Without Precedent
Page 33
Then Marshall turned to the key issue: whether the subsequent repeal act of 1796 was valid. The chief justice wrote that even if the original purchase was “infected with fraud,” Peck and Fletcher were innocent purchasers who had no notice of it. The traditional rule of contract would have voided a transaction that was deemed corrupt. Marshall implicitly rejected the traditional rule and insisted instead that Georgia was bound to the terms it had agreed to without regard for its motives. The contractual rights of the purchasers could not be disregarded.19
Marshall treated the original legislative land grant of 1795 as if it were a contract between the State of Georgia and the original purchasers. This was a radical reconceptualization of legislative grants. Up to this point, courts had regarded land grants as a privilege that sovereigns could convey or withdraw at will. Now Marshall was positing that Georgia’s land grant was no different from any other private transaction. Just as Marshall had treated Marbury’s commission as a justice of the peace as if it were his property, Marshall transformed a privilege into a contract right in this case. “When, then, a law is in its nature a contract when absolute rights have vested under that contract, a repeal of the law cannot devest those rights,” he wrote.20
Marshall relied not only on general principles of contract law or equity. Like Hamilton’s famous legal argument, Marshall cited Article I of the federal Constitution that prohibits states from passing any laws “impairing the obligations of contracts.” He concluded that Georgia’s repeal of the land grant was invalid.21 For the first time the Supreme Court had treated a legislative enactment as if it were a contract between two private parties and applied the contract clause to invalidate a subsequent enactment.
Marshall’s opinion in Fletcher enraged southern Republicans even as it delighted northern Federalists. The Supreme Court had carved out a way to provide redress to the New Yazooists in the face of congressional deadlock. Marshall would not be a prisoner of regional loyalties. His decision in Fletcher signaled both his defense of contract rights and his growing estrangement from the provincial politics of Virginia. His fellow southerners would not forget, or forgive, this betrayal.
CHAPTER TWENTY-THREE
THE MEANING OF SOVEREIGNTY
In March 1809, Marshall swore in James Madison as the newly elected president. Madison, an awkward, gloomy intellectual, was peculiarly unsuited for electoral politics. Madison appeared uncomfortable in public, pinched and cold to the point of being churlish.1 Washington Irving once described President Madison as “a withered little apple-John.” Even at his inauguration, he spoke in a barely audible whisper. Despite Madison’s lugubrious personality, Marshall thought he possessed “superior talents.”2 Madison’s charming wife, Dolley Payne Todd Madison, brought gaiety and elegance to the President’s House after the dour years of the bachelor Jefferson. To the public, Dolley was the “presidentess.” Her popularity eclipsed her dyspeptic husband’s, and her portrait by Gilbert Stuart was engraved and sold to her admirers for five dollars.3 Dolley’s festive Wednesday parties drew officials, diplomats, and their wives to what was then known as the Executive Mansion for punch, cookies, and strawberry ice cream. She graciously entertained her guests in sumptuously decorated rooms while a military band serenaded them. Dolley’s extravagant socializing made Washington a more hospitable place for congressional families. As more wives and children flocked to the capital, the city morphed from a congressional stag party into a family-friendly community.4
Justice Cushing died in late 1810, creating an opening on the court for Madison to fill. Jefferson wrote to Madison to offer “congratulation[s]” on Cushing’s passing. He recommended Attorney General Levi Lincoln—with reservations: “I do not consider him as a correct common lawyer, yet as much so as any one which ever came, or ever can come from one of the Eastern states. Their system of Jurisprudence made up from the Jewish law, a little dash of common law, & a great mass of original notions of their own, is a thing sui generis, and one educated in that system can never so far eradicate early impressions as to imbibe thoroughly the principles of another system.”5
Madison dutifully followed Jefferson’s suggestion, but Lincoln declined the position. In his place, Madison named Joseph Story, who at thirty-two was the youngest man ever appointed to the Supreme Court. Story was the Republican speaker of the Massachusetts House and a member of Congress. Madison was hoping he could be relied on to be a strong opponent of Marshall’s court. Yet Story would prove to be Marshall’s strongest ally on the court and the leading advocate for a strong national government. In time, Story would emerge as one of the great intellectuals in Supreme Court history. His multiple-volume Commentaries on the Law became the standard treatises in American law for generations, and he has been compared to the great British jurist William Blackstone. Story was also instrumental in the founding of Harvard Law School.
Shortly before Justice Story joined the Court in 1811, Justice Chase died. Now Madison had the opportunity to fill a fifth Republican seat, leaving Marshall and Bushrod Washington as the lone Federalists. Madison chose Gabriel Duvall, fifty-nine, who had served as chief justice of Maryland’s Supreme Court. He was a close friend of the president’s. But even Duvall would fall under the spell of Marshall’s charm and intellect.
Though Marshall felt that the Court was more secure after the tumultuous first decade, he worried about the direction of the nation, especially in foreign affairs. Napoleon Bonaparte was gobbling up the Continent and had turned on Spain, France’s former ally. Events in Europe threatened America’s security and prosperity. Marshall worried that Republicans, including Madison, were eager to push the nation into war against Britain.6 The chief justice regretted that “many of our leading men with professions of liberty in their mouths do in their hearts devoutly pray for the subjugation of that gallant & injured country.” Privately, he accused the Republicans of supporting Bonaparte’s aggression at the risk of American independence: “[T]hey would see national independence & consequently human liberty banished from Europe although the loss of our self government would be the infallible consequence.”7
In 1806, Bonaparte had issued a decree in Berlin prohibiting any country, including the United States, from trading with Britain. The British retaliated by issuing an order that no ships would be allowed to dock at any European port without first docking at a British port and paying customs duties on its cargo. Not to be outdone, Bonaparte issued a decree in Milan that asserted the right of the French navy to seize any ship that paid duties to Britain.
The Napoleonic Wars had created both opportunities and risks for American ships. The war sidelined many European merchant ships that were impressed into military service or subject to blockades. While the war raged, most European countries depended on U.S. vessels to carry goods to and from their colonies. And U.S. merchant vessels carried more exports from India and China than from all of Europe combined.8 But the belligerents harassed and seized U.S. ships without regard for American neutrality. From 1803 to 1812, nearly fifteen hundred U.S. vessels—almost one-fifth of all U.S. merchant ships—were captured by France or Britain.9 Congressional Republicans thought that by cutting off all foreign trade the United States could compel France and Britain to respect American neutrality.10 They were woefully mistaken. The embargo weakened the U.S. economy far more than it affected either of the belligerent parties.
Congress adopted the first of a series of embargo acts beginning in December 1807. Collectively, these laws made it a crime for U.S. ships to sail to any foreign port or for any U.S. company to export anything without the explicit permission of the president or his agents. Violators were fined up to twenty thousand dollars, and informers were promised a bounty of half of the fine collected. To make matters worse, the embargo was not limited to the belligerent parties but included friendly countries throughout Europe, Latin America, and Asia. By leaving it up to the executive’s discretion as to what ships could leave port, the law opened the op
portunity for arbitrary judgments and political corruption.
The embargo proved nearly impossible to enforce uniformly despite the bounty for informers. It required an administrative bureaucracy that did not yet exist. The president called on state governors to help implement the embargo by deploying state militia to enforce it at gunpoint. When the Massachusetts governor sought to comply with the president’s request, the state legislature threatened to impeach him.11 The specter of armed troops enforcing a trade blockade in Boston Harbor was all too familiar to the Revolutionary generation. The embargo was a betrayal of republican ideology.12
Prior to the embargo, approximately 40 percent of the total U.S. economy depended on foreign trade.13 Without it, the U.S. economy collapsed. The loss of tariff revenues plunged the national government toward insolvency. The ironic consequence was that the government could no longer afford to arm itself. Republicans lusted for war, but they were unwilling to raise taxes to pay for it. Marshall quipped that “[t]here would be a great majority for war if it could certainly [be] carried on without money.”14 Faced with a looming government deficit, congressional Republicans proposed to cut military spending. So long as the Republican fiscal hawks barred tax increases, the Republican war hawks were stopped—at least for the moment. The stage was set for one of Marshall’s most far-reaching decisions on international law.
* * *
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IN DECEMBER 1810, the schooner Exchange set out from Baltimore loaded with cargo bound for San Sebastián in Spain. The ship was seized by French privateers acting pursuant to Emperor Napoleon’s Berlin and Milan decrees. The French condemned the ship and refitted it as a warship with the name Balaou. In July 1811, the Balaou was en route to the West Indies when it encountered bad weather and was forced to dock at the port of Philadelphia. The original Maryland owners of the Exchange, John McFaddon and William Greetham, learned that their ship had docked there, and they filed a libel in federal district court demanding the return of their property. The French government did not appear.
The district court dismissed the libel on the ground that a foreign sovereign’s naval vessel was immune from the court’s jurisdiction. On appeal, the circuit court held that since the French vessel voluntarily entered the U.S. territorial waters, it had submitted to U.S. jurisdiction. President Madison did not want to offend France on the eve of war with Britain and decided that the U.S. government would defend the vessel on behalf of France. At the president’s request, the U.S. attorney for Pennsylvania, Alexander Dallas, filed an appeal on behalf of France to the Supreme Court, which agreed to hear the case in late February 1812.
When the Supreme Court convened to hear the case, the one party missing was Napoleon’s government. France’s absence meant that it was up to the U.S. government to defend France’s interest. It was a strange spectacle: U.S. Attorney General Pinckney and U.S. Attorney Dallas defending the seizure of an American vessel by a belligerent European emperor whose ships trolled the waters capturing U.S. merchant ships. They argued that the French warships represented the exercise of sovereign power and were entitled to immunity under the law of nations. France had never consented to U.S. jurisdiction; it was merely an accident that had forced the vessel to land in Philadelphia.15
Attorneys Charles Hare and Robert Harper on behalf of the schooner’s owners rejected the argument that a foreign sovereign’s property was immune from the court’s jurisdiction. Whatever immunities the Emperor Napoleon’s property enjoyed inside France surely were not applicable inside U.S. territory. The schooner had voluntarily entered U.S. waters and, by doing so, waived any claim to immunity.16 The leading international legal authorities, such as Cornelius van Bynkershoek and Samuel Rutherford, supported their argument that foreign property in another state’s territory is subject to the law of the territorial sovereign.17 Moreover, the Exchange was stolen property, and denying the original owners their property would be unduly harsh. What could be more plainly unjust, Hare argued: “Your own citizens plundered. Your national rights violated. Your courts deaf to the complaints of the injured. Your own government not redressing their wrongs, but giving sanction to their spoliators.”18
To this argument, Attorney General Pinkney replied, “When wrongs are inflicted by one nation upon another, in tempestuous times, they cannot be redressed by the judicial department.” The attorney general dismissed the libellant’s reliance on foreign authorities. He insisted that only the executive branch could demand redress from a foreign sovereign; courts should not interfere in the conduct of foreign relations.19
Five days after the close of arguments in February 1812, Marshall delivered the Court’s unanimous opinion. Marshall began by acknowledging that this was a case of first impression and that “[i]n exploring an unbeaten path, with few, if any, aids from precedent or written law, the court has found it necessary to rely much on general principles, and on a train of reasoning.” The Court would have to invent a new doctrine to address the exigencies of the situation and that would guide the nation in the future.20
In what has become the classic statement on territorial sovereignty, Marshall wrote, “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptive of no limitation not imposed by itself.” Only a sovereign could grant an exception to its territorial jurisdiction.21 Marshall was echoing his famous memorandum to Talleyrand, in which he wrote, “Every nation has, of natural right, entirely and exclusively, all the jurisdiction which may rightfully be exercised in the territory it occupies.” Marshall had cited the same principle in his famous speech in the House defending President Adams’s decision to extradite Jonathan Robbins to Britain for mutiny and murder.22
That sounded like support for the American ship owners. But on the next page Marshall declared that according to customary international law “every sovereign is understood to wave [sic] the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.”23 Unless foreign warships are expressly excluded, “the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace.”24
To describe the Emperor Napoleon’s government as “friendly” was a stretch. Indeed, Marshall’s whole argument was entirely fabricated. Marshall knew there was no common practice of granting immunity to foreign warships.25 There were a handful of British cases and a single related decision by the U.S. Supreme Court in 1795 that was not quite on point, but these hardly counted as evidence of customary international law.26 Marshall’s view was not supported by other legal authorities.27 Marshall analogized sovereign immunity over foreign warships to diplomatic immunity, but one has little to do with the other.28 Marshall acknowledged that the U.S. government could exercise jurisdiction over foreign warships, but only if it had explicitly declared its intention to do so in advance.29 Marshall concluded that because the Exchange had entered U.S. waters with an expectation that she would be exempt from U.S. jurisdiction, the Court could not libel the ship.30
Marshall suggested that the ship’s owners should seek redress from the political branches rather than from the courts. “[T]he sovereign power of the nation is alone competent to avenge wrongs committed by a [foreign] sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion.” The president, for example, could negotiate with France to provide a remedy for the ship’s owners, or Congress could appropriate funds.31 In other words, because the case implicated sensitive foreign relations, the court should not interfere. Marshall fashioned his doctrine of foreign sovereign immunity not based on customary international law but in order to preserve the Constitution’s separation of powers.
The Schooner Exchange v. McFaddon case is one of the most important opinions in the development of international law in the United States. Yet it is at odds with Marshall’s o
wn convictions about the rights of U.S. vessels and the character of the French Empire. Throughout his judicial career, Marshall had upheld the property rights of ship owners against capture, but here Marshall was siding with the French government against a Maryland ship owner. The case was decided against a backdrop of growing tensions with Great Britain over impressments. Republicans were spoiling for a fight with Britain, and France was the country’s only apparent ally. Though France claimed that it had repealed the Milan and Berlin decrees against U.S. vessels in 1810, Marshall doubted their sincerity.32 When President Madison insisted that the French had repealed these decrees, Marshall dismissed it as “a bold experiment in deception” and “one of the most astonishing instances of national credulity.” The chief justice complained privately that if the so-called friends of peace and those who cared about “the real honor & real independence of our country” were honest, “I can scarcely think the opinion could have become general that Britain was the sole aggressor on neutral rights.” When the Republicans defended France, he thought they were acting against the “national honor or national interest to engage in the confederacy for [our own] destruction.” Marshall prayed that war with Britain could be avoided and that the United States would recognize the true nature of the French emperor before it was too late.33 As he wrote these words to a friend on June 18, 1812, from his home in Richmond, he was unaware that on that very day President Madison had signed a declaration of war against Great Britain.
After Congress declared war on Britain, Marshall feared the country’s “ruin.” Yet writing to a fellow critic of the war, he advised that “the lines of subdivision between parties, if not absolutely effaced, should at least be covered for a time . . . all who wish peace ought to unite in the means which may facilitate its attainment, whatever may have been their differences of opinion on other points.”34