Marshall wrote that Article I of the Constitution gave the authority to Congress to establish “uniform laws on the subject of bankruptcies throughout the United States” but that Congress had not yet adopted a bankruptcy code. In the absence of any congressional action, could the states adopt their own bankruptcy statutes? The Constitution expressly prohibited states from doing certain things, such as making treaties with foreign powers, but it did not mention bankruptcy laws. From this, Marshall inferred that “the mere grant of a power to Congress, did not imply a prohibition on the States to exercise the same power.”32 If and when Congress eventually adopted a bankruptcy code, it would extinguish any conflicting state insolvency laws.33
Then Marshall turned to the question of whether the New York law impaired the obligation of contracts. The New York bankruptcy law discharged any debts whether contracted before or after the enactment of the state law. Marshall considered the circumstances in which the Framers drafted the Contract Clause. In response to “the general distress” that followed the American Revolution, states had adopted laws that harmed the rights of creditors. “These were the peculiar evils of the day. So much mischief was done . . . that general distrust prevailed, and all confidence between man and man was destroyed.” To restore confidence and prevent a recurrence of these dangers, the Framers prohibited state laws impairing the obligation of contracts.34 Because the New York law operated retroactively to discharge debts that existed prior to the statute, the Court unanimously agreed it was invalid.
Nevertheless, Marshall noted that since the Contract Clause applied only against state laws, Congress could pass bankruptcy laws that provided debtors with relief retroactively. This was a compromise that Marshall had struck between those justices opposed to any state bankruptcy law and those who would permit at least some state bankruptcy laws. The question as to whether state bankruptcy laws could apply prospectively to debts contracted after the state law took effect was not decided by the Court until eight years later, in Ogden v. Saunders.35
By 1827, Congress still had not enacted a comprehensive federal bankruptcy law that might have superseded state laws. John Saunders, a citizen of Kentucky, sought to enforce a debt owed by George Ogden, a New York citizen. Ogden filed for bankruptcy under the New York statute that was adopted prior to his contract with Saunders.36 President John Quincy Adams had just appointed Robert Trimble, a moderate Republican from Kentucky, to fill the vacancy left by the death of Justice Todd, another Kentucky Republican. Justices Trimble, Washington, Johnson, and Thompson agreed that the New York law applied, and Ogden was discharged from paying his debt. Unlike the issue in Sturges, the debt in this case was incurred after the New York law was adopted.
For the first and only time in his thirty-four years on the Court, Chief Justice Marshall found himself dissenting in a constitutional case. He was joined by Justices Story and Duvall. Marshall wrote a long and strident dissent. The chief justice argued that a state law could never alter an existing or future contract, that the right to contract existed in a state of nature, and that the Contract Clause safeguarded the rights of private parties against the heavy hand of the state.37
The outcome in Ogden demonstrated that the chief justice no longer exercised the same influence over the Court. His ideas about the sanctity of private property and contract were now being challenged. Nevertheless, Marshall had already shaped the contour of American capitalism. In less than two decades, the Marshall Court had liberated the market from the constraints of monopolies and the heavy hand of state regulation. It had guaranteed the sanctity of contracts and private property rights. And it had empowered Congress to adopt national regulations that would harmonize state laws. In so doing, the Marshall Court helped create the conditions for free enterprise to flourish in the nineteenth century.
CHAPTER THIRTY
RIGHT REMAINS WITH THE STRONGEST
In 1828, Marshall, now seventy-two, spent at least a month every summer at Oak Hill. He built a home there for his son Thomas on the land that his father had left him. There, between the rolling blue shadows of the Cobbler Mountains and the muddy green water of Goose Creek, the chief justice looked forward to retiring with his wife. “A person as old as I am feels that his home is his place of most comfort, and his old wife the companion in the world in whose society he is most happy,” he wrote to Polly.1 Headaches, fatigue, and anxiety still racked her frail body, but in the honeyed stillness of the valley, Polly could sit outside undisturbed by city noises.
In August, Marshall received word that his colleague Justice Robert Trimble, twenty years his junior, had died of malarial fever.2 Trimble had served only two years on the Court. Marshall was especially fond of Justice Trimble who, like Justice Story, was a moderate Republican and a proponent of a strong federal government. The unexpected death of his “friend and brother” gave Marshall reason to reflect on his own mortality.3 Marshall could look back on his long record of public service and wonder what would endure. By the late 1820s, Marshall could feel confident that the country would remain independent from Britain and France. America was still weak relative to the European powers, but her immense size and her distance from Europe assured that the country would remain free to prosper or fail on its own.
Over time, Marshall’s thoughts on the Revolution had matured. For him, it was not a war against Britain or a tyrannical monarch. Marshall judged that Jefferson’s Declaration of Independence had stretched the truth: “The long list of tyrannical acts which is found [there]” was “judiciously inserted as tending to produce unanimity,” but it was not the true story. “[T]he time is arrived when the truth may be declared,” he wrote to Congressman Edward Everett of Massachusetts. “The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression.”4 The real revolutionary document was the Constitution, not Jefferson’s Declaration. The Constitution was a fence against the kind of corruption that the British Parliament had succumbed to. The Constitution transformed the parochial interests of competing states into one nation. It safeguarded the rights of individuals and property from the tyranny of the majority, and it established a judicial system that would become the envy of the world.
But Marshall fretted over the future of the Constitution and the Supreme Court. Marshall had welcomed the elections of Monroe and John Quincy Adams after the acrimonious years of Jefferson and Madison, but the country’s mood had quickly soured during both presidencies. The Supreme Court had defended property rights and upheld the power of Congress to create a national economy, but neither Monroe nor Adams had made much progress knitting the country’s farms and cities together. Meanwhile, the country was increasingly divided on the toxic question of slavery in the Louisiana Purchase. Marshall was especially concerned by the approaching election of 1828. Three decades in Washington had taught Marshall that men with the character of Washington and the genius of Hamilton were a rare breed.
Marshall worried that Andrew Jackson’s presidential campaign roused an insidious spirit in the American people. Ever since Jackson’s loss to John Quincy Adams in 1824, his Democratic supporters had engaged in a perpetual campaign of accusation against the president and his heir apparent, Henry Clay, the secretary of state. The masses were “animated with the most hostile feelings towards each other,” Marshall wrote. This new phenomenon was a permanent campaign that polarized the country by region. Marshall thought that it “threatens the most serious danger to the public happiness. The passions of men are enflamed to so fearful an extent, large masses are so embittered against each other, that I dread the consequences.” He feared that the Constitution would not survive a Jackson victory.5 Marshall even speculated that it might be better to let the Senate choose the president in the future.6 His one consolation was that “I shall not live to witness and bewail the consequences of those furious passions which seem to belong to man.”7
As chief justice, Marshall felt
that he should refrain from voting for president or endorsing any candidate. But now a Baltimore newspaper quoted him saying that he would probably vote in the upcoming election “from the strong sense I felt of the injustice of the charge of corruption [by Jackson and his supporters] against the President and Secretary of State.”8 It was a serious faux pas, and he knew it. It was considered that Supreme Court justices ought never to comment on presidential candidates. Secretary Clay thanked Marshall for his public support and expressed his regret that it “will subject you to a part of that abuse which is so indiscriminately applied to all and to every thing standing in the way of the elevation of a certain individual.”9 Marshall’s fears were soon realized when Jackson was swept into office on a populist landslide.
Marshall returned to Washington in February 1829 anticipating the arrival of the man who threatened to overturn the federal government and bend the Supreme Court to his will. Marshall worried that even if Jackson was inclined to be more conciliatory, “he is brought in by a hungry and vindictive party” that is less responsible and that will make demands on the new chief executive. Though he wished success to every new administration, he “perceive[d] much more to fear than to hope for the future.”10
Despite the usual buzz of social events, the city held its breath in anticipation of Jackson’s arrival. The weather cast a funereal light over the city, which seemed appropriate given that the president-elect’s wife, Rachel, had suddenly died of a heart attack at their home in Tennessee less than two months earlier. Marshall, too, was in mourning as Marshall’s son Thomas had lost his wife and his infant son in childbirth a few weeks earlier. Marshall could not help imagining the loss of his own wife. “A man who at [Jackson’s] age loses a good wife loses a friend whose place cannot be supplied,” he wrote to Polly.11
Marshall was increasingly aware of his wife’s mortality. That winter Polly’s condition continued to deteriorate. “Your general health is so delicate, your spirits so liable to depression that I cannot controul my uneasiness,” he wrote to her.12 He followed that with a love poem that concluded:
Now age with hoary frost congeals
Gay fancy’s flowing stream,
And the unwelcome truth reveals
That life is but a dream;
Yet still with homage true I bow
At Woman’s sacred shrine
And if she will a wish avow
That wish must still be mine.13
For the eighth time in thirty-two years, Chief Justice Marshall administered the oath of office to the president. Both candidates had emerged from the campaign soiled. The Jacksonians had accused President Adams of corruption, and Adams’s campaign responded by accusing Jackson and his wife of bigamy and adultery. Still smarting from the attacks, Jackson refused to pay the customary visit to President Adams, and Adams, in turn, boycotted the inauguration. Fifteen thousand people—the largest crowd ever to gather in the capital city—flocked to the inauguration on the steps of the Capitol. After weeks of cutting cold, the day was unusually mild. When Jackson was done speaking, the crowd followed him to the Executive Mansion and overran the reception, leaving the furnishings in ruins. The president had to be hustled back to his boardinghouse to avoid being crushed by the adoring masses. Marshall avoided the raucous celebrations. He had no desire to celebrate Jackson’s election.14
Only two days later, President Jackson nominated Postmaster General John McLean for the seat vacated by the death of Justice Trimble. McLean was originally appointed postmaster by President Monroe and reappointed by President John Quincy Adams. Though McLean was a Whig, like his rival Henry Clay, he had endorsed Jackson for president. As postmaster, McLean stood in the way of Jackson’s appointing more postmasters as patronage for his supporters. Jackson decided to move McLean out of the way by placing him on the Court where presumably he would be less trouble. Jackson also hoped that he would prevent McLean from challenging him in the next presidential election.15 Marshall had favored John Crittenden, the former senator from Kentucky, who had been nominated for Justice Trimble’s seat by President Adams. The Senate, however, decided to defer voting on the nomination until Jackson assumed office. Marshall greeted McLean’s nomination with relief.16 McLean was a pragmatic centrist who years later would be one of only two justices to dissent against the Supreme Court’s decision in Dred Scott to uphold slavery. (McLean later sought the Republican nomination for president, but he lost to Abraham Lincoln.) Marshall soon found that McLean had a fiercely independent mind.
President Jackson won office as an authentic populist with his rough manners and fiery rhetoric. He was seen as the “champion of the common man.” Jackson opposed big government, corporations, and financial interests. He favored laissez-faire economic policies, cutting federal spending, and political reform to extend the suffrage to nearly all white men. Jackson was also fiercely racist, anticlerical, and nationalistic. He defended slavery and wanted to extend it into the Louisiana Purchase. He opposed abolitionists and other faith-based movements. And he ruthlessly pursued land occupied by Spain and the tribal nations. It was inevitable that Marshall’s Court would have to face the consequences of Jackson’s political program.
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THE FERTILE PROVINCE of West Florida stretched below the thirty-first parallel like a narrow belt fronting the Gulf of Mexico from the Perdido River across what is today southern Georgia, the Florida Panhandle, and parts of Alabama, Mississippi, and Louisiana as far as the eastern bank of the Mississippi River. It included two valuable ports, Mobile and Pensacola, and was only sparsely settled with a sprinkling of pirates, fugitive slaves, Indians, revolutionaries, and outlaws. Spain held a tenuous grasp on both East Florida and West Florida, and Americans hungered after both Floridas as if they were ripened fruit ready to drop off the branch.17
In 1800, Napoleon Bonaparte “persuaded” Spain that it was in her own best interest to cede Spain’s territory west of the Mississippi to France as a buffer against the Americans, who lusted after Mexican gold. The deal was sealed secretly that year in the Treaty of San Ildefonso. Nothing in the treaty referred to the Floridas, which were east of the Mississippi. Three years later France sold Spain’s territory to the United States as the Louisiana Purchase. Remarkably, the agreement never spelled out the precise boundaries of the Louisiana Territory, but at the time Spain still claimed both Floridas, and France and the United States acknowledged that.18 President Jefferson, who had hoped to purchase both Floridas from Spain, confidently predicted that the Floridas “cannot fail to fall into our hands.”19
In 1804, Congress adopted the Mobile Act, which asserted U.S. jurisdiction over West Florida and authorized President Jefferson to impose taxes there. For the next six years, fighting erupted periodically along the Florida border until a band of wayward Americans proclaimed a short-lived Republic of West Florida. President Madison, who certainly knew better, now claimed that the Louisiana Purchase had included West Florida. Using the rebellion as a pretext, Madison issued a declaration annexing the territory in 1813.
Two years before this declaration of annexation, two Americans, James Foster and Pleasants Elam, purchased from a subject of Spain two thousand acres of land in West Florida in the Feliciana District just thirty miles east of the Mississippi River. Foster and Elam, both U.S. citizens, were speculators, and for a long time, they did nothing to improve the property while Spain continued to occupy the Floridas.
While border skirmishes continued, slaves fleeing from South Carolina, Georgia, and Alabama found sanctuary in the Florida swamps among the Seminole tribe. When white settlers intruded on Seminole lands in pursuit of slaves or gold, the Indians fought back with attacks on white settlements. In 1818, President Madison ordered then Major General Andrew Jackson to clear the Seminoles out of the territory along Florida’s northern border.20 Jackson exceeded his orders. In addition to suppressing the Seminoles, he drove out the Spanish forces and captured bot
h Floridas. In 1819, Secretary of State John Quincy Adams and Spanish Ambassador Luis de Onís signed the Transcontinental Treaty, by which Spain ceded West and East Florida to the United States for five million dollars and an empty promise that the United States would renounce any future claims to Spanish territory from the Mississippi to the Pacific.21 That promise was soon forgotten.
In 1826, seven years after the Transcontinental Treaty was signed, Foster and Elam discovered David Neilson squatting on their land. They went to court in Louisiana to seek an order to remove him for trespass.22 Neilson had no legal claim to the land, but that did not prevent him from alleging that neither Foster nor Elam had good title to the property either. Neilson constructed a fanciful argument that before Spain had sold the land to Foster and Elam it had secretly transferred West Florida to France in the Treaty of San Ildefonso and that France had resold West Florida to the United States as part of the Louisiana Purchase.23 In sum, Neilson’s argument was that Spain had sold land that Spain no longer owned to Foster and Elam.
Despite overwhelming evidence that Spain had never transferred the territory to France, the district court in Louisiana agreed with Neilson that Foster and Elam had purchased the land after Spain had ceded West Florida to France and after it had been acquired by the United States. Foster and Elam appealed to the U.S. Supreme Court, which heard the case in February 1829.
As counsel for Foster and Elam, Daniel Webster pointed out that neither the Treaty of San Ildefonso nor the Louisiana Purchase ever mentioned the Floridas.24 Moreover, the 1819 Transcontinental Treaty with Spain explicitly provided that all land grants made by Spain before January 24, 1818, “shall be ratified and confirmed to the person in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.”25 Here was irrefutable proof that the United States had promised to respect private property in the Floridas held under Spanish law before 1818. Since the Constitution provided that all treaties are the “supreme law of the land,” Foster and Elam’s title must be upheld.26
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