Without Precedent

by Joel Richard Paul

  Like a good soldier, Marshall remained loyal to his commander in chief. Once war was declared, Marshall fell silent: Politics stopped at the water’s edge.

  CHAPTER TWENTY-FOUR

  WASHINGTON BURNING

  The strangest war in American history” is how the historian Gordon Wood described the War of 1812.1 Republicans plunged the nation into an unnecessary war for reasons that no one was quite sure of then and that remain obscure today.

  From 1803 to 1812, the British navy had captured 917 U.S. vessels. Between 1806 and 1807, the British navy had seized one out of every eight U.S. ships. That might have justified going to war except that France had captured 558 U.S. ships, and in the past five years, the French had seized U.S. ships at a much higher rate than the British. While the United States wanted both Britain and France to stop interfering with U.S. ships, why not declare war on France? Britain was the world’s greatest naval power, and France was appreciably weaker. At least the U.S. Navy might have had a chance of defeating the French. While the British had impressed six to ten thousand U.S. sailors since the start of the Republic, that alone was probably not a justification for war. The vast majority of sailors who were impressed were actually British nationals.2 Republican antipathy toward Britain and a hunger for Canadian territory probably had more to do with the decision to go to war than did the capture of U.S. ships.

  The declaration of war on June 18, 1812, jeopardized American independence. No dispassionate observer could expect that the United States would defeat the British navy. The U.S. Navy consisted of just sixteen vessels, none as powerful as most of the British ships. The British had a thousand heavily armed vessels patrolling the world’s oceans manned by tens of thousands of well-trained sailors. The U.S. Army had only 6,000 soldiers while the British had honed an army of 250,000. Yet President Madison, a man not known for passionate impulses, confidently predicted that the United States would vanquish Britain.3 The declaration of war passed the House by a largely partisan vote of seventy-nine to forty-nine. Many Republican congressmen may have hoped that the Senate would reject the declaration of war and save the country from their own folly.4 But the Senate approved the war by a vote of nineteen to thirteen with all the Federalists voting against.

  British aggression toward American shipping gave the United States a convenient pretext for territorial expansion. Republicans dreamed of pushing Native American tribes farther west and annexing Canada (still a British colony at the time) in the north. The United States began the war with an ill-considered military assault on Canada. Republicans predicted that Canadians would refuse to defend British sovereignty and would welcome Americans as liberators.5 Instead, the invasion of Canada showed how poorly prepared the Americans were to fight anyone. Americans suffered huge defeats at Detroit, Dearborn, and Mackinac that summer. In the spring of 1813, Americans won a single victory at York, then Canada’s tiny capital with a population of only six hundred, including soldiers. Even there the Americans suffered disproportionate losses, including the death of their commanding general, the famed explorer Zebulon Pike. U.S. soldiers looted the Canadian treasury and burned York to the ground. The behavior of U.S. forces embarrassed the United States and enraged Canadians.

  Along the western frontier, U.S. troops under the command of the future president William Henry Harrison struck brutally against the Creek tribe in Indiana. Despite their superior arms, the Americans suffered twice as many casualties as the more nimble Indians who were defending their homes and families.6

  By 1813, the foolishness of the war was glaringly obvious. The British had crushed America’s futile attempts to “liberate” Canada. American forces retreating across the border to Fort Niagara viciously burned the tiny village of Newark, leaving women and children homeless and barefoot in a snowstorm. In retaliation, the British sliced through upstate New York, took hundreds of prisoners, and burned Buffalo to the ground.7 The states never appropriated sufficient funds to prosecute the war, and the U.S. economy withered under the Republicans’ embargo against foreign trade. American military morale suffered while the British navy plied the U.S. coast like hungry sharks.

  While the situation appeared dire for the United States, Marshall looked “with anxious solicitude—with mingled hope & fear to the great events which are taking place in the north of Germany.” He thought that an end to the American war depended on the outcome of the Napoleonic Wars in Europe. If Britain defeated France, President Madison would seek to end the war quickly before Britain could focus its naval forces against the United States.8 Marshall predicted that America’s fate would turn on the battle between the Duke of Wellington and the Emperor Napoleon.9 He did not know that the British had already crushed Napoleon at Leipzig and chased a panicked emperor back to Paris. The British would soon be free to turn their attention to the American “savages.”10

  While the war raged, Washington maintained a pretense of normality. The local newspapers carried little mention of the war. There were the usual advertisements for milliners and shoemakers, land offers, and rewards for runaway slaves. The upscale Washington Hotel opened across the street from the Executive Mansion, another sign of the capital’s growth. Yet a sense of unease was growing between the lines. The Daily National Intelligencer warned the public, “The enemy now on the coast, and in our waters will and must get provisions, and perhaps attempt something more serious.” The paper carried instructions for the national defense: Since the U.S. infantry was unable to respond rapidly to an invasion by the enemy, “[t]he individual defence consists in the knowledge of riding, and in the horse being well trained.” A course for this purpose was offered for five dollars to teach “maneuvering and riding exercises, and the proper manner to train horses.”11 Congress had failed to provide soldiers, guns, or horses, so now the public was expected to defend itself.

  What became known derogatively as Madison’s War polarized the country. Southerners enthusiastically embraced the war to rid themselves of Indian tribes and bloody the British lion. Westerners lusted after more territory. But northerners overwhelmingly opposed Madison’s War. New Englanders had no interest in annexing Canada or expanding west. First the embargo and now the war were strangling New England commerce. Yankees wanted normal relations with England and free trade for their merchants. In December 1814, representatives of the New England states gathered in Hartford, Connecticut, to discuss the possibility of secession. Madison was sufficiently alarmed to move federal troops to Albany to crush any insurrection. That proved unnecessary. Cooler heads prevailed; news of Napoleon’s abdication convinced the flinty Yankees to postpone secession pending a peace settlement.12 Madison’s War dragged on pointlessly for nearly three years with British forces scoring the most victories. General Andrew Jackson’s famous victory at the Battle of New Orleans came after a peace treaty had already been signed at Ghent in December 1814. Though British forces resented the generous terms offered to the Americans, Madison’s War accomplished nothing.

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  IN APRIL 1812, just two months before Congress declared war, the Emulous, a U.S. merchant vessel owned in part by Joshua Delano, an American citizen, docked at Savannah, Georgia, where it loaded on board 550 tons of pine timber and other goods bound for Plymouth, England. Elijah Brown chartered the vessel as an agent for a group of merchants residing in London, including Elijah’s brother, James, and a British firm, Christophe Ide, Brothers and Co. Before the vessel departed, federal agents enforcing the embargo against Britain stopped it. The master and Elijah Brown agreed to sail the ship to New Bedford, Massachusetts, where Delano resided. While the ship was docked in New Bedford, war was declared. After months of uncertainty, the timber was finally unloaded and stored in a nearby saltwater creek secured by booms and fastened by stakes driven into the briny mud. Not knowing how long the war would last, Delano persuaded Elijah Brown to sell the cargo. Brown sold the timber to his other brother, Armitz, who resided in Massachusetts.13 />
  Brown apparently failed to pay Delano, and Delano informed the U.S. attorney in Boston of the sale. The U.S. attorney filed a libel on behalf of Delano, as the informant, against the timber as the property of an enemy alien. Armitz Brown argued that all three Brown brothers were U.S. citizens. The timber was lawfully acquired by his brother from a fellow citizen before the outbreak of war. The government had no right to confiscate it. Nonetheless, Justice Story, sitting as the circuit court judge, condemned the timber, and Armitz Brown appealed to the Supreme Court.14

  Though the Browns were U.S. nationals, the original owners of the timber were British citizens. Brown’s attorney argued that international law protected the property rights of enemy aliens.15 Congress had not authorized the seizure of enemy alien property, and “no act or measure of the American government has ever indicated a disposition adverse to these humane and liberal provisions and usages of the common law and of the law of nations.”16

  The U.S. attorney general chose not to appear. Instead, he merely submitted Justice Story’s circuit court opinion as the government’s brief. In it, Story asserted the declaration of war implicitly gave the president the power to seize enemy alien property on U.S. soil.17 Once Congress declared war, the only limitation on the president’s power to wage war were “the rules of warfare established among civilized nations.”18

  Given Marshall’s faith in a strong executive, he probably found Story’s argument compelling, but he nevertheless held that the U.S. attorney had no authority to libel Brown’s timber. Writing for the majority, Marshall analogized the seizure of enemy alien property to the confiscation of an enemy alien’s private debt or credit. Marshall had defended Lord Fairfax’s estate from being confiscated by Virginia. He was familiar with the practice of other countries with regard to confiscating enemy alien property, and the general practice of states was to respect private property. Marshall concluded “that war gives the right to confiscate, but does not itself confiscate the property of the enemy.”19 If Congress wanted to confiscate enemy property, it must say so explicitly.

  Marshall reached this conclusion based on a novel theory of constitutional interpretation. Since the Constitution was framed at a time when respect for the rights of enemy aliens and their property was recognized “throughout the civilized world,” courts should not construe the Constitution to permit a declaration of war to have an effect in the United States that it does not have in other countries.20 Marshall applied the same principle he employed in Charming Betsy: Courts should interpret both the Constitution and acts of Congress consistent with the law of nations. So, for example, Marshall would presumably say that the Constitution does not permit the president to authorize acts prohibited by international law such as torture or war crimes.

  It’s noteworthy that Marshall wrote his opinion in Brown v. United States respecting the rights of British subjects as British forces were threatening Virginia. Marshall’s magnanimous attitude reflected both his skepticism about Madison’s War and his generous view of international law. Marshall firmly believed that if the United States acted with restraint, then it could expect other governments to act with restraint. Reciprocity was, after all, the code of genteel societies like nineteenth-century Virginia; Marshall expected no less from Europeans.21

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  THE SUPREME COURT’S TERM ended two weeks later, in mid-March 1814, and Marshall returned to the circuit court in Richmond for the spring while the war raged on. He always looked forward to his return home where he resumed the role of a private citizen. His casual dress and his informal manners made him approachable. One of his neighbors remarked that the judge “was regarded by old and young with affectionate reverence.”22 A delivery boy carrying a message to Marshall’s house appeared to be unduly intimidated by Marshall’s fame, and the chief justice made a point of setting the boy at ease by challenging him to a game of marbles.23

  That summer, word reached Virginia that the Duke of Wellington’s forces had defeated Napoleon. The emperor abdicated in April 1814 and was exiled to the island of Elba. As Britain focused its military superiority against the Americans, Marshall hoped that Madison would settle the war quickly, but Marshall would be disappointed.

  In mid-August, British Major General Robert Ross arrived with a fleet of British warships and an army of battle-hardened soldiers in Chesapeake Bay. He landed at Benedict, Maryland, on the banks of the Patuxent River, where he met up with Rear Admiral George Cockburn. They marched five thousand sweaty troops toward the capital sixty miles away in a brutal blast of humidity and heat. Though Madison had been forewarned about a possible British invasion more than a month earlier, Secretary of War John Armstrong Jr. had dismissed the risk of an invasion. The secretary of war thought that the British would be more likely to attack the naval base at Annapolis. In fact, Armstrong detested Washington and wanted to move the nation’s capital somewhere else, so perhaps he would not much mind if the British leveled the city. As a consequence, no forces guarded Chesapeake Bay, and the Department of War had no idea the British had landed until they approached the capital.24

  Madison left Washington’s defense to a puny force of five hundred soldiers under the command of a Baltimore attorney, William Winder, whose principal qualification was that he was the favorite nephew of the governor of Maryland. The British could not believe they met no resistance as they marched toward Washington. Scarcely six miles from the capital, General Winder engaged the British at Bladensburg, Maryland. The Americans were overwhelmed and quickly routed. Before dusk, two hundred British regulars led by Cockburn and Ross were spotted marching down Maryland Avenue toward the Capitol. The British seemed bewildered that the Americans had abandoned their capital. Nearly every government official had cut and run. One of the last to flee was Dolley Madison, who took the time to rescue some of her china and silver as well as Gilbert Stuart’s famous painting of George Washington. At the corner of Second Street and Maryland Avenue, a single shot was fired from the home of Treasury Secretary Gallatin that killed General Ross’s horse. The British responded by burning the house to the ground.25

  The British wasted no time in avenging the burning of York. They set fire to the Capitol first. The blue-and-buff silk curtains in the Senate chamber burst into flames. The chamber burned so hot that the marble columns supporting the domed ceiling cracked and crumbled into ash. The invaders were especially careful to destroy the Supreme Court chamber below. They piled chairs and tables into the center of the courtroom and doused them with gunpowder.26 Henry Adams wrote that the British “assumed that the American government stood beyond the pale of civilization; and in truth, a government which showed so little capacity to defend its capital, could hardly wonder at whatever treatment it received.”27

  British troops strolled down Pennsylvania Avenue astonished to find that even the President’s House had been abandoned. Soldiers helped themselves to supper and wine at the president’s table before looting and burning the mansion. The elaborate damask curtains, satin upholstery, and formal chairs that Dolley Madison had personally selected were incinerated, as were her clothing, jewelry, and wigs. None of the Madisons’ personal items or artwork were spared. Only the mansion’s thick exterior sandstone walls, now blackened by smoke, survived the fire.28

  Next, soldiers burned the Treasury building while across town U.S. Commodore Thomas Tingey, commander of the federal naval yard, set fire to the navy’s facilities before British troops could plunder their ships and supplies. In the suffocating August heat, the fires felt like blast furnaces. Eighteen British soldiers dropped dead from heat exhaustion. By nightfall, the sky glowed a demonic orange, and the inhabitants huddled in their homes, terrified and incensed that the government had left them defenseless.29

  The following morning, the air tasted thick with smoke. The British rose early to their appointed task, systematically setting ablaze the War and State Departments and other government offices. Admiral
Cockburn ordered his men to smash the presses of the Daily National Intelligencer, Washington’s leading newspaper. Angry at the way he was portrayed by the national press, Cockburn instructed his men to be sure they destroyed all the Cs in the type sets “so that the rascals cannot any longer abuse my name.”30

  Then something remarkable happened: The sky abruptly darkened, and a torrent of rain fell. The winds picked up so powerfully that a British officer and his horse were blown to the ground. Small cannons were scattered like leaves. Lightning and thunder rolled ferociously, and the startled soldiers rushed to take cover as a freak tornado touched ground. In the harbor, two British ships broke free and were blown onto shore. Trees were uprooted, houses were thrown off their foundations, chimneys were toppled, roofs were torn away, furniture and featherbeds littered the deserted street.31 The fires, collapsed buildings, wind, lightning, rain, and ensuing chaos looked apocalyptic. Admiral Cockburn shouted to a woman from a doorway, “God, Madam! Is this the kind of storm to which you are accustomed in this infernal country?” She boldly replied, “No, sir, this is a special interposition of Providence to drive our enemies from our city.”32 Indeed, it appeared as if the heavens had rendered judgment. Satisfied that they had done enough damage, General Ross gave orders to withdraw. The British marched south to rejoin their ships at Benedict while the rains extinguished the smoldering embers of the Capitol.33

  At home in Richmond, Marshall read the first account of the British invasion and fire two days later in the local paper. It reported that “every public building in Washington is in a heap and the city and GeorgeTown in quiet possession of the British troops . . . You can scarcely conceive the distress, alarm and consternation that prevails in this place, women and children crying and screaming in every direction.” Marshall’s eyes widened in disbelief and horror at the humiliating spectacle. As Adams’s secretary of state, he had personally supervised the completion of the President’s House and the Capitol. Now all that work lay in ruins. The paper reported that across the Potomac in Alexandria, Virginians continued their quotidian lives with relative indifference. “You can have no idea of the apathy which prevailed there after the city was actually in the hands of the enemy . . . The young men generally were walking about the Taverns and streets smoking segars, and with great sang froid enquiring what the last express brought over.” The British may have destroyed the federal capital, but the Commonwealth of Virginia still stood. The reporter despaired that “[i]f we depend on the Alexandrians, we shall soon ‘repose in the arms of our legitimate sovereign.’”34 Nearly twenty-five years after the Constitution’s ratification, Virginians still did not consider themselves as Americans first. For Marshall, that may have been even more painful to confront than the destruction of the Capitol.