The Activist

by Lawrence Goldstone

  This is a case of uncommon magnitude. One of the parties to it is a State—certainly respectable, claiming to be sovereign. The question to be determined is whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more important still, and, may, perhaps, be ultimately resolved into one no less radical than this: “do the people of the United States form a Nation?”25

  Had Wilson chosen to answer that question in terms of the Constitution, the country might have been the beneficiary of one of the great treatises on national sovereignty. Instead, as if to demonstrate to the world the great legal theorist Washington had ignored—or perhaps, after three years, he was happy just to be able to write something—Wilson produced a long, rambling, philosophical discourse on political and legal theory. His opinion, ultimately supporting Chisholm, was heavily footnoted, citing Cicero, Blackstone, and Frederick of Prussia, among others. Rather than a trenchant legal opinion, almost all that Wilson wrote, one scholar notes, “seems largely irrelevant.”26

  Jay, as chief justice, was to read the final opinion. Like Wilson, he had waited a long time for this opportunity, and must have been thrilled, at long last, to be at the center of an issue of great import to the nation. Jay seized his opportunity. Not to be outdone, also like Wilson, he opened with an extended discourse on the theoretical underpinnings of sovereignty and subordinate power; but then, unlike his colleague, calling on his experience as part of the Publius triumvirate, he moved into the practical question of the role of the Constitution itself.

  The people, in their collective and national capacity, established the present Constitution. It is remarkable that, in establishing it, the people exercised their own rights, and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, “We the people of the United States, do ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.27

  From here, Jay embarked on an extended and sometimes rambling discourse on state versus national sovereignty as practiced in Europe and in the United States. There were, however, some hints of the Federalist–Republican divide that would fracture the nation in the coming years.

  Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction by whom the errors of State courts, affecting either the nation at large or the citizens of any other State, could be revised and corrected . . . it was proper for the nation—that is, the people—of all the United States to provide by a national judiciary, to be instituted by the whole nation and to be responsible to the whole nation.28

  Throughout, Jay used “the people” as synonymous with “the central government,” a position with which Republicans would have taken great issue.29 On the other hand, he also stated that “the United States were,” rather than “the United States was,” implying that he continued to view the central government as a compact rather than an overriding entity. In any case, none of this was necessary—all Jay needed to do was to quote Article III, as had Randolph in argument and Cushing and Blair in opinion, and assert that the Constitution meant what it said, since, as did his two colleagues, he ultimately ruled for Chisholm on those very grounds.

  Whatever satisfaction Jay, Wilson, and the others might have felt at asserting federal power was mitigated almost immediately by the hue and cry that rose up against the decision. Some critics insisted it be ignored by sovereign Georgia; others demanded that the Constitution be amended. On February 9, four days after the case had begun, anticipating the decision, a bill prohibiting lawsuits by individuals against states had already been presented and read in the Senate. Within days of the decision, a move began in Congress to amend the Constitution, and by February 20, a motion was introduced:

  “Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring That the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the United States; which, when ratified by three fourths of the said legislatures, shall be valid as part of the said constitution, viz: The judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”30

  The motion was quickly enacted and sent to the states for ratification. Although the eleventh amendment was not adopted until 1795, the rebuke to Jay and the Court was unmistakable. To make matters worse, opposition came not just from Republicans, but from Federalists.

  Jay was to gain a potentially powerful ally, however. To replace Thomas Johnson, Washington nominated the feisty William Paterson. The Senate confirmed the appointment unanimously and, on March 4, 1793, one of the primary authors of the Judiciary Act of 1789 joined the Court.

  But Paterson would not begin serving until August. In May, when a chastened Jay, along with Justice Iredell, left to ride circuit (the last term that would require two justices), their first stop was Richmond. They were not to escape the controversy surrounding the war debt issue. British creditors had filed more than one hundred suits since 1790, and some of these were on Jay’s docket. One of these, Ware v. Hylton, promised to be particularly incendiary. Representing the defendants was an unlikely duo— the arch-Republican Patrick Henry and the on-the-rise Federalist John Marshall.*

  * Washington himself was powerless to jump-start the process, as Article III, Section 1 had specifically left the design of the judiciary to Congress.

  * Livingston had committed the politically fatal error of arousing the enmity of Hamilton during the power struggle for control of New York’s Federalist Party.

  * Another argument against Rutledge was that, as a loyal Carolinian, he might well have supported negating claims by British creditors. His antipathy to the North a matter of record, he would feel little concern about the presence of British forts in the Northwest.

  * North Carolina was not yet in the Union—it joined November 21, 1789—and so the southern circuit consisted only of South Carolina and sparsely populated Georgia. Washington was loath to appoint two justices from one state, and naming a justice from Georgia over one from either Maryland or Virginia was equally out of the question.

  * Most likely red or, in Jay’s case, salmon.

  * Washington’s prognostication was a bit off. Circuit-riding was not wholly eliminated until 1891.

  * State sovereignty had been one of the most hotly contested points in debate over the Judiciary Act of 1789, but had, as with most issues, been left unresolved.

  * Henry, in addition to his political skills, was considered the finest trial lawyer in the nation. His ability to sway a jury was, not surprisingly, phenomenal.

  EIGHT

  ONCE AND FUTURE CHIEFS: JAY

  AND MARSHALL COLLIDE

  MARSHALL’S FIRST INTERSECTION with the office of chief justice, albeit on the other side of the bench, coincided with yet another upturn in his career. After his perform
ance at the Virginia ratifying convention, he had been retained by none other than General Washington to act as the future president’s personal attorney. He had also been pressed to run for Congress, but declined. Then, on September 30, 1789, in the aftermath of the passage of the Judiciary Act, Marshall was nominated by Washington and unanimously confirmed as United States Attorney for Virginia. Unfortunately, no one had asked Marshall if he wanted the job. With hefty legal fees finally coming his way, and his reputation better served by remaining in private practice, Marshall wrote to Washington and declined the position.1

  Marshall concentrated his practice on appeals cases—they paid the highest fees—in which he would plead before his old ally at the ratifying convention, President of the Virginia Supreme Court of Appeals Edmund Pendleton. Many of those appeals were by debtor Virginians who balked at Article IV of the Treaty of Paris of 1783, which specified: “It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.” In other words, British creditors had to be paid in value that corresponded to British currency. In Virginia, Article IV had immense import, as almost half of the nearly £5 million owed to British creditors had been accrued by Virginians.

  The provision had been insisted on by Crown negotiators largely because of two Virginia laws. The first, passed in 1777, confiscated British property and allowed debtors to discharge their obligations to absentee creditors by paying what they owed into the Virginia treasury. Payment could be in sterling or Virginia paper currency. The intent had been to use British property to help finance the war against Britain. Soon after the law passed, however, Virginia currency plummeted. The effect was to allow loyal Virginians to rid themselves of obligations to the enemy at something under ten cents on the dollar. War financing was thereby imperiled, but clearing the books—no small thing to cash-strapped Virginians—became a serendipitous option. Even these depreciated payments, however, were to be denied British merchants. In 1782, the Virginia legislature also decreed that no debt to a British creditor could be recovered in a Virginia court.

  The theory, then, in inserting Article IV was that a provision of the Treaty of Paris would supersede the law of an individual state and compel Virginians to pay up. Under the Articles of Confederation, this reasoning would have been moot, since states retained sovereignty and, in any event, Congress had no enforcement power. Under the new, stronger Constitution, however, with its own Article VI proclaiming treaties to be the supreme law of the land and binding state judges to enforce their provisions, local law notwithstanding, Virginians faced the very real prospect of forking over millions of pounds to absentee creditors.

  Premonitions of doom seemed justified when, in the first year after a federal court system had been established to hear the cases, those one hundred suits had been filed by British creditors. More than twice that many were filed in the following year. Debtors needed an advocate who was not only competent in the law but clever in circumventing it. Almost all chose John Marshall.2

  Marshall, who had hailed the Treaty of Paris, was now in the position of Anti-Federalist advocate. He structured a careful, four-tiered argument in the debtors’ defense. First, he asserted that clients who had paid their debts into the treasury in adherence to the 1777 statute had done so in good faith and under the law, so they could not be penalized after the fact. Second, the law passed in 1782 was still in force, so British creditors had no standing to sue. (This was, to be sure, an odd position even in advocacy, for the man who had argued so forcefully for a federal judiciary and national supremacy in the ratifying convention.) Third, Marshall pointed out that since England had failed to live up to other sections of the treaty—they still manned forts in the Northwest and had not compensated Americans for freed slaves—Englishmen had no right to apply the treaty selectively. Fourth, Marshall made the additional, vague argument that, since the government had changed in 1776, all earlier debts had been annulled. Whatever the eventual outcome, by throwing up this fence of legal thorns, Marshall had at least succeeded in delaying adverse judgments for his clients.

  Now, more than three years later, Chief Justice Jay, who had been one of the American negotiators in Paris and knew exactly why Article IV had been inserted, rode into Richmond for circuit court with the opportunity to use the judiciary to cement a cornerstone of Federalist doctrine. With Marshall and Henry in attendance, Jay, who was joined by Justice Iredell and district court judge Cyrus Griffin, left little doubt of the outcome of Ware when he announced: “Justice and policy unite in declaring that debts fairly contracted should be honestly paid . . . the man or nation who eludes the payment of debts, ceases to be worthy of further credit, and generally meets with their deserts in the entire loss of it.”3

  Henry, as always, was undeterred by adversity. He railed against the British as being unworthy of being repaid. “Our inhabitants were mercilessly and brutally plundered,” he cried. “Our slaves [were] carried away, our crops burnt, a cruel war carried on against our agriculture. . . . We had a right to consider British debts as subject to confiscation, and seize the property of those who originated that war.”4 Henry was so masterful that when he concluded his remarks, Iredell exclaimed, “Gracious God! He is an orator indeed.”5

  As had been the case in the ratifying convention, Henry’s appeal to emotion was followed by Marshall’s appeal to reason. He presented his four-tiered defense in what was, by all accounts, a masterful performance, all the more so as he was arguing against his own beliefs.6 Since Virginia had been a sovereign nation when the 1777 law was enacted, he insisted, it had a right to confiscate property from another nation with which it was at war. What was more, it could not then be bound by a treaty concluded after it had become a state.

  The court delivered its opinion in June. All three judges agreed that the Declaration of Independence did not void the rights of creditors, thus negating Marshall’s fourth point. Jay also ruled that British lack of compliance with other sections of the treaty did not impact Virginia’s obligations. The third defense was disposed of. Nor could the Virginia law of 1782, barring recovery by British creditors, survive in a conflict with a provision in a duly ratified Constitution asserting the supremacy of treaties, overturning Marshall’s second defense.

  But with Jay the sole Federalist on the court, Virginia debtors ended up winning a huge victory on Marhsall’s first line of defense. Iredell and Griffin declared that any Virginian who paid money into the Virginia treasury under the 1777 law had legally discharged his obligation. If British creditors wished to recover those monies, they had to seek redress from the government of Virginia, not individual debtors. Since the Chisholm decision was in the process of removing that option, the two judges had effectively ruled that Virginia could keep the money.

  Although this ruling applied to only a portion of the debt, and three of Marshall’s four lines of defense had been overrun, Federalists had nonetheless suffered a stinging defeat. By asserting that private property rights had survived the treaty—as Iredell and Griffin did—the power of the central government to enact a uniform set of standards that would apply equally to every state in the Union had been threatened. Marshall, while enhancing his personal reputation, might very well have helped undermine the very system of government that he so passionately wished to see in place.

  NINE

  A QUESTION OF PRIORITIES: THE ABSENT CHIEF JUSTICE

  WITH THE COMING OF THE FRENCH REVOLUTION, opinion in the United States divided sharply, a trend exacerbated by the execution of Louis XVI in January 1793. Anti-Federalists, growing as a force as they evolved and coalesced into the Republican Party, continued to support revolutionary France. Some even applauded Louis’ death as the appropriate response to despotism by a people who had, for too long, been ground under its heel. The more conservative Federalists, on the other hand, found the events in France repugnant and tending to anarchy. Hamilton, for example, “saw the chaos in Fra
nce as a frightening portent of what could happen in America if the safeguards of order were stripped away by the love of liberty.”1 They wished for the United States to condemn France and ally with England.

  The split in point of view had practical as well as philosophical implications. Washington was determined to pursue a policy of neutrality, but England and France, now at war, each sought to ensure that the United States did not aid its adversary. Both attacked and seized American merchant vessels that were suspected of engaging in commerce with the other. The French had gone so far as to fit out American ships as French privateers, and then set up French prize courts on American soil to sell off American vessels captured by heretofore American ships. The practice infuriated Federalists—to say nothing of the owners of the captured vessels—but there did not seem to be any law against it. In fact, when the original owners had brought suit against the French in district courts, they had been rebuffed.

  Jay, as a Huguenot, personally loathed Catholic France; but politically, as did the president, he understood the need for his weak new nation to navigate between the warring powers. The August 1793 term of the Supreme Court lasted but two days. A virulent yellow fever epidemic had begun to settle on Philadelphia, and everyone fled who could. Nonetheless, in that time, Jay took an action highly significant to American governance. Washington had asked the justices to render an opinion, officially, on those French auctions. A good deal of correspondence had passed back and forth between the president and the chief justice. Finally, during its two-day term, Jay informed Washington that advising on questions not before the Court was an inappropriate role for the justices. (This precedent of the Supreme Court not acting in an advisory capacity has been followed ever since.)

  Jay and his colleagues could not duck neutrality indefinitely, however. Although the February 1794 term featured only four cases, one of them was Glass v. Sloop Betsey, in which a merchant ship owned by Americans and Swedes had been seized by a French privateer, condemned as a prize, and brought to Baltimore to be sold by the French consul.2 The owners sued, but the district court in Maryland ruled against them, claiming the court had no jurisdiction in such a maritime case. Republicans in Maryland hailed the decision. Federalists were once again revulsed. The owners then appealed to the Supreme Court.