Chapter 6: The John Marshall Court (1801-36)

The Five “Courts” Up To The Civil War

In December 1800 Chief Justice Oliver Ellsworth suddenly submits his resignation as Chief Justice.

This results from the effects of a special diplomatic assignment that originates when President John Adams sends him to Paris in November 1799 to seek peace terms with Napoleon in the midst of the “Quasi-War.” His journey begins with a harrowing ocean trip across the Atlantic that blows his ship off course and takes four months to complete. Upon his arrival, the French ministry toys with him much as it had in the 1797 Pinckney-Gerry-Marshall talks the ended with the XYZ Affair. This goes on for eight months before agreement is reached in October 1800 on a flawed treaty that Adams considers unacceptable. Ellsworth is exhausted by the negotiations and suffering from a severe case of the gout. He leaves France and heads to England to try to regain his health, but this proves unsuccessful. While still abroad, he submits his resignation as Chief Justice to John Adams.

By the time Ellsworth resigns, Adams has already lost the election of 1800 to his anti-federalist rival Thomas Jefferson. But before leaving office, Adams makes a last ditch effort to protect Federalist policies, in part by having his lame duck Congress pass the “Judiciary Act of 1801” on February 13.

Part of this is aimed at improving the effectiveness of the high court by reducing the circuit riding burdens. Instead of two Supreme Court Justices traveling twice a year to each Circuit, only one will appear and only once a year. This change is intended to allow the Justices to devote more time to studying the laws from a distance rather than spending endless days on the road or in the local courtrooms.

But the Act’s main impact lies in adding more federal judges to the system. Thus instead of three large judicial Circuits, there will now be six smaller ones, each manned by three additional judges. With this new law in place, Adams devotes his final nineteen days in office to packing the revised judiciary with so-called “Midnight Judges” who will be loyal to his Federalist agenda.

His final coup here lies in nominating a new Chief Justice to replace the retiring Ellsworth. After being turned down by the former Chief, John Jay, he settles on his own Secretary of State, John Marshall, and submits his nomination on January 20, 1801. A week later the Senate approves and Marshall begins his illustrious career on the Court.

Near the end of his life, Adams will remark: “the proudest act of my life was the gift of John Marshall to the people of the United States.”

Jefferson is appalled by Adams’ actions and observes that “the Federalists have retreated to the judiciary” to preserve their power. He vows to repeal the Act of 1801 and soon accomplishes this. But he cannot cancel Marshall, and it will not be until 1804 that he can put his first Democrat-Republican justice on the Court, in William Johnson.

Profiles of Court Members

John Marshall is destined to serve as Chief Justice for nearly thirty-five years, the longest term in American history. Over that period he will be joined by a total of fifteen different Associates, split about evenly between Federalists and Democrats.

Members of the Marshall Court: 1800-1835

Marshall’s mother, Mary Randolph Keith, is the granddaughter of the famous Tidewater scion, Thomas Randolph (of Tuckahoe), and a second cousin of Thomas Jefferson. But despite this royal heritage, she is largely shunned by the family – the reason being that her mother, Mary Isham Randolph, is deemed to have married “below her station.” Thus when John is born in 1755 it is not on a fine plantation estate, but in a two room log cabin in rural Germantown far to the west. He is the first of fifteen siblings and his father is a surveyor and land agent. While his early education consists of less than a year in school, he is an avid reader and with encouragement of a local clergyman he devours a range of books including Blackstone’s Commentaries on English law.

The youth is twenty years old when the Revolutionary War breaks out. Unlike Jefferson, he enlists immediately in the Continental Army and rises to 2^nd Lieutenant in the 11^th Virginia Regiment. He is engaged in many battles, including the longest single-day clash of the war at Brandywine in Pennsylvania. From there he endures the 1777 winter camp with Washington’s troops at Valley Forge. In 1780 he is furloughed and returns to Virginia where he enrolls at William & Mary College and reads law with the famous teacher, George Wythe. He is elected to the Virginia House of Delegates in 1782 and aligns with James Monroe, Richard Henry Lee and other conservatives. In 1783 Marshall marries his wife, Polly, whom he cares for over decades after her physical and mental health gives way. When his law practice expands by 1786 he takes over Edmund Randolph’s clients after the latter becomes Governor of Virginia. Although Marshall does not take part in the 1787 Constitutional Convention, he plays a crucial role along with James Madison in finally getting the document ratified by a 89-79 vote in his home state.

Marshall’s politics are very appealing to both Presidents Washington and Adams. He is a countermeasure to Jefferson’s Anti-Federalists, one who favors strict neutrality in foreign affairs, higher protective tariffs, a forceful Executive and the presence of a standing army. He turns down an offer from Washington to be Attorney General of Virginia, but cannot refuse a call from Adams in 1797 to help prevent a looming war with France. Along with two more senior envoys, Massachusetts Elbridge Gerry and Charles C. Pinckney of South Carolina, Marshall sails to Paris to negotiate with foreign minister Talleyrand. All three are treated shabbily upon their arrival before the Frenchman demands a sizable bribe just to begin the negotiations. Talks drag on with only minimal progress for six months before the Americans give up. Once back home, press reports of the French behavior in what becomes known as the XYZ Affair (named for the three bribers) leads to backlash and a public cry to declare war. Adams avoids this, but only after passing stringent Aliens and Sedition Acts aimed at quelling dissent by Jefferson and other Francophiles in his party. Marshall publicly disavows these measures as too divisive.

With his visibility and support rising, the retired Washington encourages him to run for Congress in 1798, and during the campaign, Adams asks him to join the Supreme Court when James Wilson dies. But Marshall completes the race and is elected. He serves in the House for a little over a year before Adams taps him to be Secretary of State, a post he holds for nine months before he is nominated and approved to become Chief Justice.

Marshall is joined by fourteen Associates over time, including two who rank among the “great Justices” of all time: William Johnson and Joseph Story.

William Johnson is the first Justice named by Thomas Jefferson in his attempt to swing the Court balance away from the Federalists. His father, a blacksmith in Charleston, supports the independence movement, while insuring a first class education for his son, who graduates from Princeton in 1790. From there he apprentices in the law under the renowned Charles C. Pinckney, a Founder who will twice be the Federalist Party’s losing nominee for President. After passing the bar in 1793 his practice flourishes and, over time, he acquires two plantations and some 48 slaves. In 1794 he is elected to the South Carolina House, and, as a Democrat-Republican, opposes the “Jay Treaty” with Britain. He serves there for six years, rising to the post of Speaker, before being elevated to the highest bench in South Carolina, The Court of Common Pleas. When Alfred Moore dies in 1804, Jefferson offers the position to Johnson, who is forced to choose between his dominant role in his home state or a move to the national stage. He does not hesitate, and joins the Supreme Court, serving there for thirty years. While over time he corresponds with Jefferson, often inappropriately, on a range of Court issues, he manages forever to maintain his own independent views. In fact, part of his fame on the Court lies in the number of Dissents he authors, and on his tenacity about writing seriatum opinions.

Story’s father is an MD in Marblehead, Massachusetts and participates in the 1773 “Boston Tea Party” protest against British taxation. His son is a precocious student, tutored as a youth before graduating second in his class at Harvard in 1799. He reads the law, passes the bar in 1801 and opens a practice in Salem. Tragedy strikes when his young wife dies after six months of marriage, but he eventually recovers and enters state politics in 1805 as a Democrat-Republican. Soon after remarrying, he is elected to the U.S. House in 1808, where he surprisingly opposes Jefferson’s Trade Embargo Bill which proves disastrous for New England merchants. Story leaves Congress after one term, dismayed by the paralyzing effects of partisan politics on the ability to objectively respond to important issues facing the country. He is back home in 1811, managing his law practice and serving in the state legislature when James Madison nominates him to replace the deceased William Cushing on the Supreme Court. It is an astonishing move given that Story is only thirty-two years old – the youngest Justice to this day in the Court’s history – and has no prior experience as a judge. Madison’s explanation is that Story’s powerful intellect will provide a needed off-set to the possibly troublesome Marshall – a premise that will be proven wrong over the next twenty-three years, when he becomes the Chef’s closest ally on the bench.

In addition to his Court record, Joseph Story goes on to distinguish himself in other realms. He almost single-handedly founds the Harvard Law School in 1829 and becomes a much beloved professor and mentor there. He also authors the remarkable three volume Commentaries of the Constitution of the United States, a primary source document which records the history of the thirteen colonies, the 1787 Philadelphia convention, and the Court’s early legal issues and resolutions. At the time of his death in 1845 he is regarded as the most famous judicial figure in America.

Aside from Alfred Moore who dies in 1804, the other hold-overs from the Ellsworth Court are Justices Patterson (who passes in 1806), Cushing (1810), Chase (1811) and the venerable Bushrod Washington who serves until 1829.

In addition to Washington’s 28 years on Marshall’s Court, remarkable continuity is shared by Johnson (31 years), Gabriel Duvall (24), Story (23), Thomas Todd (19), and Brockholst Livingston (16).

Thomas Todd joins the Court in 1807 when a seventh Justice is added to “ride the circuit” in the newer states of Kentucky (1792), Tennessee (1796) and Ohio (1802).

Addition of Seventh Circuit in 1807

Todd is largely left to fend for himself as a youth after losing both of his parents. He enlists and fights in the Continental Army during the last six months of the Revolutionary War, then returns to his home state of Virginia and enrolls at Liberty Hall Academy (later Washington & Lee University). After graduating in 1783, he tutors there while studying to become either a lawyer or a land surveyor. His mother’s cousin, a well-known attorney, takes him on and, after he passes the bar and begins to practice, the two of them move to Kentucky County (still a part of Virginia) and lead the effort to create a new state. Todd’s administrative skills as a “recorder” (court reporter) serve him well and he is credited with drafting the state constitution. In 1801 he is appointed Justice in the Kentucky Court of Appeals, and is serving there in 1807 as Chief Justice when Jefferson nominates him to the Supreme Court. Over nineteen years there, his legal output is minimal, consisting of only 14 opinions in total, with 10 of those on narrow issues related to disputed land claims. But he is still admired for his general probity and his ability to bring relevant perspectives on the frontier states to the Court. By the time of his death, he is also a wealthy man via investments in land (7,200 acres), toll roads, riverboats and his 26 slaves.

The Livingstons are a dynastic family in New York whose patriarch, Robert, marries the wealthy Alida Schuyler Van Rennsalaer in 1679 and is granted a patent on 160,000 acres of land along the Hudson River by King George I in 1679. He adds to his fortune trading furs and slaves. His heir, another major slave merchant, has two sons, both involved in the Revolution: Philip, who signs the Declaration of Independence; and William, who signs the U.S. Constitution. William’s son, Brockholst, is born in 1757, graduates from Princeton, and is a staff officer to Generals Schuyler and Arnold during the war. After a stint in Spain as private secretary to John Jay, he returns home, graduates from Princeton, reads the law, passes the bar in 1783, and is elected three times to the NY State Assembly. He is an outspoken Anti-Federalist, and in 1798 kills rival James Jones in a single shot duel on Weehawken Island, after the latter assaults him in public with a cane. He provides Jefferson with valuable political support which allows him to carry New York in his first presidential race. In return he is named a judge on the NY Supreme Court from 1802 to 1807, before Jefferson selects him to replace Justice William Patterson. Despite his ties to the Democrat-Republicans, he consistently votes with Marshall and forms a close friendship with Story. He issues relatively few opinions, mostly focused on commercial cases where he backs creditors over debtors and generally favors business interests.

Little is known of Gabriel Duvall’s youth beyond the fact that his father is a wealthy planter in Maryland. He fights in the Revolutionary War at the Battle of Brandywine, and has two brothers who are killed in the conflict. After passing the bar in 1783, he opens a private practice and is elected to the Maryland House of Delegates from 178 to 1794. He serves one term in the U.S. House before returning home as Chief Justice of the Maryland Supreme Court from 1796 to 1802. In 1800 Duvall offers a vigorous defense of Thomas Jefferson when his rival, Patrick Henry, accuses him of abandoning his post as Governor of Virginia during a British raid on Richmond. His financial acumen, and his friendship with Albert Gallatin. Jefferson’s Treasury Secretary, takes him back to the capital. Between 1802 and 1811 he serves as the nation’s first Controller of the U.S. Treasury. By that time he owns several plantations and some 38 slaves. James Madison nominates him to the Supreme Court in 1811, where he writes a total of only eighteen opinions over twenty-three years, and is considered one of the most insignificant Justices in history. He resigns in January 1835, just six months before Marshall’s death, citing deafness.

Smith Thompson replaces Livingston in 1823. He is a staunch Democrat-Republican who frequently opposes Marshall over their twelve years together. He graduates from Princeton in 1788, reads the law and begins private practice in 1792. Ten years later he is named to the New York Supreme Court, where he remains from 1802 to 1818 and becomes Chief Justice. President Monroe appoints him Secretary of the Navy in 1819, a posting that lasts four years until 1823 when he begins his twenty year tenure on the Supreme Court. Despite his position, he remains politically ambitious, seeking his party’s nomination for president in 1824 before giving way to Jackson, and then running for Governor of New York in 1828. Thompson is a states’ right advocate who focuses on limiting federal control over commerce and on championing tribal sovereignty.

Three other Justices join the Court toward the end of Marshall’s term and serve with him only briefly: Robert Trimble (2 years), John McLean (5 years) and Henry Baldwin (5 years).

Robert Trimble’s family moves from Virginia to Kentucky, where he attends a makeshift grammar school and a short stint at Transylvania U before reading the law and passing the bar in 1803. His talents lead to a single term in the Kentucky state assembly, but he rejects a political career, along with subsequent offers to run for the U.S. Senate. After spending 1807 on the Kentucky Court of Appeals, he needs more income to support his family and returns to his private practice. He rejoins the public sector as a U.S. Attorney (1813-17) before Madison selects him to be a District Court Judge. In 1826, President JQ Adams elevates him to the Supreme Court. While Trimble is plagued there by ill health and dies two years later, he is a solid member of the Court. He writes the majority opinion in Ogden v Sanders, a contracts case and the only one where Marshall ever issues a dissent. His fellow Justice Joseph Story eulogizes him as follows: “No one was superior to Trimble in talents, in learning, in acuteness, in sagacity. All admired him for his integrity, firmness, public spirit and unconquerable industry. His judgments were remarkable for clearness, strength, vigor of reasoning and exactness of conclusion. Perhaps no man ever on the bench gained so much in so short a period of his judicial career.”

President Jackson selects Ohio’s John McLean to replace Trimble in 1830. He will serve a total of thirty-one years on the Court, but only the first five under John Marshall. His father is a small farmer and an evangelical Methodist who opposes slavery. The youth makes his way to Harvard College, graduating in 1806, then moves to Cincinnati where he reads the law, passes the bar and founds The Western Star newspaper, managing it until 1810. From then on McLean establishes his lifelong reputation as a political creature, starting as a Democrat-Republican, switching party membership a total of six times, and ending as a Republican. He is elected to the U.S. House in 1813, but resigns in his second term to serve on the Ohio Supreme Court from 1816 to 1822. His anti-slavery sentiments are revealed in State of Ohio v Thomas Carneal, where he rules that Carneal was effectively set free when sent from Kentucky to work in Ohio, thereby restoring his “sacred rights as a man.” President Monroe then advances his career, first appointing him Commissioner of Public Lands and then Postmaster General in 1823, a position he holds for six years while effectively overseeing the expansion of service to the emerging western states. Andrew Jackson offers him two cabinet posts (War and Navy) before nominating him to the Supreme Court in 1829 when Trimble dies. Ironically only two years later his drift away from the Democrats begins, with his opposition to slavery leading to his enlistment with the Whigs, Free Soil and Republican parties. From the 1840’s on, McLean surfaces as a potential candidate for president, but his vacillating party loyalties prove insurmountable in the end. On the bench, he aligns with Marshall, offers many solid opinions and, much later, famously dissents in the 1857 Dred Scott decision.

Henry Baldwin also joins the high court in 1830 replacing Marshall’s dear friend Bushrod Washington. He turns out to be a very unorthodox and polarizing member who often alienates his colleagues. Baldwin is classically trained in the law, graduating from Princeton and Tapping Read’s famous Litchfield Academy. In addition to his legal practice he owns an iron furnace in Pittsburgh and a newspaper. He is reputed to have fought a duel before being elected three times to the U.S. House, starting in 1822. His efforts to stop a Congressional investigation into Andrew Jackson’s actions against the Seminole tribe in Florida endear him to the General as do his campaign efforts in the 1828 presidential race. Thus Jackson nominates him to become a Justice, and he serves for fourteen often tempestuous years, including a period in 1831 where he is hospitalized for “mental problems” following a personal bankruptcy. Baldwin is intent on limiting the power of the Court and on demanding that the words in the Constitution be interpreted literally. Despite his disagreements with Marshall, he is there in mourning at his deathbed.

James Wayne joins the court after Johnson’s death and serves with Marshall for only six months.

Addition Profiles of the Marshall Court Justices

The Workings of the Court

Chief Justice John Marshall hovers reverentially over the institution of the Supreme Court much as his personal hero, George Washington, does over the Capitol itself. Before Marshall, the Court is more theory than practice and by no means an equal third branch in the nation’s hierarchy. Marshall changes that almost single-handedly and sets the Court on a new trajectory to play an often dominant role in American government and society. Along the way he also provides decisive interpretations of the words and clauses in the 1787 Constitution, dismisses the idea that it is the mere political reflections of a thirty-five men in Philadelphia, and instead establishes the document as the living, breathing and ultimate law of the land.

The Marshall Court convenes under the prospect for turmoil caused by the 1800 electoral re-alignment which replaces Washington and Adams’ Federalists with Thomas Jefferson’s state’s rights advocates. This change triggers profound struggles between the Executive and Judicial branches, and between Marshall and Jefferson, his second cousin by marriage.

Put simply, John Marshall and Thomas Jefferson not only disagree on one issue after another, but also share an intense dislike for each other at the personal level.

Much of the animus on Marshall’s part traces to Jefferson’s criticisms of Washington, whom the Chief worships and memorializes in a glowing five volume biography written while on the bench. The attacks are most famously revealed in a 1796 letter to a friend and neighbor, Philip Mazzei, where Jefferson calls the president an “apostate” who betrayed his ally France in favor of “the harlot England.” (For the last two years of Washington’s life the two men are no longer on speaking terms.) But Marshall’s hostility goes well beyond that. As a veteran of many Continental Army battles, he regards Jefferson as a coward for failing to enlist in the war. He rejects Jefferson’s belief that the proper province of the federal government is foreign policy while domestic issues belong to the sovereign states. Finally he disavows Jefferson’s patrician lifestyles and demeanor which conflict with his own log cabin roots and lifelong humility. Thus Jefferson is forever the pompous “great Lama of the mountains” in Marshall’s eyes.

Meanwhile Jefferson, who tends to think of himself as a “Virginian first,” fears that Marshall, as a Federalist, will try to sweep away the prerogatives of the states and concentrate power in the hands of a despotic national government, threatening liberty itself. He charges Marshall with “poisoning the public mind” with improper legal decisions. On top of that, Marshall’s consistently unkempt dress and “lax manners” offends Jefferson’s code of proper decorum in public. The two will remain oil and water until Jefferson, twelve years senior, dies in 1826.

The new Chief Justice is forty-five years old when his court meets for the first time in February 1801at its make-shift quarters — an out of the way committee room on the ground floor of the Capitol. As he begins, Marshall faces multiple challenges. Above all else, there is the widely held belief that the Court’s reason for being is unclear and that it is subordinate in power and prestige to Congress and the Executive. Hamilton sums this up best: “the judiciary is beyond comparison the weakest of the three branches.” This assessment is backed up by the Court’s track record since 1789 – hearing only four cases per term, with few having any constitutional consequence; rulings that lack clarity and single-minded consensus and are still delivered orally not written down; and low morale among Justices who feel underutilized to the point of resigning (and four do).

Unlike his predecessors, Marshall is crystal clear about the intended role of the high court: to define the legal implications flowing from the text of the Constitution and then to strike down any and all laws and actions taken by Congress, the Executive and the states that are not in compliance. In other words, the Court shall become the final real-world arbitrator of what is and is not “constitutional.”

But before he can deliver that end, he must first achieve order within his own court. He is lucky in this regard by experiencing remarkable continuity among his inner core of Justices, all serving for more than half of his thirty-five year tenure. In addition to that he is blessed by his two highly ranked Associates – Joseph Story and William Johnson. The politics, backgrounds and personalities of these men vary widely.

• The Chief and Washington are Federalists; the others Democrat-Republicans.
• Marshall, Livingston, Duvall and Todd have served as youths in the Revolutionary War.
• Five own slaves and two do not.
• Three are Freemasons and four are not.
• Johnson and Story are in their thirties when appointed; Duvall is oldest at fifty-eight.
• Most are Southerners, the patricians Todd, Duvall and Washington, with Johnson and Marshall humbler by birth.
• The Puritan Story and Johnson are extroverts who thrive on conflict; Washington and Todd are contemplative and quiet.

Marshall calls upon all of his innate leadership skills to unify this diverse group. One step he takes is to have the Justices all live together in a local boarding house during their two month-long terms. This small finesse facilitates daily give and take about each case and the Justices’ ability to reach consensus. Marshall also assigns one man to craft a written majority opinion that is circulated and reviewed before being issued. He carries the lion’s share of the workload here, penning over half of the rulings during his entire term. Dissents continue to exist, especially from Johnson, but they become relatively rare. (He issues only one dissent as Chief, that being on a bankruptcy case in 1827, Ogden v Sanders.)

Between 1811 and 1823 the seven man team of Marshall, Livingston, Story, Washington, Duvall, Johnson and Todd will deliver a total of 457 decisions, with 437 being unanimous. The Court now speaks with one clear and definitive voice, with partisan politics set aside in favor of objective legal analysis.

Above all else, what makes the Court successful is Marshall’s amazing intellect combined with his personal warmth and accessibility. His powers of persuasion are captured succinctly by his Associate, William Johnson:

When conversing with Marshall, I never admit anything. If 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 do not know, I can’t tell.”

His absolute trustworthiness is also known to all and attested by a quip from Story: “I love his laugh – it is too hearty for an intriguer.”

The Marshall Court is hardly settled in when it confronts the case that forever signals its legitimacy as a powerful third branch of the government. It is docketed as Marbury v Madison and develops out of Jefferson’s attempt to undo Adams last second moves to pack the judiciary with pro-Federalist appointees. One of Adams’ nominees is William Marbury, a Georgetown businessman and Federalist supporter, who is offered a post as Justice of the Peace for the District of Columbia. Jefferson steps in, however, and orders his Secretary of State, James Madison, to withhold delivery of his official commission. Marbury responds by filing a writ of mandamus, citing the Judiciary Act of 1789 and asking the Supreme Court to force Madison’s hand. Marshall recognizes the potential here for a direct confrontation between the Judicial and Executive branches and the possibility that Jefferson will simply ignore the Court’s decision if it goes against him. To settle the matter, and also defuse the conflict, Marshall issues his landmark ruling. It says that while the Justices find the plaintiff deserving of the commission, it has no legal jurisdiction to rule on the matter because Section 13 of the Judiciary Act conflicts with the language in Article III of the U.S. Constitution.

In other words, the Court cannot force Madison to comply because a part of the 1789 Act is unconstitutional and must be struck down. The net effect of this outcome is three-fold:

• By concluding that Marbury deserved a commission, the Court slaps Jefferson on the wrist for denying it;
• By not trying to force issuance of the commission, the Court denies Jefferson a chance to ignore the order, and hence reject its authority; and
• By stating that Section 13 of the 1789 Act is unconstitutional and must be struck down, the Court affirms its power of “judicial review” over the nation’s federal and state laws.

As Marshall says, “it is emphatically the province and duty of the judicial department to say what the law is.” And most judicial historians regard Marbury v Madison as the most significant ruling in constitutional history. It fails to hand Marbury the post he deserves, but does forever establish the power of the Supreme Court to make the final calls on all bills passed by the legislative branch.

Despite this precedent, the Courts will be very cautious about overturning U.S. Congressional acts, and will not do so again until 1857 when the 1820 Missouri Compromise is struck down as part of the infamous Dred Scott decision. Instead the spotlight will shine on a host of State laws the high bench deems unconstitutional – much to the chagrin of Jefferson’s hard core anti-federalists.

A second potential constitutional clash between Marshall and Jefferson arises in in the 1807 case of United States v Aaron Burr. After slaying Hamilton in the 1804 duel, the sitting Vice-President becomes an outcast in Washington, and heads south to begin a filibustering plot aimed at seizing Spanish land in what will become Texas. He sets up headquarters for the operation on an Ohio River island owned by Harman Blennerhassets, a wealthy Anglo-Irish expatriate. Other co-conspirators include James Wilkinson, then Commanding General of the U.S. Army, and two lieutenants, Erich Bollman and Samuel Swartwout. Arms for the venture are stockpiled on the island and a small band of fighters are recruited. In 1805 and 1806 Burr searches for added support from Mexican rebels who hope for freedom from Spain and, ominously, from Britain, which hopes to block any U.S. expansion in the west. When word of the plot slips out, Governor Edward Tiffin of Ohio raids the island trying to arrest Burr, who escapes to New Orleans. General Wilkinson then informs Jefferson of Burr’s planned treachery, clumsily trying to mask his own involvement. Burr is eventually tracked down in Mississippi and Jefferson orders his transfer to Richmond to be tried on two charges: pursuing an illegal war against Spain and committing Treason against the United States.

Since Richmond is included in Marshall’s assigned “circuit,” he is called upon to oversee the judicial process in the local District Court. From the beginning Marshall recognizes that Burr’s actions violate the law, but he balks at the charge that they pass the test for Treason as defined in Article III, Section 3 of the Constitution: “levying war against (America) or giving aid and comfort to their enemies”…as attested two by “two witnesses to the overt act or by confession in open court.” Recognizing the importance of the issue, he asks for thoughts from his Associate Justices even though they are not hearing the case directly.

Jefferson has no such qualms about the charge of Treason and says so repeatedly in public:

“Of his guilt there can be no doubt…his object was to seize New Orleans and from there attack Mexico and place himself on the throne of Montezuma.”

The case is immediately in the national spotlight and attracts famous legal teams on both sides: for the prosecution, Virginia Attorney General Cesar Rodney and George Hay; for the defense, two founding fathers, Edmund Randolph and Luther Martin. After four contentious grand jury hearings, Burr is indicted and his trial begins on August 7, 1807. The aforesaid Martin, a notorious drunk also regarded as the finest defense attorney in the land, immediately goes on the offensive, demanding that the state produce whatever documents it claims to have about the alleged treason. In turn Jefferson wonders out loud if Martin may have also been involved in the plot.

As the trial nears an end, Marshall is asked to rule on two important constitutional issues: could a sitting president, Jefferson, be subpoenaed to turn over relevant documents; and whether or not any papers are protected according to executive privilege. The Chief Justice is unequivocal on the first point: yes, “presidents are not above the law” and can be subpoenaed. On the second his response is adept, withholding a call until he can learn the nature of the documents in question. On August 29, the defense argues that the prosecution has failed to make a prima facie case and the proceedings should come to an end. Two days later, Marshall delivers a 25,000 word ruling on the motion, the longest he will ever write. He recognizes that Burr was up to no good, operating outside of approved foreign policy, risking war with Spain, and possibly trying to separate the entire west from joining the Union over time. But, he is not persuaded that his actions meet the Constitutional standard for Treason. Thus none of Burr’s actions resulted in an “overt act of war” on America, nor were there the two direct witnesses needed to condemn him. After announcing his ruling, Marshall turns the case over to the civilian jury, who gathers briefly before declaring Burr “not guilty” on September 1. Burr quickly retreats to Europe to lick his wounds while Jefferson never forgives Marshall for allowing him to escape the gallows.

The public controversy surrounding the Burr trial takes another personal toll on the Chief Justice. After his wife, Polly, learns that he has been hanged in effigy in Baltimore, she suffers a nervous breakdown that leaves her a bedridden invalid for the remainder of her life. His devotion to her over the next twenty-three years is recognized by his friends and foes alike.

The 1808 election of James Madison dramatically improves relations between the Court and the Executive. The 1809 case of United States v Peters finds Madison standing behind Marshall’s flat-out judgment that State courts cannot annul rulings made by Federal courts – and he does so again in the 1816 case of Martin v Hunter’s Lessee. Like Marshall, Madison is devoted to the Constitution and to the Union, and refuses to allow the state’s rights passion of Jefferson to get in the way of either.

Madison’s successor, James Monroe, happens to be a lifelong friend of Marshall. The two attend the same small school as children, bunk with each other at Valley Forge during the war, then socialize throughout their adult lives. Several of the Court’s landmark decisions are rendered during Monroe’s presidency, including:

• McCulloch v Maryland (1819) which validates the Second Bank of the United States.
• Dartmouth College v Woodward (1819) which protects the rights of corporations versus government intrusions.
• Cohens v Virginia (1821) defining the authority of the federal court in criminal cases where constitutional issues are in play.
• Johnson v M’Intosh (1823) the first of several cases debating whether the native tribes qualify as a separate sovereign nation.
• Gibbons v Ogden (1824) clarifying the scope of federal power over interstate commerce and nullifies a monopoly.

In 1825 the Court comes up against the lingering realities of the international slave trade when the U.S. cutter Dallas captures the privateer Antelope carrying 280 Africans off the coast of Florida. The ship is interred in Savannah, where a dispute over its fate soon ensues. On one side are the Spanish and Portuguese owners claiming that slave trading remains legal in their countries, the ship was in international waters carrying a foreign flag, and therefore the Africans and the vessel should be returned to them. On the other side are two Americans – Monroe’s Attorney General William Wirt and Francis Scott Key – saying the issue is over “a claim to freedom versus a claim to property,” that the American bans of 1808 and 1820 should prevail, and that the slaves should be freed. The case goes on for five whole days, one sixth of the Court’s entire 1825 term, and draws national publicity.

Marshall’s decision again exhibits his mastery at balancing the letter of the law against an innate sense of what is just. He castigates slavery as a violation of basic human rights, while acknowledging that the laws of different nations must be respected. From there he finds that the country of origin for 241 of the slaves was Africa, not Spain or Portugal, and that they should be released and sent home to Liberia. The remaining 39 slaves who were either from Spain or Portugal may be reclaimed, along with the ship itself. The fact that this decision is supported by the four other slave-owning Southerners on the Court is a testament to Marshall’s tempered wisdom.

Four years later the Chief will rule in another case involving slaves: Boyce v Anderson. The plaintiff here is Robert Boyce who seeks compensation for four slaves drowned in the Mississippi River after their ship sinks and a rescue attempt by the steamer Washington fails to save them. Boyce argues that the crew was negligent and that the carrier is liable to him for the loss of his “freight.” The defense counters by saying there was no proof of negligence, and that the slaves should be classified as individual “passengers” not as Boyce’s “cargo.” After finding that the ship’s crew tried its best during the rescue, Marshall goes one step further, holding that the slaves could not be classified as freight – given that “A slave has volition, and has feelings which cannot be entirely disregarded. He cannot be stowed away as a common package. In the nature of things, and in his character, he resembles a passenger, not a package of goods.” Marshall knows that he is treading on controversial ground here, but he proceeds anyway.

(While never ruling per se on the constitutionality of slavery, Marshall’s feelings are well known: he fears the dangers to the nation’s unity of inflammatory behaviors from “fanatical” owners and abolitionists alike, and wishes that the Africans could be freed and returned to their homeland.)

In 1828 President John Quincy Adams, who had himself been offered a Supreme Court post by Madison, loses a re-election bid to his bitter rival, Andrew Jackson. Along with the rest of the entrenched Washington establishment, Marshall fears the General’s volatile temperament and tendency to act decisively and on his own. But while famous for his military skills, Jackson is also a well-trained lawyer who serves in 1788 as public prosecutor in North Carolina before becoming Chief Justice of the Tennessee Supreme Court for five years. Marshall will always have reservations about Jackson, and clash openly with him on cases involving the Cherokee tribes, but the two achieve a peaceful co-existence over time.

Jackson’s ascendency roughly coincides with the gradual dissolution of Marshall’s tight-knit court, owing to health crises and death. Justice Todd, critically ill since 1824, has already passed in 1826 to be replaced by Jackson’s first appointee, the capable Robert Trimble, who dies only two years later. Jackson surprise choice this time is a Whig, John McLean, forever an aspiring politician, albeit a solid Justice. The next loss is Marshall’s closest friend on the court, Bushrod Washington, who passes in 1829 while riding his circuit in Philadelphia. Jackson follows with Henry Baldwin, a superbly qualified lawyer, but one who experiences a mental collapse in 1831 and from then on manages to disrupt the positive chemistry among his colleagues. The year 1831 also marks the personal low point for the Chief. Normally in superb condition, Marshall is struck down by an agonizing bout with bladder stones early in the year. This requires life-threatening surgery, performed without anesthetics, which he survives – but only to watch his wife Polly decline and finally die on Christmas day. In some despair, he tells confidantes about possibly resigning when Jackson leaves office.

In this same timeframe, the ongoing conflict between the authority of the States versus that of the Federal government again reaches a crescendo. “Fire-eater” politicians of South Carolina, led by Vice-President John C. Calhoun and Senator Robert Hayne threaten to “nullify” the law requiring the state to collect tariffs on imported goods which they regard as economically damaging. Upon hearing the 1830 Webster-Hayne debate on the matter in the upper chamber, Marshall writes: “the idea that a state may constitutionally nullify an act of Congress is extravagant and repugnant to the existence of the Union.” Thankfully Jackson sees this the same way, saying that “the laws of the United States must be executed,” citing the Supreme Court as the final arbitrator, threatening to ride himself with troops to collect the duties, and finally sacking Calhoun for his treachery. Both Marshall and Jackson have risked their lives fighting for their country and neither is willing to see its unity jeopardized by self-serving interests.

Of course Jackson proves less tolerant about the letter of the law when it comes to his determination to drive the “five civilized tribes” from their eastern homelands to “reservations” in the west. Three separate but related cases on this matter will come before the Marshall Court. In 1823 it finds in Johnson v M’Intosh, that only the federal government can sell tribal lands. Then come two cases testing whether the tribes qualify as “foreign nations” entitled to their territories under the constitution. The first is Cherokee Nation v The State of Georgia in 1831, where the majority answers “no” despite a vigorous dissent led by Joseph Story pointing to prior “land treaties” negotiated with the U.S. government, as proof of their foreign nation status. However, a year later in Worcester v Georgia, the court reverses course, in effect holding that the Cherokees are indeed an independent nation and striking down Georgia state laws evicting them from their rightful land.

Marshall now feels that justice has finally been done for the tribes, “a people, once numerous, powerful and truly dependent…gradually sinking beneath our superior policy…have yielded their lands by successive treaties…until they retain no more of their formerly extensive territory than is deemed necessary to the subsistence.” But that’s not to be, as neither Georgia nor Jackson are willing to bend under the Court’s injunction, and over the next five years, the notorious “Trail of Tears” removal plays itself out.

Relations with the President remain equable after the Cherokee tensions, but the essential make-up and operation of Marshall’s court continues to fade away. Instead of gathering in common lodgings during their two terms in Washington, the Justices now scatter, and an upswing in dissenting opinions follows on. A final nail seems struck in August 1834 when William Johnson dies after a long illness and complications following surgery on his jaw. Johnson was “Jefferson’s man” on the court, intellectually capable of contending with Story and the Chief, willing on occasion to write his own strong dissents, but also dedicated to holding the court and the nation together. In January 1835 Justice Duvall, totally deaf and unable to perform his duties, resigns – leaving Story and Smith Thompson as Marshall’s only long-standing lieutenants.

The Court’s first term that year proceeds happily, with forty-one cases decided and thirty-seven without any dissents. Marshall, however, is approaching eighty and his health is finally giving out. In early June he collapses in Richmond after a walk to visit Polly’s grave and is taken to visit his doctor to Philadelphia. His liver is enlarged and failing, and he dies there on July 6, 1835.

In searching for a proper eulogy for the Chief, newspapers recall a gathering in September 1824 celebrating French General Lafayette’s visit to the capitol and the fitting toast he offers to Marshall:

“To the soldier, the statesman, the jurist!”

Some Of The Most Significant Cases: The “Marshall Court (1801-1835)