Without Precedent

by Joel Richard Paul

  Marshall found that by granting the Supreme Court the power to issue writs of mandamus, Section 13 of the Judiciary Act violated Article III of the Constitution. Should Section 13 of the statute trump the Constitution, or should the Constitution trump the statute? If the answer appears obvious to us today, it’s only because of Marshall’s opinion in Marbury. Before 1803, it was not clear whether the Constitution was enforceable by courts, or whether it was merely an expression of principles, like the Declaration of Independence. After all, why should unelected judges be empowered to strike down the acts of a democratically elected Congress?

  Marshall asserted that the Constitution was a higher form of law established by “We the People” rather than by a mere legislature. The supreme will of the people inscribed in the founding document trumped the transient preferences of Congress.33 And it was up to the Supreme Court to decide the meaning of the Constitution because “[i]t is emphatically the province and duty of the judicial department to say what the law is.”34 Marshall struck down Section 13 of the Judiciary Act as unconstitutional. The Supreme Court had no authority to issue a writ of mandamus as a trial court. Marbury would have to go back to the circuit court and start his case over.

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  MOST PEOPLE BELIEVE, incorrectly, that Marshall invented the power of judicial review in Marbury v. Madison. True, it was the first time a federal court had struck down a federal law as unconstitutional. (The Supreme Court did not invalidate another federal statute until its infamous decision to uphold slavery in Dred Scott, fifty-four years later.35) However, well before Marbury, state courts, legal authorities, and even the Framers of the Constitution had asserted that courts could strike down statutes that were contrary to the Constitution.36 Indeed, it was a young John Marshall at the Virginia Ratifying Convention who declared that if Congress “were to make a law not warranted by any of their powers enumerated [in the Constitution], it would be considered by the Judges an infringement of the Constitution which they are to guard . . . They would declare it void.”37 Even Jefferson did not object to the principle of judicial review. Far more controversial was Marshall’s holding that the Court had jurisdiction over executive officials in the exercise of their official duties.

  Marbury v. Madison demonstrated Marshall’s political genius. He struck a pragmatic compromise that avoided a direct conflict with the president while he asserted the Court’s authority to hold both Congress and the executive accountable to the Constitution. Marshall wove together his decision so artfully that few people noticed the flaws in the stitching: The first question a court should always ask is whether it has jurisdiction to decide a case. Since Marshall concluded there was no jurisdiction, the Supreme Court had no business deciding that Marbury was entitled to his commission in the first place. The Court’s holding that Madison had violated Marbury’s rights under the law was merely gratuitous and arguably improper.

  The second flaw in Marshall’s opinion was that there was nothing in Article III of the Constitution that explicitly prohibited Congress from giving the Supreme Court original jurisdiction over writs of mandamus. Marshall inferred something that was not stated. (Indeed, in another case thirteen years later, the Marshall Court held that Congress could grant the Supreme Court additional appellate jurisdiction beyond the terms of Article III.38) Many of the Constitution’s Framers, including Madison, served in the first Congress that wrote the Judiciary Act. Surely they understood better than the Supreme Court what their original intention was in writing the Constitution, and one might assume that they would not have adopted a statute that contravened the Constitution they drafted.

  Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review. In fact, Section 13 of the Judiciary Act did not grant the Supreme Court original jurisdiction over writs of mandamus. The act listed all the cases in which the court had original jurisdiction without mentioning writs of mandamus. Then it went on to list all the cases in which the Supreme Court had appellate jurisdiction from the circuit courts, which included writs of mandamus.39 In other words, the Judiciary Act gave the Supreme Court appellate jurisdiction over writs of mandamus; it did not give the Court original jurisdiction to hear trials like Marbury’s for a writ of mandamus. Marshall ignored the plain meaning of the statute in order to manufacture a conflict with the Constitution that did not exist.

  Why would Marshall create a constitutional conflict unnecessarily? If Marshall had not invented this conflict and if the Court had ordered Madison to deliver the commission, there’s little doubt that Madison would have refused to comply, and the Court’s authority would have been undermined. Instead, by conveniently inventing a constitutional conflict, Marshall made a strategic retreat from a direct confrontation with Jefferson while asserting the power of judicial review.

  This leads to a question that has long puzzled historians: Why did Charles Lee, one of the smartest lawyers of his generation, misread the statute and file the writ of mandamus in the wrong court? The proper court having jurisdiction over the writ of mandamus would have been the circuit court for the District of Columbia. He could easily have filed his lawsuit there. The circuit court was appointed by President Adams in the last days of his administration, and it included Lee’s friend James Marshall, the brother of the chief justice.40 If the case had been filed with James Marshall, the only available witness to prove the existence of the commission would have been the chief justice. But if the chief justice had testified, then he would almost certainly have had to recuse himself when the case was inevitably appealed to the Supreme Court. Instead, the case was purposely filed in the wrong court so that James Marshall could testify to the existence of the commissions. The case created the perfect opportunity for holding that federal judges could not be denied their commissions and for affirming the power of judicial review without risking a head-on collision with President Jefferson. Most likely, John and James Marshall sat down with their friend Charles Lee—perhaps over a glass of Marshall’s favorite Madeira—and constructed this case from start to finish.

  Public reaction to Marshall’s decision was generally positive.41 Leading Republican newspapers, such as the National Intelligencer in Washington, the Aurora in Philadelphia, and the Independent Chronicle in Boston, found little to quarrel about in Marbury. Even the Virginia Argus, an aggressively Republican publication, did not question the power of judicial review or the principle that executive officers could be held accountable by the courts. Even prominent Republicans publicly endorsed the doctrine of judicial review.42 Neither Jefferson nor Madison publicly criticized the decision, and both had previously acknowledged the power of judicial review.43 Privately, however, Jefferson fumed that Marshall had the audacity to suggest that Madison had violated the law by refusing to deliver those commissions.44

  One week after Marshall’s historic decision in Marbury, the court issued its opinion in Stuart v. Laird. Everyone in Washington now expected the Supreme Court to declare the Repeal Act unconstitutional. To Republicans, the court’s assertion of judicial review in Marbury had set the stage for an all-out war with Congress. Once again, Marshall’s court surprised everyone. Rather than striking down the Repeal Act and reinstating the Federalist circuit court judges, Justice Paterson issued a curt unanimous opinion that since it had been the practice of the Supreme Court to ride circuit years before the 1801 Circuit Court Act, this practice “affords an irresistible answer” against any claim that Supreme Court justices cannot constitutionally sit on two courts.45 The court dismissed Stuart’s suit challenging the Repeal Act. Another confrontation between the Court and the Jeffersonians was averted.

  The chief justice, having decided the case on circuit, had recused himself from participating in the decision. Yet there’s no doubt that he had a great influence on his colleagues and their decision, and that the bold stroke of Marbury bought the court some breathing room. It wa
s no longer urgent for the court to assert itself in this manner in this case.

  Marbury and Stuart demonstrated Marshall’s moderation and his pragmatism in forging consensus on the Court to find common ground between political partisans. Marshall relied on the tactical skill he had learned from General Steuben and the diplomatic experience he had gained in Paris. In one bold stroke he had avoided a constitutional crisis and enlarged the Court’s authority.

  The crisis between the Court and the president was averted or at least postponed. But one thing was sure: In Chief Justice Marshall, President Jefferson had met his match.

  CHAPTER NINETEEN

  PRIZES OF WAR

  From the moment that Marshall joined the Court, his tenure was dominated by international cases. Though Marshall’s eloquent decisions on constitutional law may be better known today, he authored more than twice as many decisions on international law as he did on constitutional law.1 Whereas Justice Joseph Story, who joined the Court in 1811, was a recognized authority on constitutional law, his contemporaries regarded Marshall as the leading authority on international law. International cases dominated the Court’s caseload for much of the first fifty years of the Court’s proceedings, and most of these cases concerned the rights and obligations of merchant ships, naval vessels, and privateers. The U.S. economy in 1800 was significantly more reliant on international trade than it is today. In 1800, around 40 percent of the country’s gross domestic product was represented by imports and exports; by contrast, in 2015 that number was around 25 percent of the U.S. GDP.2 Given the importance of trade at the time, it’s hardly surprising that admiralty law dominated the Court’s docket.

  Several of the most important cases to come before the Marshall Court concerned the Quasi-War with France. One of these arose out of the capture of the schooner Peggy, a French merchant ship, by the USS Trumbull near Haiti. The Peggy was condemned by the circuit court in Connecticut on September 23, 1800, the same day that President Jefferson ratified the peace treaty with France ending the Quasi-War. The treaty provided that any ships captured but not yet “definitively condemned” after the treaty’s ratification should be restored to their owners. The Court faced the question of whether the condemnation of the ship was “final” before all appeals to the Supreme Court had been exhausted. In December 1801, Chief Justice Marshall held that the condemnation was not final and that the vessel should be restored. Though Marshall conceded that normally “[e]very condemnation is final,” here the Court must be mindful of a treaty, which under the Constitution has the same effect as any act of Congress. Though courts should not ordinarily apply rules retrospectively to alter property rights, a peace treaty was exceptional. “[W]here individual rights, acquired by war, are sacrificed for national purposes, the [treaty] making the sacrifice ought always to receive a construction conforming to its manifest import.” In other words, if the U.S. government waived the rights of its citizens to collect a prize, it is up to the government, not the Court, to provide compensation.3 Marshall’s opinion demonstrated his deference to treaties and his respect for the property rights of aliens.

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  MARSHALL KEPT A JUDICIOUS silence as political events were unfolding in Washington. In 1802, Jefferson quietly invited the rabble-rouser Thomas Paine to return to America from France on a navy frigate—presumably because Paine was too impoverished to pay his own fare. When Paine published the fact that he had returned at Jefferson’s invitation, the incident embarrassed Jefferson. Federalist newspapers blasted Paine as an “obscene old sinner,” a “notorious drunkard,” and the “living opprobrium of humanity” for his defaming Washington, his support for the French Revolution, and his opposition to religion. Though Jefferson said nothing publicly to defend Paine, he entertained him at the President’s House and privately expressed his “high esteem” for his service to the Revolution.4

  Marshall took some satisfaction at Jefferson’s expense. The chief justice had nothing kind to say about Paine, who had acted as Talleyrand’s stooge during the XYZ Affair by lobbying Marshall to pay the bribe. Marshall wrote to Pinckney: “It is whisperd among those who affect to know a great deal that a certain eminent personage [Jefferson] is already fatigued almost beyond bearing with a great democratic & religious writer whose useful labors were of sufficient magnitude to entitle him to an invitation to cross the Atlantic in a national frigate.” Marshall was delighted that the newspapers were hurling criticism at Jefferson for welcoming Paine home. “I wish such deeds woud always bring their own reward. It woud induce infidels to believe there was a possibility of there being a superintending providence.”5

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  ANOTHER IMPORTANT CASE arising out of the Quasi-War concerned the capture of the Jane, an American-owned vessel. On the morning of April 10, 1800, toward the end of the Quasi-War with France, the Jane set sail from Baltimore with a cargo of flour bound for the French West Indies. The Jane was a sleek schooner low to the water with its masts raked back for speed and balance. The cargo was sold to a merchant on St. Barts, and from there the schooner proceeded to St. Thomas, then a Danish possession, where it was sold to Jared Shattuck, a successful merchant originally from Connecticut who now lived on the island. Since Denmark was neutral, the two acts banning commerce between the U.S. and France did not apply to trade with the island. Shattuck rechristened the vessel the Charming Betsy.

  On June 26, the Charming Betsy set sail loaded with wine, fish, and meat for Guadeloupe, a French island. Days later, the ship was captured by several dozen French privateers on board the Rosiette under the command of a Captain Bonnival. Bonnival concluded that the ship was clearly American and therefore could be claimed as a prize according to a decree of the French government. Captain Bonnival removed all but three of the original crew and put seven hands on board to sail the Charming Betsy toward Guadeloupe with the intention of libeling the ship there as a prize of war.6

  The U.S. Navy had several ships in the vicinity that were patrolling the Caribbean for French warships or U.S. merchant vessels sailing to French territory in violation of the 1798 act that prohibited vessels owned by Americans from entering French ports. One of these naval vessels was the USS Constellation, a massive thirty-eight-gun frigate—one of the six original frigates that constituted the U.S. Navy. Around midnight on July 2, a crew member on board the Constellation spotted the Charming Betsy and fired a single shot over the bow. The French privateers had helped themselves to much of the wine on board and were startled from their drunken stupor by the appearance of this hulking warship. The Constellation’s captain, Alexander Murray, ordered the Charming Betsy to stop and submit to inspection. Lieutenant Miles King and a small group of sailors climbed aboard the Charming Betsy to search for evidence of contraband or evidence that this ship, a Danish-registered vessel, could be either American or French. An American vessel sailing toward French territory would be violating the ban on trading with France and subject to seizure, and a French warship could be seized as a prize of war. King asked to review the ship’s logbook and found there was none. Had someone tossed the logbook overboard? His suspicions were further aroused when he found the bill of sale for the purchase of the ship dated only two weeks prior. The name Jared Shattuck hardly sounded Scandinavian. There was no evidence of Danish ownership or even a Danish flag. King could not have missed the captain’s Scottish brogue. And the French privateers who had seized the ship clearly did not think it was a neutral vessel.

  The French captain told King that he thought the ship was American. This was confirmed by one of the hands from Baltimore. It was widely known that Americans registered ships as Danish in order to escape seizure while being free to trade with all parties. Under these circumstances, Captain Murray reasonably concluded that there was probable cause to seize the ship.7

  Captain Murray’s men sailed the Charming Betsy to Philadelphia, where it was libeled under the 1798 act. The Danish consul in
Philadelphia asserted that the ship and the cargo were the property of a Danish subject and could not be seized. The district court judge found that although Jared Shattuck was born a U.S. citizen, he had married and resided in Danish territory and had taken an oath of allegiance to the Danish Crown in 1797. Accordingly, the property belonged to the subject of a neutral country and had been illegally seized. The district court ordered Captain Murray to pay costs and damages to Shattuck in the amount of $20,594.61 (nearly $400,000 today)—more than twenty times his annual salary.8 For a naval officer acting in good faith that seemed like a staggering injustice. On appeal the circuit court affirmed the judgment but reduced the amount of the award. Both Murray and Shattuck then appealed to the Supreme Court in 1804.

  The case turned on the question of Shattuck’s nationality. Murray’s attorney argued that Shattuck had moved abroad only in the past decade to avoid the ban on commerce with France and that he had no documentary proof of naturalization nor had he ever formally renounced his U.S. citizenship. The argument might seem obscure, but it drew national attention. The case posed a fundamental question about the nature of citizenship that divided Federalists and Republicans. Jefferson and his party believed that a person had the right to change his citizenship. Republicans cast this right to expatriate as a fundamental liberty.9 Federalists thought that a person’s nationality was immutable and that only the government could alter the nationality of its citizens.10

  This was more than a philosophical disagreement. Republicans generally welcomed European immigrants, especially from Ireland and France, who just happened to vote Republican.11 Federalists wanted to discourage immigrants from these countries for the same reason. Federalists found it convenient to frame their opposition in terms of national security: Republican extremists might slip into the United States and threaten the nation’s security. In fact, claims about immigrants threatening security were no more justified then than they are today.