Without Precedent
Page 43
That worried political leaders in Virginia and Georgia. Both states had tribal nations scattered across substantial portions of their frontiers. Georgia wanted to seize the land occupied by the Creek and Cherokee tribes along its western frontier, which held the prospect of large gold deposits. Virginia wanted to expel any doubt that it had good title to the land that Kentucky set aside for Virginia’s veterans. A holding in favor of Johnson would negate the promise made to Virginia’s veterans. It would leave the gold beyond the grasp of Georgia’s legislature. And it would deny the claims of all states to the tribal lands within their borders.
Before the case was even argued, Marshall drafted an opinion brimming with historical—though not necessarily accurate—details of the original settlement of the country. Marshall cribbed this history from his first volume of his The Life of George Washington.18 Marshall’s opinion traced a somewhat mythologized history of discovery, conquest, and colonialism in North America. Marshall acknowledged that the Europeans had claimed land based on the principle of “discovery.” But the Europeans were unable to conquer the tribal nations, and discovery did not displace the Indians from the land they inhabited. Indians remained “the rightful occupants of the soil, with a legal as well as just claim to retain possession of it.”19
The principle of discovery meant that each European power was bound to recognize the claim of any other European country that first “discovered” a territory. Practically speaking, discovery meant that the Indians could not sell a freehold interest in land to other Europeans. The European sovereign had an exclusive right to purchase title from the tribes and sell a freehold stake in the property.20 But unless the European sovereign acquired title from the tribe—which usually involved paying for it—the Indians were free to occupy and use the land and sell the same rights to other private purchasers to occupy and use the land.
Marshall admitted that the principle of discovery was a fiction. The Europeans did not “discover” a continent that was already inhabited and cultivated by millions of indigenous people. Nor was discovery the same as conquest. The Europeans may have stuck a flag in the ground, but they had neither the will nor the capacity to subdue the tribal nations. The Indians were “as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.”21 Marshall mocked the European powers: “The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.”22 He described the Europeans’ “pompous claims” to the country and the “frequent and bloody wars,” in which Europeans were usually the aggressors pushing the Indians deeper and deeper into the forests and denying the Indians those fundamental rights that humanity and the law of nations required.23
It is curious that Marshall relied on the doctrine of discovery.24 Marshall knew that Europeans had abandoned the doctrine of discovery centuries earlier.25 In Marshall’s well-worn copy of The Law of Nations, Emer de Vattel rejected the doctrine of discovery, and he expressly denied that Europeans had a right to claim more territory than they could actually cultivate.26 Nevertheless, Marshall wrote that discovery was a convenient fiction that U.S. courts had to accept: “However extravagant the pretension of converting discovery of an inhabited country into conquest may appear, if the principle has been converted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”27
Why did Marshall reinvent the discredited doctrine of discovery? He could have rested his decision entirely on the king’s proclamation of 1763 that prohibited the original acquisition of land by the Illinois-Wabash Company. That would have settled the narrow question as to whether M’Intosh had good title. But Marshall wanted to clarify the relationship between the states, the federal government, and Indian tribes. Marshall saw this as an opportunity to affirm the supremacy of federal sovereignty over both the states and the tribes while also protecting the right of Indians to use and occupy their land without interference by the states. At the same time, Marshall wanted to reaffirm the property rights of all those who purchased land from the federal government.
Marshall had one other relevant purpose in defining the relationship between the states and the federal government. Marshall wanted to ensure that the land reserved for Virginia’s militiamen remained protected. The chief justice, like many Virginians of the Revolutionary generation, was committed to honoring the promise made more than forty years earlier to the veterans who fought the Revolutionary War. By relying on the doctrine of discovery, Marshall confirmed that Virginia had the original right to the property and could therefore transfer title to Congress conditioned on the rights of the militiamen.28
Marshall was sympathetic to the tribal nations. As a young legislator in the Virginia House of Delegates, Marshall fought alongside Madison for legislation to punish whites who committed crimes against Indians. He also supported a bill authored by Patrick Henry to provide subsidies to whites who married Indians.29 Though this may have been motivated in part by a paternalistic desire to “civilize” the indigenous tribes, it was a repudiation of the notion that the Indians were racially inferior. (It took another 180 years before the Supreme Court reached the same conclusion about interracial marriage.)
But Marshall once again set aside his own moral sentiments just as he had in Antelope. He wrote, “We will not enter into the controversy, whether agriculturists, merchants and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.”30 Marshall was not disparaging the natural rights of native Americans; he was asserting that federal law trumped natural rights.31 Marshall believed that natural rights existed only in a state of nature. Once a person entered into civil society, he exchanged his natural rights for whatever rights the state afforded him.32 That was a surprisingly modern idea of law that anticipated the rise of legal positivism at the end of the nineteenth century.
Johnson v. M’Intosh is another example of how Marshall guarded the boundaries between the branches of the federal government. Marshall declared that “[c]onquest gives a title that the courts of the Conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.” He chose his words carefully. The decision rested on the doctrine of discovery, but Marshall spoke of “conquest.” Conquest referred to military power, which belonged exclusively to Congress and the president.33 In other words, “[i]t is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”34 Once again Marshall based his decision on the idea that certain policy questions lie beyond the domain of judges. Property rights as well as sovereignty derived from an “extravagant pretense,” but courts could not contest these matters without calling into question their own legitimacy: “Conquest gives a title that the courts of the Conqueror cannot deny.”
Marshall wove his opinion in Johnson v. M’Intosh as if it were fine damask. On one side Johnson appeared to deny the property rights of Indian tribes. But turned over, it revealed the opposite pattern: Marshall actually preserved the right of Indians to occupy and use their land without interference from the state or federal governments, and the right to sell their land either to the federal government or a private purchaser. A person who acquired title from the Indians had the same right to occupy, but they did not possess a freehold.35 Investors such as the Illinois and Wabash companies could occupy the land until such time as the Indians sold it to the United States.36 If the federal government wanted to acquire the land, it was expected to pay for it. Since private land speculators could not acquire a freehold interest in the property from the Indian tribes, the tribes w
ould be denied the fair market value of their land. In other words, the federal government could purchase Indian land at a price below what the private market might be willing to pay. Marshall’s decision cleared the way for the federal government to develop the West.37
A few years later, Justice Story sent the chief justice a copy of a speech he delivered on Indian rights: “What can be more melancholy than their history? By a law of nature, they seem destined to a slow, but sure extinction. Everywhere, at the approach of the white man, they fade away. We hear the rustling of their footsteps, like that of the withered leaves of autumn, and they are gone forever.”38 Marshall replied that the time had “unquestionably arrived” when the United States should “give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities.” He regretted that “every oppression now exercised on a helpless people . . . impresses a deep stain on the American character.” And he expressed his “indignation” with the treatment of Indians in Georgia.39
He would soon have an opportunity to set the matter straight.
CHAPTER THIRTY-TWO
IN THE CONQUEROR’S COURT
Standing before the chief justice of the United States was an extraordinary figure of such singularity that Marshall stumbled for the right words. Barbara O’Sullivan Addicks appeared at Marshall’s doorstep in Richmond dressed in a well-tailored man’s suit and trousers. She was selling subscriptions for a French grammar text she wrote for children. In Boston such a character would perhaps raise eyebrows; in Richmond she might incite a riot.
Regaining his composure, Marshall politely invited her into his sitting room. Recently widowed, Mrs. Addicks shared Marshall’s love of French culture. Her nonconformity and her cosmopolitan affect surely reminded him of the buoyant Madame de Villette, whom he had not seen in more than thirty years. She was fascinating.
It was not by accident that Mrs. Addicks had knocked at Marshall’s door. She wanted his legal advice. Over refreshments, she explained her remarkable story. Her father had been a British military officer in the Revolutionary War, and her first husband was a wealthy Philadelphia merchant. She was still married to him when she began a torrid affair with a German businessman that resulted in an ugly divorce and a quick second marriage. Her second husband had recently died. She had six children with her two husbands. Her first husband was waging an ugly custody battle for the return of his offspring, which she was contesting. She had one further legal problem: She had married her second husband unaware that under Pennsylvania law an adulterous woman was not permitted to marry her paramour during the lifetime of her prior spouse. In other words, her second marriage was invalid, and her children from that marriage may not have been legitimate. After her second husband died, she was left with his considerable debts. Around this time, weighted under the twin burdens of debt and litigation, she began dressing as a man. She hoped by so doing that she would command the attention of men.1
Mrs. Addicks certainly had everyone’s attention—even the president’s. She was not the kind of woman who was easily turned away, and she did not hesitate to drop in on President John Quincy Adams at least twice at the Executive Mansion. The president later snarled, “Mrs. O’Sullivan came again with her tale of misery and distress, her children, her man’s attire, and her book, for which she is soliciting subscriptions.” Adams quipped: “It is a difficult thing to persevere in kindness with a half-insane man—with a half-insane woman, impossible.”2
In spite of her audacity and her odd costume, she endeared herself to the chief justice, who reassured her in a paternal way that “the ties between parent and child are too strong to be absolutely severed.” She was so moved by his generous reception—something she clearly had not experienced elsewhere—that she dedicated her next book to him—a dubious honor that he might have preferred to decline.3 Marshall touched many lives this way. Perhaps it was a reaction to Polly’s isolation that made Marshall even more open to people from all walks of life.
* * *
—
THINGS WERE MUCH HARDER for Marshall at home. By this time, Polly felt too weak to leave the house even to attend church. Instead, the chief justice would read to her on Sundays in his soft voice from the Book of Common Prayer. Polly forbade anyone in the household to work on the Lord’s Day; even the slaves and the horses were commanded to sit idle. Only the steady beat of the French Empire clock punctuated the hush that suffused the house. The stillness was occasionally broken by visits from one of their twenty-six grandchildren, but mostly the chief justice and his wife sat quietly reading.4
Throughout their married life, Marshall had spared no effort to shelter Polly’s emotional frailty. At times, this required extraordinary measures of subterfuge to conceal uncomfortable truths. In 1792, they had lost their three-year-old daughter, Mary Anne. That same month their four-month-old son, John James, fell ill with fever. At one point he stopped breathing, and Polly became hysterical with grief. Marshall tore her from the bedside and carried her out of the infant’s room. He returned expecting to find the infant dead, but his son had miraculously resumed breathing. Since Marshall assumed that his son’s death was inevitable, he thought it would be harder for Polly if he raised her hopes only to lose the child a second time, so he sent his grieving wife across the square to her mother’s house while he tended his dying son. He never admitted that he had hid from her the fact that their son survived for several more agonizing days. Such were the lengths that Marshall went to insulate Polly from harsh realities.5
Marshall’s constant anxiety over Polly’s frailty, depression, and migraines was aggravated by his sons’ continuing financial difficulties. Marshall complained to James that “I am surprised as well as grieved at the magnitude of your debts.” John, too, squandered his money on his own amusement rather than taking responsibility for his debts.6 Ultimately, Marshall felt compelled to pay off his sons’ debts. For a man who was entirely self-made, he could only be disappointed in them.
* * *
—
AFTER JEFFERSON’S PASSING IN 1826, Marshall was recognized as one of the three elder statesmen of Virginia along with Presidents Monroe and Madison. They were the last giants from Virginia’s Revolutionary generation who dominated national politics. Though Marshall was often the scourge of the Jeffersonians and Jacksonians, his historical status was now undeniable.
In 1829, he was invited to be a delegate to the Virginia Constitutional Convention to draft a new state constitution. Though he initially declined the invitation, he eventually yielded after repeated efforts to draft him. He wrote to Story that he had no interest in another public position, but after he relented, he confessed, “I have acted like a girl addressed by a gentleman she does not positively dislike, but is unwilling to marry. She is sure to yield to the advice and persuasion of her friends.”7
* * *
—
IN JANUARY 1831, Marshall resumed his duties at the Supreme Court. “Every thing goes on as usual,” he wrote to his wife. “I take my walk in the morning, work hard all day, eat a hearty dinner, sleep sound at night and sometimes comb my head before I go to bed. While this operation is performing I always think with tenderness of my sweet barber in Richmond. It is the most delightful sentiment I have.”8
But despite his cheery letters home, the Court’s close fraternity had disintegrated. Justice Bushrod Washington, Marshall’s dear friend, trusted colleague, and publishing partner, passed away in November 1829. That was an especially difficult loss for the chief justice. They had worked together like brothers for more than thirty years, ever since President Washington had corralled them to run for Congress.
President Jackson nominated Pennsylvania Congressman Henry Baldwin to replace Justice Washington, and he was confirmed by the Senate. Baldwin, who came from an upper-crust Connecticut famil
y, was nonetheless a strident supporter of the president’s and a passionate defender of states’ rights. Baldwin opposed the expansion of the Supreme Court’s power and believed in a literal reading of the Constitution that put him at odds with his colleagues, especially Marshall and Story. Baldwin soon grew frustrated by his inability to influence the other justices, and he was increasingly belligerent, shattering the collegiality that had long characterized the Court. After only a few months on the bench, he first threatened to resign and then took an extended leave of absence. He returned to the Court, and over time, it emerged that Baldwin was mentally unstable. Despite frequent bouts of emotional illness and long unexplained absences, he clung tenaciously to his black robes for fourteen stormy years.
With the passing of Bushrod Washington, the chief justice was the only one of the original members of the Marshall Court to survive. Despite his longevity, his influence over his younger colleagues was slipping away. There were more frequent dissents and more heated disagreements. Since life in the capital city had become somewhat more civilized, Justices Johnson and McLean had brought their wives to Washington. The two couples chose to live apart from the other bachelor justices, who still shared a rooming house with the chief justice.9 Each year it was becoming more difficult to find suitable housing for the justices. As the city’s population grew, rooms became scarce, and rents soared.
The Supreme Court began to reflect the polarization of the nation’s politics as the Jacksonian age dawned. Justice Story remained Marshall’s one constant friend. Story once observed of Marshall: “I love his laugh, it is too hearty for an intriguer, and his good temper and unwearied patience are equally agreeable on the bench and in the study.”10 As Marshall aged, he increasingly depended on Story. The chief justice had a portrait of himself sent to Story as a token of his affection. Marshall thought more often of retiring to Oak Hill, but he also felt more keenly than ever that the Union was at a critical juncture, and he was needed on the Court.