John Marshall

by Harlow Giles Unger

  In the shifting political atmosphere of Congress, the winds of war shaped a new political bloc of western and southern “war hawks,” made up mostly of younger members. Though still a minority, they nonetheless won chairmanships of the key House Foreign Affairs Committee and the Naval Committee, while their leader, Kentucky Congressman Henry Clay, won election as Speaker of the House. Declaring British impressment and seizures a challenge to national rights and honor, they called for military attacks on British Canada and Spanish Florida to ensure national security.

  Older Federalists and dissident Republicans—many of them veterans of the Revolutionary War—argued for peace. Some suggested Chief Justice John Marshall as an ideal presidential candidate on a peace ticket. A brigadier general in Virginia’s militia, Marshall had been an outspoken champion of Washington’s neutrality policy.

  The US Capitol on the morning of August 24, 1814, before the British captured Washington and burned all public buildings in retaliation for American troops having burned the public buildings in the Canadian capital of York. (now Toronto). (LIBRARY OF CONGRESS)

  Responding to the outcries of war hawks, Madison went to Congress on April 1, 1812, and requested a sixty-day reinstatement of the embargo on British trade. Ten days later Congress authorized him to call up 100,000 militiamen for six months’ service.

  By the end of June the American embargo had combined with a French embargo on British exports to Europe to bring British industrial production and foreign trade to a near-halt. Factories and mills shut down and unemployment soared, along with the price of food. British exports dropped by one-third, and employers and workers united in demanding that Parliament restore good relations with the United States by ending impressment and other depredations against American ships. On June 23 Parliament agreed. The Americans had, at last, won their thirty-year dispute with Britain.

  But victory came too late.

  Four days earlier President Madison had succumbed to pressures of congressional war hawks and declared war against Great Britain. Fifty-five years before the laying of the first trans-Atlantic communications cable, it took a month or more for messages to cross the Atlantic, and Madison was unaware of Parliament’s debate over peace overtures to the United States. On June 1 he sent a message to Congress citing impressment, the blockade of American ports, seizure of American ships, and incitement of Indians on American frontiers as ample reasons for war. On June 4 the House agreed, and the Senate followed suit two weeks later.

  Maritime and commercial states—Massachusetts, Connecticut, New York, New Jersey, and Delaware—protested, demanding that the nation remain at peace and resume negotiations.

  “There is but one way to save our country,” former Secretary of the Navy Benjamin Stoddert wrote to James McHenry, who had been secretary of war and, like Stoddert, had served in both the Washington and Adams administrations. Like most Federalists, they saw national ruin as the inevitable consequence of war with Britain and agreed the nation needed new leadership under a new President.

  “This can be affected by bringing forward another Virginian as the competitor of Madison,” Stoddert insisted. “That man is John Marshall.”22

  _______________

  * There are differences in the spelling of Justice Duvall’s last name. My research shows it to have been derived from the French DuVal but Anglicized to Duvall by the time Justice Duvall was on the court. He preferred the Duvall spelling.

  * Federal laws, or statutes, are known collectively as the Code of Laws of the United States of America.

  * Stare decisis are Latin words meaning “to stand by decisions” and part of the Latin phrase stare decisis et non quieta movere—“to stand by decisions and not disturb the undisturbed.” In effect it directs a court to follow precedents set by earlier courts and not till new legal ground.

  CHAPTER 15

  An Era of Good Feelings

  CHIEF JUSTICE JOHN MARSHALL AGREED THAT NATIONAL RUIN LAY ahead if the war with Britain continued. Although he called on “all who wish peace to unite in the means which may facilitate its attainment,” he nonetheless took himself out of contention for the presidency. Like his chief proponent, former Navy Secretary Stoddert, he conceded that the bitterness engendered by Jefferson’s embargo and Madison’s war with Britain had left the nation with its fill of Virginians.

  “Virginia has already furnished more than its share of Presidents,” Marshall scoffed as he pulled out of the election campaign. To remove himself and the Supreme Court from political turmoil, he snapped at an invitation from the Virginia legislature to lead a survey party into the trans-Appalachian wilderness, far from the arena of partisan politics.

  At stake was a longstanding dream of George Washington to tie Virginia’s navigable rivers—the Potomac or the James—with the Ohio River, with a network of canals and turnpikes. Marshall’s father had explored the West with Washington when both were young surveyors looking to link the Potomac River with the Youghiogheny, Monongahela, and Ohio Rivers by just such a network. The connection would have opened an inland water route between Chesapeake Bay and the Ohio, Mississippi, and Missouri Rivers and the Great Lakes. Washington envisioned the wealth of the continent—furs, ore, timber, and grain—traveling easily, swiftly, and inexpensively to Atlantic ports for transport to England and Europe.

  Washington’s vision had so inspired John Marshall as he researched and wrote his massive Washington biography that he leaped at the chance to help turn the dream into reality while also distancing himself from political turmoil. He also harbored personal motives: Marshall and his many relatives and friends owned enormous tracts of land in Kentucky and stood to reap untold profits by opening commercially viable routes from western farms, forests, and mines to eastern ports.

  As Marshall set off into the Kentucky wilderness, American troops surged across northern borders into Canada and met with nothing but defeat on three fronts stretching from Detroit in the West to Lake Champlain in the East, although they managed to burn the public buildings in York (now Toronto), the capital of Upper Canada (now Ontario).

  By then John Marshall had returned to Richmond. His wilderness expedition had covered 250 miles over six weeks and laid out a route that would realize Washington’s original dream of tying “the inland navigation of the Eastern waters with those that run to the westward.”

  “We shall not only draw the produce of western settlers,” Washington had predicted, “but the fur and peltry trade . . . to the amazing increase of our exports, we [shall] bind those people to us—westerners and easterners—by a chain that can never be broken.”1

  Marshall’s report called for improving the navigation of the James River and building a turnpike over the mountains. “Not only will that part of our own state which lies on the Kanawha and Ohio [rivers] receive their supplies and send much of their produce to market down the James River, but an immense tract of fertile country, a great part of the States of Kentucky and Ohio, will send their commerce in the same direction.”2

  Before the state legislature could act on Marshall’s report, however, British ships had sailed into Chesapeake Bay and seized the town of Hampton, opposite Newport. A British squadron then sailed up the James River to within forty miles of Richmond, where memories of Benedict Arnold’s burning of the city in 1781 put many citizens to flight. Charged with effecting “defensive measures . . . for the defense of the city,” Marshall—still a brigadier general—analyzed the city’s resources and geography and concluded that the city lacked any “height or eminence which overlooks and commands the whole town.”

  The fortification of any spot, therefore, would afford no protection to the city. . . . It is believed that no works would afford any essential advantage to the city unless the whole town . . . be enclosed and regularly fortified. Such works would require sums unattainable by us; and, if erected, would require a garrison for their defense more than sufficient to beat the enemy in the open field.3

  Before the city could act on Marshall
’s report, the British withdrew and put out to sea, where America’s little navy—twelve fast and highly maneuverable ships—scored significant victories over the vaunted British naval forces. The forty-four-gun frigate Constitution demolished Britain’s thirty-eight-gun Guerrière off the coast of Nova Scotia, and other American ships humiliated Britain’s navy off the coasts of Virginia and Brazil. On Lake Erie Captain Oliver Hazard Perry’s fleet engaged the British for three hours off the Ohio coast at Put-in-Bay on September 10, 1813. Although the encounter left Perry’s ship in splinters, he inflicted even more damage on the enemy and emerged from the wreckage to send his famous message: “We have met the enemy and they are ours.”4

  When news of American victories reached London, the British Prime Minister reversed course and sent President Madison’s new Secretary of State James Monroe an offer to begin peace negotiations at a neutral site in Ghent, Belgium. The President appointed John Quincy Adams, the son of America’s second President, to lead the negotiations.

  At the time Adams was US minister to Russia at St. Petersburg, and by the time he crossed out of Russia, the Russian, Prussian, and other armies allied against Napoléon Bonaparte had captured Paris and forced the French army to surrender. Bonaparte, who had crowned himself Emperor Napoléon I by then, abdicated and accepted exile on the tiny isle of Elbe in the Mediterranean Sea off the Italian west coast. Louis XVIII, the dead king Louis XVI’s younger brother, acceded to the French throne and signed a treaty of peace with his nation’s European neighbors.

  The end of the European war freed 14,000 British troops to sail for North America for a massive land-and-sea attack against the United States. As British and American peace negotiators prepared to meet in Europe, British ships began shelling US coastal cities, devastating the entrance to the Connecticut River, Buzzard’s Bay in Massachusetts, and Alexandria, Virginia, just across the Potomac River from Washington.

  In mid-August 1814 4,000 battle-hardened British troops landed along the Patuxent River near Benedict, Maryland, routed a force of Americans, and marched on the capital. As the American troops fled the oncoming British, Elias Boudinot Caldwell, the clerk of the Supreme Court and a captain in the cavalry, galloped to the Capitol to save whatever records and manuscripts he could gather in the Supreme Court chamber. The son of a Revolutionary War hero, Caldwell managed to salvage the entire Supreme Court library, which he secreted in his own home nearby before fleeing the capital with the rest of the troops minutes ahead of the oncoming British force.

  Bent on avenging the burning of public buildings by American troops in York, the British began an all-night spree of destruction in Washington on August 24, setting all public buildings ablaze, including the Capitol and the President’s mansion. As the Americans had done in York, the British spared most private property, although they set fire to four homes whose owners repeatedly shot at passing redcoats. They also spared the Patent Office, which contained models of inventions and records that the British commander deemed private property that might well belong to British as well as American patent holders.

  A storm the following morning brought bursts of heavy winds that sent flames flying erratically in so many directions, they forced the British—for their own safety—to withdraw. By September 12 they had sailed down the Patuxent River into Chesapeake Bay, then northward toward Baltimore, landing about fourteen miles from the city, where they laid siege to Fort McHenry. As the bombardment continued the rest of the day and into the night, attorney Francis Scott Key watched “the rockets’ red glare,” and “bombs bursting in air” from a nearby ship. To his amazement, “by dawn’s early light . . . our flag was still there,” fluttering in tatters over the fort and inspiring his poem “Defense of Fort McHenry.” A newspaper published it a few days later with a new name, “The Star-Spangled Banner.”

  British troops capture Washington on August 24, 1814, and burn all public buildings, including the presidential mansion (seen here in flames). The thick white paint that restoration workers later slathered over the smoke-stained stone exterior gave the building its current name “The White House.” (LIBRARY OF CONGRESS)

  On September 14 the British abandoned their fruitless assault, withdrew their troops, and sailed out of Chesapeake Bay for the British West Indies. Their departure ended the fighting, and after a month of talks with no solutions in sight, negotiators in Ghent fixed on a way out of the impasse: they declared the war ended and relegated demands of both sides to an arbitration commission to be set up at a later date.

  Agreement at Ghent. Britain’s chief negotiator, Admiral Lord Gambier, holds the treaty ending the War of 1812 and shakes hands with John Quincy Adams, the chief American negotiator. Albert Gallatin stands to Adams’s immediate left, while Henry Clay is seated on the right at the rear. (FROM “THE SIGNING OF THE TREATY OF GHENT, CHRISTMAS EVE, 1814,” A PAINTING BY SIR AMÉDÉE FORESTIER, 1914; SMITHSONIAN AMERICAN ART MUSEUM, GIFT OF THE SULGRAVE INSTITUTION OF THE UNITED STATES AND GREAT BRITAIN)

  In the end the Treaty of Ghent represented a stinging defeat for both sides. After a costly two-year war they returned to the status quo ante bellum, releasing all prisoners and restoring all conquered territories to prewar status, except for West Florida, which fell under American sovereignty.

  On Christmas Eve of 1814, as John Quincy Adams and the other negotiators signed the Treaty of Ghent, a fleet of fifty British ships landed 7,500 battle-hardened veterans on Louisiana’s southeastern coast near New Orleans. To their shock, General Andrew Jackson awaited in ambush. After a spectacular but indecisive artillery battle on January 1, the British pulled back and attacked again a week later. As redcoats advanced in traditional linear style of European warfare, Jackson’s Tennessee and Kentucky woodsmen—all crack marksmen—opened fire. The British troops stepped forward mechanically, toppling one by one, then by the dozens. The bodies piled higher and higher until the “horror before them was too great to be withstood: and they turned away, dropping their weapons and running to the rear.”5 After only thirty minutes the battle was over; the British commanding general and two other generals lay dead along with more than 2,000 British troops. British survivors staggered back to their ships and, on January 27, sailed away from what proved the last battle of the war and the last hostile incursion by British troops on American soil.

  The battle at New Orleans on Christmas Eve, 1814, claimed more than 2,000 lives and had no impact on the outcome of the war. American and British negotiators had signed a treaty of peace in Ghent, Belgium, ending the war two weeks before the battle. (LIBRARY OF CONGRESS)

  A few days later Secretary of State Monroe called members of Congress into the Patent Office building in Washington, the only public building the British had spared from flames. They unleashed a chorus of sustained cheers when he delivered the news of Jackson’s victory. Federalists, Republicans, hawks, and doves alike exchanged handshakes and adjourned to soak in the news with appropriate drinks.

  What they did not know, however, was the utter uselessness of Jackson’s victory. Two weeks earlier John Quincy Adams and his American negotiators had signed the treaty ending the war, but like the negotiations when the war began, news of the settlement did not arrive until weeks later, when a British sloop sailed into New York harbor, flying a flag of truce. The war the United States could have won without firing the first shot had ended before they fired the last.

  Nonetheless Americans—almost unanimously—deluded themselves into calling the war a glorious triumph over the world’s most powerful nation—a “second war of independence.” The national delusion resulted from a series of coincidences: The victory at New Orleans had come just before they received news of peace, and in the public mind the chronology of events made the battle seem decisive in forcing the British to sue for peace and end depredations on American shipping. In fact, it was the defeat of Napoléon that allowed Britain to harbor her warships and end the need to impress seamen and seize ships with contraband.

  When the Supreme Court j
ustices returned to Washington in the winter of 1815, a maze of scaffolding and a horde of workmen filled the interior of the Capitol. Although the fire set by British invaders had left most of the interior a blackened ruin, the Supreme Court chamber beneath the Senate escaped relatively untouched. Construction work in the damaged sections of the Capitol, however, made the Court chamber inaccessible, and the justices gathered, instead, on the spacious second floor of the nearby home of Elias Caldwell, the clerk of the Supreme Court who had saved the court’s records from British destruction. His home would serve as Court chambers for the next two years, 1815 and 1816.

  Renowned by then for sparkling and often soaring oratory, the Supreme Court became an entertaining gathering place for Washington society in the days before card games and other pastimes filled the idle hours of wealthy American women.

  “Mrs. Madison and a train of ladies entered . . . the day I was there,” recalled Mrs. Samuel Harrison Smith, whose husband was editor, publisher, and owner of Washington’s National Intelligencer. Mrs. Smith was convinced that one attorney “thought more of the female part of his audience than of the court.”6

  The home of Elias Boudinot Caldwell, a captain of cavalry in the War of 1812. As his troop retreated through Washington, Caldwell had the foresight to stop at the Capitol and salvage the papers of the Supreme Court and hide them in his family home. Spared during the burning of Washington, Caldwell House hosted the Supreme Court on its spacious second floor for two years after the war. (LIBRARY OF CONGRESS)

  During and immediately after the War of 1812 most arguments before the High Court related to admiralty cases, captured ships, cargoes, and the rules of war more than they did to the Constitution. One case, however, proved an imposing landmark for both: