created which furnished places for sixteen more new judges. When
John Adams, the retiring President, proceeded with the aid of
the Federalist majority in the Senate and of his Secretary of
State, John Marshall, to fill up the new posts with the so-called
"midnight judges,"* the rage and consternation of the Republican
leaders broke all bounds. The Federal Judiciary, declared John
Randolph, had become "an hospital of decayed politicians." Others
pictured the country as reduced, under the weight of
"supernumerary judges" and hosts of attendant lawyers, to the
condition of Egypt under the Mamelukes. Jefferson's concern went
deeper. "They have retired into the judiciary as a stronghold,"
he wrote Dickinson. "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."
The Federal Judiciary, as a coordinate and independent branch of
the Government, was confronted with a fight for life!

* So called because the appointment of some of them was supposed
to have taken place as late as midnight, or later, of March 3-4,
1801. The supposition, however, was without foundation.


Meanwhile, late in November, 1800, Ellsworth had resigned, and
Adams had begun casting about for his successor. First he turned
to Jay, who declined on the ground that the Court, "under a
system so defective," would never "obtain the energy, weight, and
dignity which were essential to its affording due support to the
National Government, nor acquire the public confidence and
respect which, as the last resort of the justice of the nation,
it should possess." Adams now bethought himself of his Secretary