The Great Decision

Although his inaugural address had sounded a note of national reconciliation and healing, President Jefferson privately contemplated an agenda to put the government onto solid Republican footing. Just three days after his eloquent speech in the Capitol, he wrote to fellow Virginian James Monroe that he viewed the Federalists as “incurable” and that he would never “turn an inch out of my way to reconcile.”

Jefferson was adamant that his administration eliminate all vestiges of monarchical and aristocratic rule that had characterized the Federalists; in its place would flourish the kind of agrarian-based democracy that he had long envisioned. Alexander Hamilton had sought to centralize and augment the power of government; Jefferson, for his part, now was determined to return power to the states and their citizens. He abhorred a national debt, opposed a standing army and navy, and felt strongly that the judiciary, largely controlled by the Federalists, was in need of serious reform.

The day after his inauguration, President Jefferson decided to pay a visit to the Department of State. In the spring of 1801, the Department, with its nine employees, was located near the President’s House in a rented, small, two-story, clapboard house; later that summer the Department would be relocated to the Treasury Department Building. The reason for President Jefferson’s visit is nowhere recorded but perhaps he was already contemplating the Department’s move.

Thomas Jefferson had served as secretary of state under President Washington from 1790 until 1793. As secretary, Jefferson had been the nation’s chief diplomat although President Washington in practice set the agenda for international relations. Jefferson knew from experience that the secretary of state had many other duties besides overseeing the foreign policy of the country: running the post office, printing and disbursing government documents, supervising the mint, overseeing the patent office for inventions, and “establishing federal standards for coinage, weights and measures.”

While he was in the State Department that day, President Jefferson noticed on a table a sheaf of documents with the seal of the United States. Upon closer inspection, Jefferson discovered that they were commissions for federal justices of the peace that had been signed by President Adams on the evening of March 3, his last night as president. Jefferson responded with alacrity. “I forbade their delivery,” Jefferson wrote many years later to Justice William Johnson, offering a tightly reasoned, legalistic explanation: “[I]f there is any principle of law never yet contradicted, it is that delivery is one of the essentials to validity of the deed. Although signed and sealed, yet as long as it remains in the hands of the party himself, it is in fieri [incomplete], it is not a deed and can be made so only by its delivery.”

Jefferson, of course, could have made sure that the commissions were delivered, but he was extremely angry with Adams, who he claimed was guilty of knowingly “crowd[ing] nominations after he knew they were not for him.” Jefferson characterized the former president’s actions in a letter to his friend, Revolutionary War hero and statesman John Dickinson, as “indecent conduct.” And in a letter to Abigail Adams in 1804, Jefferson stated, “I can say with truth that one act of Mr. Adams’ life, and only one, ever gave me a moment’s personal displeasure. I did consider his last appointments to office as personally unkind. . . . It seemed but common justice to leave a successor free to act by instruments of his own choice.”

After discovering the commissions and deciding to withhold them, Jefferson seemed conflicted as to what to do next. Although he objected to all of the appointments that Adams had made after losing the presidency, he differentiated between attorneys and marshals, who served at the pleasure of the president, and judges, who had lifetime appointments. He claimed that “the only shield for Republican citizens against the federalism of the courts is to have the attornies and marshals removed.”

But Jefferson ultimately backed off a wholesale purge of Federalist office holders, whether they were lifetime appointments or serving at the pleasure of the president, because “[g]ood men, to whom there is not objection, but a difference of related principles, are not proper subjects of removal.” In a letter to Thomas Randolph, his son-in-law, he noted that “a few removals from office will be indispensable . . . chiefly for malconduct, and mostly in the offices connected with the administration of justice.”

Turning to the new appointments for the District of Colombia, Jefferson decided to limit the number of local justices-of-the-peace to thirty, instead of the forty whom Adams had proposed. And of the thirty, the president actually allowed many of the men—and they were all men—who had been chosen by his predecessor to stay in office.

After hearing of Jefferson’s plans, William Cranch and James Marshall, two of the recently appointed “midnight judges,” made it clear that they would not be intimidated by President Jefferson. Within months of their appointments, during the very first session of the Washington City Circuit Court, Cranch and Marshall recommended that the district attorney for Washington City file charges for sedition against the editor of the National Intelligencer, the most prominent Republican newspaper in the country, because the paper had published a letter attacking the judiciary for being politically motivated and biased. In demanding prosecution, Judge Marshall decried the “licentiousness of the press.” Because the Sedition Act had expired, the judges urged use of “common law” principles.

Federalist judges such as Marshall and Cranch were undoubtedly aware that, only four days after taking office, President Jefferson ordered all fines under the Sedition Act refunded. A month later, he pardoned two men who had been convicted under the Act, including the firebrand publisher James T. Callender. He also excused William Duane, the editor of the Aurora newspaper, from his impending trial for seditious activity. Cranch and Marshall may have been testing the new Republican administration, but in the end they should not have been surprised that their recommendation was ignored.

As for the judges whom Adams had appointed on the eve of his departure, President Jefferson did not make public pronouncements on the subject, but boldly stated his views in letters to friends and colleagues. In a letter to John Dickinson, Jefferson warned that the Federalist use of the judiciary would cause “republicanism to be beaten and erased by a federalist club of judges. . . . [T]hey have multiple judges reserved to strengthen their phalanx.” In a letter to Archibald Stuart, Jefferson stated unequivocally that the appointments would stand “until the law [creating the new judgeships] is repealed, which we trust will be in the next Congress.” Nonetheless some Republicans were highly critical of Jefferson, believing the president was moving too timidly to assert Republican control over the judiciary: Congressman William Branch Giles of Virginia, who, ironically, had been introduced to politics a decade earlier by John Marshall, wrote Jefferson that “the revolution is corrupted so long as the judiciary is in possession of the enemy.” Giles called for “the repeal of the whole judicial system, terminating the present offices and creating an entirely new system.” The New York Citizen, a leading Republican newspaper, echoed a similar frustration with the new president: “It is rational to suppose that those who removed John Adams from office would naturally expect the removal of the lesser culprits in office. If this should not be the case, for what, in the name of God, have we been contending? Merely for the removal of John Adams that Mr. Jefferson might occupy the place which he shamefully left.”

THE PRESIDENT’S PUSH for judicial reform was sidetracked when, a few months after taking office, he faced his first international challenge. Pasha Yusuf Karamanli, the ruler of Tripoli, one of the states of north Africa, declared war on the United States. After Barbary pirates attacked American merchant ships in the Mediterranean, President Jefferson convened his cabinet—the first time he had done so—to plot a course of action. But when Jefferson proposed a declaration of war there was immediate dissent from his attorney general, Levi Lincoln. According to Lincoln, the president unquestionably had the ability to call out the military to defend U.S. interests, but only Congress could declare war and Congress was not in session. In the end, Lincoln was outvoted by the other members of the cabinet, including Secretary of State James Madison, who had just arrived in Washington from his home at Montpelier. The issue of who in the government could declare war was temporarily set aside when President Jefferson ordered a squadron of American warships in Norfolk, Virginia, to sail to the Mediterranean.

Other international challenges loomed as well. Jefferson, who had lived in France and had generally been supportive of that nation’s Revolution, was increasingly alarmed by the actions of Napoleon Bonaparte, the French leader who was exhibiting a seemingly endless appetite for expansion and power. Jefferson was particularly concerned to learn that Spain was secretly negotiating with France to cede the Louisiana Territory. Jefferson feared that Napoleon might seek to control commerce on the Mississippi River and ultimately might have designs on the rest of the continent.

The paper also reported, almost in passing, that three days earlier, the members of the Supreme Court had gathered for the August term at Conrad and McMunn’s boardinghouse on Capitol Hill. The chief justice had been absent from Washington the entire spring and most of the summer; he had departed Washington two days after the inauguration for his home in Richmond, Virginia, where he had spent the last several months working on his biography of President Washington. Now back in Washington, he had arranged for all of the justices to stay together under one roof—without wives—for the session. Justice Alfred Moore of North Carolina arrived first, having sailed up the eastern seaboard to the Potomac River. Marshall had come from Richmond by horse, followed by Chase from Baltimore, Cushing from Massachusetts, and Paterson, who arrived last, from New Jersey—all by carriage.

With the justices housed under one roof, Chief Justice Marshall immediately set about cultivating an atmosphere of camaraderie and conviviality. Justice Story, who would join the Court in 1812, described how Marshall conducted business: “[W]e take our dinner together, and discuss at the table the questions which are argued before us. We are great ascetics, and even deny ourselves wine, except in wet weather.” But, as Story explained, Marshall liked to ask him “‘to step to the window and see if it does not look like rain . . . and if I tell him that the sun is brightly shining,’ Judge Marshall will reply, ‘All the better, our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.’” Story summed up Marshall as “brought up on Federalism and Madeira, and he was not a man to outgrow his early prejudices.”

During the August session, the justices assembled each day in the committee room on the lower level of the Capitol. Although the Court was sparsely attended, changes were apparent to anyone who bothered to take note: The justices were meeting in a designated if small room in the Capitol, and most startling of all, the associate justices had abandoned their academic robes in favor of the black robes worn by the chief justice. This was an especially radical departure for Justice Cushing, who previously had emulated British judges by wearing colorful ermine robes and even donning a white powdered judge’s wig for the first meeting of the Supreme Court in 1790.

The Court heard only one case that August: Talbot v. Seeman. As it turned out, Talbot was an important case, not only for its substance but for what it presaged about the operations of the Marshall Court. The case involved the seizure of a French merchant ship by an American frigate on the high seas. The Constitution, captained by Silas Talbot, captured the Amelia, a ship once owned by a Hamburg merchant, Hans Seeman, that in turn had been captured by the French and refitted with armaments. Since the United States was involved at that time in a low-grade naval conflict—often referred to as the “quasi-war”—with France, Captain Talbot claimed a right of salvage, or payment equal to half the value of the ship’s contents, in order to turn the ship back over to its original owner, the Hamburg merchant. The case was politically explosive not only because of the ramifications for relations between France and the United States but also because of its political symbolism at home. Captain Talbot had won his claim in Federal District Court but the decision was overturned on appeal in the circuit court, where the case had been argued by old foes: Alexander Hamilton representing Captain Talbot and Aaron Burr representing the Hamburg merchant. The case had become a classic struggle between Republicans and Federalists.

John Marshall and his five colleagues sat in heavy wooden chairs for four days and listened as Congressman James Bayard, representing Talbot, and Alexander Dallas, the former reporter of decisions for the Supreme Court in Philadelphia and lawyer for the Hamburg merchant, presented oral arguments. Bayard argued that a 1799 law allowed salvage if the ship had been taken from the enemy. Dallas claimed, however, that since the Hamburg owner was a neutral, no salvage should be paid. During the proceedings, Chief Justice Marshall asked numerous questions, while the other justices sat mostly in silence.

On August 8, the chief justice announced the “opinion of the Court”: The Constitution had the right to attack and seize the Amelia because it was flying a French flag and the American captain did have a right to salvage. As Marshall put it, “We cannot presume this seizure to have been unacceptable to the Hamburger because it has bettered his condition.” The merchant had the whole of his ship returned to him. And then Marshall grounded the Court’s decision in contract law: “To give a right to salvage, it is said there must be a contract, either express or implied.” Marshall concluded that the service of recapturing the boat signified an implied contract and therefore “the recapture is entitled to salvage.” In other words, since Captain Talbot had performed the service of capturing the Amelia, he was entitled to something.

The decision foreshadowed Marshall’s brilliance at balancing both the legal and the political equities of a case. He had clearly bolstered the Federalists by recognizing that the United States was involved in a quasi-war with France. But Republicans, as the party in power, had reason to cheer the decision as well: He made it clear that only Congress had the right to declare war. This was contrary to the position that John Adams had maintained during his presidency. Marshall also slashed the amount of Talbot’s recovery from one half of the value of the ship to one sixth of its value. By awarding Talbot such a meager monetary salvage award, Marshall seemed to suggest that the Federalists had won only a symbolic victory.

The case was important for another reason: It marked the first time that the Supreme Court had delivered an opinion representing the entire court. Previously it had issued individual decisions. The practice of announcing individual decisions meant that it was often difficult to discern whether the Court was actually united on any particular issue: Justices often emphasized different facts and used different rationales, even when they agreed. Marshall styled the innovation after the format used by Judge Edmund Pendleton in the Virginia Court of Appeals. Pendleton was a revered figure in Virginia legal circles and Marshall, as a young lawyer, greatly admired him. By issuing only one opinion—read by the Chief Justice—instead of independent, separate decisions, Marshall made the Court look united, strong and decisive. This was a conscious change by Marshall who must have also understood that from this point forward, the Supreme Court would take on an identity: it would come to be known as the “Marshall Court.”