Though Marshall regarded Madison’s War as a tragic mistake, he was by nature an optimist. He remained confident that the country would survive and move forward. After all, Marshall had experienced war before, and he had seen Richmond rise from the ashes after it was burned by the British during the Revolution. Marshall’s life had been framed by three wars—the French and Indian War that left its imprint on the Virginia frontier, the Revolutionary War in which he had served, and the Quasi-War with France, which had shaped his public career. Once again the terrible experience of war left its mark, deepening Marshall’s commitment to building a strong national government and fostering the civilizing influence of international law.
CHAPTER TWENTY-FIVE
FRIENDS AND ENEMIES
Only days after the smoke cleared, members of Congress returned to Washington to survey the damage. Congress reconvened on September 19, 1815, in a cramped room at the Patent Office, located inside Blodgett’s Hotel on E Street Northwest. For the next six months, Congress debated whether to abandon the federal city permanently and return to Philadelphia. The motion in favor of moving north was narrowly defeated, and Congress agreed to borrow the money to rebuild the Capitol, the President’s House, and the other official buildings. In 1815, Congress moved to another, larger building northeast of the Capitol, on the site of the present-day Supreme Court building. That building, which became known as the Old Brick Capitol, housed Congress for another four years while the Capitol was rebuilt for the third time in twenty-five years.
Marshall returned to Washington in February, and it was a particularly painful experience for him. The Supreme Court chamber that the Court had occupied for only four years was decimated. Only its vaulted ceiling survived the fire. Once again, Congress made no provision for the Court, so the justices had to fend for themselves. Stelle’s Hotel had survived, and the justices moved back into their old rooms.1 They agreed to hold hearings in the home of the court clerk, Elias Caldwell. Caldwell owned a three-story Federal-style home on the corner of B Street and Pennsylvania Avenue Southeast, just opposite the Capitol, where the Library of Congress’s John Adams Building now sits. Caldwell had fought the British at Bladensburg. When the battle was lost, Caldwell hurried to Washington on horseback to rescue the Supreme Court library before the British torched it. He frantically moved armfuls of law books as he dashed back and forth across the avenue to his home.2
The justices met in Caldwell’s front parlor, crowded together in their black robes behind a long table. With the sound of Caldwell’s eight small children shouting in the background, the lawyers sat on the parlor furniture waiting to argue. Spectators stood packed behind them in the parlor and spilled out into the hallway.3
The Court’s February term was once again dominated by prize cases resulting from the war with Britain. Among these was the colorfully named Thirty Hogsheads of Sugar v. Boyle.4 In July 1812, shortly after the United States had declared war, a British vessel en route to London was captured by a U.S. privateer and brought to Baltimore where it was libeled as enemy property. The cargo included thirty hogsheads (large casks) of sugar belonging to Adrian Bentzon, a Danish government official. The sugar had been grown on the Dane’s plantation on the Danish island of Saint Croix (now part of the U.S. Virgin Islands). Denmark was a neutral country, and normally the property of a Danish national produced on a Danish island would be considered neutral and returned to the owner. However, British forces had captured the island shortly before the sugar was shipped, and British officers had ordered the sugar to be brought to London on a British vessel. The Maryland Circuit Court treated the cargo as enemy property, and the Danish owner appealed. The question for the Supreme Court was whether the sugar should be considered enemy property subject to capture because it was grown on soil claimed by Britain.
Bentzon was Danish by birth. He had purchased his plantation while the island was Danish territory before it was occupied by Britain. After the British seized the island, Bentzon returned to Denmark. He had never voluntarily submitted to British rule. Moreover, Britain’s occupation of the island was only temporary, and it had since returned the island to Denmark. The equities seemed to favor Bentzon.
Writing for the Court in another unanimous decision, Chief Justice Marshall looked to customary international law. Where there was no governing treaty, he wrote, U.S. courts must consider “the decisions of the Courts of every country, so far as they are founded upon a law common to every country . . . not as authority, but with respect.” Marshall insisted that U.S. courts should distill the customary international rule by looking at a range of countries.5 Accordingly, Marshall found that the international customary rule was that the nationality of produce should be determined by the sovereign who possessed the soil regardless of the nationality of the individual owner of the land.6 Regardless of the equities of the situation, the Dane was bound to share the same destiny as whatever sovereign claimed the island. When the island became British soil, its produce became British, and the sugar was rightfully condemned as enemy property.7
The significance of Marshall’s decision in Thirty Hogsheads was his reliance on customary international law as part of our law. Marshall had forged a unanimous consensus in support of the principle that customary international law is a part of United States law, and this principle has since become a keystone of the American legal system.
A few days later, writing for a divided Court, Marshall issued another important opinion on the law of prizes that came to a different conclusion. On December 19, 1813, an American privateer, the Governor Tompkins, captured the Nereide, an armed British vessel sailing from Britain to Buenos Aires in a naval convoy. The Nereide was carrying cargo shipped by Manuel Pinto, a Spanish national born in Buenos Aires who now resided in London.8 A New York district court condemned the vessel and cargo, and the circuit court upheld their decision. Pinto appealed, arguing that since he was the national of a neutral country, his cargo should not be subject to seizure under customary international law. The issue for the Supreme Court was whether cargo owned by the national of a neutral country transported on an armed British vessel should be treated as enemy property.
Again, Marshall began by looking to customary international law. He acknowledged that under customary international law the goods of a neutral found in an enemy vessel were not subject to capture.9 Marshall opined that since it was not Pinto’s decision to arm the British vessel or fire on the American privateer, this was not a basis for denying his property rights.10
However, the U.S. privateers argued that under Spanish law, U.S. property would be subject to condemnation in a comparable situation. Since Spain would not respect the rights of U.S. shippers, it seemed only fair that U.S. courts should treat the property of a Spanish national the same way. The principle of reciprocity—“An eye for an eye”—was as old as the Bible.
Marshall responded that deciding whether to retaliate against a foreign state’s unjust treatment of U.S. citizens was a political judgment left to the president and Congress. It was not up to the courts to decide whether and how to retaliate. Until such time as Congress or the president chooses to retaliate, “the Court is bound by the law of nations which is part of the law of the land.”11 Therefore the Supreme Court decided to restore the goods to its Spanish owner.
Just as Marshall had denied the court’s power to decide “political questions” in Marbury, and just as he found in Schooner Peggy and Schooner Exchange that it was up to the political branches to compensate owners for the illegal capture of a vessel, Marshall drew a bright line between foreign relations and questions of law. At the same time that the Court was deferring to the political branches, Marshall was also asserting the Supreme Court’s authority to determine and apply international law.
Although Nereide and Thirty Hogsheads of Sugar came to opposite results—the former upheld the property rights of a neutral, while the latter denied them—these two decisions sent a clear signal that U.S. cou
rts were bound by the law of nations. Though some Supreme Court justices have since argued that the opinions of foreign courts are not relevant in U.S. courts, Marshall believed that U.S. judges should look to foreign courts to determine customary international law.12 Fifteen years earlier, as an American commissioner to France, Marshall had been asserting customary international law in defense of American commerce. Now he had established it as a foundational principle of U.S. law.
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THOUGH THE SUPREME COURT’S two terms in winter and spring lasted only about eight weeks each, Marshall hated being away from his family and friends in Richmond. He enjoyed his colleagues on the Court, but he did not relish the accoutrements of public office. Dinners at the Executive Mansion, diplomatic receptions, parties with senators—these things did not matter to Marshall. “Since my being in this place I have been more in company than I wish & more than is consistent with the mass of business we have to go through,” he complained to Polly. “I have been invited to dine with the President with our own secretaries & with the minister of France & tomorrow I dine with the British minister.” It sounded glamorous, but “[i]n the midst of these gay circles my mind is carried to my own fire side & to my beloved wife. I conjecture where you are sitting & who is with you to cheer your solitary moments.”13 All Marshall really hoped for was some communication letting him know that she was fine as he constantly fretted over her deteriorating health.
By now, Marshall had achieved national celebrity, but he refused to take himself too seriously. Dressed in ill-fitting trousers and muddy boots, often without a coat or a hat, he never forgot where he came from. He brushed aside anyone who put him on a pedestal. When an attorney once praised the chief justice for reaching the “acme of judicial distinction,” Marshall quickly dismissed the flattery. All that the “acme of judicial distinction” meant, Marshall replied, was “the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.”14 For the same reason, Marshall avoided newspaper reporters and disdained any publicity: “I hope to God they will let me alone ’till I am dead.”15
On Tuesday, March 4, 1817, Marshall swore in James Monroe as the newly elected president. No prior president had the good fortune to assume office at a time of both prosperity and peaceful relations with Britain and France. He was the fourth Virginian patrician to occupy the office, but unlike his close associates, Jefferson and Madison, he was more of a soldier and a politician than an intellectual. He had served with Marshall at Valley Forge and was wounded at the Battle of Trenton. Though he was intensely private and reserved, Monroe had no patience for ideas; he was all about politics.16 It was Marshall’s fourth inauguration, and this time he was genuinely pleased to administer the oath to one of his boyhood friends. Since their days together at Reverend Campbell’s school in Washington parish, they had formed a bond that transcended political affiliations. Monroe may have grown into being Jefferson’s lieutenant over the years, but Marshall continued to admire him despite their political differences. Though Monroe did not distinguish himself intellectually, no president since Washington was more respected by both voters and politicians for his integrity and good spirit. In fact, Monroe had won all but a single electoral vote in his contest against John Quincy Adams. Monroe’s presidency ushered in the Era of Good Feelings, which brought a brief interlude in the squabbles between the Jeffersonians, who now had officially renamed their party as the Democratic-Republican Party, and the last die-hard Federalists.
Monroe’s inauguration felt like a genuine celebration of the nation’s resilience and unity following years of warfare and partisanship. The only sour note was the absence of the Speaker of the House, Henry Clay. Clay disdained the president-elect for choosing John Quincy Adams as secretary of state. Clay aspired to be president himself someday. Like so many before and since, he hoped that the position of secretary of state would be a stepping-stone to the presidency. Though Clay was one of the great statesmen of his era, he could be petty and vindictive. President Monroe had planned the inauguration to be in the House chamber as was customary, but Speaker Clay denied the president-elect the use of his chamber. Clay claimed that he did not want the senators to add their plush upholstered chairs to the plain wooden chairs in the people’s house.17 Instead, the inauguration was held outside for the first time in front of the Old Brick Capitol.
Standing before an exuberant crowd of eight thousand in the brilliant sunshine of an unseasonably warm day, Marshall beamed as he administered the oath to his old school friend.18 Winter was giving way to spring, and for the moment, it seemed that the whole country was suffused in the warm glow. Sitting in the front row were the other six members of the Supreme Court. With Bushrod Washington being the only other Federalist remaining on the Court, Marshall had accepted without bitterness that he was among the last of a rapidly vanishing tribe. He began to wonder if the time was coming to step down.
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AT SIXTY-ONE, MARSHALL looked far more robust and powerful than most men half his age. The gangly young man had filled out and matured into an august presence with snowy white hair and piercing dark eyes underneath a thatch of salt-and-pepper eyebrows. He’d retained both his sharp mind and his sense of humor. His stature had not robbed him of his humility, nor had age dimmed his sense of wonder. People of all social positions and ages fascinated him. Visitors to Richmond marveled at the chief justice’s accessibility.19 One day in Richmond, while waiting for his carriage to be repaired, he struck up a conversation with the young son of his repairman. Marshall learned that the boy, James Beale, had an interest in medicine. Marshall took the boy under his wing and eventually sponsored him to attend the Pennsylvania Medical School.20 Dr. James Beale would later go on to become the president of the Medical Society of Virginia and a founding figure in the American Medical Association.21 Marshall remained as engaged in the lives of his neighbors in Richmond as he was in parsing the details of the court cases he heard. When he was home, Marshall still played quoits regularly with the other members of the Barbecue Club. He never seemed more at ease than when he was gulping down mint juleps and trading stories over a roasted pig after a round pitching quoits in the hot sun.22
By contrast, Polly, at fifty, had aged poorly. She had shrunk into a skeletal, childlike figure. Time had magnified her neuroses and heightened her sensitivity to noise and light. Nighttime terrified her. Marshall had to reassure her that no one was hiding under her bed or in a cupboard. In addition to emotional stress, she suffered from severe anemia, chronic fatigue, and frequent fainting. Polly constantly complained of the cold. In the warm months when the humidity demanded that windows be left open, Polly was whisked away to the family’s home at Oak Hill where she would not be disturbed by the clatter of carriages or the chatter of couples passing on the street below. Years of confinement to her room left her estranged from society. Polly’s only pleasures were reading and the company of her husband. She rarely left the house unless accompanied by Marshall and then only to attend Sunday services at the Monumental Church a few blocks away. Though Marshall was a Unitarian and never joined a church, he happily escorted her for as long as she was able to go.23
For all of Polly’s infirmities, Marshall remained devoted to her. Whenever he was away from Richmond, he worried about her, and he was always relieved to return to her side. He removed his shoes and padded around the house in slippers so that his footsteps would not aggravate Polly’s nerves. In spring and summer he would read in the side yard under the dappled shade of a spreading elm. He would sit there for hours with a book propped on his crossed legs, glancing up to acknowledge a passing neighbor or sip a cool drink. He especially loved reading the novels of Jane Austen for her wry humor and vivid language.24
Marshall’s devotion to Polly reflected his general regard for, and fascination with, women. Unlike most men of his time, he respected women as his equals and refused to tolerate improper langua
ge or humor referring to the feminine sex. Justice Story described Marshall’s attitude as “romantic chivalry,” but it was more than Marshall’s placing women on a pedestal. Marshall believed “that national character as well as happiness depends more on the female part of society than is generally imagined.”25 Marshall remained an incurable flirt even into his sixties. He loved to flatter women and make them laugh. He even composed poetry to some of those he admired.
What should we conclude about his relationships with these women? One such poem was penned for Eliza Lambeth, an attractive young female singer. It read in part:
Where learnt you the notes of that soul-melting measure?
Sweet mimic, who taught you to carol that song?
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