Having thrown a sop to Republicans by declaring that Adams’s interpretation of Congress’s actions had no bearing on the case—which also carried the implication that the president had exceeded his constitutional authority—Marshall then examined Congress’s actions and came to the dubious conclusion that Talbot’s seizure was justified under existing law. There was no specific legislation that supported that conclusion, nor had there been a declaration of war. Most importantly, Marshall did not specify by what authority he could interpret Congress’s action when the president could not. Still, the chief justice concluded, “the real intent of Congress” was for American naval vessels to protect American commerce and, since the Amelia “was an armed vessel commanded and manned by Frenchmen,” that Talbot had had “probable cause” to bring her to a United States port.
Had he stopped there, the decision would have enraged Republicans, the implied slap at Adams notwithstanding. But Marshall was too smart for that. He danced on the question of whether or not Talbot was entitled to salvage, which in turn depended on whether or not Seeman would have gotten his ship and cargo back from a French court. It troubled Marshall not one whit to use as a linchpin of an important constitutional decision his determination of the probable actions of a foreign court. This round went to Talbot as well. Marshall decided, contradicting Washington, that under French law the Amelia would have surely been condemned, as it was carrying goods loaded in a part of the British Empire, to wit India. Talbot had therefore performed “an essential service, and the Court is therefore of the opinion that the re-captor is entitled to salvage.”4
Until this point, the opinion had been, at least by Marshall’s standards, more or less straightforward. But no one understood better than John Marshall that the essence of mediation is to leave neither of the parties totally happy, but both with something to lose. So, adding the twist that would characterize all his great decisions, Marshall then hefted his scalpel and went to work on the award.
While she appeared to be a combatant vessel, he observed, the Amelia was actually neutral, and a neutral vessel “according to the law of nations . . . is generally restored without salvage.” Having defined the ship as two things at once, Marshall went on to assert that, under the circumstances, one half— about $95,000—was far too great a sum. Talbot, after all, had only saved a part-neutral vessel. One sixth—$31,500—seemed fairer, Marshall decided, pulling a number out of the air. Moreover, for reasons that were not expounded, he determined that Seeman, even though he had lost, should be able to deduct his costs from the total. In the end, Hans Seeman paid Captain Talbot $26,405.77. (Talbot was forced to pay his own costs as well.)
If Jefferson had been in town or Congress had been in session, Marshall would likely have been impeached on the spot. But, as it was, in the vacuum of Washington City in August, he had been allowed to achieve everything he wanted, and the decision would be allowed to mellow for four months before the new Congress or the new president could act against it. The Court had acted as one, exercised constitutional authority, and everyone was both happy and unhappy at the result. The enduring legacy of Talbot, like that of Marbury, is found not in the essentials, but rather in the incidentals, in this case in Marshall’s assertion that only Congress is invested by the Constitution with the power to make war.5 Marshall’s propensity to, in effect, legislate from the bench did not pass totally unnoticed. In 1823, Thomas Jefferson wrote: “The practice of Judge Marshall of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable.”6
Thomas Jefferson’s 1823 letter censuring John Marshall
No such sentiments were expressed at the time, however—no one was in town to do so—and thus, operating in the shadows, Marshall had laid precedent not only for Congress’s power to make war, but for the chief justice’s power to say what the law is, even if no one had asked him. All in all, a brilliant coup. That Republicans chose ultimately to accept the Talbot decision simply provides even more proof that when John Marshall drew a line in the sand, he knew exactly how many grains should be on either side.
With Talbot concluded and a political victory in his pocket, after disposing of some minor matters, Marshall adjourned the Court until December, a term that promised to lack the peace and tranquility of the one just concluded.
* Talbot was heard in district court before Bas had been decided.
* Constitutionally, of course, Supreme Court justices could only be impeached for misconduct, but neither Federalists nor Republicans were under any illusions that the letter of the law would be adhered to. No one would have been surprised to see Marshall impeached, and many in Washington expected it.
NINETEEN
REPEAL: THE SEVENTH CONGRESS
ON DECEMBER 7, 1801, when the Seventh Congress reconvened, this time fully and aggressively Republican, President Jefferson ironically found himself faced with the same problem of reining in the extreme members of his party that had bedeviled his predecessor. Radical Republicans were bristling for revenge and were only grudgingly willing to aid their leader in achieving consensus with their routed enemies. Jefferson had already stretched their patience the previous March when he had reappointed the twenty-five justices of the peace and left a number of key Federalists in their posts. It particularly galled radical Republicans to see Rufus King still in London.
In an attempt to avoid kindling partisan bickering—or at least to forestall it—Jefferson broke with tradition and chose to submit written remarks to Congress rather than deliver them in person. As he explained in a letter shortly afterward, “By sending a message, instead of making a speech at the opening of the session, I have prevented the bloody conflict to which the making an answer would have committed them.” As a result, he noted optimistically, “Our winter campaign has opened with more good humor than I expected.”1
Jefferson’s speech was read to Congress on December 8, and emphasized state power, smaller federal government, and lower taxes. Although he referred only briefly to the courts bill, he left no doubt as to his intentions. “The judiciary system of the United States, and especially that portion of it recently erected, will, of course, present itself to the contemplation of Congress.” To help Congress in this task, the new president added, “and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several states, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid.”2
Most congressional Republicans had no qualms about forgoing niceties and proclaiming publicly that they wanted to repeal the Judiciary Act of 1801 simply to boot Adams’s judges out of office, but Jefferson was after the moral high ground. Conciliation would fall flat if he could not find some justification for repeal beyond mere spite. Nonetheless, submitting statistics to establish that the extra layer of courts created by the act was unnecessary—to, in effect, prove that the judiciary of an expanding nation should contract—was an uncertain undertaking. Even if court volume did not warrant a dedicated circuit court system and all those new judges at that moment, even the most partisan Republican would admit that the existing judiciary would inevitably become inadequate in the coming years. Their solution to the problem—simply to dump Federalist judges through repeal, then add Republicans to the courts as the need arose—was not, however, what Jefferson was looking for.
Jefferson’s call for statistics, then, was a way to deter the sort of vindictive internecine bickering that had sunk Adams and, at the same time, persuade Federalists to accept the inevitable. After all, what fair man could argue with the facts? Jefferson, riding a wave, had every reason to be optimistic that the strategem would be successful. Unlike his predecessor, who had inherited a party spoiled by unbroken success and then seen it demonize him when its hegemony was threatened, Jefferso
n was the leader of a newly empowered party whose members almost universally credited him with their ascension. Using reason and the power of his office, he had thus far been masterful in co-opting Federalists while blunting the point of the Republican spear. As for the judiciary itself, the last Federalist bastion, Marshall had demonstrated in Talbot that he joined the president in the conviction that confrontation served no one. An orderly repeal, based on sound statistical evidence, would leave Marshall and his five Federalists no choice but to acquiesce.
On December 8, 1801, the same day that Jefferson’s message was read to Congress, the Supreme Court began a new term. Marshall adjourned the proceedings in the morning to allow the justices to hear the president’s address read in the Senate chamber—it was, after all, only a short walk—then, in the afternoon, heard arguments in another volatile Federalist-against-Republican prize case, United States v. Schooner Peggy. Unlike Talbot, however, which concerned the actions of the departed Adams, in this case the Court was to rule on an alleged abuse of authority by Thomas Jefferson himself.
Like the Amelia, the Peggy was an armed merchantman, French-owned, that had been seized and condemned in circuit court as a prize during the Quasi-War. Before the ship could be sold, however, Oliver Ellsworth signed the Convention of 1800 at Môrtefontaine. The treaty stipulated that captured vessels that had not been “definitively condemned” should be returned to their owners. After he took office, Jefferson had therefore directed that the proceeds of the sale go to the French owners, not the Peggy’s captors, who then appealed Jefferson’s directive to the same circuit court in Connecticut that had awarded them the prize in the first place. Justice Cushing, presiding in circuit court, agreed that Jefferson had no right to stick his nose into the affair and, as a result, the court clerk in Federalist Connecticut refused to hand the money over to the French owners. Jefferson’s new Republican United States attorney for Connecticut appealed Cushing’s ruling to the Supreme Court.
Like Talbot, which had been on the February docket but was held over until August, United States v. Schooner Peggy had been scheduled for the August term but Marshall had held it over until December. It was one thing to rule on an Adams administration case in a deserted capital, but quite another to risk being seen as end-running Jefferson. Once again, delay had proved wise. By the time Schooner Peggy was heard, Marshall had taken the measure of the new president and could feel reasonably confident that his cousin would be tolerant of the Court as long as it did not directly challenge his power.
Arguments were the same as they been in circuit court, the defendants maintaining that the original decision, rendered before the treaty was in existence, was quite obviously a “definitive condemnation.” Jefferson therefore had had no authority to instruct the court to do anything, since the ruling had been within the law at the time it was made. As to the Supreme Court, since it acted only in an appellate capacity, it could only overturn Cushing’s decision if the circuit court had committed a judicial error—which it had not—not because the president had decided to inject himself into the process.
If Adams had been reelected, Marshall, with his enduring commitment to separation of powers, almost certainly would have agreed. Here, however, in his opinion of the court, he dodged the question of Jefferson’s meddling with characteristic legerdemain. “It is in general true,” he first conceded, “that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not.” However, he continued, ignoring the constitutional ban on ex post facto laws, “if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed or its obligation denied. In such a case the court must decide according to existing laws, and, if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”3 Having twisted the Constitution to avoid antagonizing Jefferson, Marshall added an additional sop to the executive: he delayed making the decision public, not delivering his opinion until after Jefferson had signed the ratified and amended Treaty of Môrtefontaine on December 21.4 The proceeds of the sale of the Peggy were thus awarded to the French owners over the American captors.
Marshall had retreated to avoid a confrontation he could not win. The hint of collusion on the Schooner Peggy decision, however, was unmistakable, “a potential olive branch from the judiciary” and “a vindication of [Jefferson’s] desire to repair relations with France.”5 As long as Marshall backpedaled, Jefferson had no cause to risk his grand strategy of cooperation. As it was, Marshall was left to make the law jump through political hoops to create the impression that the two avowed enemies had succeeded in maintaining their rapprochement with remarkable ease.
But that illusion was about to be strained considerably. On December 16, Charles Lee appeared before the Court to demand a writ of mandamus for his client, William Marbury.
Marbury had fruitlessly pursued his appointment for seven months. Finally, along with three other denied appointees, Marbury engaged Lee, attorney general under Washington and Adams, to initiate a suit on his behalf. Lee was also an old friend of Marshall’s who appeared regularly before the Supreme Court. With the physical commission nowhere to be found, Lee’s first act was to establish evidence of the appointment, so he petitioned the Senate to turn over its records of the nomination and ratification. The Senate ignored him. From there, Lee went to Marshall.
In light of the subsequent decision, Lee has unfairly come under criticism for choosing the Supreme Court rather than the recently empaneled District of Columbia circuit court to seek the writ. Lee had excellent reasons for bypassing the circuit court. From a legal standpoint, power to issue writs of mandamus had not been specifically enumerated among this circuit court’s powers, which had been established under a separate bill from the other circuit courts. From a political standpoint, William Kilty, a Republican, was now chief judge of the District of Columbia circuit court, and Lee’s request could easily have been refused. The Supreme Court, on the other hand, headed by Federalist Marshall, was, on two counts, a more promising alternative. In the first place, the Court seemed to be specifically empowered under the Judiciary Act of 1789 to issue a mandamus, and, in the second, Lee had every reason to believe that the chief justice, whom he knew well, would be pleased to have a chance to atone for his error in not getting Marbury his commission back in March.
Charles Lee
The chief justice was, in fact, none too pleased to see Lee show up in his court, threatening the carefully constructed truce that he had achieved with Jefferson, particularly for a cause as unimportant as four essentially worthless justice-of-the-peace commissions. Still, he was unable to simply shoo Lee away without appearing to have caved in to the Republicans. To make the question even more delicate, Marshall had to contend with Justice Chase, who, in typical fashion, wanted to grant Lee’s request and issue the mandamus immediately.
Levi Lincoln must have been told of Lee’s intentions in advance, because he was in the tiny committee room when Lee showed up. Marshall asked Lincoln if either he or Madison had anything to say, but Lincoln declined to take a position on the motion. Marshall talked the matter over with his associates, and then once more opted for strategic delay. Mentioning nothing about constitutionality, the appellate process, Section 13 of the Judiciary Act, any other court, or whether Lee had come to the right place to seek the writ, Marshall issued an order requiring Secretary of State Madison to show cause why a writ of mandamus should not be issued. Madison was not required to respond immediately, but was given until the fourth day of the next term, which would be some time the following June when Congress was no longer in session and Washington would again be deserted. At that time, as he had done in Talbot and Schooner Peggy, Marshall could figure out a way to dispose of the matter, steering a path between Jefferson and the needs of his own party without arousing rancor on either side.
Jef
ferson’s hold over the firebrands in his party, however, was more tenuous than either the president or Marshall had thought. For the first month of the legislative session, Congress dealt largely with administrative matters. When it finally got down to business on Wednesday, January 6, 1802, two weeks after the December term of the Supreme Court ended and Marshall had returned to Richmond, the very first item on the Senate agenda was a motion by John Breckinridge of Kentucky: “Resolved, That the act of Congress passed on the 13th day of February, 1801, entitled ‘An act to provide for the more convenient organization of the courts of the United States,’ ought to be repealed.”6
Jefferson had great affection for Breckinridge personally—the young man had been something of a protégé and would be the first cabinet member from a Western state when appointed attorney general in 1804—but the president almost certainly did not welcome an open attack on the Federalist judiciary this quickly any more than Marshall welcomed Charles Lee’s mandamus petition. After all the wooing of moderate Federalists, he would have preferred dealing with other legislation—lowering taxes was his first priority—before risking antagonizing enemies that he had been courting. Jefferson had, of course, anticipated fireworks over the courts bill. In a letter only two weeks before, he had said of the congressional session, “Hitherto there have been no disagreeable altercations. The suppression of useless offices, and lopping off the parasitical plant engrafted at the last session on the judiciary body, will probably produce some.”7
Breckinridge did not specify why he brought his motion to the floor so quickly but many Republicans had been furious about Marshall’s show-cause order to Madison. Lacking the nuance of the president, they could not see the move as a strategic retreat, an attempt by the chief justice to stall and then dispense with the issue quietly. To Republicans in Congress, hauling Madison in front of the reviled Marshall seemed the first salvo in the long-expected orchestrated assault on the executive by the Federalist courts. Demonstrating how tenuous was his détente with Marshall, even Jefferson had expressed that very point of view in a letter on December 19, sentiments that he had also certainly communicated to loyal supporters like Breckin-ridge. “[The Federalists] have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved . . . and from that battery all the works of republicanism are to be beaten down then erased by a fraudulent use of the constitution.”8 Lee’s appearance was therefore not seen as a spontaneous action by four frustrated office seekers, but part of a cabal with the justices to usurp power from Jefferson and the Republican Congress.
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