Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

There was among the people a sort of diffused egotism which appears to have been the one characteristic common to Americans of that period. The most ignorant and degraded American felt himself far superior to the most enlightened European. "Behold the universe," wrote the chronicler of Congress in 1802. "See its four quarters filled with savages or slaves. Out of nine hundred millions of human beings but four millions [Americans] are free." 51 51 History of the Last Session of Congress Which Commenced 7th Dec. 1801 (taken from the National Intelligencer ). Yet at that time in America manhood suffrage did not exist excepting in three States, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. Hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned.

William Wirt describes the contrast of fact to pretension: "Here and there a stately aristocratick palace, with all its appurtenances, strikes the view: while all around for many miles, no other buildings are to be seen but the little smoky huts and log cabins of poor, laborious, ignorant tenants. And what is very ridiculous, these tenants, while they approach the great house , cap in hand, with all the fearful trembling submission of the lowest feudal vassals, boast in their court-yards, with obstreperous exultation, that they live in a land of freemen, a land of equal liberty and equal rights." 52 52 Wirt: Letters of the British Spy , 10-11. These brilliant articles, written by Wirt when he was about thirty years old, were published in the Richmond Argus during 1803. So well did they deceive the people that many in Gloucester and Norfolk declared that they had seen the British Spy. (Kennedy: Memoirs of the Life of William Wirt , i, 111, 113.)

Conservatives believed that the youthful Republic was doomed; they could see only confusion, destruction, and decline. Nor did any nation of the Old World at that particular time present an example of composure and constructive organization. All Europe was in a state of strained suspense during the interval of the artificial peace so soon to end. "I consider the whole civilized world as metal thrown back into the furnace to be melted over again," wrote Fisher Ames after the inevitable resumption of the war between France and Great Britain. 53 53 Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc. "Tremendous times in Europe!" exclaimed Jefferson when cannon again were thundering in every country of the Old World. "How mighty this battle of lions & tygers! With what sensations should the common herd of cattle look upon it? With no partialities, certainly!" 54 54 Jefferson to Rush, Oct. 4, 1803, Works : Ford, x, 32. Immediately after his inauguration, Jefferson restated the American foreign policy announced by Washington. It was the only doctrine on which he agreed with Marshall. "It ought to be the very first object of our pursuits to have nothing to do with European interests and politics. Let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form… To take part in their conflicts would be to divert our energies from creation to destruction." (Jefferson to Logan, March 21, 1801, Works : Ford, ix, 219-20.)

Jefferson interpreted the black forebodings of the defeated conservatives as those of men who had been thwarted in the prosecution of evil designs: "The clergy, who have missed their union with the State, the Anglo men, who have missed their union with England, the political adventurers who have lost the chance of swindling & plunder in the waste of public money, will never cease to bawl, on the breaking up of their sanctuary." 55 55 Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, Works : Ford, ix, 249. The democratic revolution that overthrew Federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. But in the first years of Republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of France.

Of all the leading Federalists, John Marshall was the only one who refused to "bawl," at least in the public ear; and yet, as we have seen and shall again find, he entertained the gloomy views of his political associates. Also, he held more firmly than any prominent man in America to the old-time Federalist principle of Nationalism – a principle which with despair he watched his party abandon. 56 56 See infra , chaps. iii and vi; also vol. iv, chap. i. His whole being was fixed immovably upon the maintenance of order and constitutional authority. Except for his letter to Pinckney, Marshall was silent amidst the clamor. All that now went forward passed before his regretful vision, and much of it he was making ready to meet and overcome with the affirmative opinions of constructive judicial statesmanship.

Meanwhile he discharged his duties – then very light – as Chief Justice. But in doing so, he quietly began to strengthen the Supreme Court. He did this by one of those acts of audacity that later marked the assumptions of power which rendered his career historic. For the first time the Chief Justice disregarded the custom of the delivery of opinions by the Justices seriatim , and, instead, calmly assumed the function of announcing, himself, the views of that tribunal. Thus Marshall took the first step in impressing the country with the unity of the highest court of the Nation. He began this practice in Talbot vs . Seeman, familiarly known as the case of the Amelia, 57 57 1 Cranch, 1 et seq. the first decided by the Supreme Court after he became Chief Justice.

During our naval war with France an armed merchant ship, the Amelia, owned by one Chapeau Rouge of Hamburg, while homeward bound from Calcutta, was taken by the French corvette, La Diligente. The Amelia's papers, officers, and crew were removed to the French vessel, a French crew placed in charge, and the captured ship was sent to St. Domingo as a prize. On the way to that French port, she was recaptured by the American frigate, Constitution, Captain Silas Talbot, and ordered to New York for adjudication. The owner demanded ship and cargo without payment of the salvage claimed by Talbot for his rescue. The case finally reached the Supreme Court.

In the course of a long and careful opinion the Chief Justice held that, although there had been no formal declaration of war on France, yet particular acts of Congress had authorized American warships to capture certain French vessels and had provided for the payment of salvage to the captors. Virtually, then, we were at war with France. While the Amelia was not a French craft, she was, when captured by Captain Talbot, "an armed vessel commanded and manned by Frenchmen," and there was "probable cause to believe" that she was French. So her capture was lawful.

Still, the Amelia was not, in fact, a French vessel, but the property of a neutral; and in taking her from the French, Talbot had, in reality, rescued the ship and rendered a benefit to her owners for which he was entitled to salvage. For a decree of the French Republic made it "extremely probable" that the Amelia would be condemned by the French courts in St. Domingo; and that decree, having been "promulgated" by the American Government, must be considered by American courts "as an authenticated copy of a public law of France interesting to all nations." This, said Marshall, was "the real and only question in the case." The first opinion delivered by Marshall as Chief Justice announced, therefore, an important rule of international law and is of permanent value.