Without Precedent

by Joel Richard Paul

The circuit court was unable to reach a decision, and the judges ordered the case for retrial two years later in May 1793. Jones had died by then, and the executor of his estate continued the action. Hence, the case was subsequently renamed Ware v. Hylton.46 Marshall appeared again with his co-counsel before a three-judge U.S. circuit court of appeal composed of Chief Justice John Jay, Associate Supreme Court Justice James Iredell, and District Judge Cyrus Griffin. Marshall’s arguments against the Treaty of Paris were hardly convincing to Chief Justice Jay, who was one of the treaty’s principal negotiators and who was well aware that the treaty intended to preserve the rights of British creditors. The three judges unanimously held that the court could not declare the Treaty of Paris void and that the supremacy clause in Article VI of the Constitution meant that the treaty preserved the rights of British creditors to file claims. However, the court split on the question of whether the Treaty of Paris overrode Virginia’s Sequestration Act of 1777. Chief Justice Jay agreed with Marshall’s argument that the Sequestration Act survived, but he thought that the debt also survived under the treaty and the customary law of nations. In his view, state law could not interfere with international law. Justice Iredell and Judge Griffin agreed that, to the extent that some debtors had already paid the state to discharge their debts, the state was now liable for paying the British creditors all the money they were owed. Thus the circuit held by a vote of two to one that Hylton had paid his debt and that the creditor’s only recourse was against the State of Virginia. The case was subsequently appealed to the Supreme Court.47

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  WARE V. HYLTON reached the Supreme Court in February 1796. That was the same month that Marshall was prepared to argue the case on behalf of Lord Fairfax’s property rights before the Supreme Court. The action he had first filed more than a decade earlier was now called Hunter v. Fairfax. This case would determine whether Fairfax’s heir had good title to the land. Marshall had a personal stake in that question as he was hoping to purchase a portion of the property for himself. David Hunter’s lawyer died just days before the case was to be argued, and the Court postponed the argument to give Hunter time to hire new counsel.48 Eventually, Hunter abandoned his appeal, and the Supreme Court dropped the case from its docket.49 Marshall never had the chance to argue the Fairfax case before the Supreme Court. Almost twenty years would pass before the question of whether Fairfax owned good title to the property finally reached the Supreme Court in Martin v. Hunter’s Lessee. By then, of course, Marshall was chief justice.

  Marshall traveled from Richmond to Philadelphia to face the Supreme Court for the first and only time he appeared before them as counsel. Anxious to arrive, he described the long journey as “beyond measure tedious” as he bumped along rutted roads through empty woods stripped bare and deep in shadows. The silver hush of winter was broken only by the rumble of carriage wheels over rocks and gravel. He yearned to get out and stretch his long legs. There was nothing for miles but an occasional flock of crows cawing across an ashen sky.

  Marshall had not seen Philadelphia in more than fifteen years. The last time he visited during the war he had walked there in boots worn through to rejoin General Steuben’s army. He had arrived looking like a vagrant with a dirty beard, messy hair, and torn uniform. Innkeepers shut their doors to him. Fifteen years earlier, Philadelphia hardly looked like a capital city. It still bore the scars from the British occupation. Now the city sparkled as Marshall arrived by carriage in his finest suit. Philadelphia in 1796 was the second largest city in the English-speaking world after London, with a population of more than forty thousand, paved streets, clean sidewalks, and the finest architecture in eighteenth-century America. He was dazzled by the transformation from a war-battered town to a gleaming metropolis.

  While he waited several days for his co-counsel, Alexander Campbell, to arrive from Richmond, Marshall explored the capital. He loved the theater as much as he loved politics and law, and he saw two performances in Philadelphia, The Bank Note and Hop in the Well. Marshall enjoyed both of these comedies, but he thought that the shows’ leading lady was not quite up to the standards of Richmond’s own Virginia Company.50

  Philadelphia was preparing to celebrate Washington’s sixty-fifth birthday as if he were a reigning monarch. There were already rumors that Washington intended to retire at the end of his term. In seeming anticipation of the grand event, the weather had turned uncommonly balmy and dry. Though December had been especially cold, the snow had disappeared by February. “We have weather as mild as April, streets as dirty as March,” John Adams wrote to his wife.51 Even a false spring was welcomed in the capital.

  Ware v. Hylton was probably the most important case to reach the Supreme Court at that time. Most of the country’s debt was owed by Virginians, and the courts of Virginia were the least sympathetic to British creditors. Millions of dollars—and possibly peace with Britain—hung in the balance. Justice Iredell, whose dour countenance belied his penchant for hyperbole, exclaimed that Ware was “the greatest Cause which ever came before a Judicial Court in the World!”52

  The Supreme Court convened in the musty east wing of the old city hall across from where Congress sat. The Court’s docket was so bare—averaging fewer than ten cases a year—that the Court generously allocated three days for oral argument. (By contrast, the modern Supreme Court receives approximately ten thousand petitions in a typical year, hears roughly eighty cases, and allows each party only thirty minutes for oral argument.) The Supreme Court in 1796 did not possess the kind of influence or respect that it commands today, and consequently, it had a high turnover.

  The Court in 1796 included Chief Justice Oliver Ellsworth and Associate Justices James Wilson, William Cushing, James Iredell, William Paterson, and the newly appointed Samuel Chase. Chase had been named to replace Justice John Blair, who resigned because of a mental illness that was politely termed a “strange disorder.” Chase was considered an unbridled High Federalist, irascible, abrasive, and crafty. John Adams described Chase as being surrounded by a cloud of “suspicion and Impurity.”53 Chase was unapologetically blunt and as fiery as Patrick Henry. He did not keep his political views to himself. Of the six justices, the chief justice did not participate.

  Marshall pared down his argument before the Court to two points that had the appeal of simplicity: First, Marshall argued that an individual’s “property is the creature of civil society, and subject, in all respects, to the disposition and control of civil institutions.” That was a surprisingly modern idea of property rights. Rather than rely on natural law as the source of all property rights, Marshall asserted that those rights originated from the state. As a sovereign state, Virginia had the right under international law to confiscate the property of enemy aliens in wartime. The act sequestering British property provided that British creditors could sue Virginia but not the debtor. In other words, Virginia had not expropriated property, but rather it had assumed responsibility for the debts of its citizens.54

  Second, Marshall pointed out that the treaty did not expressly state an intention to restore rights that were already confiscated even though Congress surely knew that some states had confiscated British debts. The treaty’s silence meant that the treaty had tacitly approved Virginia’s action. Even if the treaty intended to restore rights to the debtor, the Constitution surely would forbid Congress from compelling debtors to pay the same debt twice.55

  Marshall’s argument presaged some of his later views on the Court. First, Marshall acknowledged that Congress was constrained by the Constitution and that it was up to the courts to determine the limits of congressional power. “The judicial authority can have no right to question the validity of a law, unless such jurisdiction is expressly given by the constitution.”56 Here, in a single sentence, Marshall distilled the principle that he would later enshrine as judicial review. Second, Marshall acknowledged that a treaty could override state law if it was clear that this was the i
ntent of the parties to the treaty. Third, Marshall applied the norms of customary international law to interpret the meaning of the treaty based on its plain language. All of these principles would reappear later in Marshall’s decisions and become foundational to American law.

  Despite the brilliance and originality of his argument, Marshall lost. Each of the justices issued opinions unanimously siding with the British creditors. Only Justice Wilson agreed with Marshall’s argument that as a sovereign state Virginia had the right to expropriate enemy alien property. But Justice Wilson insisted that international law did not permit states to confiscate private debts and that when the states became independent they were “bound to receive law of Nations in its most pure & modern State.”57 Justice Chase agreed in principle with Marshall that Virginia could discharge the debtor, but that as the supreme law of the land “a treaty can totally annihilate any part of the constitution of any of the individual states, that is contrary to a treaty.” Chase concluded that the treaty had, in fact, trumped the laws of Virginia.58 The justices voted to reverse the decision of the circuit court and ordered Hylton to pay the full amount of his debt in pounds sterling.59 The Supreme Court’s decision in Ware affirmed that the United States could not shirk its obligations to Britain. The private debt owed to British and Scottish exporters would have to be paid. This was the only case Marshall ever argued before the Supreme Court, and it was only one of two Supreme Court cases in which Marshall found himself on the losing side.

  At the same time, President Washington’s policy of neutrality meant that the United States would not discharge the debt that the French felt was owed to them for their aid during the Revolutionary War. Washington’s neutrality policy was an exercise in pragmatism, and it certainly seemed like the wiser course to navigate between Britain and France. But in the end, neutrality would fail to keep America out of the conflict between these two belligerents, and it would ultimately fall to John Marshall to steer the ship of state between these two great powers.

  CHAPTER SIX

  CITIZEN GENET

  On April 8, 1793, the French Revolution arrived in America in the person of Edmond Charles Genet, better known as Citizen Genet, the newly appointed French minister to the United States. Charismatic and combative with lapis eyes, auburn hair, and a rosy complexion, he was a fervent revolutionary.

  Despite a volatile temperament, Genet was bred for the diplomatic service. His father, Edmé Jacques Genet, was the Foreign Ministry’s chief interpreter with expertise on American affairs during the reign of Louis XVI. When his father died, Genet was appointed to replace him as the American specialist.1 But the young Genet was too restless for the civil service. He cultivated relationships with the French revolutionaries, particularly the relatively moderate Girondists. When the Girondists took power, they decided that the imprisoned king should be exiled to America. Louis would certainly be accorded great respect in the United States, where he was regarded as a patron of the American Revolution. The leadership agreed in November 1792 that Genet, with his perfect English, would be the ideal candidate to convey the royal family into exile. For that purpose, the Girondists appointed Genet as minister to the United States. Happy to be freed from the stuffy confines of the Foreign Ministry, Genet joked that he would teach the French king to be a good American farmer.2

  The Girondists, whose idea of diplomacy consisted of spreading universal brotherhood by using the bayonet, charged Genet with a mission that was destined to fail. He was instructed to expand the “Empire of liberty” by persuading the United States to help France liberate Canada, Louisiana, and Florida from rule by Britain and Spain. If the Americans refused to help, Genet was instructed to act on his own to “germinate the spirit of liberty” by presumably instigating a popular uprising in these colonies.3 Second, Genet was to demand that the United States honor its obligation to support France under the Treaty of Alliance. Specifically, the French expected the Americans to allow Genet to commission volunteers to fight in Florida, Louisiana, and Canada and issue letters of marque authorizing American privateers to attack British ships. Additionally, France wanted American courts to libel British ships seized as prizes of war even though the Americans had a peace treaty with Britain. And the Girondists wanted the Americans to grant French imports preferential treatment. Finally, France wanted the United States to advance payment of three million dollars (about seventy million dollars today) on its outstanding debt owed to France for military supplies during the Revolutionary War.4 This was an amount roughly equal to the federal government’s annual tax revenues.5 It was an impossible mission.

  Four weeks before Genet departed Rochefort, his mission took an unexpected turn when Louis XVI was executed in Paris. Genet was no longer needed to carry the king into exile. Even though it now made little sense to send an unseasoned thirty-year-old to a foreign post to carry out an impossible assignment, Genet left for America anyway. Soon after he departed, the Girondists lost power to the more radical Jacobins. The Jacobin leader, Maximilien de Robespierre, a man who never shied away from the sight of blood, denounced the Girondists for their foreign aggression: “No one loves armed missionaries,” declared the not-so-lovable leader of the Reign of Terror.6 The Jacobins had no use for Genet either, but it would be months before that message reached him. Thus, Genet arrived in Charleston, South Carolina, on April 8 on the frigate Embuscade with two personal secretaries, two servants, and tons of luggage that included a carriage and a bidet, but without a mandate from the new Jacobin government.7

  Genet had intended to land in Philadelphia, but contrary winds forced the ship to change course.8 It was a fortuitous accident. No city in America was more fiercely anti-British than Charleston, which had suffered a terrible defeat at the hands of British forces during the American Revolution.9 From the moment Genet stepped off the ship, he was mobbed by well-wishers. Recalling past outrages, Charleston’s residents enthusiastically embraced the representative of Britain’s most determined enemy. Genet’s youth, vitality, and eloquent English captured the attention of Americans who yearned nostalgically for the passion of their own revolution. While most republicans preferred plain clothes and natural hair, Genet dressed with flair. He embodied the spirit of republicanism—but with better grooming.10

  Genet immediately launched his campaign to push America into war against Britain and Spain. He embraced his instruction to “germinate the spirit of liberty” by sowing the field of American politics with the seeds of partisanship. In ten short days in Charleston, he issued letters of marque authorizing four privateers—American ships manned by Americans—to capture British merchant ships. He made no effort to hide his responsibility: One of the privateers was even christened Citizen Genet. He instructed the French consul in Charleston, Michel Ange Bernard de Mangourit, to establish a French court on American soil for the purpose of libeling British ships as prizes of war. This was an astounding breach of diplomatic protocol and international law. Even more incredible, he recruited Americans for a volunteer army under his own direction to invade Spanish Florida.11

  Rather than sail to Philadelphia, which might have taken him five or six days, Genet decided to send the Embuscade ahead while he proceeded overland. It was a cunning bit of theater. Genet traveled for nearly a month over seven hundred miles of rough roads as he inched northward toward Philadelphia in an elaborate carriage drawn by four horses. Cannon fire, church bells, and adoring crowds greeted him in every city. A wave of anticipation and popular acclaim swept before him. He was toasted and feted at elaborate banquets. Only President Washington had received this kind of popular acclaim.12 All of this public adulation generated momentum that he hoped would shake the pillars of federalist power. By the time he arrived in Philadelphia, Genet was drunk on his own grandiosity.

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  BACK IN RICHMOND, the papers were full of stories about Genet, but Marshall was not paying much attention to his arrival. Marshall was preoccupied with on
e of the most lurid criminal cases to rock Virginia in the eighteenth century. It involved Marshall’s distant cousin Richard Randolph, who inherited the family plantation, aptly named Bizarre.

  Richard had married a cousin, Judith Randolph. In the winter of 1791–1792, Nancy Randolph, Judith’s sister, came to live with Richard and Judith at Bizarre. Nancy intended to marry Richard’s younger brother, Theodorick, but before they could marry, Theodorick died. That September, Richard, Judith, and Nancy were visiting the home of Randolph Harrison, another Randolph cousin. Nancy was not feeling well and went upstairs to lie down. Richard went to help his sister-in-law in her bedroom. He locked the door, and the guests downstairs heard Nancy screaming. The next day, Mrs. Harrison noticed bloodstains on a back staircase and on Nancy’s pillowcase. Oddly enough, the sheets and quilt had disappeared from Nancy’s bed. One of Harrison’s slaves reported that she had witnessed Nancy giving birth. Another slave discovered a bloodstain on a pile of old shingles. Tongues began wagging, and word quickly spread that Nancy had given birth to an illegitimate child fathered by her brother-in-law and that he had brutally murdered the infant.13

  Since slaves could not testify and there was no physical evidence of a crime, Richard Randolph could not be charged. But Randolph felt that his reputation had been damaged, and he wanted the opportunity to clear his name. Randolph sought Marshall’s legal advice.

  Marshall concocted a daring legal strategy: He called for a judicial inquiry to determine the facts. Marshall prepared the case and persuaded his colleague Patrick Henry to appear on behalf of Randolph. Although seventeen witnesses came forward to testify against Randolph, none had direct evidence of a crime, and under Henry’s withering cross-examination, the case against Randolph collapsed. The court dismissed all charges in April 1793, though rumors persisted for years after.14