Without Precedent

by Joel Richard Paul

  CHAPTER FOURTEEN

  THE JONATHAN ROBBINS AFFAIR

  At the beginning of September 1798, Marshall paid a visit to his old commander in chief at Mount Vernon. Washington was aging rapidly, but he had invited Marshall to discuss politics. Marshall rode on horseback through a torrential downpour with his friend Bushrod Washington, the president’s nephew. They arrived soaked to the bone and had to change clothes. Only then did they realize that they had mistakenly exchanged saddlebags with another traveler at an inn. They had no clothing of their own. Marshall and Bushrod had to borrow dry clothes from the president, who was about the same height but considerably wider than either man. Dressed in Washington’s clownishly oversize suits, Marshall and Bushrod were formally received by the president, who laughed so hard when he saw them that he could barely breathe.1

  Washington, who had tried to remain nonpartisan after he left office, was finally taking off his gloves. He felt it was critical to prevent the Republicans from gaining a majority in the House. Too much was at stake. Washington asked Marshall to run for Congress from Richmond, and Bushrod to run from Westmoreland County. Washington was confident that his nephew and the hero of the XYZ Affair were two of the few Federalists who could still win election in Virginia. Bushrod dutifully accepted, but Marshall declined. He had lost interest in political life. He was consumed by his family obligations and legal practice. Interest payments were coming due on the Fairfax property. To pay them, he had to rebuild his law practice after his long absence in France.

  But Washington would not accept Marshall’s answer. Over the next three days, his former commander in chief pressed Marshall to run. Washington even arranged a banquet in Alexandria to honor Marshall. Though Marshall was moved by this tribute, he continued to resist Washington’s entreaties. To avoid further argument, Marshall decided he would slip out early the next morning before the president awoke. The next day, when he walked out to the stable, he found himself confronted at daybreak by his old commander. Washington told Marshall that “there were crises in national affairs which made it the duty of a citizen to forgo his private for the public interest.” If Washington could accept the necessity of abandoning his retirement to resume command of the armed forces during the Quasi-War, surely no less could be expected of Marshall. Marshall later described this as “a very earnest conversation, one of the most interesting I was ever engaged in.” Reluctantly, Marshall yielded and agreed to stand for election to the next Congress.2

  Winning the election would not be easy. Marshall faced a popular Republican incumbent, John Clopton, who came from an old distinguished Virginia family. The Thirteenth District of Virginia was solidly Republican with a small base of Federalists in Richmond. The Federalist minority in Virginia consisted of middle-class farmers and merchants scattered around the state. They would support Marshall, but Marshall’s prominence made him a target for Republicans. Madison and Jefferson did not want Marshall gaining a toehold in Congress, and they were determined to defeat him.3

  The election of 1798 was unusually heated. The contest centered on the candidates’ views of France and the Alien and Sedition Acts. Marshall campaigned by sponsoring barbecues and inviting voters to drinks. His sense of humor and personal warmth were most effective in these social settings. But the Republicans fought back hard. By late fall, the campaign turned ugly. Marshall was vilified in the Republican newspapers for being a “British agent,” “a monarchist,” and an “enemy of free speech” who was “ridiculously awkward in the arts of dissimulation and hypocrisy.”4

  Patrick Henry, who had opposed Marshall at the Virginia Ratifying Convention, now rushed to Marshall’s defense. He praised Marshall’s service in France and remarked that Marshall “ever stood high in my esteem as a private citizen. His temper and disposition were always pleasant, his talents and integrity unquestioned,” which, Henry added, were “sufficient to place that gentleman far above any competitor in the district for Congress.”5

  In September, President Adams unexpectedly offered Marshall, in the midst of the campaign, a seat on the Supreme Court. Justice James Wilson, one of the original members of the Supreme Court, had just died, and a seat was open. Perhaps remembering what Washington had told him, Marshall promptly declined. He had no interest in the Supreme Court. He was committed to running for Congress, he told Adams, and if he failed to win election, he was content to remain in Richmond with Polly and his children. Adams offered the seat to Bushrod Washington instead. Bushrod happily abandoned his own congressional campaign for a safe seat on the Court with lifetime tenure, and Washington’s family friend Henry Lee resumed the race for the Federalists.6

  In October, Vice President Jefferson secretly drafted his famous Kentucky and Virginia Resolutions against the Alien and Sedition Acts, and forwarded them to John Breckinridge, the Republican speaker of the Kentucky House. The resolutions condemned the Alien and Sedition Acts as being unconstitutional and legally void. More important, they asserted that the Constitution was nothing more than a mere “compact” among states, and as a consequence, each state had the right to nullify any federal law with which it disagreed. (Fifty years later, the Confederate states would invoke Jefferson’s doctrine of nullification to justify secession.) Once the resolutions were adopted by Kentucky, Jefferson forwarded them to Madison, who pushed them through the Virginia legislature. For a vice president to challenge the supremacy of federal law and propose the theory of nullification could be seen at the very least as disloyalty if not treason.7

  Jefferson did not support secession himself, but he may have used the implied threat of secession to temper the hard-line Federalists. “[I]f to rid ourselves of the present rule of Massachusetts & Connecticut, we break the union, will the evil stop there?” he wrote. That was a question no one could answer. Factions were a natural condition of politics, and if the Union was reduced to just Virginia and Kentucky, “they will end by breaking into their simple units.” Jefferson would prefer to keep New England in the Union and hope that “we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restore their government to its true principles.”8

  Though the Republicans hoped that other states would follow the leads of Kentucky and Virginia, none did. Instead, the Kentucky and Virginia Resolutions sent a shiver down the backs of unionists of both parties and probably hurt the Republicans in some districts, including Marshall’s.

  As the congressional elections loomed, “the fate of my election is extremely uncertain,” Marshall wrote to his brother James. “The means used to defeat it are despicable in the extreme & yet they succeed.” His view of political campaigns was that nothing “more debases or pollutes the human mind.”9 Even after he was endorsed by Patrick Henry, Marshall’s election looked too close to call.10

  In the early days of the Republic, each state set its own date for congressional elections. Virginia’s election day, April 24, 1799, was a rowdy affair. Federalists and Republicans offered barrels of whiskey to their supporters at the polling places. Only white males with at least one hundred acres of undeveloped property (or twenty-five acres with a house) were eligible to vote. Typically, fewer than 10 percent of the total adult population cast ballots. There were no secret ballots in eighteenth-century Virginia. Each man stood up, possibly a bit tipsy, in front of the candidates and his neighbors, and declared his preference to either a sheriff or judge seated at a table to record the vote. The crowd would applaud or boo each vote depending on their preferences. As the drinking increased, the crowd became more boisterous. Fistfights were common.11 Though the Federalists fared poorly throughout the South, Marshall squeaked out victory by 114 votes out of more than 2,000 cast.12

  That July, Marshall took a long-delayed trip west to visit his parents at their home in what is now Versailles, Kentucky. Thomas Marshall was sixty-nine and in poor health. Marshall had not seen his parents in fifteen years, and this was his last trip to see them befor
e they died. In the last few years, as Thomas was nearing the end of his life, he expressed his affection more openly. “The thoughts of seeing you once more I really believe is a principal means of keeping me alive,” he wrote to his son. For the first time, he acknowledged pride in Marshall’s achievements: “The good of my country & our worthy president is nearest my heart,” he wrote to Marshall. “And the part you take in the present Storm gives me much pleasure, indeed you never seriously disobliged me in your life.”13 For Marshall, who kept his father on a pedestal, winning his father’s approval must have been profoundly satisfying.

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  THE SIXTH CONGRESS, having less business than the modern one, did not meet until December 2, 1799. For his swearing-in, Marshall brought Polly with him to Philadelphia. She was then pregnant with what would be their fifth surviving child, James. Polly, who rarely left the house and had never traveled outside Virginia, was excited to visit the capital city. Philadelphia bustled with prosperity. Streets were broad and neat. Sidewalks were scrubbed, and polished brass nameplates on freshly painted doors gleamed in the sunlight. There were no homes in Richmond that could rival these handsome brick town houses with their marble stairs. Shops were full of the latest French fashions, and women brazenly wore rouge and fitted dresses that showed the natural lines of their bodies. Most surprising of all was the scarcity of slaves and the number of white servants who cheerfully dusted, swept, and served.14

  Marshall entered Congress a national celebrity and quickly assumed the leadership of the moderate Federalists. His independence and fair-mindedness won him admirers from both parties, and his popularity annoyed his cousin Jefferson, who as vice president presided over the Senate. Marshall’s old friend Albert Gallatin led the Republican majority in the House. Though they differed on nearly every issue, they remained close.15 In Marshall’s time, political differences did not preclude mutual respect.

  After little more than two weeks in Congress, Marshall was pulled aside by a colleague on December 18 with the news that President Washington had died of tonsillitis four days earlier. Marshall rose on the floor and in a trembling voice announced the passing of his former commander to his stunned colleagues. “The House of Representatives can be but ill-fitted for public business after receiving information of this national calamity,” he said. Then he moved for immediate adjournment until the following day.16 Washington had held the nation together by his unimpeachable integrity and the universal respect he commanded. His towering influence was a measure of his character—not charisma, intellect, or wealth. There were no other founding fathers whom everyone could trust to do what was right as confidently as the nation trusted Washington. Without him, could the Union survive? Facing the threat of war with France and a looming bitter presidential election that divided the sitting president and vice president, the nation’s future seemed clouded.

  Since Marshall had moved for the adjournment, he still held the floor according to rules when the House reconvened the following day in a joint session to memorialize President Washington. In this delicate situation, it fell to Marshall to deliver a eulogy.

  “Our Washington is no more!” he began. “The hero, the sage, and the patriot of America—the man on whom in times of danger every eye was turned and all hopes were placed, lives now, only in his own great actions, and in the hearts of an affectionate and afflicted people.” Marshall praised his former commander not merely for leading the revolution but as “the chief of those patriots who formed for us a constitution, which, by preserving the union, will, I trust, substantiate and perpetuate those blessings our revolution had promised to bestow.”17 Though Marshall attributed the Constitution to Washington, the former president had little to do with the actual drafting.

  As Marshall stood before both houses and surveyed the packed chamber, one man was noticeably absent from the official memorial: the Senate’s president, Thomas Jefferson. Rather than mourn Washington, Jefferson stayed home. He feared that the wave of grief for the former president would only strengthen the appeal of the Federalist Party.18

  Washington’s friend Henry Lee drafted a resolution expressing the nation’s grief, but he preferred that Marshall introduce it. Thus, it was the freshman congressman who spoke before a hushed chamber the immortal line “First in war, first in peace, first in the hearts of his countrymen.”19 For that moment, the country spoke with one voice, neither Federalist nor Republican, unified in its grief.

  That sense of unity soon dissolved, and the partisan divide returned to Philadelphia in the form of a historic debate over the case of Jonathan Robbins.

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  IN 1799, JONATHAN ROBBINS, a British seaman, was arrested in Charleston, South Carolina, for the brutal murder two years earlier of nearly a dozen British officers and enlisted men at sea on board the Hermione, a thirty-two-gun British warship. Robbins had allegedly participated in a mutiny, seized control of the ship, and later sold the Hermione in a Spanish port. He was arrested in Charleston at the request of the British consul.

  Under Article 27 of Jay’s Treaty, the United States was obligated to extradite any person charged with murder in Britain. Robbins admitted that he was a member of the crew on the Hermione, and the evidence against Robbins sufficed to make out a prima facie case. However, Robbins claimed that he was an American born in Danbury, Connecticut, who had been kidnapped by British seamen and impressed into the British navy. The British consul claimed that Robbins’s real name was Thomas Nash and that he was born in Britain.

  Since the evidence of his guilt was convincing, and since Jay’s Treaty required the president to honor the request for extradition, President Adams requested that the district court judge release Robbins to the custody of the British consul. Robbins was promptly sent back to Britain, tried, found guilty of mutiny and murder, and hanged.20

  For Republicans, the Robbins case presented the perfect opportunity to reverse the political tide toward the Federalists and undo the damage they had suffered as a result of the XYZ Affair. Robbins was painted as an innocent American Everyman unjustifiably seized and executed by a foreign power with the obeisance of a servile President Adams, who kowtowed to British demands. Vice President Jefferson gleefully reported, “I think no circumstance since the establishment of our government has affected the popular mind more.”21 The Republican press fanned the flames of public outrage. The editors of the Aurora wrote, “Look at what has been done in the case of Jonathan Robbins . . . A British lieutenant who never saw him until he was prisoner at Charleston swears his name is Thomas Nash . . . The man is hanged!” The journalists thought that Jay’s Treaty had given the British license “to pervert the law of nations and to degrade national honor and character.” Even the controversy over the Alien and Sedition Acts and the mass arrests of Republican editors did not spark the same degree of popular outrage.22

  Republicans proposed resolutions to limit extradition under Jay’s Treaty and requested that the State Department release documents concerning the extradition. Both resolutions were adopted. Republicans hoped to lay blame squarely on President Adams, but when the State Department complied, the documents proved conclusively that Jonathan Robbins was Thomas Nash, as the British consul had claimed. The documents included a letter from the Danbury town selectmen stating that no one named Jonathan Robbins had ever lived there.23

  But Congressional Republicans never let objective facts obscure their political convictions. They continued to repeat the false charge that Robbins was an American enslaved by the British navy and that he had acted in defense of liberty.24 They denounced the president as an English sycophant. New York Congressman Edward Livingston moved to censure President Adams for sacrificing an American to British justice.25

  The debate in the House over the censure motion was long and heated. On March 7, 1800, Marshall rose to speak. Polly had given birth to their fifth child, James Keith, only three weeks earlier and was
still suffering from anxiety and depression. But she sensed that this was a historic moment, so she left their home in Philadelphia to watch her husband from the visitors’ gallery. The air was frosty, but brilliant sunlight streamed through the tall windows into Congress Hall as the congressmen filed into the chamber.26 More than one hundred representatives sat in rows of long mahogany desks that formed a semicircle around the speaker’s platform.

  In the debate, Marshall approached the issue with a lawyer’s attention to detail. He moved carefully and deliberately from one piece of evidence to the next, building to an irrefutable conclusion. Marshall showed that under international law Britain had criminal jurisdiction over a British vessel in international waters, and therefore Robbins, regardless of his nationality, must answer to British law for crimes allegedly committed on the Hermione. To drive home this point, Marshall reminded his Republican colleagues that Vice President Jefferson as secretary of state had issued an opinion that American privateers who committed acts against British vessels could be charged under British law. If an American could be punished only under British law for crimes on a British ship, a fortiori, the British national Robbins could be punished under British law.27

  At this point, Marshall tackled the Republican argument that the president had no constitutional power to intervene in the case. Jay’s Treaty, Marshall told the chamber, required the United States to extradite on the demand of Britain, and therefore some government official must perform this act. U.S. courts could not extradite a prisoner without a request from the president. This raised the question of whether the Constitution entrusted this power to the president.

  Now Marshall was ready for his masterful counterpunch: “The case was in its nature a national demand made upon the nation,” he said. Who can answer this demand? “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made on him.” Marshall argued that it is not a discretionary act by the president but one he is required to perform in accordance with a treaty, which the Constitution states is “the supreme law of the land.” Marshall concluded that the president “is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he and he alone possesses the means of executing it.”28