Without Precedent

by Joel Richard Paul

  Wirt and his co-counsel, Thomas Sergeant, constructed their argument based upon Marshall’s prior decisions in Johnson and Cherokee Nation. Both cases had acknowledged that the federal government had authority over the tribal nations. Wirt and Sergeant argued that Congress’s authority meant that Georgia had no jurisdiction over the Cherokee territory, that the Georgia act of 1830 was invalid, and that the missionaries must be freed.42 Justice Story did not even wait for Wirt to sit down. He interrupted counsel to express his admiration for Wirt’s “uncommonly eloquent” argument. Story later remarked, “I blush for my country, when I perceive that such legislation, destructive of all faith and honor towards the Indians is suffered to pass with the silent approbation of the present Government of the United States.”43

  Under the luminous glare of public scrutiny, the chief justice waited a few days longer than he had in the Cherokee Nation case before issuing his opinion. A decision upholding Worcester’s conviction would shut the federal courts forever to the tribes and lead inexorably to the forcible removal of the Indians. But a decision overturning Worcester’s conviction meant denying Georgia’s sovereignty and risking secession. Moreover, it would be difficult if not impossible to compel Georgia to comply with an order to release the missionaries and abandon its claim to the Indian lands.

  On March 3, Marshall read the Court’s decision in a strained voice barely above a whisper. He was still weak from his operation and grief-stricken from the loss of his wife. Members of the bar and the press crowded around the bench and leaned forward, straining to catch his words.44 Justices Story, Duvall, and Thompson joined Marshall’s opinion, while Justice Baldwin dissented on technical grounds. Once again Marshall began with the history of discovery, but the tone in his writing had shifted: “It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied.”45 Discovery did not give the Europeans the right to dispossess the Indians, Marshall insisted; discovery merely gave them the right to purchase whatever land the tribes were willing to sell and no more. “The extravagant and absurd idea, that the feeble settlements made on the sea coast” somehow gave whites a legitimate right to “occupy the lands from sea to sea, did not enter the mind of any man,” he wrote.46

  Marshall focused his analysis not on the Constitution but on the development of international law. Never had the British Crown asserted the right to control the internal affairs of the tribal nations.47 And from the first treaty made with the Delaware in 1778, Congress had consistently treated the Indians as sovereign nations.48 The Cherokee had made peace with the United States in the Treaty of Hopewell in 1785, accepting the protection of the federal government and affirming that Congress alone had the power to manage Indian affairs.49 But at the same time, the treaty expressly recognized “the national character of the Cherokees, and their right of self government.”50 While Cherokee Nation emphasized that Indian land formed part of the territory of the United States, Marshall now found that “[t]he treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states.”51 The Indians “had always been considered distinct, independent political communities, retaining their natural rights, as the undisputed possessors of the soil, from time immemorial,” subject only to the exclusive right of the United States government to purchase good title to their property.52

  Marshall continued that Cherokee dependence on the federal government for protection in no way diminished their territorial sovereignty: “A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state,” he asserted, citing de Vattel for authority.53 Just as he had looked to customary international law to shed light on the Constitution’s meaning in Brown, here Marshall found that the law of nations implied a limit on the states’ power over tribal land. For these reasons, Georgia’s legislation was “repugnant to the constitution, laws, and treaties of the United States.”54 And so Marshall held that Worcester’s conviction was unlawful and that the Superior Court of Gwinnett County should release him.

  The chief justice left no room for doubt or evasion. He held nothing back as if he intended this to be a sort of valedictory. Though his weak delivery was hard to hear, the old chief justice had at last found his voice. Marshall had survived for so long by the art of compromise, forging a pragmatic path between competing ideologies and often sacrificing his own preferences in the interest of consensus. Now he could no longer mask his reaction to the sheer injustice of driving an ancient people from their ancestral lands. Perhaps it was the loss of his beloved wife or the reality of his own mortality that had liberated him at long last to express his genuine moral outrage.

  One newspaper noted that the original manuscript in Marshall’s trembling hand “should be preserved; and the friends of the Union and of the Constitution will look upon it with veneration, when its author shall be removed from amongst us.”55 Justice Story privately exulted: “Thanks be to God the Court can wash their hands clean of the iniquity of oppressing the Indians.” Marshall had redressed his own opinion in Cherokee Nation and redeemed the Supreme Court.56

  But the question remained whether Georgia would submit willingly or whether President Jackson would compel Georgia to comply. Georgia’s governor stubbornly refused to comply with the Court’s decision and release the missionaries. Horace Greeley, the Whig editor of the New-York Tribune, reported that Jackson had responded to the decision by saying, “John Marshall has made his decision; now let him enforce it.”57 Though Greeley invented that quote, Jackson made it clear that he would do nothing to force Georgia to comply. Jackson remarked, “The decision of the supreme court has fell still born, and they find they cannot coerce Georgia to yield to its mandate.”58 For the first time in American history, a president refused to enforce a decision of the Supreme Court.

  In Jackson’s next annual message to Congress, the president cheerfully reported that “the wise and humane policy of transferring from the eastern to the western side of the Mississippi the remnants of our aboriginal tribes, with their own consent and upon just terms, has been steadily pursued, and is approaching, I trust, its consummation.”59 The Cherokee rejected the government’s offer to relocate them, but Jackson left no doubt that he would compel them to succumb.

  Justice McLean, apparently on his own initiative, met privately with the Cherokee in Washington and advised them that the Court’s decision would have no practical effect in preventing their removal. McLean, who had concurred with the Court’s decision, told the Indians to accept the “liberal” terms Jackson offered to them to abandon their ancestral homeland.60 The Cherokee must have found the white man’s justice strange indeed: What justice was there when the loser stole victory from the hands of the victor?

  After President Jackson was reelected in 1832, the Union faced two existential threats: Georgia refused to comply with the Supreme Court’s order to free the missionaries, and South Carolina refused to enforce a new federal tariff enacted by Congress to protect the North’s industries from import competition. Both states invoked Jefferson’s “doctrine of nullification,” the pernicious theory that states had a right to void federal laws and federal court judgments. In November 1832, South Carolina issued its Nullification Ordinance, asserting its power to void any federal law or Supreme Court opinion. President Jackson replied in kind with a Nullification Proclamation that threatened to use military force against any state that refused to comply with federal law. Jackson had no desire to interfere on behalf of the Cherokee, but the president would not tolerate nullification, and he was determined to enforce the tariff over South Carolina’s objections. Jackson was afraid that if the missionaries sought an order from the Supreme Court that was specifically addressed to the president to enforce the Court’s order, it would aggr
avate the nullification crisis. To avoid that risk, Jackson sent his lieutenants to persuade Georgia Governor Lumpkin to pardon the missionaries. After many months of hard labor in the blazing heat, the missionaries reluctantly accepted pardons, and the Nullification Crisis was averted.61

  Georgia, President Jackson, and the Supreme Court were off the hook. With the missionaries out of prison, no one would have standing to challenge the state’s continuing plan to remove the Indians. Marshall breathed easier knowing he would not have to face another legal action on behalf of the Cherokee against either Georgia or the president. The Republic was spared, but not so the Cherokee. Feeling the weight of his mortality, Marshall must have wondered how many more constitutional crises the country could survive before the centrifugal forces of regionalism would tear the political center apart.

  CHAPTER THIRTY-THREE

  A UNION PROLONGED BY MIRACLES

  By the summer of 1832, as the federal government proved unable or unwilling to compel either South Carolina or Georgia to comply with federal law, the Union seemed to be dissolving. Marshall worried that “[t]hings to the south wear a very serious aspect.” From Richmond, he reported to Story that the governors of South Carolina and Georgia were “determined to risk all the consequences of dismemberment.” Even though Marshall thought Virginia “was always insane enough to be opposed to the bank of The United States,” he doubted Virginia would “embrace this mad and wicked measure.” On the other hand, he feared the talk of secession in New England as well. “New Hampshire and Maine seem to belong to the tropics.”1 Though Story heard these secessionist rumblings up in Boston, he could not imagine how more depressing it was for a native Virginian committed to the Union. “The union has been prolonged thus far by miracles,” Marshall concluded. And he added, “I [fear] they cannot continue.”2

  By autumn, many southerners spoke openly about forming a “southern confederacy.” Marshall thought that “[t]he people are not at present ripe for it. But their political prejudices are so skillfully cultivated as to inspire serious fears that the bitter fruit may soon be gathered.” Marshall prayed that South Carolina was not “so absolutely mad as to have made her declaration of war against The United States” without the support of Virginia. “In the mean time our people will be inextricably entangled in the labyrinth of their state right theories, and the feeble attachment they still retain for the union will be daily weakened. ‘We have fallen on evil times.’”3

  As a cholera epidemic swept through the Eastern Seaboard in August and September, Marshall took refuge at the home of his son James at Leeds, Virginia. On August 31, while Marshall was relaxing in the house, a burst of lightning struck the house, knocking his sons James and Edward and three grandchildren unconscious before his eyes. Incredibly, the seventy-six-year-old chief justice was untouched, although he was unnerved by seeing his children and grandchildren violently thrown to the floor. They lay there unconscious for twenty terrifying minutes while Marshall frantically doused them with ice water.4 This incident was a terrifying portent of what would follow.

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  THE CHIEF JUSTICE returned to Washington for the Supreme Court term in January 1833 and boarded with Justice Story at the home of the Ringgold family at F and Eighteenth Streets. By now, Marshall’s judicial fraternity had dissolved, and the justices had scattered to different boardinghouses. After a summer marked by the threat of secession, cholera, and a lightning strike, he was glad to see his friend Story. President Jackson had struck a conciliatory tone in his annual message to Congress by combining a stern warning against nullification with a generous offer to reduce the tariffs that South Carolina protested. To Marshall’s amusement, Jackson’s Democrats now denounced their party’s leader as a closet Federalist. Marshall mused, “To have said he was ready to break down and trample on every other department of the government would not have injured him but to say he was a Federalist—a convert to the opinions of Washington was a mortal blow under which he is yet staggering.” The deep partisanship that now divided the nation also fractured the Democratic Party. Marshall laid the blame on his own state: These were the “bitter fruits of the tree . . . planted by Mr. Jefferson, and so industriously and perseveringly cultivated by Virginia.”5

  To cheer themselves up, Marshall and Story went to see a play performed by Fanny Kemble, a well-known English actress touring America. When they entered their box at the theater, the audience rose to acknowledge the chief justice and applauded wildly. Marshall’s spirits lifted. A few days later, President Jackson invited all the justices to dinner. Jackson warmly received the chief justice and jokingly called Justice Story “the most dangerous man in America.” It would have been unthinkable a year earlier, but in the present political crisis, Marshall and Story found themselves in an awkward alliance with the president to save the Union. “Who would have dreamed of such an occurrence?” Story wondered.6

  In November 1833, yet another tragedy darkened Marshall’s family. The chief justice’s son John Marshall Jr. died from alcoholism. The shock left Marshall depressed and anxious for his son’s family.7 Ever since his expulsion from Harvard, John Jr.—Marshall called him his “culpable son”—had been a bitter disappointment. He was a drunk and a spendthrift who left behind a wife and three children with a mountain of debt, which his grieving father assumed along with financially supporting his son’s family.8 Of Marshall’s ten children, only five—Thomas, Jaquelin, Mary, James Keith, and Edward—still survived.

  The following year, Justice Johnson was too ill to attend the Supreme Court’s term. He died later that summer. Johnson’s contributions to the Court were not always appreciated by his brethren, and his death created a new vacancy on the court, with all the attendant anxieties about the person President Jackson might appoint. Jackson nominated James Wayne, a Democratic congressman from Georgia, who presumably might assuage some of the South’s secessionist sentiments.

  Soon after that, in 1835, Justice Duvall retired. Jackson nominated Roger Taney from Maryland. Taney had served as Jackson’s acting secretary of the treasury and his former attorney general. However, Taney was a highly controversial choice. The Senate had refused to confirm him as treasury secretary after he removed federal government deposits from the Second Bank of the United States and placed them in state banks that Jackson favored instead. The president was censured by Congress for this action, and Taney was attacked for his “servility” to Jackson.9 The Whigs strongly opposed Taney’s nomination, and after a bitter public battle that dragged on for months, the Senate rejected him.

  In his place, Jackson nominated Philip Barbour, a Virginia congressman and wealthy slaveholder whose most notable achievement was his fierce defense of slavery and states’ rights. He was staunchly opposed to Marshall’s broad interpretation of the Constitution and the expansion of the judiciary’s powers. His appointment spelled trouble for Marshall’s legacy on the Court. By now, Jackson had appointed four of the seven justices. Marshall and Story were outnumbered by Democratic appointees.

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  FOR THREE DECADES, Marshall had regretted the time spent away from Richmond and Polly. Now, returning to Richmond and an empty house, he missed Story’s companionship in Washington. Story attributed their extraordinary friendship to Marshall’s virtuous character, “where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamour; no eager reaches for popular favour.”10 Marshall often turned to Story for support as he fretted over the growing polarization between the North and South. “[T]he present is gloomy enough,” he lamented in a letter to Story, and “the future presents no cheering prospect.” Even southerners who supported the president personally opposed the national government. And those who opposed the president were even more extreme in their support for nullification and secession. Marshall could see no way out of this political crisis.11

  The lo
ng months on his own at the Richmond house felt dark and empty. His household now consisted of Robin Spurlock and four other slaves. They were more than he needed, but he could not bring himself to either emancipate or sell them. When a visitor asked him if he was feeling melancholy since Polly’s passing, Marshall’s eyes filled with tears: “I do indeed feel the absence of a companion, so kind and good, and with whom I had lived with so much harmony, love, and happiness, for more than forty years.” And he would “submit with meekness and humility to the just will of Him, at whose appointed time we must all depart.”12 According to one account, Marshall at seventy-nine was still “tall, majestic, bright-eyed . . . old by chronology, by the lines on his composed face, and by his services to the republic; but so dignified, so fresh, so present to the time.”13

  Marshall decided that the Richmond house was too much for him to manage now and that he preferred to live closer to his son James at Oak Hill. Marshall designed a modest addition to the house he had given James—a small sitting room and a bedchamber for himself and a cellar for his slaves.14 He began the tedious process of packing up and moving a lifetime of books, papers, and furniture to Fauquier County. The most vexing detail was arranging to move his vast collection of Madeira. The wine would have to be transferred from the bottles into large wooden casks and freighted by boat. Though he worried that much of his precious wine might be spilled or spoiled, this was the best option he could come up with.15