What stirred Jefferson’s ire was Marshall’s ruling in the case of Silas Talbot, captain of the legendary American frigate Constitution (“Old Ironsides”). Talbot had ordered his men to fire across the bow of a French corvette towing a merchant ship it had captured. Owned by businessman Hans Seeman from the neutral city-state of Hamburg, the captured merchant ship Amelia carried nine cannons to repel pirates, and its French captors had hoisted a French flag on its mast, giving it the appearance of an armed French ship. US and French ships were still fighting their undeclared “quasi-war” in the Caribbean, and under orders from then-President Adams to seize French ships threatening American trade, Talbot seized the Amelia and took it to an American port.
Talbot claimed half the value of ship and cargo from Seeman for rescuing the Amelia from the French. Seeman refused to pay, arguing that France and the United States were not legally at war, that the ship was a neutral vessel, and that international rules of the sea would eventually have required the French to release it to its owner.
Like many cases before the Supreme Court, both sides had valid arguments, with no absolute right or wrong and an almost infinite number of arguments and possible settlements. Before the justices reviewed the testimony, Marshall convinced them to adopt two new principles to augment the Court’s standing as an independent third branch of government.
First, he asked the justices to work out their differences in private and agree to a single compromise decision for each case; second, he suggested that he, the Chief Justice, announce the decision as being the sole opinion of the court, with no mention of dissent. By speaking with one voice, he argued, the court would render its decision absolute, with no room for subsequent questioning or argument by appellants citing dissenting justices and undermining the impact of the decision.
Sensing the grandeur and power that Marshall’s reforms would give the court, the justices agreed—and in the four years that followed, the Supreme Court rendered forty-six decisions, all of them pronounced by Chief Justice Marshall’s lone voice, like Moses from on high, thundering, “It is the opinion of the Court . . . “
In the Talbot case Marshall and the justices examined every element as a separate legal question. On the question of whether Talbot’s seizure was lawful, “the opinion of the court” found legitimate arguments for both sides. On the one hand, Marshall declared, “the powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides in this enquiry.” Clearly Congress had not declared war, and the Court ruled, on the one hand, that Talbot had acted beyond his authority by attacking the French corvette and seizing the Seeman ship.
On the other hand, Marshall went on, the President, as commander-in-chief, had ordered Captain Talbot (and other naval commanders) to intercept French ships that might threaten American commerce. “The Amelia,” Marshall pointed out, “was an armed vessel commanded and manned by Frenchmen [and flying a French flag]. . . . It is not then to be questioned, but that there was probable cause to bring her in for adjudication”25 in accordance with the President’s order.
Having now declared the seizure legal, the Court tried fixing the amount Seeman should pay Captain Talbot to recover his ship and cargo. “According to the law of nations,” Marshall explained, “a neutral is generally to be restored without salvage.” The Court, therefore, disallowed Captain Talbot’s claim for 50 percent of the value of the ship and its cargo, but it recognized that because it had a French flag on its mast and cannons on its deck, Talbot had no way of knowing the ship was not an enemy ship and was, in fact, neutral.
“Considering the circumstances,” Marshall ruled, “one-sixth appears to be a reasonable allowance.” From that amount, however, the Court allowed Seeman to deduct port fees and litigation costs to recover his property. In the end each side won some and lost some: Seeman got his ship and cargo back, and Talbot and his crew obtained token compensation for capturing it and restoring it to its proper owner.26
The biggest winner, however, was the US Supreme Court, which shored up its standing as a federal institution by mediating a complex case instead of arbitrarily judging one side or the other absolutely right or wrong. Its unanimous decision not only dispensed justice to all but left no room for challenge.
President Jefferson was irate, however: “Nobody knows what opinion any individual member gave,” he railed after reading the Talbot case. The public, he insisted, had a right “to know whether those decisions were really unanimous.”
The opinions were prepared in private. Some of these cases have been of such importance, of such difficulty, and the decisions so grating to a portion of the public as to have merited the fullest explanation from every judge seriatim [individually, in a series] of the reasons which had produced such convictions on his mind.27
Jefferson grew even more irate after Marshall simply ignored the President’s provocative charges. Chafing from irrational bitterness toward Marshall, Jefferson challenged the Chief Justice and the Supreme Court to legal combat that would threaten to undermine the still-fragile structure of American government. Indeed, his first salvo set off one of the most critical constitutional conflicts in American history when he effectively nullified appointments of four justices of the peace—so-called Midnight Judges whom President Adams had appointed just before leaving office.
Still secretary of state at the time, John Marshall had not had time to deliver the commissions before he left office. When President Jefferson’s new Secretary of State James Madison found them on his desk, Jefferson told Madison to withhold them, that he would replace the appointees with Republicans. When William Marbury and the three other Adams appointees subsequently demanded their commissions, Madison refused.
“If there is any principle of law never yet contradicted,” President Jefferson asserted in supporting Madison, “it is that delivery is one of the essentials to the validity of the deed. Although signed and sealed, as long as it remains in the hands of the [original] party, it is not a deed and can be made so only by its delivery.”28
A Georgetown business man, Marbury appealed to Congress, which had approved the appointments, but the Federalists were gone, and Jefferson’s Republicans who formed the new majority rejected his appeal. Marbury turned directly to the Supreme Court for help, but before his attorney could plead the case of Marbury v. Madison, Jefferson’s Republican Congress slammed shut the doors of the Supreme Court—actually shut it down by law and scattered its justices into legal obscurity. Marbury would have to wait more than two years for justice.
The sudden court shutdown came in response to Jefferson’s warning that Federalists “have retreated into the judiciary as a stronghold, the tenure of which makes it difficult to dislodge them.”29 The President’s puppet Congressman William Branch Giles of Virginia moved immediately for “an absolute repeal of the whole judiciary system, terminating the present officers and creating an entirely new system . . . restraining the jurisdiction of the courts.”30
Congress agreed. It repealed the Judiciary Act of 1801 and replaced it with a new Judiciary Act of 1802, which effectively dismantled the federal judiciary and closed the Supreme Court for two years. The new law reset the number of circuit courts at six, eliminated more than a dozen judgeships, restored the number of Supreme Court justices to six, and forced the justices to resume “riding the circuit” to distant district courts.* The act eliminated the summer session of the Supreme Court. It would now meet for only two weeks, once a year instead of twice a year. By scattering the justices around the country the rest of the year, the new law would prevent Chief Justice Marshall from organizing his colleagues into a power ful, cohesive third branch of government.
In the absence of presidential and congressional term limits, the new restraints on the judiciary represented a coup d’état that gave the President and Congress complete control of the federal government. With both branches dominated by southern Republicans, a handful of powerful plantatio
n owners would rule the nation by casting the votes of the 1.7 million slaves they owned.*
The few Federalists left in Congress howled in protest, calling the new law unconstitutional and citing Article III, Section 1, that “judges . . . shall hold their offices during good behavior” and remain immune from removal except by impeachment and conviction for high crimes and misdemeanors.” But Republicans countered that Article II, Section 1 gave Congress sole power to “ordain and establish” inferior courts “from time to time.”
New York’s Federalist Senator Gouverneur Morris charged into the fray before the final vote with a stirring plea that asked, “What will be the effect of the desired repeal?”
Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be that the check established by the Constitution is destroyed. . . . Cast not away this only anchor of our safety. . . . I know the difficulties through which it was obtained. I stand in the presence of almighty God and of the world, and I declare to you that if you lose this charter, never, no, never will you get another! . . . We stand on the brink of fate. Pause! Pause! For heaven’s sake, pause!31
Morris’s eloquence produced a tie vote on the measure and so moved Republican Vice President Aaron Burr Jr. that he abandoned Jefferson’s Republican camp and, to the cheers of Federalists, cast a tie-breaking vote to send the repeal proposal to committee for further study.
“That vote,” Morris conjectured, “might, I believe, have made Burr President at the next election.”32
Five days later, however, another Republican arrived to add to their majority, while a Federalist absented himself, giving the Republicans enough votes to enact the Judiciary Act of 1802 and repeal the Judiciary Act of 1801.
With repeal of the old act, Jefferson immediately stripped Federalists of power in the judiciary by replacing Federalist attorneys and marshals with Republicans—“as a protection to Republican suitors in courts.”33
For Jefferson the new act was a total victory over John Marshall, over the Supreme Court, over Burr, over federalism. In effect he succeeded in voiding Article III of the Constitution and emasculating the Supreme Court by exiling its justices from the national capital for all but two weeks a year.* By scrapping the court sessions of 1802, the bill effectively shut the Supreme Court for nearly two years, until February 1803, and with no Supreme Court to stand in his way, Jefferson had free rein to rule unchallenged in Washington. Led by Jefferson’s powerful Virginia Republicans, Congress had staged a revolution without firing a shot and ceded all undesignated powers to the states in accordance with the Virginia and Kentucky Resolutions.
“Who is so blind as not to see that the right of the legislature to abolish the judges at pleasure destroys the independence of the judicial department?” Alexander Hamilton raged in far-off New York City. Marginalized from national politics after Jefferson’s presidential victory, Hamilton had retreated to private law practice but tried to keep his political views before the public in his Federalist newspaper, the New-York Evening Post. Warning of possible civil war, Hamilton feared that without an independent judiciary, “the Constitution will be no more.”34
As it turned out, they were Hamilton’s last words on the Constitution. The man who wrote most of the Federalist essays extolling the Constitution fell into unrelenting despair a month later when his oldest son, Philip, died of a pistol-shot wound in a duel with a Republican who accused his father of plotting to overthrow President Jefferson. For Alexander Hamilton, nineteen-year-old Philip—a graduate of King’s College (now Columbia) like his father—had been the family’s “eldest and brightest hope.”35
In Washington, however, Delaware Federalist James Bayard continued the Hamiltonian rhetoric and demanded to know, “Are the gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void?”36 Even Jefferson’s loyal Republican protégé, Virginia Governor James Monroe, opposed the 1802 legislation, telling Jefferson that “a postponement by law of the meeting of the [Supreme] Court is . . . an unconstitutional oppression of the judiciary by the legislature to carry a preceding measure [removal of circuit court judges] which was also unconstitutional. Suppose the judges were to meet . . . denouncing the whole proceeding as unconstitutional and the motive impure?”37
Jefferson, however, refused to budge. Despite his absence from the Constitutional Convention, he insisted that the Constitution gave each branch of government “a right in cases which arise within the line of its proper functions . . . to decide without appeal on the validity of an act according to its own judgment and uncontrolled by the opinions of any other department.” In effect he said “We the People” wrote the Constitution, and only “We the People”—that is, the legislature—had the right to interpret it.38
Expanding on Jefferson’s specious argument, Kentucky Republican John Breckenridge told the Senate that the Constitution had “intended a separation of the power vested in the three great departments, giving to each exclusive authority on the subjects committed to each.”
The legislature have the exclusive right to interpret the Constitution in what regards the law-making process and the judges are bound to execute the laws they make. Let gentlemen consider well before they insist on a power in the judiciary which places the legislature at their feet.39
Gouverneur Morris returned fire, asserting that “the moment the legislature declare themselves supreme, they become so. The sovereignty of America will no longer reside in the people, but in the Congress, and the Constitution is whatever they choose to make it.”40
New Englanders were irate over Republican emasculation of the judiciary. Former Secretary of State Timothy Pickering, now a senator from Massachusetts, renewed his perennial call for New England’s secession.
“I . . . anticipate a new confederacy exempt from the corrupt and corrupting influence and oppression of the aristocratic democrats of the South,” he wrote to his friend, former Senator George Cabot of Boston. “There will be (and our children, at farthest, will see it) a separation.” Pickering predicted that Canada would join New England to form a northern confederacy “with the assent of England. . . . A continued tyranny of the present ruling sect will precipitate that event.”41
To President Jefferson’s delight, what Pickering called the “tyranny of the present ruling sect” had erased the face of Chief Justice John Marshall—and indeed the entire US Supreme Court—from the governmental picture in Washington. Like his colleagues, Marshall now spent his days riding the circuit over dusty, muddy, rutted dirt roads and trails through the savage southern wilderness.
Just as Marshall’s face had faded from his mind, however, another more dangerous one loomed in the presidential doorway: James T. Callender, the editor to whom Jefferson had sent the confidential papers documenting Alexander Hamilton’s affair with Mrs. Reynolds.
After Callender had gone to prison for articles assailing President John Adams, then-Vice President Jefferson had refused to help, offering Callender a mere $50 after the editor’s release from prison and reneging on his promise to pay Callender $100 for publishing a political attack on former President Adams. Callender retaliated in the summer of 1802 by publishing a story that would forever tar Jefferson’s reputation:
“It is well known,” Callender wrote, “that the man whom it delights the people to honor, keeps and for many years has kept, as his concubine, one of his slaves. Her name is Sally. . . . By this wench Sally, our President has had several children. . . . The African Venus is said to officiate as housekeeper at Monticello.” Callender challenged the President to appear in court to challenge the truth about “the black wench and her mulatto litter.”42
In November Callender reprinted a poem from the Boston Gazette:
Of all the damsels on the green
Of mountain or in valley,
A lass so luscious ne’er was seen,
As the Monticellian Sally.
&nbs
p; Yankey doodle, who’s the noodle?
What wife were half so handy?
To breed a flock of slaves for stock,
A blackamoor’s the dandy.43
Jefferson did not let Callender continue his editorial assaults unchallenged.
The Philosophic Cock, by political cartoonist James Akin (1773–1846), shows President Thomas Jefferson as an admiring rooster and his slave Sally Hemings as the hen. The text in fine print is from Act I of Joseph Addison’s drama Cato and reads, “’Tis not a set of features or complexion or tincture of a skin that I admire.” (AMERICAN ANTIQUARIAN SOCIETY)
“Are you not afraid, Callender, that some avenging fire will consume your body as well as your soul?” warned Jefferson’s friend, the editor of the Richmond Examiner.44
On July 17, 1803, Callender’s dead body washed ashore on the James River.45
_______________
* The appointee of the court charged with editing and publishing the court’s decisions in bound volumes.
* Under Jefferson’s leadership the Republicans also became known as Democrat-Republicans and, more simply, Democrats. The three terms were used interchangeably, but only the term “Republicans” will appear in these pages except in quotations such as this one that use alternatives.
* Although they continued complaining about the discomforts of “riding the circuit,” Supreme Court justices would do so until 1891, when it became evident that a justice who decided a case in circuit court often found it difficult to be impartial if he had to help decide the same case later in an appeal to the Supreme Court. Each justice still maintains a tie to—and, indeed, can sit in—a circuit court, now called a Court of Appeals, but the justices limit their involvement to issuing stays and other procedural matters.
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