As steamboat travel and shipping increased, state after state granted monopolies to individual steamboat companies, with some states seizing vessels of unlicensed out-of-state operators. Violence erupted between seamen from competing companies for control of piers in waterfront towns in Connecticut, New York, New Jersey, and other states. Steamboat operators and owners rushed into courtrooms, filing suits and countersuits until one legal skirmish reached John Marshall and the US Supreme Court.
Increased steamboat traffic on the Hudson River and elsewhere set off a steamboat war, as states granted favored operators exclusive licenses and barred out-of-state firms. John Marshall’s Supreme Court ruled such state monopolies unconstitutional, saying the Constitution had given Congress exclusive authority over interstate commerce. “Commerce among the states does not stop at the boundary line of each state,” the Chief Justice declared in his historic decision. (LIBRARY OF CONGRESS)
The Fulton-Livingston monopoly had granted Aaron Ogden an exclusive license to operate a ferry on the Hudson River between New York City and New Jersey. Meanwhile Thomas Gibbons and the young Cornelius Vanderbilt—still years away from his legendary riches—were operating two steamboats under the Federal Coasting Act, allowing them to carry passengers and goods in coastal waters. Coastal waters, however, flowed into New York Bay and lapped both New York and New Jersey shores, putting them in competition with Ogden and infringing on his monopoly. When New York state banned Gibbons’s vessels from New York waters, he sued.
Even the astute minds of John Marshall and his colleagues admitted that the steamboat wars so “perplexed the understanding as to obscure principles which were before thought quite plain.” Marshall and the Court, however, restated those principles simply:
“The enlightened patriots who framed our Constitution,” Marshall declared, “must be understood to have employed words in their natural sense and to have intended what they said.” Citing Article I, Section 8 of the Constitution, he said the framers had given Congress power “to regulate commerce” and the word “commerce . . . describes the commercial intercourse between nations and parts of nations. . . . Commerce among the states does not stop at the boundary line of each state, but may be introduced into the interior.”18
His conclusion was direct and blunt:
The several laws of the state of New York that prohibit vessels licensed according to the laws of the United States from navigating the waters of New York . . . are repugnant to the Constitution and void . . . and the bill [lawsuit] of the said Aaron Ogden . . . is hereby dismissed.19
Several historians called the 1824 Gibbons v. Ogden decision “the emancipation of American commerce”20 and the legal foundation of the free enterprise system. In effect it barred states from interfering in interstate commerce by establishing state-sponsored monopolies. It also reinforced federal sovereignty over interstate affairs and commerce generally, and it gave national interests priority over state and regional interests.
AS MARSHALL AWAITED ANOTHER JEFFERSON ASSAULT ON THE COURT after Gibbons v. Ogden, the eighty-three-year-old Sage of Monticello remained uncharacteristically silent. Jefferson was bankrupt and about to lose his beloved home and all his possessions. He organized a public lottery hoping to sell his mills and raise enough money to keep his mountain-top home at Monticello and its surrounding farms.
Jefferson had been no more profligate than other southern plantation owners of his social and political class. All lived beyond their means and accumulated enormous debts, but professional success, crop sales, and sales of excess land had always provided enough income to cover living costs and retire enough debt to keep bill collectors and sheriffs at bay. Ironically, Jefferson’s own Louisiana Purchase added so much vacant land in the West to the nation’s supply of unsold real estate that eastern land values plummeted and reduced proceeds from the sale of Jefferson’s own unused fields.
With his retirement from the presidency, the loss of his annual $25,000-a-year salary left him drowning in debt, with unpaid interest accumulating rapidly and land sales unable to cover a fraction of what he owed. Compounding his problems, he cosigned two notes of $10,000 each for a close friend who died shortly thereafter and left Jefferson owing another $20,000 plus $1,200 a year in interest.
Whether financial ruin precipitated his final illness is unclear, but it did him no good. By midspring of 1826 he suffered from painful arthritis, swollen legs, chronic diarrhea, and a urethral obstruction. On July 2, 1826, he began drifting in and out of consciousness, and on July 4—the fiftieth anniversary of the Declaration of Independence that he had helped write—he died. Ironically, his once-despised political rival John Adams, the President under whom Jefferson had served as vice president for four years, died a few hours later on the same day.
Protagonists at their nation’s birth, each had nurtured political divisions and chaos that would climax with their nation’s near-destruction in Civil War, thirty-five years after their passing.
IN THE SUMMER OF 1829 VIRGINIANS ELECTED DELEGATES TO A CONVENTION to reform the state constitution—a 1776 relic that limited voting to the propertied elite with at least 100 acres. Eastern plantation owners, therefore, could cast the votes of their slaves and easily outvote westerners on small mountain properties with only a slave or two. The growing western population demanded universal white manhood suffrage to permit every white man—propertied or not—to vote.
Virginia’s three legendary elder statesmen—seventy-one-year-old James Monroe, seventy-four-year-old John Marshall, and seventy-eight-year-old James Madison—easily won election to the convention. The presence of two former Presidents and the Chief Justice gave the convention an aura of national—even international—importance, and delegates immediately voted former President Madison president of the convention on the basis of his seniority. Madison declined, however, pleading the discomforts and infirmities of old age. The convention elected Marshall next, but he refused for the same reasons. Madison then nominated Monroe.
The frailest of the three statesmen, Monroe accepted the designation, and John Marshall escorted him to the chair amidst a storm of cheers and applause. After six weeks, however, weaknesses of advancing age combined with excruciating arthritic pains to force Monroe’s resignation, and he returned home. The convention ended in 1830 after granting added representation in the state legislature to westerners. It was the last time the three friends would ever meet.
Late that year Monroe’s wife died and left the former President a broken man. His secretary found him sobbing hysterically at the foot of his wife’s bed “with trembling frame and streaming eye.”21
After his daughter and son-in-law arrived and carried her coffin into the family vault, Monroe became irrational, saying he would stay in the vault and await his time to rejoin his wife. Deeming her father incapable of caring for himself, his daughter Eliza took the former President to New York City to live with her and her husband. He spent most of his last months in bed, preparing to die and writing to old friends to say good-bye.
Calling “the restoration of my health very uncertain,” he wrote both Marshall and Madison that
I deeply regret that there is no prospect of our ever meeting again. Since so long have we been connected, and in the most friendly intercourse, in public and private life, that a final separation is among the most distressing incidents which could occur.22
Monroe’s letter left Madison distraught. “Closing the prospect of our ever meeting again afflicts me deeply,” he replied. “The pain I feel. . . . I will not despair of your being able to keep up your connection with Virginia.”23
As old as he was, Marshall retained his natural optimism, answering Monroe with hopes that “exercise and change of scene . . . had improved your health and spirits.” He signed the letter “your friend . . . with the truest wish for your happiness.”24
James Monroe died the following summer, on July 4, 1831—the third of the first five Presidents to die on the anniversary of the signing of the D
eclaration of Independence. Richmond’s citizens named Marshall chairman of the committee on funeral arrangements. Monroe’s death left John Marshall one of the last living officer-heroes of the Revolutionary War.
IN THE LATE 1820S THE DISCOVERY OF GOLD ON CHEROKEE TERRITORY in Georgia infected the souls of whites across the state with a madness that left Marshall and the Supreme Court helpless to prevent the nation’s first crime against humanity.
To seize the gold fields from the Cherokees, Georgia’s political leaders convinced President Jackson—once an Indian fighter himself—to ram the Indian Removal Act of 1830 through Congress. The act ended George Washington’s successful, decades-old program to integrate southeastern Indians into American society. After passage of the federal Indian Removal Act, Georgia’s state legislature passed its own Cherokee Acts, effectively dissolving the Cherokee nation.
The Cherokee Acts stripped Cherokees of citizenship, voided Cherokee laws, and divided the nine million acres of Cherokee properties (and the gold they contained) into state counties. No longer citizens, the Cherokees were helpless to protect their lands and homes from seizure by the state and helpless to sue for protection in state courts. Indeed, a Georgia court—in clear violation of a treaty between the Cherokees and the US government—had tried, convicted, and sentenced to death a Cherokee, George “Corn” Tassel, for killing another Cherokee.
Under the Cherokee treaty with the US government, only Cherokee courts had jurisdiction in cases of Cherokees killing each other, but when Marshall issued a writ to stay the execution, Georgia’s legislature ordered the governor “and every other officer of this state . . . to disregard” it, saying it represented “interference in the administration of the criminal laws of this state . . . [and] a flagrant violation of her [state] rights.” Georgia executed Tassel without granting him an appeal.
Georgia’s Cherokee Acts allowed the state to confiscate thousands of Cherokee homes and properties, including many large, productive plantations they had carved out of the wilderness. In the end the state of Georgia forced 130,000 Cherokee, Chickasaw, Choctaw, Muskogee Creek, and Seminole Indians from their homes onto a terrifying “Trail of Tears” that claimed some 60,000 lives before survivors crossed the Mississippi River and found refuge in what is now Oklahoma.
In a desperate last effort to save themselves from exile, Cherokee leaders turned to the US Supreme Court and sued the state of Georgia. When Cherokee Nation v. Georgia came before the Court, however, Georgia’s governor demonstrated his contempt for the Court and for federal authority by refusing to respond or even send a representative to appear.
“The Constitution, laws, and treaties of the United States are prostrate in the state of Georgia,” former President John Quincy Adams lamented in his diary. “The Union is in the most imminent danger of dissolution.”25
On March 18, 1831, Marshall delivered the Court’s decision in Cherokee Nation v. Georgia, expressing deep sympathy for the plight of the Indians but regretting that the court lacked jurisdiction. The Cherokees were in a unique situation, he admitted, “unlike that of any other” people: they were no longer a foreign nation nor were they citizens of the United States. The Court could have heard the case of either a foreign nation or citizens of the United States, but their territories were now “part of the United States,” and the Cherokees were “domestic dependent nations . . . in a state of pupilage” whose status the Constitution did not address. In effect there was no such legal entity as Cherokee Nation, making the case moot and leaving the Court with no jurisdiction.
Although the Court had determined the status—or lack of status—of the Cherokees, the case did not challenge, nor did the Court rule on, Georgia’s Cherokee Acts, which had forced Indians onto their “Trail of Tears.” The opportunity to do so came up in a second related suit brought by Samuel A. Worcester, a Congregationalist minister from Vermont who had worked for many years as a missionary among the Cherokees and supported himself with a job as US postmaster.
When he and several other missionaries refused to leave the state with the Cherokees, Georgia militiamen arrested them and dragged them off to prison and a sentence of hard labor. Nine missionaries agreed to leave Georgia and won their freedom, but Worcester and another missionary refused and sued the state in the US Supreme Court.
As in Cherokee Nation v. Georgia, the state ignored the court proceedings, but unlike that earlier case, the appellant was a white citizen of the United States and a federal official (postmaster), giving Marshall and the Court powers to rule on the Indian expulsion laws under which he was arrested.
In a decision that stunned the nation and sent it to the brink of civil war, Marshall ruled the Cherokee Acts of the Georgia legislature “repugnant to the Constitution, laws and treaties of the United States.”
The forcible seizure and abduction of [Samuel A. Worcester], who was residing in the nation with its permission and by authority of the President of the United States [as postmaster], is also a violation of the acts which authorize the chief magistrate to exercise his authority.
With that, Marshall ordered Georgia’s Cherokee Acts “reversed and annulled.”26
All but ordering rebellion against the federal government, Georgia Governor Wilson Lumpkin called Marshall’s decision “usurpation” and said the state would respond with “the spirit of determined resistance.”27
With no means of enforcing their decision, Marshall and the justices were helpless to prevent the collapse of the federal legal system they had built so carefully. Georgia state authorities had rendered two successive Supreme Court cases irrelevant and left the Court powerless to enforce its rulings.
“I yield slowly and reluctantly to the conviction that the Constitution cannot last,” the dejected Chief Justice wrote to Associate Justice Joseph Story.
I had supposed that north of the Potomac a firm and solid government competent to the security of national liberty might be preserved. Even that now seems doubtful. The case of the South seems to me to be desperate. Our opinions are incompatible with a unified government even among ourselves. The Union has been prolonged thus far by miracles, I fear they cannot continue.28
In Congress southerners confirmed Marshall’s fears with shouts of defiance. South Carolina Senator Robert Young Hayne called Marshall’s decision and other federal government measures “oppressive,” and, citing Jefferson’s Kentucky Resolution that the Constitution was a compact between the states, he again raised the banner of state sovereignty.
The eloquent Daniel Webster, senator from Massachusetts, fired his reply:
“It is, sir, the people’s constitution, the people’s government; made for the people, by the people and answerable to the people.”
The people . . . have declared that this Constitution shall be the supreme law. . . . Who is to judge between the people and the government? . . . Shall constitutional questions be left to four and twenty popular bodies,* each at liberty to decide for itself, and none bound to respect the decisions of others?
Webster said the Constitution had answered the question by declaring that “the judicial power shall extend to all cases arising under the Constitution and laws.” He ended his defense of the Supreme Court and the Constitution with the stirring words that became a rallying cry across the North:
“Liberty and Union, now and forever, one and inseparable.”29
As northerners poured into the streets to protest Georgia’s Cherokee Acts, southerners matched their fervor, calling for armed resistance. Facing reelection in a matter of months, President Andrew Jackson tried to steer clear of the controversy, reportedly telling journalist Horace Greeley, “John Marshall has made his decision. Now let him enforce it.”30
ADDING TO MARSHALL’S DEJECTION OVER SOUTHERN RESISTANCE TO the Court’s decisions was his failing health. Approaching seventy-seven, he had been through an excruciatingly painful gall-bladder operation the previous fall. After months of increasing abdominal pain, he had consulted Philadelphia’s Dr. Philip Syng
Physick, then the nation’s leading surgeon, who agreed to perform a lithotomy on the aging jurist. Marshall’s colleagues feared he might not survive, but he said he preferred death to the agony afflicting him.
Worried that Marshall would not survive, Associate Justice Joseph Story wrote to his friend Judge Richard Peters. “He is beloved and reverenced here beyond all measure,” Story said of Marshall. “Next to Washington, he stands the idol of all good men.”31
As Marshall lay on the operating table “scarcely uttering a murmur,” Physick cut into Marshall’s abdomen and the neck of his gall bladder—without anesthesia. He inserted a pair of forceps into the open wound, and, one by one, or as many as the teeth of his instrument would hold, he extracted what he estimated were about 1,000 gall stones.*
“I have at length risen from my bed and am able to hold a pen,” the exhausted Chief Justice wrote to Polly two weeks later.
The most delightful use I can make of it is to tell you that I am getting well and have well-founded hopes that I shall be entirely free from the painful disease with which I have been so long afflicted. . . . I eat heartily and sleep sound. My wounds [are] almost healed . . . God bless you my dearest Polly.32
Two days later he was able to walk “with a tottering and feeble step,”33 and on November 19, five weeks after his operation, the Chief Justice boarded a steamboat at Baltimore for “a very tempestuous passage down Chesapeake Bay” and up the James River to Richmond. Polly was deathly ill when he arrived.
She died on Christmas Day.
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