Without Precedent
Page 26
Captain Talbot was a heroic figure in the U.S. Navy. At age twelve, he left home in Dighton, Massachusetts, to be a cabin boy, and from that day forward, he grew up at sea. During the American Revolution, he served in both the Continental Army and Navy, capturing more British ships than any other U.S. captain and earning a fortune in prizes. His swashbuckling exploits were celebrated in a popular song of the time:
So heave away for Talbot, for Talbot, for Talbot,
So heave away for Talbot, an’ let th’ Capting steer,
For he’s the boy to smack them, to crack them, to whack them,
For he’s th’ boy to ship with, if you want to privateer.13
In 1793, Talbot was elected to Congress from New York. A few months later, President Washington plucked him out of Congress and appointed him as one of the first captains in the newly formed U.S. Navy. Talbot oversaw the construction of the USS Constitution and served as its captain through the Quasi-War.
Many disputes over prizes grew out of the Quasi-War, but the value of this prize, both the ship and its cargo, was estimated at $180,000 (around $3.5 million today).14 Given the amount at stake and the fame of Captain Talbot, the case received wide attention. Republicans hoped that a victory for Seeman would call into question the validity of the Quasi-War. Federalists, supporting the war, took the opposite view. The case attracted two of the most prominent attorneys of the day: Alexander Hamilton on behalf of Captain Talbot, and Aaron Burr on behalf of Seeman. The district court ruled for Captain Talbot based on the clear language of the federal statutes, and the case was appealed to the circuit court of appeals. Presiding over the circuit court of appeals, Justice Bushrod Washington held in favor of Seeman. Justice Washington ruled that under the laws of war neither France nor the United States had the right to interfere with a neutral ship. Captain Talbot appealed to the Supreme Court.
Before the Supreme Court, Talbot’s new lawyers, Federalist Congressman James Bayard and famed Philadelphia lawyer Jared Ingersoll, argued that under federal law, the Amelia, as an armed merchant ship flying a French flag, was clearly liable to capture. In the alternative, they argued that even if the ship had to be returned to Seeman, Captain Talbot was entitled under federal statutes to salvage in the amount of half the value of the ship and its contents for rescuing the ship from the French.
Seeman’s attorneys now included Alexander Dallas, a prominent Republican who served both as the first Supreme Court reporter and would later serve as treasury secretary and acting secretary of war in James Madison’s cabinet. Dallas responded that since neutral states have a right to trade freely, the initial seizure by France was illegal and the ship could not have been legally condemned in any event by a French court. As a consquence, Talbot had not earned salvage because the USS Constitution did not, in fact, rescue the ship or provide any service to the owner; if the vessel had been adjudicated in a French tribunal, it would have gone free in any case.15
The Supreme Court heard four days of oral argument in stifling July humidity before a courtroom packed with onlookers tormented by mosquitos. The justices quietly took notes as the attorneys spoke. Justices at the time rarely interrupted the argument. After a week of deliberation, the court issued its opinion.
In his first substantive opinion as chief justice, Marshall delivered for the first time in the Court’s history a single opinion for a unanimous court. By agreeing to issue a unified opinion, the justices both clarified the law and conveyed greater weight to their decision. By forging consensus, Marshall had invented a new and more effective form for issuing decisions.
Marshall’s opinion in Talbot v. Seeman set forth a number of important principles. First, Congress possessed the whole power of war, including the exclusive power to authorize a limited or undeclared war. The corollary of that principle was that the president had no authority to initiate military action without Congress. In this case, Congress had expressly authorized the seizure of “any armed French vessel found on the high seas.” Second, since the Amelia met that description, there was “probable cause” to believe that she was liable to capture at the time that Talbot acted. Talbot had no reason to know that she was, in fact, a neutral vessel, so he acted properly. Third, Talbot had performed a valuable service in rescuing the vessel from condemnation by France and was therefore entitled to some amount of salvage.16
An outright victory for Talbot could be read as a signal of Marshall’s partisanship. Yet Marshall tempered his decision in a way that would allow both Federalists and Republicans to declare victory. Federal law provided that a captain who captured an enemy ship was entitled to receive half the value of the ship and its contents as salvage. However, since the Amelia was not an enemy vessel but a neutral vessel, Talbot’s capture violated international law. Marshall opined that a law of the United States ought never to be construed in a way that violated international law. This was a new principle of statutory interpretation. Applying this principle, Marshall held that the statute could not be read to entitle Talbot to half the ship’s value.17
But surely it would have seemed unjust to deny Talbot any compensation and leave him paying court costs. After all, Talbot had provided a valuable service by rescuing Seeman’s ship from its French captors. Marshall found that there was an implied contract between Talbot and Seeman, and therefore Talbot was entitled to some compensation for his services. Marshall thought that Talbot’s compensation should be less than half the value of the ship and its contents. Weighing all the circumstances, he and his brethren agreed that an award of one-sixth the value of the ship and its contents less court costs would fairly compensate Talbot for his service to the ship’s owner.18
It was a Solomonic decision to split the proceeds this way. It was also a sign of Marshall’s political acumen that he struck a compromise he thought would placate partisans in both political parties.
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MARSHALL’S FIRST DECISION signaled that his tenure would be characterized by moderation. But Republicans were not placated. Despite Jefferson’s inaugural message of reconciliation, the new Republican Congress, egged on by President Jefferson, was gearing up to repeal the Circuit Court Act of 1801, which had created the new circuit courts and reduced the Supreme Court from six justices to five. Jefferson grumbled that the Federalists “have retired into the judiciary as a stronghold,” and he predicted that “from that battery all the works of republicanism are to be beaten down & erased, by a fraudulent use of the constitution which has made judges irremoveable, they have multiplied useless judges merely to strengthen their phalanx.”19
The federal judiciary was widely viewed as an ally of financial interests. Merchants, banks, and landholders all expected that the federal courts would be more sympathetic than state courts, which were often elected positions and tilted in favor of tradesmen, debtors, and farmers. By expanding the size and authority of federal courts, the 1801 act created a firewall against the populism of the Jeffersonians. It was precisely for that reason that the Republicans found the act intolerable. One of the leading Republicans of the time, Virginia Congressman William Branch Giles, called for the removal of all Federalist judges “indiscriminately.” So long as the Federalists remained in office, he warned his fellow Republicans, “[T]he strong fortress is in [the] possession of the enemy.”20
For Marshall, Giles’s comments must have felt like a stinging rebuke. Marshall had befriended Giles years earlier, and when Giles first arrived in Congress, Marshall introduced him to Madison with a warm letter of reference.21 Giles now made no secret of the Republicans’ intentions. Addressing the federal judiciary, Giles crowed, “We want your offices for the purpose of giving them to men who will fill them better.”22
Marshall had confronted the French, the British, the Spanish, and the Barbary pirates. Now he faced a more personal menace.
CHAPTER EIGHTEEN
A STRATEGIC RETREAT
In 1801, the Sup
reme Court had few cases on its docket and did not resume deliberation until December of that year as prescribed by Congress. One of the first petitions presented was from William Marbury, whose name was embarrassingly familiar to Marshall. Marbury was one of the forty-two justices of the peace for the District of Columbia rushed through the Senate confirmation process in the final hours of the Adams administration. On March 3, 1801, Adams’s last day in office as president, Marshall had applied the Great Seal of the United States to Marbury’s commission. Marshall was frantically packing up his papers, processing commissions, and arranging to deliver the commissions for sixteen new circuit judges as well as the justices of the peace. By noon the next day, the sixteen circuit judges had received their commissions, and Thomas Jefferson had been sworn in as president. On his first full day in office, Jefferson was surprised to find forty-two commissions for justices of the peace neatly stacked on Marshall’s desk at the State Department. It’s not certain why the commissions were never delivered. Some historians attribute the failure to Marshall’s inattention to details.1 Whatever the reason, this clerical oversight set off the most famous case in the history of the Supreme Court, Marbury v. Madison.
Jefferson instructed Levi Lincoln, who was serving as interim secretary of state before James Madison arrived to take the post, not to deliver the commissions. Jefferson considered that the commissions did not vest until they were delivered, and he thought that forty-two judges for the district was excessive given the fact that the total population of the district was barely three thousand free persons and slaves. Jefferson eventually told Madison to deliver twenty-five of the commissions plus another five nominated by Jefferson. Among the seventeen commissions that Jefferson refused to deliver was Marbury’s.
William Marbury came from a formerly wealthy Maryland plantation family. He began his career at nineteen as a clerk to the Maryland state auditor and eventually rose to become agent for the state of Maryland. In this capacity, Marbury helped to refinance the state’s Revolutionary War debt. Marbury learned he could score an easy fortune selling worthless state bonds in exchange for valuable federal securities. By 1793, Marbury had founded the Bank of Columbia with Benjamin Stoddert. In 1798, President Adams appointed Stoddert the first secretary of the navy. At the time, Stoddert had suffered an embarrassing financial setback, and Marbury stepped in to rescue him. He was rewarded in 1799 with an appointment as the agent for a new naval yard to be built at Anacostia in Washington. Marbury moved to Georgetown, which was then little more than a small port on the Potomac. There he built a fashionable redbrick town house on M Street.2
Marbury was working in the Department of the Navy when President Adams nominated him to be a justice of the peace. It is unclear whether Marbury accepted out of political ambition or loyalty to Adams. The real mystery is why he would go to court to fight to keep his commission. The position of a justice of the peace was a vestige of the colonial era that had lost nearly all its significance. By 1800, a justice of the peace was a lowly local magistrate who performed ministerial functions such as notarizing land documents and arresting drunks, prostitutes, and runaway slaves. A justice of the peace could also decide claims for fewer than twenty dollars.3 There was no compensation apart from nominal filing fees, and as a successful financier, Marbury hardly needed the income or the aggravation.4
Of the seventeen men nominated as justices of the peace who were denied their commissions, only three others—William Harper, Robert Townsend Hooe, and Dennis Ramsay—cared enough to join Marbury in seeking redress. It’s likely that all four plaintiffs were motivated more by a partisan desire to embarrass Jefferson than a genuine interest in the office. They wanted a judgment holding Secretary of State Madison—and, by implication, President Jefferson—liable for violating the law.
Marbury’s attorney, Charles Lee, the former attorney general and a close friend of Marshall’s, filed suit in the Supreme Court asking for an order known as a writ of mandamus that would command the secretary of state to deliver Marbury’s commission. The Supreme Court agreed to hear Marbury’s petition during its June 1803 term.
Marbury’s lawsuit was filed against the backdrop of an ominous constitutional crisis. When the Court agreed to hear Marbury’s case, Republican Senator John Breckinridge from Kentucky rose on the Senate floor to accuse the Supreme Court of launching “the most daring attack” against the president.5 Breckinridge called for repealing the Circuit Court Act. Though Jefferson had already hinted at the need to change the act, Marbury’s challenge emboldened the Republicans to act swiftly.6 Proposing to abolish federal courts was equivalent to a declaration of war against the Federalist judiciary. Federalists, including New York Senator Gouverneur Morris, warned that the Repeal Act was a threat to the rule of law itself: “What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure?” Morris, one of the Constitution’s Framers, feared that if the repeal succeeded, it would destroy the independence of the judiciary.7
The Repeal Act was narrowly approved by a single vote in the Senate, but it sailed through the House on a party-line vote. The Repeal Act, also known as the Judiciary Act of 1802, eliminated the sixteen new circuit judges, restored the Supreme Court to six justices, and canceled the Supreme Court’s term for 1802 to prevent Marshall’s court from responding. (The Supreme Court did not resume hearing cases until February 1803.)
The circuit court judges who had lost their jobs argued that the 1802 act was unconstitutional. Under Article III of the Constitution, federal judges have lifetime tenure during “good behavior” and can be removed only by impeachment and conviction for treason, bribery, or other high crimes and misdemeanors. It seemed clear that Congress could not dismiss circuit court judges by legislation. Marshall was sympathetic to those who lost their jobs, including his brother James, who in the last hours of the Adams administration had been appointed to the D.C. Circuit Court.
The Repeal Act placed Marshall and his brethren in an awkward position. If the circuit court judges were no longer hearing cases, then the Supreme Court justices themselves needed to resume the arduous and unappealing work of riding circuit. The justices considered whether they should refuse to ride circuit until Congress relented. That would bring the federal judiciary to a crashing halt and provoke a confrontation with the Republican Congress. But if the justices simply resumed riding circuit and acquiesced to an unconstitutional act of Congress, then the independence of the judiciary would be compromised.
Marshall, Chase, and Paterson agreed that they should not ride circuit. Marshall thought that the Constitution gave Supreme Court justices limited power to hear only certain trials; therefore Congress could not give the justices additional power to hear other trials as circuit court judges when they were obligated to hear the same cases on appeal.8 In effect, these three justices were prepared to go on strike. Justices Cushing and Washington, however, disagreed with their colleagues. They thought that the precedent for Supreme Court justices riding circuit had already been well established since the beginning of the federal government. They felt they had to accept the 1802 act.9 Marshall worried that if the justices did not act unanimously, the strike would be fatal to the Court’s legitimacy. Marshall was prepared to compromise to preserve the Court’s effectiveness. With the Court split and unable to meet until 1803, Marshall could see no practical way to refuse riding circuit until a case challenging the Repeal Act reached the Supreme Court.10 Thus Marshall and his brethren saddled up for another arduous term riding circuit.
Around the country, cases were filed challenging the constitutionality of the 1802 act. The first case was heard by Justice Bushrod Washington on circuit in Hartford, Connecticut. Washington dismissed the suit knowing that more such challenges were headed to the Supreme Court. One of the circuit judges, Richard Bassett, petitioned the Supreme Court directly. Bassett warned that if Congress could fire judges, all the con
stitutional limits on government and the protections of individual liberty “would become nugatory.” Bassett asserted that when Congress acted contrary to the Constitution, the Supreme Court had authority to declare the Repeal Act unconstitutional.11
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SINCE THE COURT would not be meeting for the year and Marshall had no law practice to resume, he planned to work on a new project, a five-volume biography of Washington. Marshall had been approached by Bushrod Washington, who had inherited all his uncle’s public and private papers. Bushrod had hoped to write the biography with Washington’s personal secretary, Tobias Lear, but Bushrod changed his mind and turned to Marshall instead. Marshall was not sure he was the right man for the job of biographer. Bushrod persuaded Marshall that he was uniquely well suited given his close relationship with Washington from Valley Forge through his presidency. Moreover, Marshall was closely associated with Washington in the public’s mind. He had spoken movingly at Washington’s memorial in Congress, and in 1802, he was overseeing plans authorized by the Federalist Congress to construct a monument to Washington.12 (Congressional Republicans opposed the monument and incongruously denounced Washington as a counterrevolutionary hero. Instead, a private society was formed in 1848 to raise funds for the Washington Monument, but it went bankrupt before the monument could be completed. Congress did not appropriate funds to complete the monument until 1876, nearly three-quarters of a century after Marshall began that effort.) Marshall agreed to write Washington’s biography both out of devotion to his former commander in chief and his urgent need to raise cash to pay off the balance owed for Lord Fairfax’s estate.13 Thus the first presidential biography was launched largely to finance a real estate venture.