John Marshall

by Harlow Giles Unger

  In August 1813 a Spanish merchant in London had chartered the armed English cargo ship Nereide to carry £10,000 worth of Spanish iron, steel, coal, tools, and dry goods to Buenos Aires. After an exchange of fire, an American privateer captured the Nereide and brought it to New York. The district court there awarded the ship and its cargo to their American captor as a prize of war. After the circuit court upheld the award, the Spanish merchant appealed to the Supreme Court, arguing that Spain was a neutral nation and that international law exempted neutral goods from seizure as prizes of war. The American claimant charged that the Nereide had been armed and belligerent—that the British flag on its mast and fearsome cannons on deck left the ship far from neutral in appearance.

  Marshall and the Court disagreed, declaring neutral goods invariably exempt from seizure at sea, regardless of the character or nationality of the ship carrying the goods.

  “The original law of nations,” Marshall explained, stated that “the goods of an enemy in the vessel of a friend are a prize of war and the goods of a friend in the vessel of an enemy are to be restored.” He said the rule evolved from the principle that war gave combatants “full right to capture the goods of an enemy, but . . . no right to capture the goods of a friend.”

  The character of the property . . . depends in no degree upon the character of the vehicle in which it is found. . . . The characters of the vessel and cargo remain as distinct in this as in any other case. The sentence, therefore of the Circuit Court must be reversed, and the property . . . be restored [to the Spanish merchant].7

  Added to international law by the 1856 Declaration of Paris, Marshall’s Nereide decision opened the seas to international free trade, permitting neutral nations to remain out of other nations’ conflicts without suffering economic penalties. Marshall’s decision remains a core element of international law and the laws of the sea and made possible the restoration to their owners of untold hundreds of millions of dollars’ worth of art and other goods stolen by Nazi, Communist, and other twentieth-century rogue governments.

  A few months after signing the Treaty of Ghent the United States and Britain signed a commercial accord that ended discriminatory duties between the two nations and catapulted the two nations’ economies to record peacetime levels. Both nations subsequently acted to prevent accidental renewal of hostilities along the US-Canadian frontier by agreeing to limit naval strength on the Great Lakes to four ships each. Both nations were to limit arms aboard their ships to those needed for enforcing customs regulations but incapable of participating in naval warfare.

  The war quickly became a distant memory, as Americans happily embraced the greatest peacetime prosperity they had experienced in the more than thirty-two years since victory at Yorktown. General William Henry Harrison’s victories over the Indian nations of the West had opened the lands between the Appalachian Mountains and Mississippi River to American migration.

  Secure from attack by British troops and Indians, tens of thousands of Americans realized Aaron Burr’s dream and streamed westward to carve new farms from virgin plains, harvest furs and pelts from superabundant wildlife, cull timber from vast forests, and chisel ores from rich mountainsides.

  The land rush added six states and scores of towns to the United States, generated wealth for almost every man, woman, and child in the nation, and engendered the greatest social and economic revolution in history. Never before in the annals of man had a sovereign state transferred so much land to ordinary citizens with no claims to nobility. Regardless of their lineage, they claimed millions of acres of land that lifted them into the “propertied class”—the landed gentry—with rights to vote, serve in public office, and govern their communities, states, and nation.

  With the surge of migration across the Appalachians into the Virginia wilderness, the Virginia legislature appropriated funds to implement John Marshall’s recommendations in the 1812 River Commission Report to improve James River navigation and build a turnpike across the mountains. A decade later it would charter the James River and Kanawha Company and fulfill George Washington’s dream of strengthening the Union with commercial links between East and West.

  Although it spawned far-reaching economic progress, the westward migration also produced thousands of disputes over land ownership—including one courtroom drama over a relatively miniscule 739 acres. The case reached the Supreme Court in 1816 and provoked a historic decision that expanded the controversy over state sovereignty and sent the nation a step closer to civil war. For once Chief Justice John Marshall had no part in the decision, having recused himself because his brother James Markham Marshall had leased the lands in the case.

  In Marshall’s absence it fell to Boston’s Associate Justice Joseph Story to deliver the historic decision—a monumental peroration that upheld the constitutional primacy of treaties as “supreme law of the land” [Article VI]. In addition, it reiterated federal government sovereignty over foreign relations and the Supreme Court’s authority to void state court decisions it deemed unconstitutional.

  Martin v. Hunter’s Lessee was an unsettled remnant of Hite v. Fairfax that John Marshall had won in 1794. During the Revolution land speculator David Hunter had purchased a 739-acre tract from the Commonwealth of Virginia which had been seizing and selling unsettled Tory lands. When the Marshalls won Hite v. Fairfax, Hunter claimed his property lay outside the Fairfax Manor Lands and was, therefore, unaffected by the decision that had given Fairfax title to the manor lands. Virginia’s court of appeals, the state’s highest court, agreed.

  John Marshall’s brother James Markham appealed to the US Supreme Court, which reversed the Virginia court decision and ruled against Hunter. In delivering the High Court decision, Story said the Jay Treaty had nullified Virginia’s confiscation law and nullified its sale of land to Hunter. He ordered the Virginia Court of Appeals to reverse itself and restore title to the current owners of the manor lands—that is, the Marshalls.

  Led by Thomas Jefferson’s political parrot Judge Spencer Roane, the Virginia Court startled the nation—North and South—by rejecting the Supreme Court order and declaring “the appellate power of the Supreme Court does not extend to this Court.”

  Not satisfied with defying a Supreme Court order, Roane and his court echoed the words of Jefferson’s notorious Kentucky Resolution, calling the Constitution a compact between sovereign states and denying the US Supreme Court any jurisdiction in state matters.8

  Unlike Marshall, Justice Story shied from angry confrontations and prefaced his response with a gentle apology to members of the Virginia court for the “unwelcome task” he faced. Nonetheless he and the other justices were unyielding, with a firm, collective rejection of both the Virginia and Kentucky Resolutions:

  “The Constitution of the United States was established not by the states,” Story asserted, “but, as the preamble declared, by ‘the people of the United States.’” With that, he added one more weapon to the Supreme Court’s arsenal: in Marbury v. Madison the Court had asserted power to void federal laws it deemed unconstitutional. In United States v. Peters Marshall and the court asserted the supremacy of federal over state laws, denied states the right to overrule federal laws, and asserted its own power to void state laws. With Martin v. Hunter’s Lessee Story asserted the Court’s power to overturn state court decisions it adjudged in violation of the Constitution. In effect he presented the Supreme Court as the nation’s final arbiter, with powers to void any and every law and court decision, federal or state.

  DESPITE GROWING OBJECTIONS TO VIRGINIA’S OUTSIZED INFLUENCE IN the federal government, Americans elected Secretary of State James Monroe fifth President of the United States, with virtually no opposition, and his inauguration was the most joyful and elaborate since that of George Washington.

  As secretary of state and secretary of war, Monroe had become the most visible, most powerful figure in the Madison administration. With some justification, Americans inflated his role in government and credited him wit
h masterminding “victory” in the War of 1812, initiating postwar western expansion, and engineering the nation’s economic recovery.

  Although his hair had grayed and worry had carved furrows across his cheeks, Marshall’s former comrade-in-arms remained robust, handsome, and fit, with a martial bearing that made him seem a worthy successor to George Washington.

  March 4, 1817, dawned “a mild and radiant” morning, and at 11:30 a.m. Monroe and Vice President–elect Daniel D. Tompkins, the former governor of New York, stepped out of Monroe’s house to the cheers of thousands. “A large cavalcade of citizens on horseback,” the newspapers reported, escorted them to the temporary capitol, a building hastily constructed to house Congress while workmen repaired the fire-damaged original 100 yards away.

  In the first open-air presidential inauguration in American history President Madison and the justices of the Supreme Court greeted the President-elect as the Marine Corps and several companies of artillery and riflemen fired explosive military honors into the air. The officials shuffled into the small, temporary Senate chamber for Tompkins to take the oath of office as vice president, then moved outside onto a specially built platform for the presidential ceremonies.

  According to custom then, Monroe delivered his address before taking his oath, expressing his deep distress over the secessionist movement in New England and calling for “increased harmony” among Americans. “Discord does not belong to our system,” he insisted. “The American people . . . constitute one great family with a common interest.” Monroe pledged that “harmony among Americans . . . will be the object of my constant and zealous attentions.”9

  At Monroe’s earnest request, his friend since childhood, Chief Justice John Marshall, administered the oath of office in a ceremony fraught with emotions for both. From the time they were boys in the Virginia woods Monroe and Marshall had led lives in tandem, attending the same little backwoods school, going off to the same college, enlisting and fighting heroically in the Revolutionary War, shivering through a bitter winter in the same log hut at Valley Forge, leading the charge into British lines at Monmouth. Both had studied law after the war and entered public service.

  They parted ways for a while over ratification of the Constitution and Bill of Rights, but the course of their careers reunited them. Both men served their country loyally and brilliantly as congressmen, diplomats in Europe, and, eventually, as secretaries of state.

  Both Marshall and Monroe had aged visibly under the burdens of heavy public and private responsibilities. They were both married with children. Monroe had two daughters, thirty-year-old Eliza, married by then, and sixteen-year-old Maria Hester. Marshall had five sons and one daughter. Marshall’s oldest son, thirty-two-year-old Thomas, had graduated from Princeton College but chose to return to his roots on the family farm on the old Fairfax estate. The next oldest, twenty-eight-year-old Jacquelin, abandoned medical studies to join Thomas. Although eighteen-year-old John was still at Harvard, he would be dismissed before graduating and join his older brothers on the farm. Twenty-one-year-old Mary had married a Richmond business man and settled near the Marshall house. Only fifteen-year-old James Keith and ten-year-old Edward Carrington still lived at home.

  On March 15, 1817, John Marshall administered the presidential oath to James Monroe. They were the last Revolutionary War officers to lead the nation and the last of the Virginia Dynasty that had governed the nation during all but four years since independence. Although much of the Capitol lay in ruins behind them, the Constitution they swore to uphold remained intact.

  The inauguration was a personal triumph for both men, and outgoing President James Madison—a close friend of each by then—joined the estimated 8,000 spectators who roared their approval as the President uttered the last words of the presidential oath: “So help me God.”

  The lives of Monroe and Marshall would remain intertwined long after that first inauguration. Although Monroe’s sweeping election victory relegated Marshall’s Federalist Party to history’s dustbin, Marshall’s broad Supreme Court decisions had tossed Monroe’s Republican Party* and many of its Jeffersonian concepts into the same receptacle.

  With the Capitol ruins looming in the background, Chief Justice John Marshall (right, holding Bible) swears in James Monroe as the nation’s fifth President. The destruction by British troops in the War of 1812 forced the inauguration outdoors for the first time. (LIBRARY OF CONGRESS)

  As President, Thomas Jefferson had sought to give states authority over most domestic matters, but Marshall had set aside all or part of half the number of laws passed by state legislatures. “The government of the United States is supreme,” Marshall asserted again and again. “Its laws, when made in the pursuance of the Constitution, form the supreme law of the land.”10

  Although Monroe disagreed with some Marshall decisions, he took full advantage of them as President. Like most Presidents before and after, Monroe found Marshall’s brand of Federalism the only practical means for governing a nation with so diverse a population, such sharp regional differences, and so many conflicting interests. Together the two friends helped allay “the storms of party” and turn Monroe’s presidency into an “Era of Good Feelings.”11 The President took advantage of the political calm to strengthen the nation’s physical defenses against external foes, while the Chief Justice strengthened the nation’s constitutional defenses against internal foes.

  By the end of Monroe’s first term political parties had disappeared, the US land mass had expanded into an empire that stretched “from sea to shining sea,” and Monroe became the only President in American history other than George Washington to win reelection without opposition.

  The great westward migration saw land disputes clog the Supreme Court calendar immediately after Monroe’s first inauguration, but when the Court reconvened in the winter of 1819 Marshall and his associate justices began what would be the twelve most important years in Supreme Court and US government history.

  _______________

  * As stated earlier, Monroe’s and Jefferson’s Republican Party had no ties to the modern Republican Party.

  CHAPTER 16

  The Final Arbiter

  LIKE THUNDERBOLTS FROM ON HIGH, SUPREME COURT RULINGS BEGAN crashing onto the legal landscape of the United States in early 1819, as Virginia’s John Marshall, the American Law Giver, proclaimed to all Americans what thou shalt and shalt not do. Together with Marbury v. Madison, the decisions from 1819 to 1832 firmly established the Supreme Court of the United States as the third pillar of America’s federal government and final arbiter of the nation’s legal matters.

  Although the Court did not and could not initiate domestic cases, Marshall’s Supreme Court grew far more powerful than the appellate court described in the Constitution. To make the Constitution work—“to form a more perfect union, establish justice, insure domestic tranquility . . . and secure the blessing of liberty to ourselves and our posterity”—Marshall’s Supreme Court put restraints on Presidents and governors, Congress and state assemblies, and federal and state courts.

  Marshall’s Court assumed so many powers so quickly, however, that southern states opposed to union and reluctant to cede state sovereignty rose in protest. First, South Carolina, then Georgia called out its state militia in 1832 to confront federal troops and prepared for civil war—thirty years ahead of history’s schedule. Indeed, Marshall himself feared “that our Constitution cannot last.”1

  Thus, Marshall conceded that the Court’s decisions had indeed changed the Constitution and altered the shape of the government that the Founders—from North and South—had created.

  John Marshall’s Supreme Court ruled America’s legal landscape for thirty-five years and made him the longest-serving Chief Justice in US history. Of the court’s hundreds of decisions, the following nine may have been the most far-reaching, in that they formed a new foundation for US constitutional law:

  Marbury v. Madison (1803)

  United States v. Peters
(1809)

  Fletcher v. Peck (1810)

  Martin v. Hunter’s Lessee (1816)

  Dartmouth College v. Woodward (1819)

  McCulloch v. Maryland (1819)

  Cohens v. Virginia (1821)

  Gibbons v. Ogden (1824)

  Worcester v. Georgia (1832)

  Historians and jurists may debate which were the most important, but each was most important in certain ways—as are so many cases the Supreme Court decided then and since. Three cases (Marbury v. Madison, United States v. Peters, and Worcester v. Georgia) established the Supreme Court as the nation’s supreme arbiter, asserting the Court’s right to review and void every law, court decision, and executive act in the land—federal, state, or local. As Chief Justice Earl Warren would put it in 1958, “The federal judiciary is supreme in the exposition of the law of the Constitution.”2

  Three other cases (McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v. Ogden) stripped states of sovereignty beyond their borders and affirmed federal government sovereignty in national and international affairs, and extended the federal government’s designated powers in the Constitution to include so-called implied powers.

  And three cases (Fletcher v. Peck, Dartmouth College v. Woodward, and Cohens v. Virginia) ensured individual citizens (and private institutions) the “inalienable rights” promised by the Declaration of Independence and Bill of Rights. John Marshall and the Court defined them as life, liberty, and property rather than pursuit of happiness. The three cases re-asserted the inviolability of contracts and protected citizens and corporations against arbitrary confiscation of their property by government.

  Of the nine, a full discussion of Marbury v. Madison (judicial review) appears on pages 195–196 and 206–210; United States v. Peters (federal sovereignty) on pages 261 and 263–264; Fletcher v. Peck (inviolability of contracts) on page 265; and Hunter v. Martin’s Lessee (treaties as federal law and Supreme Court powers to overrule state courts) on pages 286–287.