| |
Imagining the Marshall Court
by
G. Edward White
For
the past few years I have been in the process of writing
a history of the later Marshall Court for a series, commissioned
with funds from the estate of Justice Oliver Wendell Holmes,
whose goal is the production of "authoritative" histories
of the Supreme Court of the United States. The result
has been that I have read a great many old cases, sought
to decipher early nineteenth-century calligraphy, collected
a number of obscure treaties whose bindings have weakened
with time and use, and produced a lengthy manuscript whose
bulk and denseness will probably deter most people from
reading it.
There
has, however, been one consolation for this task: I have
been able at times to transpose myself back into time,
and to feel what it must have been like to be a justice
of the Supreme Court in the early nineteenth century.
But while that feeling has been strong and satisfying,
I suspect that it will be obscured by the academic analysis
of my forthcoming volume. So before the feeling dissipates,
I have tried to capture it in some vignettes of the Marshall
Court.
The
information on which these vignettes are based is accurate,
and could have been documented. But I have invented the
conversations, settings, and thoughts of some characters.
The "inside history" of the Marshall Court is largely
a process of extrapolation; most of its internal decisions
were made by judges who lived together in a boardinghouse
and kept no records of their deliberations. To recreate
the Marshall Court one has to start very far from its
center, with scraps of letters and the official language
of opinions, then try to peel away layers of legalistic
prose and circumspect correspondence until one gets a
feel for how the justices responded to one another and
what weighed heavily on their minds. Ultimately one has
to imagine.
*
* * *
Brockholst
Livingston was seated in the library of his house in lower
Manhattan in mid-afternoon of a January day in 1820 when
a servant approached and announced that Judge Joseph Story
was at the door, having arrived on the Boston stagecoach.
Livingston arose and greeted Story warmly, indicating
that he was in time for dinner. Story replied by launching
into a lengthy discussion of his journey south from Salem,
in the course of which he had endured sleet, a stagecoach
that slipped a wheel and consequently ran five hours late,
a tavern where he was forced to share a bed with a "yeoman"
who reeked of stale clothes and ale, and the company,
inside the coach, of a "high-necked vestryman who took
snuff between his prophecies of decay and corruption."
Livingston, who suspected that the vestryman had been
amply paid back for his indulgences by having been seated
near one of the most tireless stagecoach monologuists
he had known, smiled and offered Story a chair near the
fire.
~
The
next morning the two justices walked to the terminus of
Manhattan Island to begin their journey to Washington
for the opening of the Court. Their route would take them
by ferry and stage to Trenton, then over the Delaware
Bay to Havre de Grace, Maryland, where they would board
coaches to Baltimore and subsequently to Washington. Normally
they would disembark for overnight stops at Trenton, Havre
de Grace, and Baltimore, but if the weather was clear
and the roads smooth they would sometimes press on. On
this occasion the packet from Trenton to Havre de Grace
was becalmed, and Livingston and Story spent the night
in the Four Roses tavern, where they managed to secure
upstairs rooms and thus avoid the communal quarters of
the ground floor. They were served the standard fare,
for that season, of venison, turkey, corn meal, sweetbreads,
ale, and port, with a mince pie for dessert. Over dinner
the justices talked about the problem of piracy, which
they both regarded as serious and complicated. Story was
incensed at the disruptions pirates and dubiously commissioned
privateers were making in the New England trans-Atlantic
trade; Livingston joked that at least piracy and privateering
provided work for shipwrights, for suddenly a number of
old schooners left over from the days before the war of
1812 had become rejuvenated in the service of the "Republics
of Carthagena and Buenos Ayres."
Four
days after they left New York the justices arrived in
Washington, and headed for the Capitol Hill boardinghouse
where they would spend the next six to eight weeks. Story
would be sharing rooms in the boardinghouse with the Court's
Reporter, Henry Wheaton; Livingston had his own room.
Both men had not brought many clothes with them: they
had had to carry their own baggage in transit and they
were accustomed to wearing their staple outfits, which
consisted of frock coats and knee breeches, for days on
end. The linen cravats they wore at their necks needed
to be changed regularly, but two or three suits of clothes
would do for the duration of a term. The rooms in the
boardinghouse were heated by fires and had pitchers and
bowls for washing; there were no tubs or showers, and
privies were outside the house in its rear yard. A communal
breakfast was served at 8 a.m., followed by dinner, served
after the justices returned from court about 4:30. A light
supper was available at 8 in the evening.
On
arriving at the boardinghouse Livingston and Story encountered
the remaining five justices, who filtered in, one by one,
from their respective homes. Thomas Todd and William Johnson
had the longest distance to travel, and their arrival
in Washington was sometimes delayed: one term Todd ran
into such bad weather that he never reached Washington
at all. Bushrod Washington, Gabriel Duvall, and John Marshall
had comparatively short journeys, Washington coming from
his residence at Mount Vernon, sixteen miles down the
Potomac, Duvall from "Marietta," his Maryland plantation
located about fifty miles from Washington, and Marshall
from Richmond. This particular term all the justices arrived
before February 1 without incident, and all quartered
at the boardinghouse, as they had since the early days
of the Marshall Court. Each of the justices had been on
the Court since at least 1811: they knew each other well.
On
the whole relations among the justices, at this point
in the Court's history, were good. Johnson and Story,
antagonists over the scope of admiralty jurisdiction,
the power of the federal courts to decide non-statutory
criminal cases, and related sovereignty issues, were often
at loggerheads, and Johnson's relations with the rest
of the justices, save Marshall, were sometimes prickly.
Story, despite his garrulousness and pugnacity, enjoyed
good relations with Todd, Washington, and especially Livingston
and Marshall. Duvall, whose hearing had begun to fail,
had a quiet, courtly manner and rarely took strong stands
on issues; the other justices regarded him with affection
and solicitude. Washington's earnestness, Todd's practicality,
Livingston's wry, satiric humor and Marshall's consummate
charm made the Court's internal relations, at this period
in its history, markedly amiable. The remarkable term
of 1819, in which McCulloch v. Maryland, Dartmouth
College v. Woodward and Sturges v. Crowninshield
had been decided, was a reminder of the Court's increased
power and visibility, and the negotiated and invisible
compromise that the justices had fashioned in Sturges,
the bankruptcy case, testified to their strong commitment
to the appearance of harmony and the suppression of public
dissents.
The
longstanding acquaintance of the justices, their collectively
amicable relations, and even the unseasonably mild February
weather did not prevent some tempers from flaring at the
first lengthy conference of the 1820 term. On February
22 all of the piracy cases, which had been argued a day
before, were discussed. Washington opened the discussion
by noting public criticism of the Court's first major
piracy decision, United States v. Palmer; handed
down two years earlier. Palmer had held that a
congressional statute prohibiting piracy did not apply
to acts committed against foreigners on foreign ships,
despite the fact that the statute referred to "any person"
engaging in piratical practices. Johnson said that he
thought Palmer had been wrongly decided on the
reach of the statute point: "any person" seemed not to
invite a distinction between common citizens and foreigners.
Story suggested, and Marshall agreed, that a "reconsideration"
of Palmer might be in order: the critics had perhaps
"misunderstood" the Palmer opinion. Todd said that
in his opinion Congressional statutes on piracy had failed
to "tighten the noose": he felt that under the current
situation Americans could simply obtain commissions from
foreign belligerents, go on plundering missions, and escape
prosecution for piracy. Story indicated that he felt that
the new Congressional statute passed in 1819, which made
piracy "as defined by the law of nations" a capital crime,
had attended to that problem. Livingston responded that
he felt that the 1819 statute was constitutionally defective
because the definition of piracy was too vague. Story
said that all the commentators agreed that civilized nations
had equated piracy with "robbery on the high seas." Livingston
said that his reading of the civilians was not as clear
as that.
Washington
reminded the justices of the first piracy case before
them this term, where Ralph Klintock, an American citizen,
had planted false Spanish papers on a Danish ship, used
the papers as a basis for evicting the ship's crew and
seizing the ship, and subsequently attempted to take the
ship to an American port and represent himself as the
Danish ship's captain. Klintock's acts, Washington said,
were "indefensible" and "notorious." Marshall suggested
that the problem in Palmer was different from the
problem in Klintock, and the cases might be reconciled.
The problem in Palmer he reminded the justices,
had been an unwarranted extension of the power of the
federal courts in implementing the language of the 1790
piracy statute to reach acts committed by foreigners,
or against foreigners, on foreign ships. Such an extension
would have raised delicate foreign relations problems,
Marshall noted, given the situation in the North Atlantic.
But the problem in Klintock was different: Ralph
Klintock was a pirate, an outlaw, and nothing else. Was
it not the case, Marshall conjectured, that in seizing
the Danish ship and in evicting its crew Klintock had
made that ship a "pirate ship," beholden to no sovereign
at all." If so perhaps he could be convicted for "general
piracy."
Livingston
agreed with Marshall's comments, and thought they nicely
disposed of Klintock. But the second piracy case
that term, United States v. Smith, was different,
he felt. The defendant had not gone off on a wanton cruise,
but had simply signed up as a crew on a privateer commissioned
by an insurgent Latin American government, taken control
of that ship, and subsequently plundered a Spanish vessel.
The wartime relations between Spain and the insurgent
republics, Livingston felt, made the acts insufficiently
"piratical." Even though they were "robberies on the high
seas' they might have been sanctioned by belligerent states.
He reminded the justices that the defendant in Smith
would be hanged if convicted.
Further
discussion did not change Livingston's mind that the 1819
statute, passed only a month before the incident that
had led to Smith's arrest, was too vague, but the justices
all agreed to "clear ui3' the piracy cases. Marshall announced
that he would deliver the opinion in Klintock, basing
it on his distinction between that case and Palmer,
a distinction acceptable to all the justices. He asked
Story to write for the Court in Smith, and Livingston
said that he would dissent in that case, as a man's life
was at stake. Johnson then volunteered to dispose of the
four remaining piracy cases the Court had before it that
term, which he and the other justices agreed had been
"settled" by Klintock and Smith. Since the
court's holdings in Klintock and Smith now
made "general piracy" punishable under either the 1790
or the 1819 statutes, and all the defendants in the remaining
cases met the requirements for general piracy, they were
all to be convicted. Four days later Marshall, Story,
and Livingston had produced opinions, which they read
in court. Johnson was not to complete his for six more
days. He was satisfied, he eventually said in his opinion,
that in the 1790 statute "Congress neither intended to
punish murder in cases with which they had no right to
interfere, nor leave unpunished the crime of piracy in
any cases in which they might punish it." He also threatened
to "respectfully solicit a revision of Palmer's case"
if it was taken to apply to a murder committed by an American
on a foreign ship; Congress, he felt, surely meant to
punish that act.
The
prickliness of the justices in the piracy cases was in
part a product of their divisions in the "militia case,"
Houston v. Moore, which had been argued
the previous term and had produced no consensus whatsoever.
Part of the problem in Houston v. Moore, as
Story was to put it in his eventual dissent, was the "great
importance and delicacy" of the sovereignty questions
it raised. If Congress had been given the power by the
Constitution to organize, arm, discipline, and "call forth"
the militia, could the states exercise other powers over
the federal militia once it had been organized? The answer
to the question, Story felt, turned on whether Congress
had carried its powers into effect. It had only those
enumerated powers, and the states retained a concurrent
power to appoint militia officers and to train them. But
once Congress had acted to implement its powers, the acts
precluded similar state activity. Those principles settled
Houston v. Moore for Story. The Pennsylvania
statute in that case, which provided for court martials
of persons for failing to report for service in the federal
militia, was void because Congress had provided for its
own trials.
Marshall
agreed with Story, but he did not want to expose his views
in print, and thus kept silent. The result was a series
of individual opinions. Washington produced an opinion
concluding that while Congress had power to exclude concurrent
state court jurisdiction over the militia, it had not
expressly exercised it, and thus the state courts could
try court martials. Johnson sustained the Pennsylvania
statute on the broader ground that states could make the
same acts criminal that the federal government had. Duvall,
Todd, and Livingston silently acquiesced in the result
of Washington's opinion, which sustained the Pennsylvania
statute, but, as Johnson noted, their reasons were "various."
Story announced that his dissent "had the concurrence
of one of my brethren," but did not name Marshall. After
conference Washington remarked to Todd that "when the
Chief Justice keeps silent in opposition, we seem to fend
for ourselves, and wished that he had been more persuasive
in the discussion. Todd responded that Story and Johnson
had so "muddied the waters" by their sniping at one another
that there had never been any hope of unanimity or even
compromise.
The
1820 term was a comparatively brief one. The last opinions
were delivered on March 17, and the justices began to
scatter. Story, who had been preoccupied with the political
debates over the extension of slavery that were to be
temporarily resolved in the Missouri Compromise, left
shortly before the term's close to be with his family,
who had suffered the loss of his daughter Caroline Wet-more
Story in April of 1819. On this occasion Story took the
stagecoach directly to Boston and then to Salem, stopping
at Baltimore, Philadelphia, New York, New Haven, and Sturbridge
in the process. The other justices departed after the
17th. Marshall returned via coach to Richmond; Livingston
by coach, packet, and ferry to New York; Todd by coach
and on horseback to Frankfort; Johnson by coach and packet
to Charleston; Washington to Mount Vernon; and Duvall
to Marietta. Each would begin a spring circuit court term
on May 1; in the interval there would be time for some
leisure and recreation. Duvall supervised his estate and
the care of his horses, spending considerable time out
of doors in the hopes of being beyond the range of his
wife's endless conversation. Todd busied himself with
speculations in Kentucky real estate, from which he had
made a considerable income, and with local politics and
civic affairs. Livingston participated heavily in the
social functions that befitted a member of the New York
aristocracy and fought over politics with other members
of the large and faction-ridden Livingston clan. Johnson
engaged himself in the buying and selling of land, slaves,
and other property in the Charleston area, as well as
work on his biography of Nathanael Greene, which was to
appear in 1822. Story, seemingly incapable of leisure,
continued his extensive correspondence, prepared an article
on William Johnson's New York Chancery Reports for the
North American Review worked on his "memorial"
against restrictions on commerce on behalf of the merchant
community in Salem, and debated issues such as the slave
trade, the suffrage, and judicial salaries with his Massachusetts
political acquaintances. Marshall gave dinners for his
lawyer contemporaries in Richmond, played quoits at the
Barbecue Club, did the grocery shopping for his family,
and visited the Fauquier County, Sulphur Springs for rest
and relaxation.
The
1820 term had closed with an unfortunate outburst from
Johnson
in the prize case of The Amiable Isabella, the
decision of which, because of Story's absence and internal
divisions among the justices, had been put off until the
1821 term. Wheaton could hardly wait to tell Story the
news of Johnson's performance. In a letter written on
the last day of the term, Wheaton reported that after
"the Chief Judge expressed.., regret that [the justices]
were obliged to continue the case of the Amiable Isabella
to the next term,... Mr. Justice J. announced, with great
emotion, his determination to fire off." Wheaton
continued:
[He]
stated that as his mind was unalterably made up and as
the last argument, so far from shaking, had confirmed
his first impressions, he thought the party entitled to
the benefit of his vote which might be lost in case
death or any other cause should prevent his being
present . . . next term. . . . He then proceeded in a
style which beggars all description, to ridicule [William]
Pinkney's argument [for the captors], treating it with
the utmost contempt as a flimsy declamation of a venial
advocate for privateersmen... Pinkney was so enraged that
it was with difficulty that [William] Wirt and myself
could keep him from getting up and discharging his resentment
in open Court.
The
judges lament this extravagant sally, which was the more
unfortunate as great numbers of persons were assembled
for the purpose of hearing the decision of the Court.
Judge Washington assures me that everything was done that
could be done, to prevent it, but in vain. . .
.
Over
the spring, summer, and fall the justices were preoccupied
with their circuit court cases, their travels, and their
domestic responsibilities. Several engaged in correspondence
with their colleagues. Washington and Story sent each
other meticulous summaries of their circuit cases, outlining
the facts, noting their decisions on points of law, and
calling each other's attention to particularly interesting
or difficult issues. Marshall corresponded regularly with
Story and Washington, asking their advice on legal issues,
worrying about accommodations for the next winter,
and commenting on politics and social issues. Story occasionally
wrote Todd and Livingston as well as Marshall and Story,
filling his letters with legal discussions, opinions on
political questions, and gossip about personalities. All
the while Johnson remained resolutely aloof, writing no
one on the Court, but filling Thomas Jefferson's ear with
accounts of the pressure other justices had placed upon
him to suppress his dissents and generally to promote
the appearance of unanimity. Reporter Wheaton was himself
an active correspondent, asking the justices and lawyers
for help in assembling a record of counsel's arguments,
querying the justices on substantive points in their opinions,
badgering Story for notes for his volumes, and lobbying
to advance his career. As autumns turned into winters,
the circuit terms wound down, the justices made their
way home over roads that were increasingly hazardous,
and another cycle began.
* * *
William
Wirt, wearing his customary swallow-tail coat, vest, cravat,
and breeches, stood up to address the Court in his argument
in Ogden v. Saunders on February 19, 1827
Ogden v. Saunders was the Court's most celebrated
case since Gibbons v. Ogden three years
earlier, and the battery of counsel on both sides testified
to it: Henry Clay, David Ogden, Walter Jones, and Wirt
for the debtor; Daniel Webster and Henry Wheaton for the
creditor. The case had been up before the Court in 1824,
but internal divisions and the ill health and subsequent
death of Todd had postponed it for two successive terms.
Now a full seven-man bench was assembled, with Robert
Trimble replacing Todd, and the case was ready to be decided.
Wirt,
as he often did, had entertained himself before his argument
by speculating about the eventual outcome. He knew, as
several Court insiders did, that the 1819 decision in
Sturges v. Crowninshield had concealed deep
tensions among the justices as to the constitutionality
of state bankruptcy and insolvency legislation. One polar
position, typified by Marshall, held such legislation
to be as clear an infringement of property rights as could
be imagined. The very purpose of the contracts clause,
Marshall felt, was to prevent the kinds of excesses he
had seen in the period of the Articles of Confederation:
state legislatures, led by demagogues seeking mass support,
discharging debtors from their obligations. Another polar
position, typified by Johnson, combined a solicitude for
property rights in the abstract with a strong interest
in allowing the states freedom to regulate the affairs
of their own citizens. In between were positions like
that of Story, who recognized the value of bankruptcy
legislation in a commercial society, lobbied for (and
drafted) a national bankruptcy act, but believed that
state legislatures were less "sound" and that the contracts
clause should serve as a restraint on their excesses.
As
he looked up at the justices seated behind their desks
in the courtroom, Wirt thought he could count two votes
for his side and three against. Johnson, he felt, would
surely prefer to give the states latitude to regulate
debtor-creditor relations, especially where contracts
had been drawn up in the face of insolvency or bankruptcy
laws. Likewise Smith Thompson, who had replaced Livingston
in 1824, was favorably disposed toward the preservation
of state sovereignty and the facilitation of commercial
exchange. Beyond that Wirt was uncertain. He knew that
Marshall, with his strongly held and oft-repeated views
about the potential hostility of state legislatures toward
creditors, would vote to strike down any state bankruptcy
or insolvency statute. Story's contracts clause decisions
were likewise full of language about "great principles."
He was likely to see the protection of property rights
as paramount in Ogden v. Saunders, and he
was no friend of state infringements on federal control
of commercial relations. Duvall, as well, was a negative
vote, Wirt thought. Duvall almost never expressed himself
publicly, but he was thought to be "sound" on property
rights issues, and he almost never opposed the Chief Justice.
That
left Trimble and Washington, Trimble's position was completely
unknown, since this was his first term. Washington's position
puzzled Wirt. Washington typically sided with Marshall
and Story on constitutional questions, almost never dissented,
and was regarded as an "old Federalist" on economic issues
such as debtor-creditor relations. But Wirt had noticed
something about the case of Ogden v. Saunders:
it had been postponed three times by the Court, in
their 1824, 1825, and 1826 terms. The 1824 postponement
was easily explicable, since Thompson had come on the
Court in the middle of that term, the case was argued
late in the term, and the issues were difficult and controversial.
But the 1825 and 1826 postponements were probably made,
Wirt felt, for the usual reason the Court postponed cases,
internal divisions among the justices. And what could
those divisions be." Todd had missed both terms, and the
postponements suggested a 3-3 split without him. Had the
justices been split 4-2, especially if Mashall was with
the majority, they would have very likely issued an opinion.
The issues in Ogden v. Saunders were ones
of great impact and interest, since thousands of persons
would be liable for debts if they could not discharge
their obligations by taking bankruptcy. In other cases
of perceived importance the Court had rendered opinions
with less than a full compliment of justices.
So
the Court, Wirt felt, had no majority in Ogden v.
Saunders. But this fact must mean, if his calculations
were correct, that Washington was not siding with Marshall
and Story, or that Duvall had inexplicably joined with
Johnson and Thompson. Wirt thought the latter possibility
most unlikely. Duvall had rendered only three opinions
since 1819, he was increasingly deaf, and he reportedly
did not like Johnson. Washington, on the other hand, was
independent, very influential in the Court's conferences,
but at the same time diffident and sometime idiosyncratic
in his views. Everything pointed to the fact, Wirt thought,
that Marshall was looking for a fourth vote. Now Trimble
was on the Court: did Marshall have it." Wirt wished he
had a fuller impression of Trimble.
Seated
near Wirt in the lawyers' section of the courtroom, Daniel
Webster was going through the same exercise. He and Story
had been the prime movers behind national bankruptcy legislation,
but to no avail. Year after year Webster would go to Congress
with a text of a bill drafted by Story and hope for the
right atmosphere in which to introduce it, but that atmosphere
never arrived. Southern and Western interests saw the
bill as favoring the Northeastern commercial classes;
Jacksonian Democrats opposed it as favoring banks; some
groups not included in the bill's coverage, such as farmers,
opposed it on those grounds. State sovereignty and states'
rights issues were also raised in the debate at a time
when those issues had become increasingly charged. Webster,
who had attempted to use a national bankruptcy act as
another means of enhancing his visibility, felt that his
best chance, by 1827, was to have all state bankruptcy
legislation declared unconstitutional. Then something
would have to be done.
Webster
had also noticed the Court's repeated postponement of
Ogden v. Saunders, and was frankly mystified.
Story, so excellent a source of the Court's internal discussions
in most instances, was strikingly circumspect on the Saunders
case. Webster could not believe that Marshall would
not prevail in the end: after all, the Chief Justice had
never publicly expressed a dissent in a major constitutional
case. But the postponements meant that Marshall did not
yet have four votes, and Webster, from intelligence passed
on by Story, knew that Duvall had long ceased to form
independent judgments in constitutional cases, relying,
as the Court at large did, on Marshall's instinct being
sound. Property rights, Webster felt, would tell in the
end. Were not property rights the very foundation of republican
society? Property rights "vested" in the signing of a
contract, and there was a duty to perform that contract
which sprung from universal law. The obligation to adhere
to contracts was thus a "preexisting" right, one that
needed no positive legislation to create it.
Webster
intended to ensure, through his argument before the Court,
that Marshall would have his fourth vote. He would paraphrase
Marshall's own views on the importance of maintaining
commerce and preserving the obligations of debtors. His
oratory would not only inspire Marshall to restate his
views in conference, it would give Trimble a preview of
them. Webster ran over the text of that portion of his
argument. "We differ' he had written in his notes, "from
our learned adversaries on general principles ... We regard
[the contracts clause] as intended to guard against great
public mischief’s ... We look upon it as a great
political provision, favorable to the commerce and credit
of the whole country." At this point, Webster had injected
a page of history into his argument, artfully cribbed
from Marshall's Life of Washington:
Commerce,
credit, and confidence, were the principal things which
did not exist under the old confederation, and which it
was a main object of the present constitution to create
and establish. A vicious system of legislation, a system
of paper money and tender laws, had completely paralyzed
industry, threatened to beggar every man of property,
and ultimately to ruin the country. The relation between
debtor and creditor, always delicate, and always dangerous
whenever it divides society, and draws out the respective
parties into different ranks and classes, was in such
a condition ... as to threaten the overthrow of all government.
. . . The object of the new constitution was to avert
these evils; to awaken industry by giving security to
property; to establish confidence, credit, and commerce,
by salutary laws.
Webster
felt confident that his argument would succeed. He would
prepare the groundwork; the Chief Justice would do the
rest.
Robert
Trimble was puzzled and disconcerted after hearing the
arguments in Ogden v. Saunders. He was a
believer in a strong federal government, and his decisions
in nine years as a Kentucky federal district judge, before
being named to the Supreme Court, were a testament to
that belief He would have preferred national bankruptcy
legislation, but Congress would apparently not act, and
he regarded imprisonment for debt, and the whole system
of borrowing and loaning on credit, as troublesome features
of modern society. He knew, from his life in Kentucky,
that one had to borrow money from time to time; that one
took risks in order to secure wealth; that sometimes one
was financially strapped; and that often one had to rely
on the goodwill of one's creditors or debtors. It seemed
impossible to him that states like Kentucky could not
have some say about the kind of borrowing and lending
that took place within their borders. Had everyone in
Kentucky to pay his debts on. demand or go to prison,
half the state would be behind bars.
Moreover,
it was strange that the Court, which had, in its Crowninshield
decision, allowed states to pass insolvency legislation
so long as Congress had not, would now consider turning
around and suggesting that any kind of state insolvency
legislation was constitutionally invalid. This
change of heart struck Trimble as unseemly. He did not
know what had gone on among the justices in Crowninshield,
but he did not want to embarrass the Court. Moreover,
he had been–he confessed to himself–offended
by Daniel Webster's argument. He simply did not believe
that the obligation of contracts derived from a "universal
law" that was independent of the civil law of the state
in which the contracts were made. The argument proved
too much: if it were true, the states could have no control
over contracts at all. They could not pass any legislation
affecting contracts in any fashion. Usury laws and statutes
of limitation would be invalid under the contracts clause.
The more Trimble reflected, the more he became convinced
that "the great principle" of the contracts was a prohibition
against retrospective legislation: legislatures
could not pass laws upsetting the obligation of contracts
already in existence when the laws were passed. Statutes
of limitation and usury laws were not retrospective in
their effect, thus they were permissible. So, Trimble
had concluded, were insolvency or bankruptcy laws that
had no retrospective effect.
The
Chief Justice sat in his boardinghouse room, having just
concluded dinner. He was an early riser and also an early
sleeper, and he was about to take to his bed with a book.
A knock came on the door, and Story appeared. Marshall
welcomed him and reached for his bottle of port and its
accompanying glasses on the shelf behind one of his chairs.
He waved his hand in the direction of a chair and began
to pour out two glasses. The gestures had been repeated
so often, and the scene was so familiar, that the two
men's actions were reflexive. The ritual signified that
a Court matter was about to be discussed.
What
had he taken from the discussion of the Saunders case
at conference and during dinner? Story asked Marshall.
Was there a clear majority for holding prospective bankruptcy
legislation constitutional? Indeed there was, Marshall
replied. Washington had adopted an "odd" position, following
precedent in a rigid, literal fashion. Marshall thought
that Washington simply didn't want a situation in which
debtors had no relief Washington had himself been strapped
over the years because of Mount Vernon, and he felt that
Congress would do nothing. Story agreed that the national
bankruptcy bill was "dead, and under circumstances in
which it will not soon be revived." Trimble had been impressive
in the conference, Story felt. He had seen where Webster's
argument led–to an absence of power in the states
to control contracts made between men within their boundaries–and
he had shrewdly converted it into an extremist polemic.
Washington had taken the point, Story sensed; and Thompson
was unsound on state sovereignty issues at any rate. As
for Johnson, the only hope was that he could be persuaded
to limit the decision to contracts made solely by citizens
of the states that had passed the legislation, so that
debtors from other states could not have their obligations
abrogated. Whatever the outcome, Johnson would surely
make public his peculiar views.
Marshall
sat lost in thought. In all the years I have been on this
Court, he finally said, I have never expressed my views
when I have had the misfortune to differ with a majority
of my brethren on a matter involving the interpretation
of the Constitution. But I shall write in this case. I
recall, as if it were yesterday, the years of the Revolution
and of the old confederation. Those of us who fought with
Washington did not know whether we would have food, or
supplies, or men from month to month: the states were
fickle in their support and the national government was
too weak. When we had finally driven out the British,
and we sought to profit from our peace, the security of
property and the obligations of debt were undermined by
the legislatures of the confederated states. Debts were
paid in worthless paper money, or not paid at all; men
were discharged from their obligations by reckless legislatures;
the new government was powerless to act. The contracts
clause of the Constitution was a response to that unfortunate
time. It embodied two great principles: that property
rights, once vested, shall remain secure, and that no
state shall have the power to disturb the obligations
inherent in contracts between men. There is no language
in the clause confining its reach to retrospective legislation.
Its words are general, and apply to contracts of every
description.
If
you are to differ from the majority, and you know
that I shall join you–and that Duvall will as well–Story
said, who will write the Court's opinion? Will there be
one opinion for all or will the judges render their views
seriatim? Bushrod will object to that practice, as he
invariably does, but Johnson will be determined to express
his views, and in a case of such magnitude perhaps the
others will want to be heard as well. You know, Marshall
replied, the importance I attach to this Court's speaking
with one voice on matters. But our divisions on this case
are well known, and I cannot think that the majority will
agree on one opinion. Were not the principles raised by
this case so significant, I would keep silent, and were
I in the majority I would seek to write for my brethren.
But Webster perhaps overreached himself in argument, and
we have lost Trimble. The case is, I fear, a melancholy
signal of how different a Court we are from that which
pronounced judgments in the Bank case. That term we were
sorely divided on Crowninshield, but we kept our
differences to ourselves; now, I fear, we must air them.
Story
thought of how the Court had changed since the 1819 term.
Livingston, a great force for harmony and cooperation
with his good humor and his ability to prick the bubble
of Johnson's wrath with a sharp jest, was gone, and in
his place Thompson, a thoroughgoing politician. Todd,
whose bent was for practical solutions and who rarely
became bogged down in doctrinal disputes, had been replaced
by Trimble, by all odds a formidable and independent spirit.
Duvall had grown increasingly feeble and was no longer
a presence in conference. Johnson seemed to have grown
more defiant and solitary with the years: it was as if
he was rebelling against his own contributions to harmony
and good sense in the period after the War. As for the
Chief Justice, sometimes he seemed transfixed in time,
as if he saw the "great principles" of the early Republic
as fixed and unalterable, and his consummate wisdom about
contemporary politics gave way to an uncharacteristic
rigidity. It was still a great Court, Story felt. But
the occasions on which he, Washington, and the Chief Justice
could produce unanimity by a side comment or a politic
phrase were fewer and fewer with the years. And now Wheaton
would be leaving as Reporter, to Johnson's great delight
and Story's concern. Wheaton had come to be something
of an annoyance over the years, but he and Story had done
a great deal of good work together, laying a scientific
foundation for the Court's decisions. Story felt that
somehow the Saunders case, one of the last Wheaton
would report, was the end of the Court as he had known
it.
*
* *
William
Johnson lay in his bed in a boardinghouse in Brooklyn,
New York, hoping to pass the night peacefully before his
surgery the next day. His jaw had bothered him for months,
and doctors had said that it was cancerous and that only
an operation could save him. He had written his will,
said goodbye to his family, and was prepared for the worst.
At times he found himself indifferent to his own survival.
He had been in poor health for three years now, missing
two terms in Washington and being unable to attend all
of his circuit sessions. Nullification, slavery, and his
penchant for involving himself in political issues had
estranged him from many of his neighbors in Charleston.
On the Court his relations were not much better. He had
been an enemy of Story's almost from the moment of the
latter's arrival in 1812; he had endured Washington's
murmuring about 'justices cutting up one another" seemingly.
on every occasion that he sought to speak out in dissent;
he had no particular respect for Duvall, whom he referred
to as a cypher; he was remote from both Todd and Trimble.
He admired Marshall and was amused by Livingston's wit,
and recently he had encouraged the independence of Thompson
and Baldwin, but he was not close to anyone on the Court.
As
the night passed Johnson realized that he was not going
to sleep. His working life seemed to pass before him,
from the startling news that Jefferson had appointed him,
at the age of thirty-two, to the Supreme Court of the
United States, to the last term, which he had missed altogether
because of various health problems. Suddenly the memories
flooded in, and he seemed to remember each with a singular
exactness. The bitter controversy with Story over the
common law of crimes, culminating in United States
v. Coolidge, which Story had foolishly tried
to certify up as a common law case, when everyone knew
it was an admiralty case. He had had the pleasure of watching
Story's expression when the Attorney General of the United
States declined to argue Coolidge, deferring to
the precedent of Johnson's opinion in United States
v. Hudson and Goodwin. The equally bitter and
more protracted battle against Story and Wheaton over
"the slow and stealing progress" of the admiralty jurisdiction,
which Johnson had had to resist at every turn, and had
largely, with the silent help of Marshall and some pressure
from Congressional critics of the Court, succeeded in
resisting. The annoyance that Jefferson had shown when
Johnson sided with the Court majority in the Bank case
and the two great Virginia cases, Martin v. Hunter's
Lessee and Cohens v. Virginia; Johnson's
recognition that Jefferson had not fully understood his
interest in promoting commerce across the nation and his
conviction, as a planter, that state restrictions on commerce
were misguided; the letters he and
Jefferson had exchanged in 1822 and 1823, in which Johnson
had told the former President of his trials on the Court
and Jefferson had encouraged him to speak out.
There
had been some memorable cases. The fraudulent episode
of Fletcher v. Peck, before Story's time,
in which the audacity of state efforts to undermine vested
property rights had been exposed; the sad episode of The
Antelope, where Story's misbegotten circuit opinion
outlawing the entire slave trade–the presumption
of it!–had been soundly repudiated by the Court,
and Johnson's position vindicated; Story's incredible
performance in lecturing the Virginia Court of Appeals
in Martin v. Hunters Lessee, the equally
incredible follies of the Virginians in the Cohens
case, which even he, as strong a friend of states'
rights as he was, could not tolerate; the excessively
cautious posture of Marshall in Gibbons v. Ogden,
tolerating a concurrent power in the states to regulate
commerce when a ringing declaration of the exclusivity
of federal power was called for; Marshall's overly broad
assertion in Osborn v. Bank that the remotest
"federal" connection to any controversy gave the federal
courts jurisdiction over it. And, most recently,
the Cherokee cases, Cherokee Nation v. Georgia
and Worcester v. Georgia, the latter
of which he had missed, and was glad of it: the Court
should never had involved itself in what was purely a
diplomatic matter.
Jefferson
had been in his grave for eight years, and Johnson wondered
whether he would have regarded those years with his usual
sanguinity or with the occasional choler that had crept
into his perspective late in his life. Surely even Jefferson,
the apostle of state sovereignty and the friend of peaceful
revolution, would have been appalled at the idea of nullification.
On that issue Marshall, Jefferson's old antagonist, and
even Story were right: the Union dismembered could not
last. Slavery was the root cause of nullification, and
Jefferson would have viewed the growing militancy among
slave-owners in South Carolina and in Virginia with alarm.
The Court had thus far not entertained a case testing
the constitutionality of extending slavery to the territories,
and Johnson hoped it never would; but the case was coming
as the nation expanded and the attitude of each new state
toward slaveholding became a matter of public interest
and controversy. Johnson knew where he stood on that issue.
Slavery was an abomination and an evil, but it was permitted
by the Constitution and embedded in plantation society.
The Union and slavery must learn to co-exist.
Johnson
remembered Jefferson's denunciation of the justices' practice
of silent acquiescence. He had taken pride in following
through on his promise to declare himself separately in
constitutional questions, and he knew that Jefferson would
have been amused and delighted to see the old custom of
quartering together in the boardinghouse break down. Who
would have thought that a woman, and an admirer of Marshall,
would have broken up the practice? He remembered arriving
in Washington for the 1829 term to find the new justice,
John McLean, boarding in his Washington home and traveling
to the Capitol to meet with his colleagues. In time he
learned that Mrs. McLean thought it was foolish and unnecessarily
expensive for her husband to board overnight in Capitol
Hill when he had perfectly fine quarters in the same city.
On hearing this news Johnson resolved that he would subsequently
quarter by himself: it saved him the awkwardness of daily
interchange with Story and, if the truth be known, removed
him from the intimate company of Justice Henry Baldwin,
on the Court since 1830, whom Johnson thought quite mad,
and who was capable, at dinner, conference, or in the
halls of the boardinghouse, of moments when he seemed
incapable of agreeing with anyone about anything.
With
the solidarity of the boardinghouse broken up, Washington
dead, the Chief Justice's health somewhat impaired, and
several Jackson appointments on the Court, the old days
of solidarity, conviviality, and subtle pressure were
gone. Johnson welcomed the change. It was a Court in which
he breathed more easily, stated his views in his own way,
and encouraged others to do the same. Had he known that
the single minded Court of his early years, dominated
by Marshall and Washington, would have evolved in such
a fashion, he never would have offered his resignation,
as he had to Madison in 1814. He was, on the whole, glad
that Madison had never responded to his letter. He might
die tomorrow, but he had lived a full and free life. He
knew that John Quincy Adams had called him a "restless,
turbulent, hot-headed, politician caballing Judges' but
even Adams had had to admit that Johnson was "a man of
considerable talents" who was "flaringly independent."
They could write all of the above on his tombstone.
*
* *
John
Marshall awoke in his bedroom in Philadelphia. So, it
appeared, he was not going to die after all. The fellow
Physick had done wonders: over a thousand uric acid stones
had been removed from the area of his prostate gland.
He would be confined to his room for weeks, unable even
to leave his bed. But if he stayed quiet he had every
chance of full recovery. Marshall knew how he would spend
the time, when awake: he would think about his wife Polly,
now very frail, and his life on the Court. After thirty
years as Chief Justice there was a good deal to think
about, and perhaps he would be spared a few years more
as a kind of unexpected gift.
Had
he to repeat his life, Marshall realized, he would do
few things differently, and one thing he would surely
do over would be to accept, without any diffidence, the
nomination of Chief Justice of the United States. He remembered
that his first reaction, after Adams nominated him, was
what a bitter cup of tea his choice must be for Jefferson,
and how he had determined not to give Jefferson's party
any opportunity to label him a partisan. He and Bushrod
Washington, who had been as loyal as he had been astute,
had slowly, through example, suggestion, and occasional
comments, changed the Court's practice from seriatim opinions
to the "opinion of the Court." Cushing's lack of ability,
Patterson's laziness, and Chase's senility had helped
facilitate the process; by the time Johnson came on the
Court in 1804 it was entrenched. The system, Marshall
felt, perfectly complemented the Court's living arrangements.
Cases could be discussed informally in the boardinghouse,
a decision reached, and the opinion assigned in a manner
that made each judge feel as if he had fully participated
in the decision. Then the opinion would, in most cases,
be written by Marshall himself, and the remaining judges
would take no notice of it. Marshall smiled as he thought
of the reporting of the Court's opinions in those early
days: judgments would be delivered and then disappear,
only to emerge years later in Cranch's Reports. Sometimes
the printed product would bear little resemblance to the
opinion Marshall had delivered, but that made very little
difference, because almost no one–certainly not the
other judges–read it.
It
was a different Court then, Marshall believed: one fewer
justice, no men of caliber save Washington and, in his
peculiar fashion, Johnson, not many important cases, little
pressure to dispose of business. He wrote most of the
opinions himself, reasoning most of them out by analogy
and principle. Besides Marbury v. Madison, the
great mandamus case, Fletcher against Peck, and the Burr
trial (which never reached the Court as a body), there
were no cases of monumental importance until the outbreak
of the 1812 war. Then matters changed with a rush. Story
came on the Court, with his ideas about expanding the
jurisdiction of the federal courts, his great learning,
and his abundant energy; admiralty and maritime cases
began to crowd in on the lower courts, and the battles
over the common law of crimes and admiralty jurisdiction
surfaced: legislatures began to infringe on vested rights,
and the great contracts clause cases began; Virginia,
Ohio, and Kentucky defied the Court, provoking the jurisdictional
controversies that led to Martin, Cohens, and Osborn;
domestic commerce became as important as maritime
commerce, and the Bank and steamboat cases resulted; the
presence of black and red men in America raised issues
of great delicacy for the Court.
An
eventful time, one that he had been fortunate to live
through and to participate in. His favorite years, he
now felt, had been those from 1811 to 1823, years in which
the judges had established a routine, considered important
cases, and decided them without much rancor or difficulty.
There were of course, exceptions: the admiralty jurisdiction
cases, Sturges v. Crowninshield, the Dartmouth
College case, the common law of crimes cases. But
on the whole it had been an exciting and a harmonious
span of time. Marshall had enjoyed the company of all
of the judges and had been able to smooth over much of
their internal differences. Johnson, for all of his combativeness,
had a mind of power and perspicuity; he only wanted tact,
and was too quick to take offense. Duvall was too often
underestimated: he had sound judgement, a gentle but firm
manner, and an ability to take the sting out of a phrase.
Many times he had prevented discussions from becoming
heated by an assiduous restatement of another judge's
polemic.
Todd
was likewise a valuable judge, particularly helpful on
the real property disputes that came out of Kentucky,
Ohio, and Tennessee in those years. On constitutional
matters Todd could be counted on to support the Union
and to bear in mind matters of necessity and convenience.
He was a good friend to the cause of solidarity and an
amiable presence in the boardinghouse. Livingston was
equally helpful and amiable. Marshall had first wondered
why Livingston had not asked for more opinions or participated
more fully in juridical studies, but he soon realized
why: the man enjoyed conversation and camaraderie but
disliked writing opinions. With his keen wit and his penchant
for jesting sarcasm, Livingston was the bon mot of
the conferences: not even Story could match him in erudition.
Livingston could even get Johnson to pause occasionally
from his persistent over-seriousness; Marshall relied
on Livingston to break up the ponderousness of a Story-Johnson
exchange with a swift barb. Few would understand, Marshall
felt, the contributions made by those "silent" judges:
in the Court informal discussion and debate were as important
as the delivered opinion. By silent acquiescence and moderated
views the judges offered their views to the public as
a united body. There were few opportunities for critics
to seize upon. The history of the Court in that period
was reflected not merely by the language in Wheaton's
Reports but by the more informal, but equally important,
language of the silent judges in conferences.
Story
and Washington were, of course, his firm allies and his
able partners in those years. Marshall realized that something
had always kept Story, in his own contacts with Marshall,
from becoming the - overbearing or tiresome pedant
that he sometimes was to others. Perhaps it was the difference
in their ages: Story had always treated him with a certain
respect. Perhaps the flintiness of Story's personality
had simply been smothered by my own dull slowness, Marshall
began to soliloquize to himself; but at any rate I have
been spared the preachiness and arrogance Story exhibited
to others. I knew, of course, not to turn Story loose
on a delicate case too often. Occasionally, when the situation
demanded it, Story's juridical erudition was matched by
his political acumen: Martin was an example. But
on other occasions Story pressed a point too far or put
matters too baldly, as in his unfortunate' opinion in
the Kentucky land case, Green v. Biddle, which
the Court found prudent to withdraw
Washington
was, of course, my dearest friend and closest colleague.
Washington had chosen to defer most of the opinion writing
to me; that was a matter of temperament. Washington was
a born lawyer, a close reasoner with a penchant for nice
distinctions and narrow holdings. He was uncomfortable
in the realm of great principles; he liked precedent,
logic, and parsing cases. His remarks in conversation
often clarified the issues at stake, but he felt content
to stop at that point; I needed to go on. He was fearless
in his independence when he and I differed on matters,
but he almost never dissented, believing, as I did, that
dissents served no purpose and weakened the integrity
of the Court. He restrained Story on more than one occasion,
and he was a great force for harmony and cohesiveness
throughout his time on the Court. None disliked him and
all respected him: he was a judge's judge.
Those
years during and after the war had truly been exciting
and pleasant ones. The war was itself an abomination,
but its effects, on the whole, were healthy: the nation
gained more territory, expanded its commerce, and established
itself as master of its own continent. Above all the war
produced a kind of unity, a commitment to the nation and
a temporary suspension of sectional interest and discord.
But in the last ten years, the forces of disunion had
revived. I know where I would lay the blame for most of
this unfortunate renaissance, on Mr. Jefferson, a tireless
and strident agitator in his "retirement," seeking to
rake up the animosities of the past.
The
doctrines propounded by Jefferson and his cabal of followers
had surfaced as early as the Bank case, when his confidant
Roane and his dupe Brockenbrough had attacked the Court
in the Richmond Enquirer Jefferson had followed
up that episode with his attacks on the Cohens case,
his published criticism of the Court in letters, his encouragement
of the polemics of Taylor of Caroline, and his unprincipled
efforts to enlist Madison in his cause. The results have
born bitter fruit: Jackson the demagogue, denouncing the
Bank under the banner of "equality"; the disunionist nullification
doctrines; the shortsighted parochialism that is now claimed
as the birthright of every young Virginian. When is added
to this the unfortunate proliferation of slavery, the
lack of any real support for African colonization, the
selfish opposition to Mr. Clay's very sensible program
for expanding commerce and improving the nation's transportation,
and the fanaticism of those who suddenly believe that
slavery must be immediately abolished, I fear that the
Union cannot last. I hope that I will at least be given
a few more years to help preserve it if I can.
Story
has been preparing a volume of commentaries on the Constitution,
which I hope will receive widespread attention as a healthy
corrective to the disunionist doctrines of the moment.
He has been asking me, over the years, to consider the
sources of my constitutional principles. I have not given
him fully satisfactory answers, I fear, for my views are
not as learned or as scientific as he might like. But
I have borne in mind certain precepts as I went along.
I
was not an exact contemporary of the great men who framed
the Constitution, but I knew most of them and was of an
age, during the Revolution, the Confederation, and the
years of the Constitution's framing and ratification,
to understand what was at stake. We had committed ourselves
to a republican form of a government, in my view the most
perfect man could devise. But the danger of a republic
in America was twofold: decay from within and fragmentation
from without. We could not suffer corruption among our
representatives; neither could we survive the breakup
of our constituent parts. Jefferson understood the first
principle but not the second; Hamilton, perhaps imperfectly,
understood the first. But Washington, through his own
virtue and his great judgment, forestalled corruption
by setting limits to his presidency and deigning to side
fully with any of his successors, thereby implicitly encouraging
Jefferson to form an opposition party and thus ensure
that dynasties would not go unremarked. I deplore Jefferson's
views, of course, but I believe that only through "frequent
recourse to first principles" can the Republic be purged
of nascent corruption. Jackson's followers promise to
be corrupt before long, and I suspect that organized opposition
to them will emerge.
Corruption,
though, has not been the chief problem of our republic;
it has been fragmentation. The Constitution was designed
to insure that a strong federal government would serve
as a bulwark against sectional discord and economic chaos
engendered by demagogues in the respective states. The
overriding goals of the Constitution's framers were thus
economic security, national strength, and the maintenance
of a republican society. This meant protection for private
property, checks against demagoguery or dissension in
the states, and support for those national institutions
necessary to ensure that a Union would be preserved.
With
these principles and goals in mind, I simply read the
language of the Constitution. The language of the contracts
clause was designed to prevent state legislatures from
interfering with private obligations and being overly
solicitous of the debtor classes. The language of the
commerce clause and the necessary and proper clause, taken
together, was to protect those national institutions that
Congress created in pursuit of its great objects from
being crippled by state jealousies. The language of Article
III, as implemented in the Judiciary Act of 1789, was
to insure that the state courts could not set themselves
up as the final interpreters of the federal constitution.
These were the great outlines of the constitution: protection
for private property, support for the Union and necessary
national institutions, and the creation of an independent
judiciary. I have simply filled in the outlines in appropriate
cases. I have cast myself back to the time when the Republic
was created and restated the first principles of the creation
as I witnessed them.
There
are, on the horizon, forces gathering whose impact I cannot
fathom. The spirit of enterprise, so useful to our commerce,
has become sufficiently rampant in the nation to create
a whole class of workers and artisans whose political
sensibilities I fear are not finely honed. Suffrage restrictions
are being swept away. The old practices of trade and exchange
are disappearing, and "commercial men" are everywhere.
The uneducated, the propertyless, and the transient are
more important in politics than ever before. I am not
sure what all this portends, but I see unchecked democracy
in the future, and I fear for the Republic. Washington
understood, as I said in my volumes on his life, the difference
between the orderly civic virtue of a republic and the
chaos and demagoguery of a democracy. I fear that distinction
will be lost. I fear that in some distant future I and
the other judges will be remembered as monarchists and
reactionaries, and Mr. Jefferson and Mr. Jackson as the
patron saints of the levellers. But perhaps I grow unduly
gloomy; Physick and Providence have spared me and the
Court has not yet capitulated to a democratic future.
Tomorrow I shall write Story and ask him about
arrangements for the boardinghouse this winter. We must
not let the judges scatter; that will be the first step
toward disunion.
|
