Empire of Liberty: A History of the Early Republic, 1789-1815

by Gordon S. Wood

  When, for example, the Ohio legislature in 1806 directly prohibited the common law from running in the state’s courts, the state’s judges somehow found ways of bringing it back into effect. Judge Benjamin Tappan of the state’s Fifth Circuit declared in 1817 that, despite the legislature’s edict, the common law,“founded on the laws of nature and the dictates of reason,” had to be maintained.“Not only is the common law necessarily in force here,” said Tappan, who was the brother of the famous abolitionists Arthur and Lewis Tappan,“but . . . its authority is superior to that of the written laws; for it not only furnishes the rules and principles by which the statute laws are construed, but it ascertains and determines the validity and authority of them.”

  Of course, Tappan’s reasoning in Republican-dominated Ohio aroused a storm of controversy, including a four-hundred-page rebuttal. Judge John McLean of the state supreme court was shrewder and more subtle. In the same year, 1817, he conceded that the common law of crimes did not exist in Ohio’s courts. At the same time, however, this future U.S. Supreme Court justice could not hide his respect for the common law;“for,” he said,“if the common law were expressly repealed by statute, the shadow only would disappear—the life and spirit of it would remain.”90

  Thus in 1842 Justice McLean of the federal Supreme Court joined Justice Joseph Story’s decision in Swift v. Tyson in affirming the authority of the federal courts to decide cases on the basis of “general principles and doctrines of commercial jurisprudence” and not on the basis of the decisional law of the state of New York. In this decision Story construed Section 34 (the Rules of Decision Act) of the Judiciary Act of 1789 in such a way as to grant the federal courts common law authority over a wide variety of civil disputes, some of which were actually outside the limits of Congress’s legislative power. Although Swift v. Tyson was eventually overturned in 1938 in Erie Railroad Co. v. Tompkins, partly on the grounds that the doctrine set forth by Story was “an unconstitutional assumption of powers by the Courts of the United States,” the Swift decision in 1842 indicated that the fast-moving, democratic, and commercial society of the early Republic had a need for the flexibility of the common law that could not be stifled.91

  12

  Chief Justice John Marshall and the Origins of Judicial Review

  Just as the Republican party was divided between its radical and moderate factions, so too was the Federalist party. And the most important moderate Federalist in 1801 was newly appointed Chief Justice John Marshall. Marshall had opposed the Alien and Sedition Acts and had been uneasy over Justice Chase’s behavior. Yet like other Federalists he feared the democratic excesses of the Republicans, and in 1801 he set out to save the Supreme Court and the federal judiciary from these popular Republican passions. As chief justice he thought he might be able to drain some of the bitterness from the controversy over the judiciary. In doing so not only did he help to lay the basis for what came to be called judicial review, but he also contributed mightily to the development of an independent judiciary. More than any other single judge, Marshall helped to carve out an exclusive sphere of activity for the judiciary that was separate from politics and popular legislative power.

  Marshall was born in what became the frontier county of Fauquier, Virginia, bordering the Blue Ridge Mountains. His father, Thomas Marshall, was descended from Welsh yeomanry, began as a surveyor, and rose to prominence as one of the largest landowners in the county. Marshall’s father married an heir of the Randolphs, the most distinguished family in all of Virginia, and eventually became his county’s first magistrate and its representative in the colonial assembly. The career of Marshall’s father followed the pattern of another Welsh backcountry surveyor and farmer, Peter Jefferson, father of the future president. The resemblance of Marshall’s background to that of his distant cousin and lifelong enemy Thomas Jefferson is remarkable.

  Unlike Jefferson, however, Marshall never acquired the cultivated elegance of his Randolph forebears and in fact never shed the rough but genial manners of his frontier father. He had simple tastes and a common touch that Jefferson never had, a popular style that Jefferson snidely attributed to “his lax lounging manners.” Marshall was unassuming and easygoing with a ready humor and twinkling black eyes. In fact, his extraordinary amiability was the source of much of his success. “I love his laugh,” his colleague on the Court Joseph Story said of him; “it is too hearty for an intriguer.”1

  Although Marshall attended the College of William and Mary for only three months and never acquired the vast erudition of Jefferson, he certainly did not lack learning. Indeed, he was hardly the unlettered country lawyer relying on only native genius that he sometimes has been made out to be. Although he admitted that his legal learning was “not equal to that of many of the great masters in the profession,” he did have an impressive knowledge of the common law that carried him far beyond Blackstone’s Commentaries on the Laws of England, with which he had begun his studies. In addition, he was widely read in the classics and in English literature, especially Jane Austen.

  Yet there is no doubt that his natural abilities were what most distinguished Marshall from other lawyers and jurists. “His head,” said Senator Rufus King, “is the best organized of anyone I have known.”2 Marshall could grasp a subject in its whole and yet simultaneously analyze its parts and relate them to the whole. He could move progressively and efficiently from premise to conclusion in a logical and rigorous manner and extract the essence of the law from the mass of particulars. In the words of Justice Story, he had the remarkable ability to seize, “as it were by intuition, the very spirit of juridical doctrines.” Even Jefferson acknowledged Marshall’s talent, but he scarcely respected it. Jefferson told Story that “when conversing with Marshall, I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer, or you will be forced to grant his conclusion. Why, if he were to ask me whether it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell.’ “3

  The enmity between the two cousins began during the Revolutionary War. Unlike Jefferson, Marshall saw military action and suffered with Washington at Valley Forge in the winter of 1777–1778. He apparently regarded Jefferson as a shirker. Marshall believed that his own service as a captain in the Continental Army had made a nationalist of him, confirming him “in the habit of considering America as my country, and Congress as my government.” It also had convinced him that George Washington was “the greatest man on earth.”4

  After the war Marshall practiced law in Richmond and by the 1780s became the leader of the Virginia bar. He became involved in Virginia politics and in the 1780s served in the state assembly and briefly on the executive council of state. The high point of his early career, however, was his participation on behalf of the Constitution in the Virginia ratifying convention of 1788. Having helped to create the new national government, he remained throughout his life emotionally committed to it. Even when most Virginians moved into the Jeffersonian Republican ranks in the 1790s, Marshall remained a loyal Federalist.

  Although his fellow Federalists urged him to get more involved in national politics, Marshall was reluctant to give up his lucrative law practice. Even his acceptance of an appointment by President John Adams to be one of the three envoys to negotiate the end of mounting hostilities with France in 1797 was apparently in part based on his desire to raise some Dutch loans for some land purchases. Marshall’s dispatches to the United States during the XYZ Affair electrified the nation and made him an instant celebrity. The many toasts and banquets honoring him, coupled with the sudden revival of the declining fortunes of the Federalist party and pressure from George Washington, convinced Marshall to join Congress and later the Adams administration as secretary of state. By 1800 Jefferson thought that the spirit of “Marshallism” had come to dominate the Federalist party, at least in Virginia, and “nothing,”
Jefferson told James Monroe, “should be spared to eradicate” such a “spirit.”5

  Marshall’s doubts about the Alien and Sedition Acts separated him from the most extreme Federalists and drew him closer to the beleaguered President Adams. Having lost the election of 1800, Adams was already a lame-duck president in January 1801 when he had the opportunity to appoint a new chief justice of the United States. His first choice was John Jay, who had served earlier as chief justice; the president consulted no one and even sent Jay’s appointment to the Senate before getting Jay’s approval. Oliver Wolcott thought that everyone considered the nomination “as having been made in one of those ‘sportive’ humors for which our Chief is distinguished.” When Adams learned of Jay’s refusal, he realized that he could not delay much longer and possibly allow his Republican successor the appointment. On January 21 Adams sent the name of his secretary of state, John Marshall, to the Senate, the very day the Federalist House passed the new Judiciary Act.

  Not all Federalists were happy with Marshall’s nomination. Theodore Sedgwick said that when Marshall was in the House in the late 1790s some members had “thought him temporizing, while others deemed him foolish.” Sedgwick himself said that Marshall was “attached to pleasures, with convivial habits strongly fixed,” and thus “he is indolent” with “a strong attachment to popularity,” making him “disposed on all popular subjects to feel the public pulse.” Nevertheless, after attempts by some Federalist senators to change the president’s mind, the Senate finally confirmed forty-five-year-old Marshall as the new chief justice on January 27, 1801.6

  WHEN JEFFERSON’S ELECTION STALLED in the House of Representatives in early January, Marshall tended to favor Burr over Jefferson, even though he knew nothing about Burr. He had “almost insuperable objections” to Jefferson’s becoming president, he told Alexander Hamilton. Jefferson’s prejudices in favor of France rendered him “totally unfit for the chief magistracy” of the United States. Jefferson, he said, will play to the popular House of Representatives, increase his personal power, and weaken the presidency. “He will diminish his responsibility, sap the fundamental principles of the government & become the leader of that party which is about to constitute the majority of the legislature. . . . I cannot bring my self to aid Mr. Jefferson.” Yet on March 4, 1801, only a bit over a month after he himself had been confirmed as chief justice of the United States, he had to administer the oath of office of president to this man he disliked so much. Awkward as the situation was, all he could do to show his displeasure was to turn his back on Jefferson while administering the oath.7

  Although the Federalist Court between 1789 and 1801 had decided only sixty-three cases, it certainly had done much to establish its position in the national government. It had claimed that the criminal common law ran in the federal courts, and it had sought to carve out an expanded definition of treason against the United States in order to bolster federal authority. It had enlarged its jurisdiction at the expense of the state courts, protected vested rights against state intrusion, and asserted the supremacy of federal statutes over state law. Besides beginning the task of creating its rules of procedure, the Court had gone a long way toward working out its relationship with the lower federal courts and state judiciaries.

  Despite its promising development as a Federalist institution, however, it still remained, in Hamilton’s words, the “least dangerous” branch of the government and was far from having the final word on constitutional interpretation.8 Congress had claimed to be an equally important interpreter of the Constitution, and so had the states. As America became more democratic, the Supreme Court, like all courts, seemed increasingly aristocratic and vulnerable to popular attack. Finding able men to sit on it became more difficult. Between 1789 and 1801 twelve men had served on the Court. Five of them, including two chief justices, had resigned. The Court had trouble gathering a quorum, forcing cases to be carried over and occasionally sessions to be canceled entirely. Morale on the Court had become poor. John Jay, in declining Adams’s offer of reappointment as chief justice, explained that the Court had none of the necessary “Energy, weight and Dignity” to support the national government and little likelihood of acquiring any.9

  Marshall set out to remedy this situation. He sought to solidify the Court by cutting down on the previous practice of each justice issuing his own opinion seriatim, a practice that was customary in both the eighteenth-century English courts and American state courts. Instead, he convinced the associate justices in most cases to reach a collective decision (usually written by him), thus enhancing the Court’s authority by having it speak with one voice.10

  It was not that he imposed his opinions on his strong-minded colleagues. Instead, he turned the Court into “a band of brothers” and worked at building consensus through friendly discussion and more than an occasional glass of wine. The Court had a rule that it would indulge in wine-drinking only if it were raining. Marshall would look out the window on a sunny day and decide that wine-drinking was permissible since “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”11

  During the first four years of Marshall’s tenure, from 1801 to 1805, the Court handed down forty-six written decisions, all of them unanimous. Marshall participated in forty-two, and in each of these he wrote the opinion of the Court. Even after 1810, when there were more Republican than Federalist justices, Marshall continued his amiable dominance. Joseph Story, who had entered the Court in 1811 at the age of thirty-two as a Republican and a teetotaler, quickly succumbed to Marshall’s charm and wine-drinking and became a fervent supporter. All in all between 1801 and 1815 Marshall wrote 209 of the Court’s 378 opinions.12

  Ultimately Marshall’s greatest achievement was maintaining the Court’s existence and asserting its independence in a hostile Republican climate. He began by changing the lordly image of the Court. Under the Federalists the justices had tended to wear either individual academic gowns or robes of scarlet and ermine in imitation of the King’s Bench of England—dress that one Republican senator called the “party-colored robes” of an oppressive judiciary.13 By his example, Marshall induced his colleagues into wearing the plain black republican-style robes that the Virginia judges used.

  This symbolic rejection of monarchism was only the first step in Marshall’s efforts to escape from the partisan politics of the 1790s. He strenuously sought to reach some sort of accommodation with the other branches of the government, and at least up to the War of 1812 he tried as much as possible to avoid too direct a confrontation with the Republicans. All of his evasion and caution, as he later told Justice Story, was based on his quite sensible fear that the justices might be “condemned as a pack of consolidating aristocratics.”14

  In a series of decisions the Court retreated from some of the advanced positions the Federalists had tried to establish for the judiciary and federal law in the 1790s. Since the fiery partisan charges to grand juries by Federalist judges and justices, especially those of Justice Chase, had aroused the political passions of the Republicans, the chief justice quickly set about trying to change Federalist judicial behavior. He self-consciously refrained from injecting political statements in his grand jury charges and refused to have them published in the newspapers, “saying that he had laid it down as a rule from which he did not intend to depart.”15

  Since the Federalist claim that the English common law ran in the federal courts had aroused such intense Republican hostility, he suggested in 1800 that this was not the case and blamed the currency of “this strange & absurd doctrine” on “some frothy newspaper publications.”16 Yet this sly suggestion was a bit disingenuous, since Marshall denied the presence only of “the common law of England” in the courts; he agreed that versions of an American common law existed in each state, which judges of both the state and federal courts could invoke. But even this was too exposed a position, and in several decisions between 1807 and 1811 Marshall’s Court
declared that “the jurisdiction of the courts of the United States depends, exclusively, on the constitution and laws of the United States.”17 Finally in United States v. Hudson (1812) the Court decided that the federal courts did not possess any criminal common law jurisdiction after all. Although this decision swept away a number of lower federal court precedents and reversed two decades of Federalist claims, it was probably inevitable. The issue, as the Court said, had been “long since settled in public opinion.”18

  Even in the 1807 trial of Aaron Burr, which Marshall regarded as “the most unpleasant case which has ever been brought before a Judge in this or perhaps in any other country which affected to be governed by laws,” the chief justice subtly undermined earlier Federalist positions.19 In his decision he rejected the broad definition of treason the Federalists had used in the 1790s in prosecuting the participants in the Whiskey and Fries rebellions and instead interpreted the Constitution’s definition of treason narrowly. Speaking for the court, Marshall declared that conspiracy to levy war and actual levying of war against the United States were “distinct offenses,” and “conspiracy is not treason.” Planning to wage war, enlisting soldiers, even marching to a meeting place before an “actual assembling” of an army—these were not enough to constitute treason. In effect, Marshall ignored the arguments of the prosecution and the testimony of 140 witnesses and through his narrow interpretation of the law virtually determined by himself the outcome of the trials of Burr and his associates.20

  The Republicans were furious. They enthusiastically supported their president who had brought the case to court and denounced Marshall for writing “a Treatise on the best way of committing treason without detection or punishment” and for “conniving in the escape of the traitor.” By outlining the law in the way that he did to the jury, Marshall, the Republicans complained, had effectively usurped the jury’s role and had undermined that sacred and popular institution. So angry were the Republicans with the decision that they overlooked the fact that Marshall had repudiated the English doctrine of constructive treason exploited by Federalists in the 1790s. All they could see in the decision was judicial arrogance and usurpation, and many vowed once again to reduce the Court “to its proper limits.” For his part Jefferson thought the decision demonstrated “the original error of establishing a judiciary independent of the nation.”21 Although a Republican mob in Baltimore hanged Marshall in effigy, much of the furor over the Burr decision soon subsided.