Without Precedent

by Joel Richard Paul

  Marshall knew the risk to his own reputation and acknowledged as much in his opinion: “That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace.”49

  Marshall’s conduct of Burr’s trial was the greatest act of political courage in his long career. He had no personal interest in sparing Burr’s life, but by rejecting the argument for constructive treason, Marshall did more to secure free expression and prevent tyranny than any other court in our history.

  Jefferson blamed Marshall for engineering Burr’s acquittal. Years later, he still fumed that Marshall’s “twistifications” in Burr’s trial, as in Marbury, “show how dexterously he can reconcile law to his personal biases.” And he accused Marshall of shrouding his “rancorous hatred” against the government with “cunning and sophistry.”50 It was politically expedient for the president to attack the judiciary rather than admit the weakness in his own legal position. An independent judiciary can be an inconvenience to an ambitious president.

  But Jefferson consoled himself that “[t]he nation will judge both the offender & judges for themselves.” The people “will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to the class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself.” Jefferson urged Congress to amend the Constitution to limit the judiciary in the future and make it possible for the president to remove a judge for any reason with the consent of two-thirds of both houses without the “farce” of an impeachment trial. “If [the court’s] protection of Burr produces this amendment,” he thought, “it will do more good than his condemnation would have done.”51

  Though Burr’s acquittal did not produce the desired constitutional amendment, Jefferson had reason to be grateful for the outcome. At considerable risk to his own political standing, Marshall unwittingly rescued Jefferson’s historical reputation. If Jefferson had succeeded in obtaining a guilty verdict and Burr had been hanged, Jefferson’s legacy would be tainted. He would be remembered today not as a defender of civil liberties but as a vicious tyrant who squelched dissent, manipulated the justice system, and executed his political rival in cold blood.52

  CHAPTER TWENTY-TWO

  ESTRANGEMENT

  After only six years of meeting in the new Capitol, the Senate began to disintegrate, literally. The walls and ceiling cracked and crumbled. The polished wooden floors warped and rotted.1 Senators dusted plaster off their heads when they rose to speak. In the frantic rush to complete the Capitol before the election of 1800, contractors had used inferior materials and shoddy craftsmen. Faced with the need to restore the Capitol, Republicans desired something more majestic that belied their democratic principles. Congress instructed the Capitol’s second architect, Benjamin Henry Latrobe, to redesign the entire Senate wing. Latrobe moved the Senate upstairs to the same level as the House in an enlarged and sumptuously decorated chamber. Latrobe also designed a new chamber underneath the Senate for the Supreme Court. After a decade of meeting in a cramped makeshift committee room, Marshall and his brethren were pleased with their spacious new courtroom.

  Latrobe had designed a novel semicircular vaulted ceiling. The engineering of the ceiling was so innovative that no one could be confident it would bear its own weight during the construction. One of the assistant architects, in fact, was crushed to death when a vault collapsed on him. Latrobe designed a long mahogany bar and bench for the Court and a private robing room and space for the justices to mingle after hearing arguments.2 The formal courtroom signaled that the Supreme Court had assumed a more equal footing with the other branches of government.

  When the ailing Justice Moore retired in 1804, Jefferson had his first chance to appoint an associate justice. He named William Johnson, only thirty-two, a staunch Republican on the South Carolina Supreme Court. Johnson had clerked in the law offices of Charles Cotesworth Pinckney, so Marshall knew Johnson by reputation. Johnson could be argumentative and sometimes disagreed with his colleagues; but Marshall’s gregarious personality, unfailing wit, and soothing temperament were seductive. Marshall’s gentility often masked his searing intellect. When he could not win over someone from the opposing side, Marshall managed to find common ground. Rather than remain a Republican stalwart, Johnson soon fell under Marshall’s influence. Johnson became an avid defender of a strong central government.

  When Justice Paterson died in 1806 from injuries suffered in a coach accident, Jefferson appointed Henry Brockholst Livingston. Justice Livingston, forty-nine, was a Republican on the New York Supreme Court (and a forebear of both Presidents Bush). Republicans assumed he would be a tough opponent for Marshall, but his warm, open personality mirrored Marshall’s own affability. The two got along famously, and over his long tenure, Livingston dissented from Marshall’s opinions only eight times out of more than four hundred cases.3

  Though Jefferson opposed expanding the size of the federal judiciary when Adams did it, he relished the opportunity to name a third justice and persuaded Congress to add a seventh justice to the Supreme Court. In 1807, he named Thomas Todd, forty-two, another reliable Republican, who was chief justice of the highest court in Kentucky. Justice Todd, like Marshall, grew up on the Virginia frontier, and he, too, was quickly seduced by Marshall’s genial manner. In two decades on the court, Todd dissented only once from the chief justice.4 There were now three Republicans and four Federalists living, eating, and voting together in Marshall’s cozy fraternity.

  Marshall spent as much time as possible back in Richmond caring for Polly and raising five sons and one daughter, ages four through twenty-five. Polly remained in “wretched health,” he reported. “Her nervous system is so affected that she cannot set in a room while a person walks across the floor.” In the spring of 1809, the seventeen-year cicadas returned to Virginia. From May through June, Richmond’s streets and yards were littered with mounds of dark exoskeletons. After seventeen years of solitary slumber, they emerged with ecstatic and incessant shrieks of liberation that would drive anyone to distraction. For Polly Marshall, the noise and the carnage must have been especially agonizing. At Christmas it was necessary to move Polly out of town to avoid any celebratory noise that might set her off.5 For a man as naturally gregarious and hearty as Marshall, it was difficult to comprehend his wife’s frailty. “I am entirely excluded from society by her situation,” Marshall wrote.6 When he was away from her, Marshall worried incessantly. “The weather has been so very cold as to fill me with apprehensions for you,” he wrote Polly. He feared Polly would expose herself “to more cold than is consistent with your health or safety.”7 Her declining health haunted him.

  But Polly was not his only concern. After graduating from Princeton, Marshall’s eldest, Thomas, decided to abandon his ambition to become a lawyer and chose farming instead. Marshall did not mask his disappointment. Thomas, like his father and grandfather, would later represent Fauquier County in the Virginia General Assembly. The second-oldest son, Jaquelin, quit his studies at Harvard to join his brother as a farmer. Marshall felt he could not raise a girl on his own, so he sent his one daughter, Mary, to be raised by his sister Elizabeth in Berkeley County, more than 150 miles away. Marshall worried most about the three younger boys, John, James, and Edward. He sent them to Harvard, where they all floundered. John was expelled, and James quit.8 Only the youngest, Edward, managed to graduate under the watchful eyes of Harvard’s President John Thornton Kirkland.9 When John and James turned sixteen, Marshall arranged through Bushrod Washington to apprentice them to Wil
ling & Francis, a counting house in Philadelphia. Marshall’s expectations of his sons were not high. He so doubted James’s character that he wrote to his son’s future employer and asked the firm to “exercise the authority of a Father, a Guardian & a master” to prevent his son from “sliding into bad company.” If his son misbehaved, he urged that James should be “firmly & sternly corrected.”10 Marshall’s worst fears about James later proved well-founded.

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  WHEN THE THIRTEEN ORIGINAL STATES declared their independence from Britain, many of them possessed large claims to western territory. During the decade that followed, Virginia, Connecticut, Massachusetts, and New York ceded their claims to the United States, and these territories formed the new states of Vermont and Kentucky. Georgia, however, was one of the states that refused to cede land. It claimed a vast undeveloped territory known as the Yazoo lands after the Yazoo River that traversed it. The Yazoo lands encompassed all of Alabama and Mississippi. A succession of Georgia’s governors arrogated to themselves the power to issue land grants to hordes of foreign and domestic speculators. The governors may have had some personal stake in these deals, for they sometimes issued multiple grants to the same property or nonexistent property. As a practical matter, the land was largely inaccessible and occupied by Cherokee and Creek, who were not moving without a fight.11

  In 1795, the Georgia legislature approved a bill granting four land companies thirty-five million acres of the Yazoo for five hundred thousand dollars, or approximately one and a half cents per acre. These four companies included many prominent financiers, judges, and politicians from Georgia, South Carolina, and Pennsylvania, who had bought off a majority of the Georgia state legislature. They offered each legislator six hundred to one thousand dollars or stock in the land companies for their votes. The director of the largest of the four companies was Georgia’s U.S. senator, James Gunn, who threatened legislators who opposed the sale. Georgia’s governor, George Mathews, at first vetoed the sale and then was “persuaded” to change his mind by Senator Gunn.12

  When the public learned that nearly 70 percent of Georgia’s western territory had been given away for almost nothing to a handful of powerful speculators and that the legislators had been bought off, there was a storm of protest led by Georgia’s other U.S. senator, James Jackson. A fresh crop of legislators unsullied by the land deal was swept into office in 1796. One of their first legislative acts was to repeal the land grant of 1795 and offer to refund the original sale price. The sale was voided on the questionable ground that it had violated Georgia’s own constitutional requirement that all laws must be “necessary and proper for the good of the state,” which this sale plainly was not. By the time the act of 1796 was adopted, many of the original investors had already resold their land. New England speculators were especially hungry for new territory to develop. One group of investors purchased eleven million acres of the Yazoo through another land company, the New England Mississippi Land Company, for a bit more than one million dollars, or about ten cents an acre.13 The stage was now set for a regional and partisan conflict that risked tearing the country apart.

  New Englanders, who were termed New Yazooists, having paid nearly ten times the original price for their investment, were not satisfied with Georgia’s offer to repay the original sales price. Anti-Yazooists, who predominated among southern Republicans, blamed moneyed interests for tainting the land sale in the first place. They saw no reason to reward wealthy northern speculators. Federalists, who were concentrated in the North, generally sided with the New Yazooists in defense of property rights against the claim of sovereignty by the southern states. Moreover, the Yazoo debacle gave Federalists a chance to embarrass Republicans. Alexander Hamilton, who had retired to a lucrative law practice in New York, argued that the repeal act not only violated the “first principles of natural justice and social policy” but also the federal Constitution. Hamilton pointed out an overlooked provision of Article I of the Constitution that prohibited states from passing any “law impairing the obligation of contracts.” In Hamilton’s view, the 1795 land grant was analogous to a contract between two private parties and could not be revoked by the act of a subsequent legislature.14 Federalists in Congress, including then Congressman John Marshall, favored the federal government stepping in to purchase all the Yazoo lands and distribute it to the claimants, but Republicans in the House defeated their efforts. The growing disaffection among New Englanders threatened secession over the issue.

  The conflict had become so contentious that by 1801 President Jefferson tasked three of his cabinet officials—Secretary of State Madison, Treasury Secretary Gallatin, and Attorney General Levi Lincoln—to negotiate with Georgia for the purchase of the Yazoo. Though the original sin of the Yazoo purchase could not be cleansed, Republicans reluctantly sought a compromise to preserve the Union. Georgia agreed to sell all the Yazoo to the federal government for $1.25 million. The difficulty remained that a bill to compensate the New Yazooists had to pass the House Ways and Means Committee, and its powerful chairman, John Randolph, bucked his party leadership and opposed the compensation bill. Randolph’s opposition to the Yazoo compromise was as extreme as his prosecution of Justice Chase, but this time he succeeded in killing the bill. Jefferson was so antagonized by his cousin Randolph that he arranged for the House Republicans to eject him as chairman. As a result, Randolph spent the rest of his political career fighting Jefferson and his own party.15

  Congress’s inability to pass the Yazoo compromise bill meant that the New Yazooists had little choice but to resort to the federal courts. However, the Eleventh Amendment prohibited a lawsuit by citizens of one state against another state. Thus, New Englanders could not directly sue Georgia. It would require a bit of creative lawyering to put the issue before the Supreme Court.

  In 1803, John Peck of Newton, Massachusetts, sold fifteen thousand acres of Yazoo land to Robert Fletcher of Amherst, New Hampshire. Peck was a director of the New England Mississippi Land Company, and Fletcher was another friendly land speculator. The transaction was prearranged to clarify title to the property, and Peck specifically represented to Fletcher that Georgia had acted legally in granting Peck complete title to the property. Fletcher sued Peck in the U.S. Circuit Court for Massachusetts, claiming that Peck had misrepresented the facts, but the suit was contrived. Both Peck and Fletcher had a common interest in a judicial determination that Georgia had granted title to the property and that the repeal act was invalid. The circuit court unanimously held in favor of Peck, affirming that Peck had good title to the land and that the repeal act was a nullity.

  The case did not reach the Supreme Court until February 1809. Peck was represented by John Quincy Adams, a U.S. senator from Massachusetts and the future president. Adams’s co-counsel was Robert Goodloe Harper, who in addition to being Justice Chase’s lead attorney in his impeachment trial was a former South Carolina congressman and one of the original investors in the land company. Fletcher was represented by Luther Martin, who had successfully defended Chase and Burr. Peck was asking the Supreme Court to strike down a state statute as invalid for the first time in history and, by doing so, to validate a land purchase that everyone understood had been obtained by bribery. With the nation watching closely, the Supreme Court chose to duck the case. The justices sent it back to the circuit court on a legal technicality concerning the form of the pleadings.

  The case did not bounce back to the Supreme Court until the winter of 1810. Nearly fifteen years had passed since the repeal of the Yazoo grant. President Madison had appointed John Quincy Adams as ambassador to Russia, so Peck had added to his legal team Joseph Story, a Massachusetts congressman and future Supreme Court justice. Story had represented the New England Mississippi Land Company for a number of years, and his father-in-law was an original shareholder in the company. Luther Martin argued Fletcher’s case. Despite a fabled legal career, Martin made a feigned effort on behalf of Fletcher
. After all, his client intended to lose the case. Martin, for example, dropped the argument that the original 1795 grant was properly invalidated because it had been obtained fraudulently. One explanation for Martin’s poor performance may have been alcohol. Martin was a notoriously heavy drinker, and at one point he was so intoxicated that the chief justice adjourned the Supreme Court to give him time to sober up.16

  There was no doubt as to the outcome of the case. As a young congressman, Marshall had voted in favor of the Yazoo compromise, and his natural inclination as a land speculator would be to side with the New Yazooists. Moreover, Marshall was keenly aware of the risk to the Union if the Supreme Court failed to provide the New Englanders with a remedy.

  On March 16, 1810, Marshall announced the Court’s unanimous opinion in Fletcher v. Peck. He began cautiously: “The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative.”17 Marshall acknowledged that Georgia’s land grant in 1795 may have been obtained fraudulently. “That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation . . . are circumstances most deeply to be deplored”; however, the courts could not examine the motives of a state legislature. “It would be indecent, in the extreme,” in a private lawsuit over a contract for the sale of property for a court to “enter into an inquiry respecting the corruption of the sovereign power of a state.”18 Under the cloak of judicial restraint and respect for state sovereignty, Marshall found a way to uphold the original land grant to the New Yazooists.