The Activist

by Lawrence Goldstone

  By the time the three finally left for France in the spring of 1800, there was reason to believe that this second delegation would have more luck than the first. Napoleon had succeeded the Directory and, with grand ambitions in Europe, was thought to favor terminating a conflict that was gaining him little and beginning, thanks to increased American naval power, to cost quite a lot. Adams hoped a diplomatic victory would gain him an advantage in the presidential election due later that year.

  With Ellsworth’s departure, the Supreme Court was once again left without a sitting chief justice. Ironically, in the August 1800 term, with the presidential election in full swing, the Ellsworth Court, after years of irrelevance, finally received a case of significance.

  Bas v. Tingy was a prize case, but once again with far-reaching implications. In March 1799, an armed American merchant ship, Ganges, had recaptured from the French an American vessel, Eliza, then asked for and was granted one half the value of ship and cargo as salvage. Three acts of Congress came into play. According to a June 25, 1798, law:

  In all cases of recapture of vessels belonging to citizens of the United States, by any armed merchant vessel, aforesaid, the said vessels, with their cargos, shall be adjudged to be restored, and shall, by decree of such courts as have jurisdiction in the premises, be restored to the former owner or owners, he or they paying for salvage, not less than one eighth, or more than one half of the said vessels and cargos, at the discretion of the court.4

  That law had been amended three days later:

  Whenever any vessel the property of, or employed by any citizen of the United States . . . shall be re-captured by any public armed vessel of the United States, the same shall be restored to the former owner or owners, upon due proof, he or they paying or allowing, and as for salvage to the recaptors, one eighth part of the value of such vessel, goods and effects, free of all deductions and expenses.5

  On March 2, 1799, a statute was enacted regulating the navy, which included the following passage:

  For the ships or goods belonging to the citizens of the United States . . . if retaken from the enemy within twenty-four hours, the owners are to allow one-eighth part of the whole value for salvage, if over twenty-four hours, and under forty-eight, one fifth thereof, if above that and under ninety-six hours, one third part thereof, and if above that, one-half.6

  The Eliza’s owners sued, claiming that the March 1799 act restricted wartime salvage laws to declared “enemies,” and thus could not be enforced here since, lacking a formal declaration of war with France, the two countries could not be considered combatants. The defendants claimed, given French depredations, that a “qualified” or partial state of war existed, and that a formal declaration was not needed to prove the obvious. Both the district court and circuit court had rebuffed Bas, master of the Eliza, and upheld the award.

  Bas is one of the great war-powers cases. Although only Congress had the power to declare war, where that power began and ended when there was no real shooting, no genuine battles had occurred, and one side denied that an actual state of war existed was in question. To Adams and his fellow Federalists, of course, “war” was something of an amorphous concept and could exist without a formal declaration or armies facing off on the battlefield. Action thus taken in defense of the nation or its commerce was the province of the president, and laws in support of the president might be passed in lieu of a formal war declaration by Congress. To Jefferson and the Republicans, that position was mere sophistry. Either a state of war existed or it didn’t. If it did, Congress had to so declare it. In the absence of such a declaration, Congress could not pass wartime laws, and the president could not exercise war powers.

  Adams, of course, had no intention of committing the United States to a full-scale conflagration with France. He had risked his presidency on avoiding war. But nor could he ignore the increasingly intense provocations by French ships. Until a diplomatic solution could be achieved—and Ellsworth was in Paris trying to attain that very goal—the president was forced to skate around the war-declaration requirement by asserting that a state of “partial war” existed. Bas would test that notion.

  Still, the president could not have been too worried. The Court, even without the chief justice, was reliably staffed with Federalists, though only three were present for the August 1800 term. Cushing was ill and Chase was off in Maryland, electioneering for Adams’s reelection. Paterson, Bushrod Washington, and the newly appointed Alfred Moore of North Carolina (James Iredell had died late in 1799) seemed more than capable of upholding Federalist doctrine.

  There was no definition of “war” in the Constitution beyond the implication that it had to be declared. The president was commander-in-chief, but could he constitutionally take military action without congressional approval? Little guidance was to be gained even from former Convention delegates. What was certain, Jefferson and the Republicans continued to insist, was that partial war was a specious concept. The Supreme Court was supposed to base its decisions on the rule of law, not political expediency, but few Republicans had any anticipation that it would. Federalists, on the other hand, expected a court comprised almost entirely of, and appointed by, members of their party to perform their political duty and mold the Constitution to fit the circumstances.

  Which is precisely what the justices did. Their contortions ranged from laughable to impressive. Newly appointed Justice Moore chose the philosophical:

  It is, however, more particularly urged, that the word “enemy” cannot be applied to the French; because the section in which it is used, is confined to such a state of war, as would authorise a re-capture of property belonging to a nation in amity with the United States, and such a state of war, it is said, does not exist between America and France. . . . But, if words are the representatives of ideas, let me ask, by what other word the idea of the relative situation of America and France could be communicated, than by that of hostility, or war? And how can the characters of the parties engaged in hostility or war, be otherwise described than by the denomination of enemies?7

  Justice Washington did it better. He began by taking as given that the crew of the Ganges deserved some award. The question was whether it would be one eighth, as stipulated by the 1798 statute, or one half under the more recent naval organization law. Thus, very deftly, Washington made the question of whether France was indeed an enemy subordinate to a larger issue, that of which law governed salvage on the Eliza. Then, even more deftly, Washington, as an aside, disposed of the only issue that actually mattered, unaware of the extent to which debate over this definition would reverberate throughout American history.

  It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war, are authorised to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorised by the legitimate powers.8

  From there, of course, only a short leap was necessary to demonstrate that France was, in fact, an enemy, a leap Washington took. Left unanswered is why the Convention delegates granted Congress the sole power to declare war if the president was free to prosecute a war without it. Having established that France was an enemy, Washington rul
ed that the Ganges captain and crew were entitled to one half the value of the Eliza.9

  Chase, who had hustled back to Philadelphia, went next.10 He was forced to speak more or less off the cuff—all that politicking had left him no time for judicial chores.11 Nonetheless, he had no problem also upholding the ruling of the circuit court. Chase more or less regurgitated Washington’s argument. “If France was an enemy, then the law obliges us to decree one half of the value of ship and cargo for salvage: but if France was not an enemy, then no more than one-eighth can be allowed,” he observed before agreeing that France was an enemy. Partial war had three votes.

  Justice Paterson went last and was brief. “The United States and the French republic are in a qualified state of hostility,” he claimed. “An imperfect war, or a war, as to certain objects, and to a certain extent, exists between the two nations; and this modified warfare is authorised by the constitutional authority of our country.”12

  So Adams, who had assiduously avoided a disastrous war on the battlefield, now had the partial war he needed in the courts. All he needed was Ellsworth to succeed in Paris and a successful reelection campaign back home.

  PART III

  MAKING THE COURT SUPREME

  FOURTEEN

  DEFAULT JUDGMENT: MARSHALL

  TO THE BENCH

  ADAMS HAD BEEN PRESSING for a judicial reorganization bill since late in 1799, when he asked Marshall to draw up recommendations. Whether Adams was motivated by statesmanship or the foresight to exploit an undervalued asset has been the subject of debate almost since the moment the request was made. There is little question, however, that the court system as sketched out in the Judiciary Act of 1789 had proved woefully inadequate. District courts were alternately bogged down or ill-attended, depending on the availability of judges, and there was a disjointed flow from the district courts on the bottom of the system to the Supreme Court at the top. Two of the three chief justices had seen fit to accept diplomatic assignments while continuing to technically serve on the bench, and Jay had twice accepted nominations for governor. The third had been run out of Philadelphia. These failings were, in one way or another, inevitable results of the unwillingness, first in Convention, and then in Congress, to create a truly dedicated circuit court system.

  The circuit courts that had been provided for in the 1789 act, slapdash affairs, manned by a combination of district court judges and Supreme Court justices, had proved unwieldy. District court judges disliked participating in circuit courts because it meant an absence from their own bench, but that dislike paled next to the loathing Supreme Court justices felt for circuitriding. From a functional standpoint, justices were often forced to hear on appeal to the Supreme Court a case they had already helped decide on circuit (as district court judges often dealt with cases in circuit court that they had decided locally). The main gripe, however, was that the physical demands of a pilgrimage to the farthest reaches of an expanding nation were proving increasingly onerous.

  If circuitriding were to be eliminated, however, a way would then need to be found to re-create the circuit court function, an indispensable link between district courts and the Supreme Court. For Adams and the Federalists, the easiest and most obvious solution to the problem was an expansion of the federal court system to include a layer of circuit courts, which, by coincidence, would also create lots of vacancies along the way.

  Republicans wanted no part of court expansion. Philosophically, they opposed any measure that would centralize power and strengthen the national government, as an additional layer of courts would. An inefficient federal court system was preferable, since it seemed inevitable that state courts would ultimately be forced to step into the breach. From a fiscal point of view, a new layer of courts would shift desperately needed resources from the myriad of financial crises faced by the young nation to an additional layer of federal bureaucracy. Politically, with Federalists maintaining a firm majority in the Senate where judicial nominations needed to be confirmed, any expansion of the courts would result in a spate of lifetime appointments for their opponents.

  For most of the short history of the nation, Republican intransigence would not have come to much; but, as 1800 dawned, with Adams under siege not just with the electorate but within his own party, delay offered a chance at victory. If Republicans could deter judicial expansion until March 4, 1801, a new and possibly Republican president and Congress would be sworn in, and Federalists might well have lost their power to add new federal judges.

  For precisely that reason, Republican interest in delay was matched by a new urgency for Federalists to ram some sort of measure through. When supremacy in the legislature and executive had been unchallenged, expanding the judiciary had been a low priority for Federalists, as they had had little to gain from adding power to an independent third branch of the government. The shift in the political winds was anything but subtle, however, and by early 1800 Federalists began to sense that in another year the third branch might be all they had left. A broader and more powerful judiciary suddenly became appealing, and, on March 11, 1800, “A bill to provide for the better establishment and regulation of the Courts of the United States” was introduced in the House. It was a hefty and detailed document, forty-one pages long, covering everything from reorganization to districting, to rules for witnesses, to method of adjournment in the case of “infectious sickness.”1

  Washington City in 1801

  The bill stipulated that the Supreme Court would move to the planned new capital, to be in the District of Columbia, then popularly called “Washington City,” and sit for two sessions per year, one commencing June 1 and the other on December 1, a change from the February–August schedule under which the Court was then operating in Philadelphia. While the alteration probably indicated no more than a desire to free the Court from meeting at the height of the oppressive summers on the Potomac, it was to have great significance in the drama to be played out in 1802.

  Another provision stipulated a reduction in the number of justices from six to five. As a sitting justice could not be removed unless impeached, the reduction could only become effective with the next vacancy by death or resignation, after which the open seat would not be filled. While constituting the court with an odd rather than an even number of justices was an obvious improvement, the Federalists’ decision to reduce to five rather than raise to seven the size of the panel indicated an apprehension as early as March that they might not be the ones doing the appointing.

  To ensure that the new, leaner, odd-man Supreme Court had the means necessary to discharge its function, the bill granted it the power to issue “all writs not specifically provided for by statute, which may be necessary for the exercise of its jurisdiction, and agreeable to the principles and usages of law.” Expressly included in this power was the authority to issue writs of mandamus. Once again, conspicuously absent in any of the forty-one pages was a definition or delineation of the Court’s role in constitutional interpretation or power of nullification.

  The most contentious provisions, of course, were those to reorganize the judiciary and eliminate circuitriding by Supreme Court justices. The bill divided the nation into twenty-nine districts created within nine circuits. An additional judge, called a circuit judge, would be appointed for twenty-six of the districts, and paid the agreeable sum of $2,000 per year. Excluded were only sparsely populated and sometimes inaccessible Vermont, northern Kentucky, and western Tennessee, where currently sitting district judges would perform the circuit-judge function but receive a pay raise to bring them up to the $2,000 salary. Marshals and United States attorneys “learned in the law” were also to be appointed for all the districts.

  Circuit courts, consisting of circuit court judges of each district, would meet twice yearly in each of the districts within the circuit, thus eliminating any overlap among the three layers of courts. While some circuitriding by the circuit judges would be required, the distances would generally not be excessive nor the travel especially o
nerous. The new circuit courts were to be hybrids—required to empanel juries in “issues of fact” but entitled to rule from the bench in cases of equity or maritime law. (An entire section of the bill dealt with Courts of Admiralty, which were to be extensions of district courts.) Jurisdiction of the national courts would be expanded, since cases, especially suits in which the plaintiff was a resident of the district and the defendant was an “alien” or resident of another district, were ordered removed from state to federal court if the defendant or plaintiff so petitioned.

  Reading the bill out of political context—which Federalists urged Americans to do—obscured its partisanship. Reducing the number of Supreme Court justices could easily be justified by the difficulty of finding qualified men willing to accept the position. Nor were the Federalists unmindful of the demands of the common man (most of whom were Republican). Circuit courts, since they were permanent fixtures of a district, would actually bring the appeals process closer to the people. To prevent citizens from being dragged across districts to play against a stacked deck, there was a provision in the bill specifying that “no person shall be arrested in one of said districts for trial in another; and that no civil action or suit shall be brought before any of the said courts, by any original process, against an inhabitant of the United States, in any other district than that whereof he is an inhabitant, or which he shall be found at the time of serving the writ.” The bill also guaranteed trial by jury.