Without Precedent

by Joel Richard Paul

  “Our opinion in the bank case has roused the sleeping spirit of Virginia,” Marshall confided to Justice Story. “It will I understand be attacked in the papers with some asperity; and as those who favor it never write for the publick it will remain undefended & of course be considered as damnably heretical.”17 When Jefferson issued a public letter attacking the Court, Marshall wrote to Story that Jefferson “rather grieves than surprises me. It grieves me because his influence is still so great that many—very many will adopt his opinions however unsound they may be, & however contrary to their own reason.” But Marshall saw through the retired president: “[H]e is among the most ambitious, & I suspect among the most unforgiving of men.” Though he acquired power by “professions of democracy,” Jefferson rejected any check on “the wild impulse of the moment” as a constraint on his power and looked “with ill will at an independent judiciary.”18

  The immediate consequence of the McCulloch decision was less clear. Marshall’s holding was not readily enforceable, and some states, including Ohio and Georgia, ignored it. When the bank’s branch office in Ohio refused to pay the taxes it owed the state, the Ohio state auditor, Ralph Osborn, forcibly stole one hundred thousand dollars from the bank’s office for the Ohio treasury. When a federal court ordered Osborn to repay the funds, he refused, claiming that the Eleventh Amendment prohibited suits against state officials in a federal court. Speaking for a six-to-one majority, Chief Justice Marshall held in Osborn v. Bank of the United States that when a federal court issued an injunction to a state official, that official was not entitled to whatever sovereign immunity the state would otherwise be entitled to under the Eleventh Amendment.19 The Osborn decision created another important precedent for holding state officials accountable for their official actions.

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  THE LONG-BREWING BATTLE over the supremacy of the Supreme Court and the Constitution reached its height the year following McCulloch in a criminal case concerning a Virginia law that prohibited the sale of out-of-state lottery tickets. In 1812, Congress had authorized the District of Columbia to establish a lottery to finance improvements in the capital city. The District established what it called the National Lottery with a grand prize worth $100,000. In 1820, Philip and Mendes Cohen were caught selling six tickets to the National Lottery out of their office at Maxwell’s wharf in Norfolk, Virginia. The Cohens were convicted by a state court and appealed their conviction to the Supreme Court, arguing that the federal law trumped Virginia’s ban on out-of-state lottery tickets.

  The key question for the Supreme Court in Cohens v. Virginia was whether the Court could hear an appeal from a state court in a criminal case. Unlike the Martin case, which involved a suit between two private parties, this appeal was against the Commonwealth of Virginia. Virginia argued that the state courts were not subject to the Supreme Court’s appellate review in a criminal lawsuit. Virginia rested its argument in part on the state’s sovereignty and in part on the Eleventh Amendment, which barred federal courts from hearing suits against a state brought by citizens of another state.

  On March 3, 1821, Marshall issued a unanimous opinion that asserted the Supreme Court’s appellate jurisdiction over state courts in criminal cases. Marshall rejected the Eleventh Amendment argument that Virginia could not be sued in a federal court. In this case, Virginia had initiated the action by prosecuting the Cohen brothers. The Cohens had not brought suit, and therefore the Eleventh Amendment did not apply to an appeal to the federal courts.20

  The bulk of Marshall’s opinion reaffirmed the absolute supremacy of the federal Constitution over state law. “The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void.”21 This was strong language. Again, he echoed the argument in Martin and McCulloch that the Constitution was not a compact of the states. “The people made the constitution, and [only] the people can unmake it. It is the creature of their will, and lives only by their will.” Marshall rejected the idea that states could nullify federal law. “[T]his supreme and irresistible power to make or to unmake, resides only in the whole body of the people, not in any subdivision of them.”22 Marshall reasoned that “[i]n war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people.” The people chose to create one nation. To secure the advantages of the Union necessitated uniformity in interpreting the Constitution.23

  Marshall’s decision in Cohens v. Virginia bolstered the Supreme Court’s holdings in Martin and McCulloch and ignited another firestorm of protest. Judge Roane, as the president of the Virginia Supreme Court, wrote more than a dozen articles excoriating the decision under the pen names Algernon Sidney and Hampden. Roane warned that if Marshall’s opinion stood “the equilibrium established by the Constitution is destroyed, and the compact exists thereafter but in name.” He accused the Supreme Court of succumbing to “that love of power, which all history informs us infects and corrupts all who possess it, and from which even the high and ermined judges, themselves, are not exempted.” He joked that the only thing left for Marshall to claim was “divine right.”24 Roane attacked Marshall’s holding as incompatible with the sovereignty of Virginia. “There is no tribunal before which the sovereign can be arraigned,” he asserted. It is in the nature of sovereignty that a sovereign “is incapable of error.” Marshall’s judgment “must be refuted,” or it “must ultimately prove fatal” to the sovereignty of the states.25

  Marshall warned Story that a “deep design to convert our government into a meer [sic] league of States has taken strong hold of a powerful & violent party in Virginia. The attack upon the Judiciary is in fact an attack upon the union.” And he had no doubt where the responsibility lay: “The whole attack, if not originating with Mr. Jefferson is obviously approved & guided by him.”26 Marshall did not see that the stridency of his opinion may have added fuel to the fire.

  Marshall’s opinions in Martin, McCulloch, and Cohens were seen by most southerners as a betrayal.27 In their view, Marshall had chosen sides against his fellow southerners. Southern Republicans denounced this attack on states’ rights. But what they meant by “states’ rights” was not only some abstract principle of state sovereignty. In concrete terms, “states’ rights” really meant slavery. Decades before the Civil War, the Supreme Court had become a focal point of the conflict on which the Union’s survival depended.

  CHAPTER TWENTY-SEVEN

  THE PIRATE LOTTERY

  Marshall dreaded his sojourns to Washington every February. The road from Richmond to Washington rambled obliquely through forested hills, and even a traveler familiar with the way could easily become lost. Since the roads were frequently flooded, they were often impassable. On a good day, a light coach could go as fast as two miles per hour. But Marshall usually plodded along on horseback, though at sixty-five, this was becoming increasingly uncomfortable for him. In June and the end of December, Marshall was also required to ride circuit in North Carolina, where travel was even more difficult. By the 1820s, Marshall’s salary was five thousand dollars (about one hundred thousand dollars today). By comparison, an attorney in private practice could earn four times that amount without the inconvenience of riding circuit.1 Lawmakers were unmoved by the apparent inequity. Then, as now, judges were expected to be both incorruptible and cheap.

  The Supreme Court’s docket was growing in the 1820s. The winter term ran about seven weeks, from late January or early February through mid-March. The justices packed in an average of three or four dozen decisions, hearing arguments from eleven in the morning until four in the afternoon without a break. Then they would walk back to their boardinghouse a few blocks away for supper and conferencing, which could last quite late.2 Marshall did not look forward to the parties in the nation’s capital, and he often avoided social engagements outside the close circle of the other justices.

  Marshall wrote fewer of the
court’s opinions in the 1820s than he had in his first two decades on the court. The task of drafting opinions by hand became more onerous with age. He sometimes asked one of the other justices, particularly Justice Story, to draft the court’s opinion, but the chief justice still played a role in crafting nearly every opinion.

  Monroe’s Era of Good Feelings did not last long. The question of slavery soon clouded over the warm sunshine of the Monroe administration. Though Marshall had seen the nation survive three wars in his lifetime, he worried now more than ever about the country’s destiny. One is often disappointed when one’s friends assume higher office, and Marshall could not help but doubt Monroe’s leadership. Marshall thought that the country needed to spend more money to improve infrastructure; Monroe opposed such measures. And Monroe vacillated on the most critical issue of the day: whether to permit the spread of slavery into the new territories.3

  Since Jefferson’s acquisition of Louisiana, the states had divided over the question of whether the new territory would be slave or free. For the southern states, rejecting the growth of slavery was perceived as a threat to their economic viability and an indictment of their way of life. The issue came to a head with the debate over admitting Missouri as a state. Missourians petitioned Congress for the right to enter as a slave state. By 1819, there were eleven free states and eleven slave states. Admitting Missouri as slave or free would tip the balance in Congress. Southerners feared that if there were a majority of free states, Congress would legislate slavery out of existence. The North threatened the southern way of life. But the Northwest Ordinance signed by President Washington in 1789 had prohibited slavery anywhere in the Northwest Territory. The northern states feared that the balance of power in the Senate would tip in favor of the slave states if slavery were permitted to expand into the western territory.

  While Congress bitterly debated the question of Missouri’s admission, President Monroe remained silent, refusing to take a position on the most critical issue of his presidency. The president worried more about his own chances for reelection than the outcome of the debate.4 It fell to House Speaker Henry Clay to craft a compromise: admit Missouri as a slave state and Maine as a free state and prohibit slavery in the future from other territories north of the parallel 36° 30'. The Missouri Compromise of 1820 saved the Union, at least for the time being.5 But the debate had exposed the jagged fault line that cut through American politics. Writing from Monticello, Jefferson predicted that “this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once the knell of the Union. It is hushed indeed for the moment. But this is a reprieve only, not a final sentence.”6

  Slavery was the Constitution’s original sin. The Framers had not merely tolerated slavery but had enshrined it in the Constitution. The original seven articles of the Constitution did not protect a citizen’s right to speak, assemble, petition the government, vote, or worship; they did not assure that persons would be secure in their homes from unreasonable searches or seizures, prohibit cruel and unusual punishments, or guarantee a right to a jury trial or any other procedural right before the government could take away one’s life, liberty, or property. The original Constitution did, however, preserve the right to buy, sell, and own slaves: The Constitution counted slaves as three-fifths of a person for purposes of apportioning representation in Congress. That dramatically increased the South’s voting power in Congress at a time when roughly a third of all southerners were slaves.7 The slave trade could not be regulated for twenty years—an immunity afforded to no other industry.8 To safeguard slavery from excessive taxation, the state and federal governments were prohibited from imposing taxes on slaves or the products of slave labor.9 This gave slaveholders a tax exemption that farmers and manufacturers in the free states did not enjoy. And unlike almost any other clause in the Constitution, these two provisions could not be amended.10 To quiet the fears of a slave uprising, the federal government was obligated to protect the states against a slave revolt and was empowered to call up state militias to suppress uprisings.11 The Constitution prohibited states from emancipating fugitive slaves and required states to return fugitives to their masters on demand.12 The whole bicameral structure of Congress ensured that the sovereignty of the slave states would be protected from interference by free states.13

  The slavery issue first arose before the federal courts in the context of the slave trade. Many southerners, including Jefferson, supported the ban on importing slaves. By 1807, there were about one million slaves in the United States, with all but around fifty thousand of them packed into the southern states.14 This was more than enough to ensure an inexhaustible supply of slaves into the future. The roughly two million southern whites feared that the swelling population of slaves might overwhelm them.15 Some slaveholders worried that the growing supply of slaves would lower the market value of their own slaves. Northern abolitionists and some anxious southerners forged an unlikely alliance against the slave trade.

  In 1794, Congress prohibited U.S. citizens and residents from engaging in the slave trade, but the law did not apply to foreign nationals and foreign vessels.16 In 1807, Congress went further and prohibited the import of all slaves to the United States effective January 1, 1808, the earliest date such a ban would be allowed under the Constitution. The president was authorized to send out naval vessels to seize any U.S. ships engaged in the slave trade even if they were outside U.S. territorial waters.17 In 1819, Congress went one step further and authorized the president to seize any slave ship owned or commanded by U.S. citizens or residents even if it was flying a foreign flag in foreign waters. The 1819 act provided that any captured Africans on board should be freed and returned to Africa.

  Despite these laws, unscrupulous American and foreign nationals entered the slave trade using vessels registered to Spain or Portugal, which had not yet banned the slave trade. These ships would cruise the southern coastline looking for an opportunity to land and quickly unload their precious cargo before the U.S. authorities seized their ships. They assumed that the law would punish only U.S. nationals and U.S. ships.

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  IN 1820, A SOUTH AMERICAN pirate ship, the Colombia, captured a U.S. slave ship with twenty-five slaves off the coast of Africa.18 The Colombia, later known as the Arraganta, flew the flag of the Banda Oriental, a revolutionary independence movement centered in what is now Uruguay. In addition to the U.S. ship, the Arraganta seized several Portuguese slave ships, including the Antelope, and a Spanish slave vessel, capturing a total of around 280 Africans. The Arraganta and the Antelope, loaded with slaves, sailed back toward South America, but the Arraganta was wrecked off the northeast coast of Brazil. A number of crew members and about thirty Africans were lost at sea. The captain and some of the crew were seized for piracy by Portuguese ships. The remaining crew and their captives transferred to the Antelope, under the command of Captain John Smith, a U.S. citizen, and the Antelope proceeded toward Florida.

  Captain Smith apparently intended to slip into a friendly port in Florida and sell his slaves there. Spain had recently agreed to cede Florida to the United States, but the treaty was not yet ratified, so for the time being Florida remained Spanish territory. As the Antelope hovered along the Florida coast, it was spotted by a U.S. revenue cutter, the Dallas. Captain John Jackson, the commander of the Dallas, suspected that the Antelope was either a pirate ship or a slave ship. After a brief chase, the Dallas captured the Antelope in Spanish waters. Jackson determined that the vessel was indeed a slave ship commanded by U.S. citizens in violation of U.S. law and brought the ship in for adjudication. The Africans were transported on the Dallas to the port of Savannah. As provided by the 1819 act, they were turned over to the federal marshal, who was responsible for their safekeeping while they awaited a judgment as to where they belonged.19

  President Monroe, vacationing at his home in Albemarle, Virginia, faced the question of whether to re
turn the slaves to Spain and Portugal or send them back to Africa. Initially, his instinct was to direct the district attorney to ask the district court to free the slaves as provided by the 1819 act. He was drafting an order to this effect when he received an unexpected visitor—the Portuguese ambassador, José Francisco Correia da Serra. Correia da Serra, a personal friend of Monroe’s, insisted that the slaves be returned to the Portuguese government—a demand at odds with the Portuguese government’s official position opposing the slave trade.20 Monroe drew a line through his initial instructions to free the slaves and instead directed the U.S. attorney in Georgia to await instructions from Attorney General William Wirt.21

  Monroe’s decision would have raised eyebrows among the cabinet. At that time, the attorney general merely advised the president. The U.S. attorneys, who prosecuted cases, were independent from the attorney general. The president had every reason to expect that Wirt would side with the property rights of the slave traders. Wirt was a Maryland slave owner who had argued in favor of extending slavery to the Louisiana Purchase, and he believed that the federal government had no authority to curb the spread of slavery.22 But the president’s order to the U.S. attorney did not arrive on time. Without waiting for instructions from the president or the attorney general, the U.S. attorney for Georgia, Richard Wylly Habersham, decided to intervene on behalf of the Africans.