Without Precedent
Page 4
Under the 1783 Treaty of Paris, state courts were obligated to enforce the rights of British creditors over U.S. debtors. Marshall’s willingness to defend debtors from discharging their legal obligations was inconsistent with his strong belief in property rights. But Marshall desperately needed work, and he appreciated the fact that it would have devastated Virginia’s economy to repay this staggering amount. Virginia merchants and tobacco farmers who owed money to British subjects felt that they had been unfairly exploited by British traders who had underpaid them for their goods. And many Virginians felt that they should not have to repay debts to the British, who had refused to compensate them for the loss of hundreds of slaves freed by British soldiers.23 Marshall was a hired gun. His advocacy of debtors’ rights was not based on principle; he was equally comfortable representing British creditors seeking to enforce their rights against Virginia debtors. (Needless to say, this latter role was not a popular position in post-Revolutionary Virginia.)
Marshall’s most significant client was the estate of Lord Fairfax, the largest landowner in Virginia, who was his father’s former employer. During the Revolution, Fairfax was sympathetic to the American cause. Nevertheless, the General Assembly expropriated the property of British Loyalists, including five million acres of Fairfax’s land in Virginia’s Northern Neck between the Rappahannock and Potomac Rivers. Fairfax, a lifelong bachelor, died in 1781, leaving this property to his nephew, Denny Martin, who lived in Britain. Under Virginia common law, Martin, as a nonresident alien, was ineligible to inherit property, so the property arguably passed to the state. In 1785, the General Assembly confiscated the property in direct contravention of the Treaty of Paris, which guaranteed the property rights of British Loyalists after the war. From England, Martin retained Marshall to defend his property rights in Virginia in a series of cases that stretched on for nearly a quarter of a century.
One of these cases, which would eventually reach the Supreme Court, involved a dispute between Fairfax’s estate and a tenant, Joost Hite, concerning the boundaries of Hite’s leasehold. Hite’s attorneys, including Marshall’s law partner and cousin Edmund Randolph, challenged Fairfax’s original title, which had been granted by King Charles II. While Marshall lost the case in court, the Virginia Court of Appeals implicitly acknowledged that Fairfax had good title to the rest of his property. By the time the legal question of Fairfax’s title reached the Supreme Court two decades later, Marshall would be presiding over it. The Court’s eventual decision would be one of the most important in its history.
As Marshall’s political and social network grew, he established himself as a bright young man with a command of both the details of the law and oral argument. Within three years of beginning his law practice, Marshall emerged as one of the leading members of the Richmond bar with an active social and political life. He belonged to the Masons, the Formicola’s Tavern Club, the Jockey Club, and the Quoit Club. Bit by bit, he acquired wealth and property. His father deeded him property in Fauquier County, and his father-in-law gave him a half-acre lot to build a home on in the Court End neighborhood of Richmond, where other state officers and delegates had settled. Marshall designed a handsome two-story Federal-style brick house. Marshall wanted his home to be a showcase where he could entertain the wealthiest and most powerful men in the state in a relaxed and informal atmosphere. The house featured an exceptionally large dining room that could accommodate as many as thirty guests. Marshall used the room as his law office until a separate brick structure was built behind the house. Once a month he invited all the prominent attorneys in Richmond to meet for dinner and cards. Marshall’s new home announced that he had arrived as a significant figure in the social as well as the political life of the capital.24
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DESPITE MARSHALL’S SUCCESS, all was not as it appeared. His home life was complicated by the delicate state of Polly’s health. Marshall’s zest for entertaining and politics was too much for her frail emotional state. In July 1784, Polly gave birth to a son, Thomas, and the birth nearly killed her. She was bedridden for weeks afterward. A daughter, Rebecca, was born in 1786 and died days later. Polly never completely recovered from the loss of her first daughter. When she lost another child the following autumn, she had an emotional collapse. Her hysterical outbursts, which Marshall had first encountered when he proposed to her, now became a regular occurrence. Though Polly would eventually have five healthy sons and one daughter, she lost four children in infancy. For most of their married life, Polly’s series of nervous breakdowns, severe migraines, wild mood swings, anxiety, and depression dominated their household. But Marshall devoted himself to her. He assumed most of the household responsibilities that usually fell to women, such as shopping and cleaning the home. Visitors describe his meeting them at the door with a broom and a dustpan. When Polly spent days in bed, Marshall insisted that everyone in the house must speak softly and avoid making any loud noises that could disturb her. Throughout their married life. Polly’s emotional health remained a constant concern to him.25
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BY 1786, IT WAS APPARENT to Marshall and others that the country could not survive as a loose confederation of thirteen sovereign states with no power to tax or regulate commerce, no executive to enforce its laws, and no courts to adjudicate controversies between states. The nation was gripped by economic crisis. Each state imposed tariffs on the goods of every other state; tobacco shipped from Virginia to New York would be taxed each time it crossed state lines. Commerce was being strangled. States struggled to pay off the mounting interest on their war debt. Politicians responded either by printing paper money intemperately—as they did in Rhode Island—or by raising taxes, as they did in Massachusetts. Both strategies proved disastrous for different reasons, and the resulting controversies affected Marshall’s views on the necessity for constitutional reform.
In 1786, the Rhode Island State Assembly was elected on a populist pledge to print paper money. The state issued a staggering quantity of paper money, which it lent at low interest to farmers to pay off their debts. As a result, Rhode Island’s economy was inundated with worthless currency. Prices soared. Merchants wanted hard coins and refused to accept paper. To compel merchants to accept the state’s paper, the state imposed a penalty of one hundred pounds that could be imposed by a judge without a jury trial. Many merchants preferred to close their shops, go into hiding, or flee the state.26 Opponents in other states called for expelling Rhode Island from the confederation or dividing the state among her neighbors.27
One day John Trevett, a cabinetmaker, went into John Weeden’s butcher shop in Newport to buy some beef. Trevett’s pockets bulged with crisp bills freshly issued by the state’s printing press. Weeden refused to accept Trevett’s currency and demanded silver coin instead. Trevett filed an action against Weeden for violating the state’s currency law. Weeden’s attorney argued that the Rhode Island law was unconstitutional because it denied Weeden his right to a jury trial and that the court had the power to strike down such state statutes. This was a novel argument: Rhode Island had no constitution at that time, and Rhode Island’s Royal Charter of 1663 did not mention either a right to a jury trial or the power of courts to review the constitutionality of legislation. Indeed, there was no precedent for courts striking down legislation.
Nonetheless, four of the five judges on the court voted to dismiss the case against Weeden on the grounds that the law was unconstitutional. The Rhode Island Assembly was outraged that judges would presume to strike down their law. After all, judges were appointed by the assembly for one-year terms and could be removed at its pleasure. The assembly retaliated by refusing to reappoint the four judges who voted for dismissal.28
Trevett v. Weeden shocked lawyers and the propertied classes throughout the country and had a profound effect on the creation of the American Constitution. First, the Rhode Island Assembly demonstrated that printing paper money
with abandon would only create greater economic hardships. Second, by creating a precedent for what became known as “judicial review,” the Rhode Island court demonstrated the value of an independent judiciary armed with a constitution that limited the power of government. By punishing the judges, the legislature only reinforced the value of lifetime tenure for judges. The controversy shaped the views of the men who drafted and ratified the Constitution, including John Marshall. For Marshall, the popular movement to deny creditors their rights was a sign of moral as well as political failure. Marshall later wrote of this period that
[t]he restlessness produced by the uneasy situation of individuals, connected with lax notions concerning public and private faith, and erroneous opinions which confound liberty with an exemption from legal control, produced a state of things which alarmed all reflecting men, and demonstrated to many the indispensable necessity of clothing government with powers sufficiently ample for the protection of the rights of the peaceable and quiet, from the invasions of the licentious and turbulent part of the community.29
Trevett v. Weeden rumbled like a warning thunderclap across the nation. That same year, the outbreak of Shays’s Rebellion in Massachusetts swept across New England with gale force. In Massachusetts, the legislature, confident that the economy would recover on its own, did nothing to relieve the suffering of the people. Instead, the legislature tried to balance the state budget by imposing onerous property and poll taxes. The taxes forced large numbers of farmers and businesses into foreclosure, and the number of bankruptcies tripled. Impoverished farmers petitioned the legislature and the courts for redress to no avail. Many Boston merchants ignored the gathering storm of protest, determined that they would not be driven out by the mob as the Rhode Island merchants had been.30
In the autumn of 1786, Massachusetts farmers surrounded the Northampton County Courthouse armed with muskets, swords, and bludgeons to prevent further foreclosures. That single incident inspired a spontaneous uprising throughout western Massachusetts. Daniel Shays, a farmer outside Amherst and a former officer in the Continental Army, emerged as one of the leaders of the uprising. Shays’s Rebellion was aimed against the Boston elite who governed the state without representing the interests of the distant western counties. The rebels were known as Regulators because they wanted to reform the state government. They objected to the influence of moneyed interests in state government and the lack of accountability as much as they opposed the foreclosures on their land. Eventually, up to nine thousand Regulators took up arms. At the request of Governor James Bowdoin, the Continental Congress sent more than a thousand soldiers to suppress the uprising. Shays and his men boldly marched on the federal armory at Springfield. There the militia launched a decisive counterattack in the winter of 1787 and crushed the rebellion. The beleaguered rebels scattered across the barren hills of western Massachusetts. The Massachusetts legislature passed laws requiring that the Regulators be whipped thirty-nine times and imprisoned for twelve months. They imposed capital punishment against the militia officers, including Shays, who joined the uprising or even spoke in defense of it. Eighteen men would be sentenced to death, though most sentences were later reduced.31
Shays’s Rebellion dramatized the urgency of reforming the confederation. To some, the rebellion was a “godsend” that would push popular opinion in favor of a strong national government.32 Others were less sanguine. Washington wrote that “I feel infinitely more than I can express for the disorders which have arisen.” James Madison later commented that these popular outbreaks threatening landowners and merchants alike “contributed more to that uneasiness which produced the Constitution, and prepared the public mind for a general reform” than the impotence of the confederation.33
When news of Shays’s Rebellion reached Richmond in January 1787, Marshall was sickened. “All is gloom,” he wrote. He speculated whether Shays was a British agent sent to overthrow the government or whether it was an attempted coup by John Hancock and his supporters. Whatever the cause of the rebellion, “they deeply affect the happiness and reputation of the United States.” And he feared that Shays’s Rebellion was only the beginning of the end of the Republic. “These violent, I fear, bloody dissentions,” he warned, “cast a deep shade over that bright prospect which the revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe.” Ordered liberty was under threat. Sounding like the great British conservative Whig Edmund Burke, Marshall concluded that the present unrest may prove “that man is incapable of governing himself” and another revolution was imminent.34
Both the assault on the judiciary in Rhode Island and the popular uprising in Massachusetts left a deep imprint on Marshall, whose conservatism and skepticism of democracy were already apparent in his legislative record. These two incidents reinforced the lesson of Valley Forge: that only a national government was equipped to secure the well-being of the people. Marshall, like his colleague James Madison, was convinced that a mere amendment to the Articles of Confederation would not do. A new federal constitution must be formed to quiet the unruly passions of the masses. Marshall believed that reason had to temper passion, that the radical extremes must yield to the center. And Marshall’s conservatism would prove revolutionary.
CHAPTER THREE
DEBATING THE CONSTITUTION
Purple buds on old English lavender signaled the start of a hot, dry summer. The long drought left fields of withered crops. The James River was low enough for a man on horseback to ford it. On Monday, June 2, 1788, with John Marshall in attendance, the Virginia convention call to ratify the proposed federal Constitution opened at ten a.m. in the hulking capitol designed by Thomas Jefferson. Marshall wore a new pair of breeches, a fresh linen shirt, a handsome new waistcoat, and shiny new shoes, yet still somehow looked characteristically rumpled. Fortunately, he attended more to his preparation than to his appearance. He had closely studied both the Federalist and Jefferson’s Notes on the State of Virginia.1 He had been elected as a delegate from Richmond, where his election as an outspoken supporter of the federal Constitution was far from assured. Richmond, like most of Virginia, was suspicious of the proposed federal Constitution. Marshall had barely defeated a staunch anti-federalist candidate by eleven votes out of nearly four hundred cast. Despite his controversial views, his local popularity helped push Marshall over the top.2
A formidable corps opposed the Constitution, including former governor Patrick Henry; Marshall’s boyhood friend James Monroe; Richard Henry Lee, a signer of the Declaration of Independence; William Grayson, a prominent war hero and lawyer; and the legal titan George Mason. Marshall’s allies included James Madison, the principal draftsman of the federal Constitution; Edmund Pendleton, president of the Virginia Court of Appeals; Governor Edmund Randolph; and George Wythe, Marshall’s former law professor at William & Mary. There were also some less well-known legislators supporting the Constitution, such as George Nicholas, Francis Corbin, and Henry Lee. Anti-federalists, such as Patrick Henry, feared that a powerful federal government would threaten liberty and states’ rights; federalists, such as Marshall, believed that a strong federal government would strengthen the nation’s economy, fortify its borders, and protect property rights against the popular will of the majority.
Richmond was packed with delegates and curious onlookers. Men of property usually traveled by private carriage, but the city could not accommodate a large number of them, so some of the gentry were forced to travel by stagecoach with the middling classes. To accommodate so many out-of-towners, extra coaches were brought in from Williamsburg and Fredericksburg, and coaches began arriving a day early.3 As the delegates gathered, a cloud of dust hung in the motionless air like a curtain. Behind it the blazing sun glowed red. A line of carriages drew up to the capitol, and somber-looking delegates climbed out. Their carriages and dress revealed the social class of the delegates. Edmund Pendleton arrived in an elegant phaeton wearing a pow
dered wig and a silk suit as if he were dressed to attend Parliament. Most townspeople had never seen any vehicle grander than a wagon, and many did not own a horse. Inside, the assembly chamber was crowded and stuffy. There were too few windows for ventilation. In his design of the building, Jefferson had been more attentive to the exterior appearance of the building than he had been to the interior comfort.4
Marshall and Madison were strange bedfellows with contrasting styles of argument. Madison was Jefferson’s protégé and rarely acted without first consulting his mentor. At thirty-seven, Madison did not look or sound like a man of any importance. Unlike Marshall, he was painfully shy, dryly intellectual, and socially awkward. He seemed more like a philosophy professor than a politician. He had a pallid complexion, an oversize head stuck onto a short, reedy body, and a thin nasal voice that was barely audible. In this assembly of Virginia’s finest, he could be easily overlooked. While Marshall was easygoing and gregarious, Madison was neither popular nor personable. Throughout his life, he was either sickly or hypochondriacal. He was easily exhausted and avoided physical exertion, stress, or travel, even to the Tidewater, where he feared the dampness. In addition to frequent stomach ailments, he suffered from blinding headaches and seizures that were erroneously diagnosed as epileptic fits. In brief, the father of the federal Constitution had a poor one of his own.5 Given these shortcomings, it is surprising that Madison ever commanded anyone’s attention. That he was elected to the Continental Congress and was able to persuade men of greater stature and experience to his point of view can be explained only by the fact that Madison was the most brilliant man in the room.