expanding the number of circuit courts from three to six, and adding additional judges to each circuit, giving the President the authority to appoint Federal judges and justices of the peace. The act also reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court.

On March 3, just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-Republican–controlled Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous "Midnight Judges", were all located in the Washington and Alexandria area. One of these appointees was William Marbury, a native of Maryland and a prosperous financier. An ardent Federalist, Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency. He had been appointed to the position of justice of the peace in the District of Columbia. The term for a justice of the peace was five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars".

On the following day, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the United States, continued as the acting Secretary of State at President Adams' personal request.^{[citation needed]}

While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams' term as president expired. As these appointments were routine in nature, Marshall assumed the new Secretary of State James Madison would see they were delivered, since "they had been properly submitted and approved, and were, therefore, legally valid appointments." On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.

The newly sworn-in Democratic-Republican congress immediately set about voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which reversed the act of 1801 so that the Judicial branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "canceled the Supreme Court term scheduled for June of that year [1802] ... seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation."

Status of the judicial power before Marbury

The power of judicial review was created in Marbury though the general idea has ancient roots. The idea that courts could nullify statutes originated in England with Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."

The U.S. Supreme Court has stated that Bonham's Case did not set a precedent in the United States to make common law supreme over statutory law:

[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons.

The idea that courts could declare statutes void was defeated in England with the Glorious Revolution of 1688, when King James II was removed and the elected Parliament declared itself supreme. However, it continued to be known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.

Some legal scholars argue that the legal basis and concept of judicial review predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Alexander Hamilton in Federalist No. 78:

“

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

”

Relevant law

“	In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.	”
	— U.S. Constitution, Article III, Section 2, Clause 2

“	The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under the authority of the United States.	”
	— Judiciary Act of 1789, § 13

There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court; (2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of federal law. The first is an exercise of the Court's original jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.

Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This raises several issues that the Supreme Court had to address:

• Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all?
• If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution?
• And, more importantly, who is supposed to decide who wins?

In its answer to this last question, the Supreme Court formalizes the notion of judicial review. In short, the constitutional issue on which Marbury v. Madison was decided was whether Congress could expand the original jurisdiction of the Supreme Court.

The decision

On February 24, 1803, the Court rendered a unanimous (4-0) decision, that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct questions:

• Did Marbury have a right to the commission?
• Do the laws of the country give Marbury a legal remedy?
• Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Marshall quickly answered the first two questions affirmatively. He found that the failure to deliver the commission was "violative of a vested legal right."

In deciding whether Marbury had a remedy, Marshall stated: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next described two distinct types of Executive actions: political actions, where the official can exercise discretion, and purely ministerial functions, where the official is legally required to do something. Marshall found that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provided him a remedy.

A federal court has a "special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" If a court does not have the power to hear a case, it will not issue dicta. Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one.

In analyzing the third question, Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict.

This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:

“

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions.

”

"In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid." Marbury never became a Justice of the Peace in the District of Columbia.

Reaction

Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy."

Criticisms

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction. These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction. Furthermore, it has been argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting . . . public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch. Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution. Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases—a notion that has been attacked by Richard Posner. More generally, Marshall's argument for the notion of a judicial obligation to strike down laws "repugnant to the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a notion contested by scholars Paul Brest and Duncan Kennedy, among others, as well as Posner.

Marbury can also be criticized on grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper. Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.