Nor were state governments alone in challenging the Embargo Act. Merchants in every port colluded with ship owners and smugglers to undermine—indeed, make a mockery of—the Embargo Act. Jefferson reacted with angry demands that Congress pass a Force Act, requiring ship owners to load vessels in the presence of federal marshals. He told the Republican majority in Congress to ignore the Constitution and authorize customs officials to seize vessels without warrants if they suspected embargo violations. Boston officials refused to obey the Force Act, and Connecticut’s governor rejected the secretary of war’s request to deploy militia to force compliance in his state.
As the 1808 presidential elections approached, Republicans in New England, New York, and even Jefferson’s home state of Virginia broke ranks with the President over the embargo and threatened to reject Jefferson’s chosen successor for the presidency, his protégé, Secretary of State James Madison. At Madison’s behest, Jefferson retreated and ended the embargo. The expansion of trade that followed and the prosperity it engendered ensured an easy victory for Madison in the presidential election.
A Republican acolyte of Thomas Jefferson, President James Madison reversed course as the nation’s chief executive and embraced Chief Justice John Marshall’s Federalist philosophy. He even threatened to use troops if necessary to enforce a Supreme Court decision. (LIBRARY OF CONGRESS)
Although Jefferson, like George Washington, ceded the presidential mansion at the end of his second term, he enjoyed wielding power too much to emulate Washington by retiring quietly “under the shadow of my own Vine and Fig-tree.”8 Indeed, Madison had not finished uttering his oath of office before Jefferson attempted to impose his views on his successor.
Madison, however, did not share some of those views, and although he had served obediently as Jefferson’s secretary of state, he had no intention of serving as Jefferson’s President. As a symbol of his newfound independence, Madison named Chief Justice John Marshall—the man Jefferson despised most in Washington—to administer his oath of office as fourth President of the United States.
They were an incongruous pair, Madison and Marshall. The powerful six-foot, two-inch Chief Justice—for eight years the target of Jefferson’s political arrows—towered over sickly little “Jamie” Madison who stood barely five feet tall. Despite their physical differences, however, they stood as one in their support for the Constitution and for the Supreme Court and federal judiciary as an independent, coequal branch of American government.
Immediately after his inauguration Madison sent a bevy of attorneys into Marshall’s court to reopen United States v. Peters, which Marshall thought he and his colleagues had settled. And indeed they had—almost. Federal Judge Richard Peters, however, had failed to obey the court’s order to pay Gideon Olmstead. His failure, he said, resulted from his effort “to avoid embroiling the government of the United States and that of Pennsylvania.”9
Marshall responded angrily, issuing another court order for Peters to pay Olmstead.
If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.10
Judge Peters reacted quickly, ordering federal militiamen to surround the house that held the proceeds of the Olmstead mutiny and demand delivery. Pennsylvania Governor Simon Snyder, a Jeffersonian Republican and ardent proponent of states’ rights, ordered Pennsylvania militiamen to stand against the federal troops, and the legislature supported him with resolutions that defied the Supreme Court and denied its jurisdiction.
Calling Pennsylvania’s action “destructive of the Union,” Marshall insisted that “the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this case.”11
Certain of support for his resistance from fellow Republicans, Governor Snyder hoped Republican President James Madison would also support him, but to everyone’s surprise and shock, diminutive “little Jamie” charged into the legal fray like Samson.
“The executive of the United States,” he scolded the Pennsylvania governor, “is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the United States, but is expressly enjoined by statute to carry into effect any such decree where opposition may be made to it.”12
With that, Madison alerted federal militiamen, and, faced with the option of firing on federal troops, Snyder backed off, ordered his own troops to stand down, and temporarily ended the threat of armed conflict between a state and the federal government.
Madison’s willingness to support judiciary independence with troops signaled the climax of John Marshall’s eight-year struggle to defend the judiciary against submission to popular or presidential will. In effect James Madison, the man who had helped write the Constitution, now gave the judiciary the firing power to defend itself and the Constitution.
The usually inflammatory Philadelphia newspaper Aurora put it simply and eloquently:
We have heard much talk about the independence of the judiciary, but here is a point at which the independence of the judiciary, in its strict and constitutional sense, exists and demands to be supported, and in which it must be supported, or there is an end to government. . . . The decree of the Court must be obeyed.13
In 1803 the Court had assumed power in Marbury v. Madison to void an act of Congress as unconstitutional. In 1809 it extended that power in United States v. Peters to include state laws. In response many states had issued veiled threats of secession at one time or another, but Marshall and the Court—and now President Madison—agreed that survival of the Union depended on enforcing state compliance with the federal Constitution. The Court’s next chance came in early March 1809 in Fletcher v. Peck.
Land speculator John Peck had sold Robert Fletcher 15,000 acres in western Georgia. The property was part of a 35 million–acre expanse of lands watered by the Yazoo River that now encompasses most of Alabama and Mississippi. Peck and a group of speculators had bribed Georgia legislators to sell them the land at a bargain price of one and one-half cents an acre. After the press exposed the scandal, voters turned the legislators out of office, and a new legislature passed a law canceling all Yazoo land sales, including the sale to Peck and, in turn, his resale to Fletcher.
Without clear title to the land he had bought, Fletcher sued to get his money back from Peck, who hired John Quincy Adams as his defense lawyer. Adams argued that cancellation of Peck’s land purchases from the state and, in turn, his sale of land to Fletcher, had violated Article I of the Constitution, which prohibits states from passing “any law impairing the obligation of contracts.” John Marshall and the Supreme Court stunned state lawmakers across the nation by sustaining Adams’s argument and effectively shearing the powers of state legislatures over property transfers within their borders.
“All the title which the state of Georgia ever had in the premises had been legally conveyed to John Peck” in the state’s original sale of Yazoo River lands, Marshall declared. He deplored evidence “that corruption should find its way into the governments of our infant republics” but insisted it was not “within the province of the judiciary to control their conduct.” In any case, he went on, “this is not a bill brought by the state of Georgia. . . . The case made out in the pleadings is . . . a private contract between two individuals,” and the Constitution barred the state from voiding such a contract.14
IN 1810 THE COURT MOVED INTO NEW QUARTERS ON THE FIRST FLOOR of the Capitol in what had been the Senate chamber. Before he left office President Jefferson—putting his finger into everyone else’s political pies as usual—ordered his surveyor of public buildings, the great architect Benjamin Latrobe, to redesign the Capitol interior.
In 1810, the Supreme Court moved into new, more spacious quarters on the first floor of the Capitol in what ha
d been the Senate chamber. Redesigned by the great architect Benjamin Latrobe, the stately “Hall of Justice” became one of Washington’s most visited sites. It served as the Supreme Court chamber until 1860. (ARCHITECT OF THE CAPITOL)
Latrobe moved the Senate to a larger chamber on the second floor to accommodate expanding membership from new western states. He then moved the Supreme Court and Library of Congress from the dark, cramped quarters of the ground floor to the old Senate chamber on the first floor. Ignoring Senate refusal to appropriate funds for the Supreme Court, Latrobe redesigned part of the old Senate chamber and built a stately “Hall of Justice,” furnished with gleaming mahogany amidst majestic arches. It quickly became one of the most visited sites in the capital city.
Construction of the new chambers had no sooner ended when the court lost its oldest member, seventy-eight-year-old Associate Justice William Cushing. The Massachusetts Federalist had been the first Chief Justice of Massachusetts and author of the monumental decision abolishing slavery in that state. As a symbol of his own abhorrence of slavery, President Washington made Cushing his first appointee to the US Supreme Court.
Far from mourning Cushing’s death, Thomas Jefferson saw his passing as an opportunity for personal aggrandizement and a “circumstance of congratulations.”
“Old Cushing is dead,” he chortled to a confidante. “The event is a fortunate one, and so timed as to be a Godsend for me.”15
To try to change the Federalist complexion of the Court, Jefferson sent President Madison his recommendations to replace Cushing, saying that “firm republicanism and known integrity will give complete confidence to the public in the long desired reformation of the judiciary.”16 But, Jefferson warned, “It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall.”17
Apart from influencing national political affairs, Jefferson admitted he had a strong personal motive for influencing Madison’s selection of Cushing’s replacement. Former Congressman Edward Livingston had sued Jefferson in federal court for $100,000 over a land dispute—enough to leave the former President a homeless pauper if he lost. The case was on its way to circuit court and possibly the Supreme Court, and Jefferson hoped to put some allies on the bench before the case got there.
“It is little doubted,” Jefferson railed bitterly, “that his [Livingston’s] knowledge of Marshall’s character has induced him to bring this action.”
His twistifications of the law in the case of Marbury, in that of Burr and the Yazoo [Fletcher v. Peck] case, show how dexterously he can reconcile law to his personal biases; and nobody seems to doubt that he is ready to decide that Livingston’s right to the Batture [lands] is unquestionable and that I am bound to pay for it with my personal fortune.18
The Batture lands case began after the Louisiana Purchase, when Livingston moved from New York and established a thriving law practice in New Orleans. Once there, he invested in lands that included the Batture, a strip of islets formed by sand and other deposits by the flow of the Mississippi River, between the river’s edge and nearby levees. As President, however, Jefferson had issued an executive order seizing the Batture for the federal government, including acreage for which Livingston held clear title. With the case headed for circuit court and possibly the Supreme Court, Jefferson feared “the deep-seated enmity of one judge [Marshall].”19
Although Jefferson insisted he would “never embarrass the President with any solicitation,” he did just that, urging Madison to appoint Virginia Court of Appeals Judge John Tyler, a wealthy planter and staunch Republican to the High Court. Confident that Madison would comply, Jefferson wrote to Tyler denouncing Marshall:
“The law is nothing more than an ambiguous text to be explained by his sophistry into any meaning which may subserve his personal malice.”20
That June seventy-year-old Samuel Chase died, leaving the Supreme Court with two vacancies, and to Jefferson’s deep disappointment, President Madison, once Jefferson’s loyal protégé, ignored his former patron’s advice. Although Madison chose two Republicans, the President admired and respected Marshall too much not to consult the Chief Justice. Together they chose two moderates: former Maryland Chief Justice Gabriel Duvall,* fifty-nine, and thirty-two-year-old Joseph Story, the youngest member ever chosen for the Court. Already a renowned legal scholar, Story was speaker of the Massachusetts House of Representatives when Madison selected him.
Five Republicans now made up an overwhelming majority of the Court—Duvall, Story, Livingston, Todd, and Johnson. Only Marshall and Bushrod Washington were nominal Federalists. All seven, however, shed their allegiances to political parties and unified in a firm embrace of the Constitution and the Union—and the Supreme Court as guarantor of their sanctity. Unlike Jefferson, they all believed the Union’s survival depended on a strong federal authority and stringent limits on state authority.
As Jefferson watched the High Court’s Republican justices discard their political prejudices, he despaired of salvaging his fortune from Edward Livingston’s lawsuit, and when the case appeared on the docket in Richmond Circuit Court before Chief Justice John Marshall, Jefferson awaited Marshall’s final, fatal blow in their decades-old rivalry.
The Chief Justice’s opening remarks seemed to confirm Jefferson’s worst fears. Marshall called Jefferson’s seizure of Livingston’s Batture lands an outrageous abuse of authority by the former President. Then the Chief Justice paused. When he spoke again, he expressed his regrets that he was legally helpless to return the Batture to its proper owner.
Federal law, Marshall explained, included a strict local-action rule at the time—which meant that if Livingston wanted justice, he would have to sue Jefferson in New Orleans first and nowhere else. With that, Marshall dismissed the case, and Jefferson walked out, his fortune intact and his lust for power equally strong.
On February 3, 1812, the Supreme Court prepared to convene with a full complement of seven members for the first time. All seven would remain on the Court together for the next eleven years, drawing closer to each other than any other group of federal officials in American history. They shared their lodgings and meals in Washington during each session of the Court and rendered a body of written legal decisions called case law, which formed—and remains today—one of the three pillars of the American legal system with the Code of Laws of the United States of America (statutory law), and the Constitution (constitutional law).*
As in England, the American system of case law combines common law, based on accepted practices, and stare decisis,* or precedents set in previous written judicial decisions. Thomas Jefferson detested the concept of case law, and it remains a center of controversy, with critics calling it pseudo-legislation by unelected officials who serve for life and are subject to almost no public restraints.
Members of the 1812 Marshall Court differed in age, family backgrounds, and regional origins, but all had deep ties to the American Revolution, directly or indirectly. Marshall, Washington, Todd, Duvall, and Livingston had all served in the war—Marshall as a daring officer and one of the last Men of Monmouth. Story and Johnson had been too young to serve, but they witnessed their fathers participate in revolutionary activities—Story, in Boston, and Johnson, in Charleston, South Carolina. Washington, Duvall, and, of course, Marshall, were southerners like Johnson.
All the court’s members were renowned lawyers and legal scholars. Duvall and Todd had been Chief Justices of their state supreme courts, and Johnson and Story had been Speakers of their state assemblies.
When the new associate justices assembled for the first time, however, they looked about in vain for the Chief Justice. To everyone’s astonishment, John Marshall failed to appear. It was some time before they learned that heavy rains had turned Virginia roads into mud, and Marshall’s coach had overturned as it careened down a steep slope. When the splintered wreck came to a halt, Marshall lay in agony with a broken collarbone and assorted cuts and bruises. He did not show u
p at the Supreme Court for ten days.
When he returned, the Capitol—like much of the nation—was aflame with talk of war. The British navy had suddenly stepped up attacks on American ships at sea. The economy was collapsing, and anti-British sentiment swept the nation.
President Jefferson’s attempt to fill the Supreme Court with Republican allies failed after each of his appointees bonded with his bitter political enemy Chief Justice John Marshall. Clockwise from upper left, Joseph Story, William Johnson, Brockhorst Livingston, Thomas Todd, Gabriel Duval, and Bushrod Washington. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. IV:282)
“Impressments and other outrages are multiplying,” President Madison worried. “The public mind is rising in a state of high sensibility.”21 With the next presidential election not far off, the administration could not afford to let British attacks on American ships go unanswered.
In the West, Indian raiders, supplied by the British, had stepped up assaults on American settlers, and, under pressure to retaliate, General William Henry Harrison, governor of the Indiana Territory, led a force of 1,000 militiamen to the Indian capital of Shawnee chief Tecumseh.
Tecumseh had organized a confederation of Indian tribes to halt American migration westward. Although Tecumseh’s forces ambushed Harrison’s vanguard at the confluence of the Tippecanoe and Wabash Rivers, the atrocities of the Indian warriors—scalping live captives, for one—spurred frenzied American survivors to fight with an intensity that sent the Indians fleeing for their lives. Thirsting for more blood—and Indian scalps—the Americans followed and destroyed Tecumseh’s village. Across the West settlers who had envisioned peaceful coexistence with Indians now grew determined to drive the Indian from western territories, along with his British ally.
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