John Marshall

  The House that John Marshall Built:

  The United States Supreme Court. (LIBRARY OF CONGRESS)

  Copyright © 2014 by Harlow Giles Unger

  All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For information, address Da Capo Press, 44 Farnsworth Street, Third Floor, Boston, MA 02210.

  Designed by Trish Wilkinson

  Set in 11.5 point Adobe Garamond Pro by The Perseus Books Group

  Library of Congress Cataloging-in-Publication Data

  Unger, Harlow G., 1931–author.

  John Marshall : the chief justice who saved the nation / Harlow Giles Unger.

  pagescm

  Includes bibliographical references and index.

  ISBN 978-0-306-82221-6 (e-book)

  1.Marshall, John, 1755–1835.2.Judges—United States—Biography.3.United States. Supreme Court—Biography.I.Title.

  KF8745.M3U54 2014

  347.73'2634—dc23

  [B]

  2014008405

  First Da Capo Press edition 2014

  Published by Da Capo Press

  A Member of the Perseus Books Group

  www.dacapopress.com

  Da Capo Press books are available at special discounts for bulk purchases in the U.S. by corporations, institutions, and other organizations. For more information, please contact the Special Markets Department at the Perseus Books Group, 2300 Chestnut Street, Suite 200, Philadelphia, PA 19103, or call (800) 810-4145, ext. 5000, or e-mail special. markets@perseusbooks.com.

  10987654321

  Contents

  List of Illustrations

  Acknowledgments

  Introduction

  CHAPTER 1Chaos!

  CHAPTER 2Commotions

  CHAPTER 3“We, Sir, Idolize Democracy!”

  CHAPTER 4Quoits Was the Game

  CHAPTER 5The Great Divide

  CHAPTER 6The Two Happiest People on Earth

  CHAPTER 7X, Y, Z

  CHAPTER 8Our Washington Is No More

  CHAPTER 9Midnight Judges

  CHAPTER 10Mr. Chief Justice

  CHAPTER 11Party Rage

  CHAPTER 12A Deadly Interview

  CHAPTER 13The Trial

  CHAPTER 14The Court Must Be Obeyed

  CHAPTER 15An Era of Good Feelings

  CHAPTER 16The Final Arbiter

  APPENDIX: Nine Great Cases of John Marshall’s Supreme Court

  Notes

  Bibliography

  Index

  List of Illustrations

  Maps

  Virginia’s Northern Neck

  The United States after 1783

  Illustrations

  Frontispiece: The House that John Marshall Built: The US Supreme Court

  1. John Marshall

  2. “The Hollow”

  3. George Washington at Monmouth

  4. Judge George Wythe

  5. Mary Ambler “Polly” Marshall

  6. Oak Hill, 1773

  7. Alexander Hamilton

  8. Patrick Henry

  9. Marshall Home in Richmond

  10. Richmond in 1800

  11. Thomas Jefferson

  12. Edmond Genet Presents Credentials

  13. James Monroe

  14. President Washington’s Farewell Dinner

  15. President John Adams

  16. Talleyrand

  17. Elbridge Gerry

  18. Portal of Power

  19. Charles Cotesworth Pinckney

  20. Congressional Pugilists

  21. Napoléon Bonaparte Invades Egypt

  22. Aaron Burr Jr.

  23. Secretary of State Timothy Pickering

  24. Maison Carré in Nîmes (a) and Richmond State Capitol (b)

  25. Chief Justice John Jay

  26. John Adams’s Letter to the Senate

  27. Chief Justice John Marshall

  28. Philosophic Cock

  29. John Marshall’s Supreme Court

  30. Associate Justice Samuel Chase

  31. Hamilton-Burr Duel

  32. General James Wilkinson

  33. General Andrew Jackson

  34. President James Madison

  35. New Supreme Court Chamber

  36. “Republican” Supreme Court

  37. The US Capitol before the War of 1812

  38. Burning of the Capitol by the British in 1814

  39. Agreement at Ghent

  40. Battle of New Orleans

  41. Caldwell House

  42. Inauguration of James Monroe

  43. Dartmouth College

  44. Steamboat Traffic on the Hudson River

  Acknowledgments

  MY DEEPEST THANKS TO FORMER DEPUTY US ATTORNEY GENERAL Edward C. Schmults and to New York attorney Andrew Bab for reviewing the manuscript of this book before its publication. Both were most gracious and generous in sharing their knowledge of history and their understanding of the Constitution. Attorney A. Reading Van Doren Jr., was also kind enough to review the manuscript. I am grateful as well to the staffs at the Supreme Court Historical Society, the John Marshall House, the Massachusetts Historical Society, and the Library of Congress Prints and Photographs Division for their help. And although their names do not appear on the cover, the members of the great publishing and editorial team at Da Capo Press of the Perseus Books group are as responsible as I am for this book. I am truly grateful for and honored by their help and support—especially, John Radziewicz, Publisher; Robert Pigeon, Executive Editor; Lissa Warren, Vice President, Director of Publicity; Kevin Hanover, Vice President, Director of Marketing; Sean Maher, Marketing Manager; Fred Francis, Managing Editor; Cisca Schreefel, Manager, Editorial Production; Justin Lovell, Editorial Assistant; Trish Wilkinson, Designer; and Josephine Mariea, Copy Editor; Robert Swanson, Indexer. My warmest thanks to you all and to the wonderful sales team of the Perseus Books Group.

  Introduction

  CLOUDS OF DOOM SHROUDED THE NATION IN 1800.

  George Washington was dead.

  For the first time in their twenty-five-year struggle to govern themselves, Americans faced a future without the father of their country to lead them.

  And they lost their way.

  Absent their commander-in-chief, the men who had helped him lead the nation to independence went mad. Chaos engulfed the land as surviving Founding Fathers—Adams, Burr, Hamilton, Jefferson, Monroe, and others—turned on each other as they clawed at Washington’s fallen mantle.

  In a drama not unlike a classical Greek or Shakespearean tragedy, arrogance and lust for power gripped the souls of national heroes, perverting their patriotism, spurring them to spring on each other, fangs bared, spitting venom. Defying the Declaration of Independence and Constitution they had written and sworn to uphold, they ignored the commandments their religions demanded they obey. Madness swept them into its arms, with congressmen wrestling each other to the floor of the House, pummeling each other. Former battlefield comrades and close friends challenged each other to deadly duels, and high government officials plotted to disgrace, imprison, or murder those they perceived as political foes.

  Presidents were not immune from the madness. John Adams and Thomas Jefferson, both signers of the Declaration of Independence, blatantly violated their oaths of office, stripping the Bill of Rights from the Constitution and, in Jefferson’s case, urging states to consider secession. The madness affected heroes as well. Virginia Senator James Monroe, a hero at the Battle of Trenton, plotted to disgrace Treasury Secretary Alexander Hamilton, who had helped save Monroe’s life at Trenton. Hamilton, in turn, plotted to disgrace Aaron Burr
Jr., who had also fought at Trenton and rode with both Monroe and Hamilton at Monmouth Courthouse. In the postwar struggle for power, Hamilton’s scheming unseated President Adams in the 1800 presidential election and provoked the most dangerous constitutional conflict in early American history. Later, Hamilton’s insane feuding with Burr—by then vice president of the United States—ended in a disastrous duel that sent him to his grave and Burr to exile in Europe.

  As scandal and ignominy tarred his former wartime comrades, one man stood apart from the chaos engulfing the government—as heroic in peace as he had been in war. Like Burr, Hamilton, and Monroe, John Marshall had charged into enemy lines in New York, Trenton, and Monmouth and shared their suffering through the bitter winter at Valley Forge. Content to practice law at home in Richmond, Virginia, after the war he won national acclaim as a delegate to Virginia’s ratification convention. In one of the most dramatic debates in American history, Marshall challenged America’s legendary patriot Patrick Henry and championed ratification of the Constitution—a document designed to quell America’s political chaos with a new and powerful central government. Virginia sided with Marshall and, rejecting Henry’s objections, ratified the Constitution and sent Marshall’s star soaring in the political firmament as a fearless attorney, state legislator, and congressman.

  In 1793, however, the French Revolution sparked another outbreak of political madness in the United States. After France declared war on Britain, fighting between the two nations spilled into the Atlantic Ocean, with French and British warships attacking American vessels to prevent them from carrying cargoes to enemy ports. Together the French and English seized hundreds of millions of dollars’ worth of ships and cargoes and impressed or imprisoned thousands of innocent American crewmen and helpless passengers.

  President Washington and his successor, John Adams, tried steering the United States into neutral waters, but the French and British ship seizures further enraged and divided Americans. Alexander Hamilton demanded that Adams declare war on France to protect America’s vital trade with England, while Hamilton’s bitter foe Thomas Jefferson called for war against Britain on the side of America’s Revolutionary War ally, France.

  As street rioting convulsed the nation, President Adams chose a middle course, urging Congress to strengthen American defenses while he sent a commission that included John Marshall to France to talk peace. Hamilton then turned on Adams, calling him a coward “unfit to govern” and presenting an alternative candidate in the presidential elections of 1800. To crush growing dissent, the President fired cabinet members who sided with Hamilton and rammed the infamous Alien and Sedition Acts through Congress, effectively suspending the Bill of Rights and criminalizing oral and printed criticism of the President and his government.

  Burning with ambition to replace Adams as President, Vice President Jefferson urged state legislatures in Kentucky and Virginia to undermine congressional powers by nullifying the new federal laws—in effect, calling for secession.

  As a Hamilton puppet candidate siphoned votes from President Adams in the presidential election of 1800, Jefferson and Aaron Burr Jr. garnered the most votes, and Jeffersonians—now calling themselves “Republicans”*—gained control of both houses of Congress.

  Left with only a few weeks in office and Jefferson pledging to dismantle much of the federal structure, President Adams reinforced as much of the national government as he could, “packing” the federal judiciary with “federalist” judges pledged to preserving the powers of the central government. He then stunned the nation by appointing a champion of federalism, Secretary of State John Marshall, Chief Justice of the Supreme Court.

  In the more than three decades that would follow his appointment, Marshall’s pronouncements would ensure the integrity and eminence of the Constitution and the federal government and catapult him into the pantheon of American Founding Fathers as father of the American federal justice system. He would become the longest serving Chief Justice in US history, signing 1,180 decisions and writing 549 of them, or nearly one-half, himself.

  “He hit the Constitution much as the Lord hit the chaos, at a time when everything needed creating,” constitutional scholar John Paul Frank attested. “Only a first-class creative genius could have risen so magnificently to the opportunity of the hour.”1

  The British authority Lord Bryce insisted that Marshall’s “legal judgments . . . have never been surpassed and rarely equaled by the most famous jurists of modern Europe or ancient Rome.”2

  In the course of his Supreme Court leadership Marshall stood at the center of the most riveting—and most important—courtroom dramas in the nation’s formative years. Case by case he defined, asserted, and, when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.

  Marshall and his fellow Supreme Court justices established the Constitution—and the Supreme Court’s interpretations of the Constitution—as “the supreme law of the land” and a bulwark against tyranny from within by ambitious American officials.

  Some Marshall decisions provoked presidential anger, others infuriated Congress, and still others outraged governors and state governments, with some states threatening secession. In effect Marshall’s court—its members unelected and unaccountable to “We the People”—rewrote both the Constitution and the laws written by the nation’s elected representatives in Congress.

  During Marshall’s tenure his decisions provoked many citizen protests—even rioting—and twenty-five years after his death those decisions plunged the nation into civil war. But the judicial edifice he built—and the Constitution he defended—survived. The US Supreme Court—Marshall’s “Marble Palace”*—stands today as the third separate and equal branch of government alongside the executive and legislative branches. Together with the US Code of Laws and the Constitution, the Marshall Court’s decisions form the foundation of the American legal system, ensuring “justice . . . and the blessings of liberty to ourselves and our posterity.”3

  Off the bench Marshall was a warm, loyal friend—beloved by every Founding Father except his cousin Thomas Jefferson, who became a bitter lifelong enemy. Marshall was a devoted father of six, and his forty-eight-year marriage to the lady he called “My dearest Polly” is one of the memorable love stories in early American history.

  As John Adams looked back on his own life of public service, he called his appointment of John Marshall as Chief Justice his greatest gift to the nation and “the pride of my life.”4

  _______________

  * Jeffersonian “Republicans” had nothing to do with the founding of the modern Republican party.

  * Marble Palace is the title of the legal scholar John Paul Frank’s work on the Supreme Court, Marble Palace: The Supreme Court in American Life (New York: Alfred A. Knopf, 1958).

  CHAPTER 1

  Chaos!

  “AS THIS GOVERNMENT STANDS,” PATRICK HENRY THUNDERED, “I despise and abhor it. . . . It will oppress and ruin the people. . . . The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges are rendered insecure.”1

  Not since his plea for liberty or death in the spring of 1775 had the legendary Virginia patriot roused such passions among his countrymen. Eight states had held special conventions and ratified a new constitution to try to unite the confederation of thirteen sovereign states under a strong new central government. As Henry spoke, approval by only one more state—the ninth—would produce the two-thirds majority needed to create a new American government and, indeed, a new nation.

  Henry knew, however, that even if twelve other states approved, the new nation would be impotent without Virginia. Virginia was the nation’s largest, richest, and most heavily populated state, with one-fifth of America’s population, one-third of its commerce, and a land mass that stretched from the Atlantic Ocean to the Mississippi River. Elected Virginia’s
first governor after it declared independence from Britain in 1775, Henry opposed ceding his state’s sovereignty to a new Congress in Philadelphia as much he had opposed ceding it to London’s Parliament.

  “We are come hither to preserve the poor Commonwealth of Virginia,” he cried out to Virginia’s ratification convention. “The confederation carried us through a long and dangerous war. It rendered us victorious in that bloody conflict with a powerful nation. . . . Shall a government which has been this strong and vigorous be . . . abandoned for want of energy?”

  “No!” his adoring followers shouted their reply. They had flocked to Richmond from Henry’s native hills of Piedmont of central Virginia and Kentucky. Nearly half of Kentucky’s 100,000 settlers were Virginia transplants who depended on Henry to protect their interests. Farmers, hunters, and trappers in tasseled buckskins, rifles on their shoulders, knives in their belts—all surged into town to hear him.

  “Is this tame relinquishment of rights worthy of freeman?” he called out.

  “No!” came the cry from gallery.

  “The new form of government,” he roared, “will oppress and ruin the people!”

  It was vintage Henry. Not a soul breathed as the crowd watched his hawk-like face snap from side to side, peering into their hearts and souls.

  “Liberty!” he shouted. “The greatest of all earthly blessings. Give us that precious jewel and you may take everything else!”2

  Henry hoped to talk the convention into submission, speaking three and as many as five times a day on seventeen of the convention’s twenty-two days—usually the first to rise from his seat after the opening gavel and the last to speak before the day’s adjournment. On the ninth day, however, as Henry’s acolytes waited for their hero to rise and speak, a tall, powerfully built young man in disheveled clothes untangled his lanky limbs and stood, demanding recognition from the chair for his maiden address:

  “Permit me to attend to what the honorable gentleman has said,” his deep country drawl echoed through the hall. As one, then another, and another of his listeners gasped at his daring, the young man accused Virginia’s revered champion of liberty of nothing less than hypocrisy and—far worse: