The Activist

by Lawrence Goldstone

In a letter of March 23, 1801, responding to a Republican office-seeker, Jefferson laid out his criteria. “All appointments to civil offices during pleasure, made after the event of the election was certainly known to Mr. A, are considered as nullities,” he wrote. “I do not view the persons appointed as even candidates for the office, but make others without noticing or notifying them. Mr. A’s best friends have agreed this is right.”5 Jefferson never specified which of Adams’s friends had agreed that all appointments made after the election results were known were void—nor did he specify whether he meant the results announced February 11 or December 3—but this threat was clearly directed at the judiciary and might possibly have included Marshall himself. After Jefferson then promised to remove anyone guilty of official misconduct, an unsubtle threat of impeachment, he added: “Good men, to whom there is no objection but a difference of political principle, practised on only as far as the right of a private citizen will justify, are not proper subjects of removal, except in the case of attorneys & marshals. The courts being so decidedly federal & irremovable, it is believed that republican attorneys & marshals, being the doors of entrance into the courts, are indispensably necessary as a shield to the republican part of our fellow citizens, which, I believe, is the main body of the people.”6 Jefferson kept to his promise, replacing virtually all Adams’s marshals and United States attorneys, and announced his intention to eliminate the Midnight Judges by a repeal of the Judiciary Act of 1801, “which we trust will be at the next Congress.”7

  To the justices of the peace, Jefferson showed both the carrot and the stick. The stick came first. Shortly after his inauguration, upon a visit to the State Department, the new president discovered the signed, sealed, but undelivered commissions sitting on a table. He instructed that none of the commissions be delivered and then proceeded to void the lot.8 Years later, Jefferson justified this decision by likening the commissions to deeds, and “if there is any principle of law not yet contradicted, it is that delivery is one of the essentials to the validity of a deed.”9 Nonetheless, two weeks later, although he cut the number of justices of the peace in the District to a still-hefty thirty, fifteen for each county, Jefferson behaved with remarkable forbearance and reappointed twenty-five of Adams’s forty-two nominees. The seventeen who failed to receive commissions were either highly partisan Federalists or men against whom Jefferson bore a personal grudge. Marbury, who qualified on both counts—the Maryland electoral vote gambit had been particularly galling to the Republican faithful—was one of the seventeen who was not appointed.

  Marbury’s specific reaction is not recorded, but likely he was far more incensed when he learned that twenty-five of his fellow nominees had been allowed to succeed to the position than he was when he learned that Jefferson had simply refused to reappoint all forty-two. To a man who craved public respect like Marbury, the reappointments would have made his firing much more personal—a lawful and well-earned position usurped. To make it all the more frustrating, since the twenty-five were reappointed under the District of Columbia Act, they would get to complete their five-year terms even if the Judiciary Act of 1801 was repealed.

  Marbury refused to simply sit still and accept the slight, and so, almost immediately, he visited the Department of State to try to secure his commission. Lincoln, however, would not see him. He then sought out Daniel Brent and Jacob Wagner, the clerks at the State Department and both Federalists, but not only could they not help Marbury obtain his commission, they claimed that they could not even tell him where the physical document was. While it was presumed to have been in the stack that Jefferson had discovered when he took office, nobody had seen the paper since. As Marbury was contemplating how to further proceed, Madison finally arrived in Washington City and was sworn in on May 2, relieving Lincoln.

  With the disappearance of the physical commission, any chance Marbury had of buttressing his claim with documentary evidence had vanished. Undaunted, Marbury attempted to press his suit, and eventually succeeded in securing an audience with the new secretary of state, only to be told that nothing could be done if the commission could not be found and, besides, the president considered the matter closed.

  With Congress gone until winter and only a few members of the new Republican administration still in town, William Marbury had ample months ahead of him to stew about his bad fortune and contemplate his next step.

  * Albert Gallatin of Pennsylvania was appointed interim secretary of the treasury soon afterward, an appointment made permanent when the Congress reconvened later in the year.

  EIGHTEEN

  “BEYOND COMPARISON THE WEAKEST OF THE THREE”: MARSHALL TAKES THE COURT

  WHEN THE JUSTICES of the nation’s highest tribunal returned to Washington City for the August 1801 term—the June–December schedule would not begin until the Seventh Congress convened—the capital was all but deserted. Congress would not convene for another four months, and both the president and secretary of state had abandoned the malaria-ridden city for the bucolic rolling hills of western Virginia. In this serendipitous isolation, still ensconced in Committee Room 2, John Marshall set himself the task of molding the Supreme Court.

  The Supreme Court that Marshall inherited was thirteen years of pomp over substance. The Court had not become an arm of policy-making but rather a vestigial appendage in the power structure. His first move was to persuade all six justices to live under the same roof. This might have been difficult in sophisticated Philadelphia, rich in choices of first-class lodging, but could almost be achieved by default in Washington City. Marshall chose Conrad and McMunn’s, the same boardinghouse at which Jefferson had stayed before his inauguration and considered easily the best hostelry in town. It also boasted some of the finest food in the area and was well stocked with good wine, both vital considerations for the convivial chief justice. By forcing the justices to live, work, eat, and drink with each other, Marshall forged a tight, insular unit in which teamwork became mandatory and egos were forced under control. For the remainder of Marshall’s thirty-four-year tenure, whenever court was in session, all the justices would live in the same abode.

  It was fortunate that Marshall possessed the social skills to pull off such a coup, because the five associate justices he inherited represented extremes in size, temperament, age, and—though all were titularly Federalists—political philosophy. The most senior associate was the gentle, erudite Yankee, William Cushing, now almost seventy and in frail health. While Cushing’s intellect seemed undiminished, he moved slowly, both physically and in contemplation. He was still considered the Court’s foremost authority on comparative constitutional law. The youngest associate, at thirty-eight, was the genteel Bushrod Washington. Not at all genteel was William Paterson. No one had been more zealous in enforcing the Sedition Act. Adams had come to detest him. Alfred Moore was forty-five, Marshall’s age, and was also a moderate Federalist. Tiny—he weighed less than one hundred pounds—he was able, quick-witted, and affable. Then there was Samuel Chase, who had enforced the Sedition Act with gusto, harangued defendants from the bench, and openly campaigned for Adams against Jefferson.1

  While galvanizing these five men into an effective working body would be no small feat in itself, Marshall’s bigger challenge was to forge a power base for the Court. His first step was to discontinue the practice of delivering opinions seriatim, each justice speaking separately and independently, and replace it with an “opinion of the court,” each opinion delivered by a single justice, usually the chief, which represented a synthesis of the views of whichever justices participated in the case. In addition to creating a single voice for the Court, this practice required that the justices confer in advance on the opinions being written.

  The first case on the August 1801 docket was Talbot v. Seeman. Talbot had been scheduled for the February term, but Marshall had decided to carry it over to August. The official reason was the absence of Moore and Paterson, but it is more likely that Marshall did not want to begin his tenure on the C
ourt by hearing a politically charged case amidst the maelstrom of a contested election, with frantic Republicans and Federalists prowling the halls of Congress, muttering and plotting within earshot of Committee Room 2. It was an astute decision, since the Court could never have had more freedom to maneuver than was present in the empty capital that August.

  Talbot, like Bas, was a prize case, involving the seizure of a vessel on the high seas. In 1799, at the height of the Quasi-War, the Amelia, a merchant ship owned by Hans Seeman of Hamburg, had set sail from Calcutta bound for its home port, filled to the gunwales with pricey Indian exotica. To deter pirates, the ship carried eight small guns. Once in the Atlantic, however, the Amelia had been seized by a French man-o’-war. Seeman’s crew was replaced and the Amelia was placed under a French flag and redirected to the West Indies. There, both ship and cargo, valued at a whopping $190,000, were to be declared prizes by a French admiralty court—a process known as condemnation—and then sold, the proceeds going to the captors.

  Before it could reach its new destination, however, the Amelia was sighted by yet another warship, this time Old Ironsides, the USS Constitution, Silas Talbot commanding. The Amelia was no more successful in avoiding the Constitution than it had been with the French warship, and was seized once more. Captain Talbot sailed the Amelia, now under an American flag, to New York, where he claimed from Seeman, by international law of salvage, half the value of ship and cargo for himself and his crew for rescuing them from the French. (The laws cited in Bas did not apply, since the Amelia was not originally American-owned.)

  Seeman sued in federal district court, claiming that salvage was not owed since Hamburg was neutral in the ongoing British–French conflict and the Amelia thus would not have been considered a fair prize in French court and should have been returned to him for nothing. Talbot countered that the French actions spoke for themselves and, since the Amelia was flying the flag of a combatant of the United States as defined by Congress and the president, he and his men were entitled both to seize the ship and to claim their $95,000.* While the money involved was substantial, the principal point of contention was political. Federalists, who insisted Congress’s and President Adams’s actions against France during the Quasi-War were legitimate, favored Talbot, while Francophile Republicans, who had always believed that both Congress and the president had exceeded their authority, backed Seeman.

  “Old Ironsides,” the USS Constitution

  At the heart of the case, as it would be in Bas, was whether or not, at the time of the seizure, a state of war existed between the United States and France and, if so, how it had come to be. Adams had, of course, never asked for a formal declaration, nor had Congress provided one. Instead of a declaration, the Federalist Congress had enacted a good deal of bellicose legislation, which Adams had interpreted to suit his policies. Adams had issued a number of directives as commander-in-chief based on his reading of Congress’s intent, but what role the president could actually play in this process under the Constitution was equally vague.

  The district court had agreed with Talbot and awarded salvage, but See-man appealed to the circuit court in New York, over which Bushrod Washington presided. The potential volatility of the case—as well as its true political nature—was reflected by the advocates for the parties. Previewing their duel in the April 1800 New York legislative elections and another duel in 1804 of a more permanent nature were Alexander Hamilton for Captain Talbot and Aaron Burr for Hans Seeman.

  The verdict was highly anticipated, but Justice Washington was not the sort to introduce a spark into a container of gunpowder. Rather than rule on the Quasi-War or attempt to define the power and limitations of the executive and legislative branches to make war, Washington chose a narrower, less risky path. Tiptoeing past the political questions entirely, he overturned the district court’s ruling and found for Seeman, but only on the grounds that an American warship did not have the right to seize a neutral vessel, which the Amelia was under international law. As it was not a lawful prize and would have been returned at no cost by the French court, Seeman was at no risk. On the dubious proposition that a French court would have ruled against French sailors, Washington declared that Talbot was therefore not entitled to salvage.

  By the time Talbot reached the Marshall court in 1801, Bas had already been decided, and the notion of “imperfect” war was a part of the law of the land. In his opinion in Bas, Justice Washington had hastened to emphasize that his circuit court ruling in Talbot did not contradict this principle, but had been decided on narrower grounds. Washington wrote, “The opinion which I delivered at New York, in Talbot v. Seeman was, that although an American vessel could not justify the re-taking of a neutral vessel from the French, because neither the sort of war that subsisted, nor the special commission under which the American acted, authorized the proceeding; yet, that the 7th section of the act of 1799, applied to recaptures from France as an enemy, in all cases authorized by congress.”2

  Representing Talbot before the Supreme Court were two prominent Federalists, Jared Ingersoll of Philadelphia, who had declined Adams’s nomination to the new second circuit court, and none other than February’s tie-breaker, Congressman James A. Bayard of Delaware. For Seeman were equally distinguished Republicans John Thomson Mason of Maryland, nephew of George Mason IV, the most significant member of the 1787 convention who refused to sign the Constitution, and Alexander Dallas, another well-known Philadelphia advocate who had reported for the Court before its move to the Potomac. (Looking around at the Court’s incommodious chambers, Dallas must have congratulated himself on his foresight.)

  The hearings lasted four days. Reiterating the arguments in circuit court, Talbot’s side claimed that the captain’s actions were justified, since he had seized an armed combatant vessel and saved it from condemnation. Mason and Dallas returned to the original assertion that the French admiralty court would have returned Seeman’s property and therefore Talbot had done him no service for which compensation was required. As they had in circuit court, both plaintiff and defendant inevitably gravitated to the political question of whether or not the Amelia could possibly have been a neutral vessel under a French flag. Washington had ruled that it could, but that was before Bas.

  Once the concept of imperfect war was introduced, Adams’s directives to the navy could also come under scrutiny. While Bas had confirmed Congress’s power to create limited war, the decision had not dealt specifically with a president’s power to engage the nation in war, limited or full, unless he was specifically following the dictates of Congress. As a result, arguments in Talbot focused on whether or not President Adams’s interpretation of Congress’s declarations had exacerbated or obviated the limited state of war that Congress had seemed to create between the United States and France. Marshall was thus to be faced with the question of whether or not his old boss had exceeded his constitutional authority as commander-in-chief.

  Mason and Dallas asserted that Washington had more or less backed into the correct decision in circuit court. Since the Amelia was neutral, Talbot’s seizure exceeded the conditions Congress had imposed by which Americans could engage the French in battle, and was thus illegal and the resulting prize could not be held for salvage. What’s more, President Adams’s statements were irrelevant or worse, since the president was not granted the power to declare war by the Constitution. Bayard and Ingersoll maintained that the Amelia was an armed vessel, flying a French flag, which, as the president had made clear, fell squarely within the boundaries that Congress had imposed. They tried to read Adams’s comments about the relevant legislation into the record but were refused.

  In his very first case as chief justice, Marshall faced the same conundrum that he would in Marbury. He could play safe and rule narrowly on the Amelia’s neutrality, thus avoiding war powers and the Quasi-War entirely, or, using Bas as a starting point, take the opportunity to extend the Court’s constitutional authority by sharpening the definition of war powers. Safety was ce
rtainly supported by some compelling arguments. Since the Quasi-War was over and the nation was now run by Jefferson and his Republicans, there seemed little need to rekindle the fires and rule on war powers. Unfortunately, if the Court found for Seeman, it would invalidate Adams’s actions and thus, with its maiden decision, abdicate its role as guardian of Federalist values.

  If the Court found for Talbot, however, it would be forced to affirm Adams’s interpretations of war powers, which would outrage Republicans and, with the threat of impeachment looming in December when the Seventh Congress convened, outrage might well soon translate into action.* Adding to the difficulty was that a finding for Talbot would reverse Justice Washington’s ruling and therefore work against the musketeer spirit that Marshall was trying fervently to develop among his justices.

  Marshall and his colleagues needed almost a week to find a solution, while the lawyers sweltered in empty Washington City. Since “what little social life there was in the scraggly village revolved around” the off-limits Conrad and McMunn’s, they were forced to sit idly in inferior living quarters having no one to speak with except each other. The decision, delivered by Marshall, the first “Opinion of the Court,” was a masterpiece of legal reasoning, political necessity, conciliation, and misdirection, all the elements that would, in two years, distinguish Marbury. That Marshall could be so successful in crafting pragmatism to sound like legalism, eelishness to appear as clarity, is testament to his political skill.

  The chief justice began by reaffirming Bas. “It is not denied . . . that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” But then Marshall extended Bas and asserted: “The whole powers of war being, by the constitution of the United States, vested in congress, the Acts of that body can alone be resorted to as our guides in this enquiry.”3