Without Precedent

by Joel Richard Paul

  Lurking just below the surface of the expatriation dispute was the persistent debate over relations with France. Federalists wanted the acts banning commerce enforced rigorously, and therefore they sided with Murray against Shattuck. Republicans were less inclined to punish France—even though Jefferson later proposed his own embargo against France and England. Disagreements over U.S. policy toward France fueled interest in this Supreme Court argument.

  Marshall personally accepted the legal principle, well established in British common law, that a person owed “perpetual allegiance” to his sovereign and could not expatriate himself.12 Yet he once again sidestepped a direct challenge to Jefferson and steered the court away from a broad pronouncement on the right to expatriate. Speaking for a unanimous Court, Marshall wrote that the question of whether a U.S. national “can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.”13 Instead, Marshall asserted that a merchant such as Shattuck who is a permanent resident of a foreign country assumed the “character” of a foreign national even if he had not technically surrendered his U.S. citizenship. In effect, Marshall invented a new category of nationality for commercial purposes. U.S. merchants residing abroad could avoid the reach of U.S. laws, but they could be subject to any restrictions imposed on foreign nationals.14 Assuming then that Shattuck should be treated like a Danish national, Marshall turned his attention to whether Captain Murray had exceeded the ban on trade with France by capturing a neutral vessel.

  In one of his most important decisions on international law, Marshall wrote that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”15 This was the same principle that Marshall had introduced in his first opinion, Talbot v. Seeman. In other words, courts should interpret statutes consistent with customary international law unless Congress clearly stated its intention to act contrary to international law. This principle of statutory interpretation implied that customary international law is part of U.S. law. Since courts interpret customary international law, the principle of Charming Betsy expanded the power of courts to interpret acts of Congress.16

  What customary international law governed the interpretation of acts imposing a trade embargo on France? Drawing on his diplomatic experience, Marshall asserted that the acts should be read in light of the rights of neutral nations to trade. That was the very principle Marshall had defended in France. Marshall reasoned that Congress did not intend to apply the law in a way that violated neutral rights. A U.S. national who had assumed the character of a Danish resident for commercial purposes was therefore exempt from the 1798 act. The chief justice reserved the possibility that U.S. criminal laws might still apply to him as a U.S. citizen, but “while within the territory of the sovereign to whom he has sworn allegiance,” Shattuck was beyond the reach of the United States.17 Marshall concluded that since the Charming Betsy was a neutral vessel, Captain Murray had no legal right to seize it. The Court ordered Murray to return the vessel to Shattuck and pay damages for the loss of cargo and the interruption in the voyage.

  Was Murray entitled to compensation from Shattuck for recapturing the vessel from French privateers? Under U.S. statutory law, a U.S. naval captain and his crew who recaptured a ship from the French were entitled to half the value of the ship and its contents as salvage. Marshall found that since Talbot was decided, France had recognized the right of free navigation. Marshall held that the Charming Betsy was not at risk of being condemned by a French court, and therefore Captain Murray was not entitled to a reward.18

  Marshall’s decision rested on shaky ground. It was true that the French government had repealed a decree authorizing the seizure of neutral vessels in March 1800 and that a French tribunal had issued two decisions returning a neutral vessel in May. However, Captain Murray could not have known that at the time he captured the Charming Betsy, and there was no authoritative source on French law introduced into evidence. The only proof that Shattuck could produce that showed a change in the French government’s policy was a poorly translated summary by an anonymous Englishman of a French tribunal’s decision.19 Under the circumstances, it was far from clear whether a French tribunal would have freed the Charming Betsy.

  Why then did Marshall rely on such thin evidence in deciding that Captain Murray had not performed a valuable service to the ship’s owner? Marshall gave France the benefit of the doubt despite his own experience negotiating with Talleyrand’s government. Marshall held out the hope that even if the French court’s decision was not authoritative, France might be induced to comply with the law of neutrality in the future. Marshall was acting according to the principle of international comity: He thought that U.S. courts should defer to the laws of other states based on the expectation that other states would accord reciprocal treatment to U.S. law.20

  At the dawn of the nineteenth century, Marshall’s respect for the law of nations was widely shared by enlightened Americans. The principle that customary international law applied in U.S. courts was well established even before the adoption of the Constitution.21 The Constitution expressly acknowledged the authority of the customary law of nations and granted Congress the power to punish violations.22 Marshall’s decision in Charming Betsy was widely accepted as consistent with the contemporaneous understanding of the Constitution. By establishing a rule of statutory interpretation, Marshall sought to ensure that U.S. law would limit the power of the government to infringe on the rights of other states. But international law was not merely a constraint on what the United States could do; it was also a tool of statecraft.

  To our century, Marshall’s faith in the power of international law and the Charming Betsy principle may seem naïve, but Marshall recognized that a vulnerable nation depended on international law.23 He hoped that adherence to the law of nations would encourage reciprocity and provide the nation with a shield against the naked ambitions of foreign powers.24

  It seemed unduly harsh that the Court held Captain Murray personally liable for an honest mistake when he had no way of knowing the true ownership of the Charming Betsy. However, it should be borne in mind that Murray stood to profit personally from seizing the ship. Marshall must have felt conflicted about punishing a military officer, but the equities favored Shattuck as the vessel’s owner. While the courts could not provide redress for Murray, Marshall thought that Congress should. Indeed, that’s precisely what happened: Congress reimbursed Murray for the full amount owed to Shattuck.25

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  THE OTHER MAJOR CASE to reach the Supreme Court in the 1804 term was another prize case. The Non-Intercourse Act of 1799 prohibited a vessel owned by a U.S. person from sailing to any French territory on penalty of forfeiture. The statute specifically authorized the president to instruct naval commanders to stop and examine any vessel when there was a “reason to suspect” that it was headed to French territory.26 President Adams had authorized Secretary of the Navy Stoddert to issue orders pursuant to this act. On December 2, 1799, two U.S. frigates, the Boston and the General Greene, spotted a Danish brigantine sailing near Hispaniola in the Caribbean. They suspected that the Danish ship, the Flying Fish, could be an American vessel coming from French territory. Secretary of the Navy Stoddert instructed the captains in writing “to do all that in you lies to prevent all intercourse, where direct or circuitous, between the port of the United States and those of France and her dependencies, in cases where the vessels or cargoes are apparently, as well as really, American.” Moreover, the secretary warned commanders to be especially vigilant that some vessels that were “really American” might be carrying Danish papers to elude the act. The secretary was quite explicit that the captains should ensure that any U.S. ships “bound to or from French ports, do not escape you.”27

  As the Boston and the General Greene approached, the Flying Fish attempted to flee.
In their pursuit, the Americans observed someone on the Flying Fish tossing the logbook and other papers overboard. This raised their suspicion that it could be an American vessel disguised as Danish. Once they captured the Flying Fish and inspected it, they found a cargo of dry goods from the French port of Jérémie in what is now Haiti, where the ship had previously docked. They learned that the vessel was owned by Samuel Goodman, who was born in Prussia and spent years in the United States and on board U.S. ships before settling in St. Thomas, which was then a Danish island. It was unclear whether Goodman was American, Prussian, or Danish, but the ship’s master spoke English with an American accent, the first mate was a U.S. citizen, and the cargo was undeniably French. The crew acknowledged that the ship had docked in Jérémie, but they claimed they had been forced to do so by French privateers, which was a lie. Taken together, the evidence seemed overwhelming that the crew was hiding something. Convinced that it was indeed a U.S. vessel, Captain George Little of the Boston seized the Flying Fish and directed it to Boston to be libeled. He expected to receive half the value of the ship and its cargo as his reward for capturing the vessel as provided by the 1799 Act.28

  In Boston, District Court Judge John Lowell Jr. found that the Flying Fish was, in fact, a neutral Danish vessel that should not have been seized. He ordered the ship returned to Samuel Goodman without damages or costs. The district court found that under the law of nations, a belligerent power has the right to stop and examine a neutral vessel and that a neutral vessel must submit to the search. Judge Lowell concluded that the crew’s failure to comply and its suspicious conduct meant that the Flying Fish was not entitled to damages.29

  On appeal, the circuit court found that regardless of the nationality of the vessel’s owner, Captain Little knew that the Flying Fish was coming from French territory but that the act prohibited only ships going to French territory. Therefore Little was, in any event, operating outside of the law and should pay damages, which were assessed in the amount of $8,504 (around $160,000 today), more than seven times his government salary.30 The circuit court ignored the clear order of the secretary of the navy to Captain Little to seize all ships going “to or from” French territory even though Little had sworn an oath “to observe and obey the orders of the President and the orders of the officers appointed over me.”31 If Little had failed to carry out the secretary’s order, he could have been court-martialed. Surely it was not fair to expect Little to parse through a federal statute and reach a conclusion that the secretary’s order was improper. Little appealed to the Supreme Court.

  In Little v. Barreme, Chief Justice Marshall delivered one of his most important decisions on the power of the executive branch. If Marshall wanted to avoid a confrontation with the executive, the case offered him several outs. Marshall might have decided that since the federal act did not forbid the seizure of ships coming from French territory there was no actual conflict with the executive’s order. Alternatively, Marshall could have decided that the act infringed on the president’s authority as commander in chief and struck it down as he had struck down part of the Judiciary Act of 1789 in Marbury.

  Marshall clearly wrestled with the issue of whether to hold a naval commander liable for following orders that contradicted an act of Congress. “It is by no means clear,” he acknowledged at the outset, “that the president . . . who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United Sates, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce.” Marshall might have decided that the president’s military authority in wartime extends so far as to order all U.S. vessels seized. Instead, he held that the president’s command was voided by Congress’ contrary intent.32

  “I confess,” Marshall admitted, “the first bias of my mind was very strong . . . that though the instructions of the executive could not give a right, they might yet excuse from damages.” Marshall surely felt that the distinction “between the acts of civil and those of military officers” deserved to be weighed in favor of Captain Little. Also, the circumstances that Little found himself in, having to make a decision on his own at sea without the advice of legal counsel, argued that he should not bear the cost. After all, the claimant here could always apply to Congress for compensation. “But I have been convinced that I was mistaken,” Marshall admitted. The chief justice had been persuaded by his colleagues that the executive’s “instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”33 Not even the president could order a soldier to do something contrary to an act of Congress. Therefore he concluded that Captain Little must pay damages to the owner.

  For a good soldier and an advocate for a strong military, this decision must have been especially hard. Marshall knew the suffering and isolation that soldiers face in the field of battle. A soldier in the field without benefit of counsel clearly cannot be expected to make independent judgments about the legality of the president’s order. It seemed particularly unjust to impose a penalty against a distinguished naval officer. But as Marshall had established in Marbury, the president must be held accountable: The president’s “instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”34 The president, after all, was empowered to execute only the laws that Congress adopted. He was merely the agent of Congress, as Marshall had famously argued in the Jonathan Robbins case.

  Little v. Barreme stands as a robust counterargument against the claim that the president, as commander in chief, is supreme in wartime. Though some modern presidents have ignored this principle and initiated military actions without congressional authority, the precedent still endures. If Marshall’s opinion strikes us today as antiquated or unfair, it is a measure of how much the imperial presidency has distorted our vision of the Constitution.

  In just five years Marshall had so consolidated the Supreme Court’s authority as a coequal branch of government that it could declare U.S. military operations abroad illegal. But that is only part of the story. At the same time that Marshall was fortifying the Court’s position, Jefferson and his party were laying siege against the federal judiciary.

  CHAPTER TWENTY

  HIGH CRIMES

  After Republicans had canceled the Supreme Court’s term in 1802, Chief Justice Marshall rode the circuit from Virginia to North Carolina. He usually traveled on horseback with his slave Peter, leaving Robin Spurlock in Richmond to manage the household. Life on the road was difficult as travelers had to stay overnight in inns that were often dirty, crowded, and inconvenient. While spending the night at a tavern in Raleigh, Marshall discovered that Peter had failed to pack any breeches for him to wear in court. He had nothing but his riding clothes. So he sought out a tailor to sew a new pair of pants as quickly as possible. There was no time to sew a proper pair of dress pants. “I thought I should be a sans culotte only one day,” he joked, referring to the French revolutionaries who wore working-class trousers. Unfortunately, all the tailors in Raleigh were too busy for the chief justice. “I have the extreme mortification to pass the whole term without that important article of dress,” he wrote Polly.1

  In June 1802, Marshall’s father passed away on his farm in Kentucky. Thomas Marshall died with significant landholdings in Virginia and Kentucky, which passed to his sons. John Marshall, as the eldest, inherited more than one thousand acres at Oak Hill in Fauquier County. That summer Marshall moved the family to Oak Hill, near what today is Delaplane, to escape the heat and the noise of Richmond. Marshall’s family gathered in the same house that Marshall had left twenty-seven years earlier to join the Virginia militia. Marshall’s eldest son, Thomas, had just finished Princeton, and Jaquelin, Marshall’s second son, was
preparing to leave for Harvard that fall. Polly worried that Jaquelin would fall under the influence of the New England secessionists who were threatening to secede out of growing resentment toward southern Republicans.2

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  IN FEBRUARY 1805, the Senate opened the trial for the removal of Justice Samuel Chase. Old Baconface Chase had done his utmost over the course of several years to antagonize Republicans. He was notoriously abrasive and brazenly partisan. Among other sins, Chase was accused of skewing a series of trials against prominent Republicans. The most vivid example was James Callender’s trial for violating the Sedition Act. Chase compelled a juror who was openly hostile to Callender to serve on the jury. He refused to allow Callender’s defense counsel to question witnesses except by written questions submitted first to Chase, and he allegedly harassed the defense lawyer throughout the proceedings. Chase sentenced Callender to nine months in prison and a hefty fine of two hundred dollars (about four thousand dollars today). Republicans hurled invectives at Chase, which only inflamed him further. In the spring of 1803, while addressing a grand jury in Baltimore, Chase castigated the Republican Party. He charged that by repealing the federal circuit courts Republicans threatened to “take away all security for property and personal liberty” and that the government would “sink into a mobocracy.”3

  The knives were drawn. Republicans saw Chase as a proxy for Chief Justice Marshall and impeaching him as a chance to intimidate the whole federal judiciary.4 President Jefferson wrote to one of the Republican congressional leaders: “Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State to go unpunished?” And he added, “I ask these questions for your consideration; for myself, it is better that I should not interfere.”5 As Henry Adams archly remarked, “Jefferson was somewhat apt to say that it was better he should not interfere in the same breath with which he interfered.”6 Jefferson advised the House leaders what charges to file against Chase and what evidence would be most damning. At Jefferson’s suggestion, the House focused its prosecution on Chase’s handling of the Callender trial.7 Leaving little time for deliberation, Republicans quickly concluded their investigation of Justice Chase the same day the Senate voted to convict Judge John Pickering.