DCBA Brief, September 1997 Issue - Chapter 11 Opinion of the Court

DCBA Home Page
Brief Home Page
Brief Display Rates
Article Index
Index Search

Articles for
September 1997

John Marshall - Definer of a Nation
Chapter 11 Opinion of the Court

Marshall’s appointment as chief justice coincided with the beginning of a new political era. Adams had yielded the presidency to Jefferson, the Republicans had gained control of both Houses of Congress, and the seat of government had moved from Philadelphia to Washington. The Jeffersonian revolution had begun. The doctrine of states rights was ascendant. The judiciary remained dominated by Federalist appointees, but in Marshall’s view the courts should be if not above politics, at least above partisanship. That distinction was ambiguous. "Of the importance of the judiciary at all times, but more especially the present I am very fully impressed," he wrote to Charles Cotesworth Pinckney on the morning of Jefferson’s inauguration. "I shall endeavor in the new office to which I am called not to disappoint my friends"1

Marshall was the first chief justice to preside over the Supreme Court in Washington. When he took the post, he assumed leadership of a court that enjoyed little prestige and even less authority. In 1788 Alexander Hamilton had written that "the judiciary is beyond comparison the weakest of the three branches,"2 and little had happened in the interim to prove him wrong. For the first year and a half of its existence, the Supreme Court did not decide a single case.3 In the sixteen active terms between 1790 and 1800, only sixty-three cases were reported, less than a dozen of which were significant.4 Above all, the authority of the Court to interpret the Constitution was not yet clear. Certainly it did not possess the power of an ultimate arbiter whose decisions would be binding on the other two branches of government.5

The Supreme Court of the United States was a court of law, not a constitutional court. It was established to hear law cases, not expound the Constitution. Its jurisdiction was expressly limited, and its appellate role was determined by statute. Congress and the president enjoyed far more extensive constitutional authority. Tradition and usage recognized the Constitution as a political document specifying how the nation was to be governed. The two "political" branches of government, the legislative and the executive, maintained primary responsibility for its interpretation. The authority of the legislature derived from the concept of legislative supremacy, which the Continental Congress had inherited from the British Parliament.6 The executive’s authority to interpret the Constitution resembled the royal prerogative. Washington had placed a distinctive stamp on the office and with his neutrality proclamation had already established the president’s authority to interpret the Constitution. As a result, both Congress and the executive could lay greater claim to constitutional finality than the Court.

The Supreme Court’s jurisdiction over the states was also in question. When the Court had asserted its authority to try a sovereign state as a defendant in a private lawsuit, as it did in the 1793 case of Chisholm v. Georgia,7 the decision was quickly reversed by the Eleventh Amendment. In addition, the Court was plagued by problems of rapid turnover and poor attendance. Of the six original appointees to the Court in 1789, only William Cushing remained on the bench. Court sessions were brief, and the lack of a quorum often caused cases to be carried over—and sometimes required sessions to be canceled entirely.8

The problem of leadership on the Court was particularly acute. John Jay, the first chief justice, resigned in 1795 to become governor of New York.9 Alexander Hamilton declined Washington’s entreaties to succeed Jay,10 and the Senate, on partisan grounds, rejected the nomination of John Rutledge of South Carolina.ll Washington then offered the position to Patrick Henry. When Henry stepped aside because of his age,12 the president appointed William Cushing of Massachusetts, the senior associate justice. Cushing was immediately confirmed by the Senate but, like Henry, declined to accept the post because of age and infirmities.13 Following Cushing’s refusal, Washington turned to Oliver Ellsworth of Connecticut who, as a United States senator, had been the principal drafter of the Judiciary Act of 1789 that had created the federal court system. Ellsworth was confirmed on March 3,1796, and presided over the Court for six terms, but resigned because of ill health in October 1800.14 The chief justiceship began to resemble a revolving door.15 Jay was offered the position once again but declined, citing the failure of the Supreme Court to "acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess."16

Jay and Ellsworth, the only two men who had actually served as chief justice, had unintentionally contributed to the lack of public esteem for the Court. Both men had relinquished their duties as chief justice to assume diplomatic missions abroad: Jay to negotiate the treaty with Great Britain that bears his name, Ellsworth to conclude the Convention of Mortefontaine. Each undertaking, while important for American foreign relations, caused the two chief justices to miss several terms of Court and to neglect completely their duties on circuit. More significantly, they had been involved in the negotiations as agents of the president. Aside from the damage this did to the doctrine of the separation of powers, Jay and Ellsworth were perceived as Federalist partisans, which further diminished the stature of the Court.17

Other justices were even more directly involved in Federalist causes. As trial judges on circuit, all had enthusiastically enforced the Sedition Act, and none had questioned its constitutionality. Justices Chase and Paterson, in particular, had made a habit of haranguing juries in the name of Federalist virtue.18 In a still more egregious entry into partisan politics, Chase and Bushrod Washington had campaigned actively for Adams in 1800.19

Perhaps even more contentious, all the justices except Chase had sustained criminal convictions under English common law even when no federal statute had been violated.20 This tendency to create crimes by judicial fiat. was particularly infuriating to the vast majority of citizens who believed the Constitution had established a government of limited powers.21 Inevitably, the Supreme Court came to be perceived as an organ of Federalist policy, and its judicial standing eroded accordingly.

So lightly was the Court regarded, and so slight was its prestige, that when the government moved to Washington, no provision was made for it to be housed. In 1796 a planning committee of the House of Representatives had recommended "a building for the Judiciary," but no money had been provided and no plans had been drawn up.22 Two years later the project was officially shelved with a notation that "the immediate erection of that edifice is not considered so essential as houses for the accommodation of Congress, of the President and the Executive of offices"23

As secretary of state, Marshall apparently shared that view. Charged by Adams with overseeing construction of the federal city, he neither noted the need nor made arrangements for space to house the Court. In early December 1800 the district commissioners wrote to him suggesting that a committee room in the capitol be set aside temporarily for the Court. Alternatively, they recommended that the Court be provided "one or two rooms in the new Executive or War Office, and the Judges . . . with private lodgings in Georgetown."24 If Marshall replied, that letter has been lost. The probability is that he did not, because six weeks later the commissioners wrote to him again asking for instructions as to where the Court was to be housed.25 Once again no reply from Marshall has been found, but it is likely that he instructed the commissioners to seek a room on Capitol Hill, because on January 20, 1801, the Speaker of the House laid before that body a request that the Supreme Court be accommodated in the capitol.26 Three days later, with the Senate concurring, the House resolved "That leave be given to the Commissioners of the City of Washington to use one of the rooms on the first floor of the Capitol for holding the present session of the Supreme Court of the United States."27

The room assigned to the Court, and in which it met until 1808, was Committee Room 2, located on the ground floor of the north wing, adjacent to the main staircase. Benjamin Latrobe, the capitol architect, described it as noisy, "a half-finished committee room meanly furnished, and very inconvenient."28 The Court had no library, no office space, no clerks or secretaries, and the of official reporter, Alexander J. Dallas, a distinguished member of the Pennsylvania bar,29 had resigned rather than make the trip to Washington. Initially there was no bench for the justices, and they sat at individual desks placed on a raised platform. Even these meager quarters were not reserved for the Supreme Court exclusively, but had to be shared with the district and circuit courts of the District of Columbia.30

It was in this makeshift courtroom on a cold and rainy February morning that John Marshall took the oath as Chief Justice of the United States.31 As befitted the Court’s low profile, the event was little noted and sparsely attended.32 Marshall, however, was already asserting leadership subtly. Breaking with tradition, he wore a plain black robe in the republican fashion of the judges of the Virginia court of appeals. The other justices, Cushing, Chase, and Washington,*(Justices Moore and Paterson did not attend the February term) were attired either in the traditional scarlet and ermine of the King’s Bench33 or their individual academic gowns—the "party-colored robes" of an oppressive judiciary, in the words of Senator Stevens Thomson Mason.34 By wearing black, Marshall was making a quiet statement. He had seen the Federalists self-destruct electorally through an excess of hubris, and he recognized that the Court was on shaky ground. Why flaunt the colors of the English judiciary when the black robes worn by Pendleton and Wythe would do just as well? The decision had symbolic importance, but the chief justice had another motive. Marshall was a smaller republican and he was uncomfortable with trappings of power. Like Ulysses S. Grant, who wore his general’s stars on the uniform of an army private, Marshall preferred simplicity to pomp, understatement to extravagance. Authority followed from ability as much as from rank, and the new chief justice, not unlike the young man of twenty who good- naturedly drilled his Fauquier county neighbors in the manual of arms, was preparing to lead his judicial colleagues onto new ground.

Marshall’s first task was to remove the Court from partisan politics and reassert its judicial authority. Black robes might help, but otherwise the February term in 1801 offered little opportunity. One case was routinely disposed of per curiam and a number of lawyers were admitted to practice, but with only four justices in attendance, the bulk of litigation was carried over to the August term.35 The Court adjourned February 10 without having made a ripple in the national press.

Marshall’s last judicial duty that spring was to swear Jefferson in as president. At the new president’s request,36 he continued as acting secretary of state until March 5, when Levi Lincoln replaced him, pending Madison’s arrival in Washington.37 The following day Marshall departed for Richmond and did not return to the capital until the first week of August, when the Court reconvened. This time, setting a pattern that would continue for most of his tenure, Marshall had arranged rooms for his colleagues at Conrad and McMunn’s boardinghouse, the same Capitol Hill hostelry where Jefferson had stayed prior to his inauguration. None of the justices brought his wife, and Marshall, perhaps mindful of his happy existence as the eldest of fifteen children, or the military camaraderie at Valley Forge, elected to bring his colleagues together under one roof. It was another subtle move to enhance the identity of the Court, and its importance in explaining the cohesion of the Marshall years can scarcely be overstated.38 From 1801 on, whenever the Court convened, the justices lived together in the same hotel or boardinghouse, the chief justice benignly presiding over his extended judicial family. Years later, Justice Story described what it meant to eat, sleep, and drink with his colleagues. "My brethren are very interesting men with whom I live in the most frank and unaffected intimacy," he wrote to a friend in Massachusetts.39 "We are all united as one, with a mutual esteem which makes even the labors of Jurisprudence light.... We moot every question as we proceed, and familiar conferences at our lodgings often come to a very quick and, I trust, a very accurate opinion, in a few hours.40

Whether Marshall’s decision to reserve rooms for his colleagues in the overcrowded village of Washington was part of a carefully planned strategy or simply a friendly gesture, there is no question that the results were fortuitous for the nation’s highest court. The justices’ communal existence provided an environment in which Marshall’s conviviality could flourish. The qualities of clear thinking and political insight that had made him the natural leader of the delegation to Paris and that had propelled him to the leadership of the Adams Federalists in Congress now were free to work their effect on five potentially fractious associates who had had little experience working together and who were profoundly jealous of their individual prerogatives.41

The personal chemistry among the justices was especially important. At sixty- nine, William Cushing was roughly the same age as Marshall’s father and had been admitted to the bar in the year of Marshall’s birth. Devoted to his wife, who always accompanied him on circuit, he was childless and might well have seen in Marshall the son he never had. A man of stern New England determination, Cushing had faced down armed mobs during Shays’s Rebellion to conduct court on schedule. He became chief justice of the Supreme Judicial Court of Massachusetts, was Washington’s first appointee to the bench, and was reputedly the last American jurist to wear a wig.42 His strength lay in the field of constitutional law (he had helped to frame the Massachusetts constitution), and his opinion in Chisholm v. Georgia was a strong restatement of nationalist principles.43 By 1801 Cushing’s sharpness had dulled, yet he carried himself with quiet dignity and listened to arguments attentively.44 His literary tastes were wide-ranging (his wife often read to him), and he was a close friend of John and Abigail Adams, a fact that may also have drawn him to Marshall.

Justice William Paterson of New Jersey, the next senior justice, was ten years older than Marshall and had been the choice of the High Federalists to succeed Ellsworth. Irish by birth, Paterson graduated from Princeton in 1763, studied law under Richard Stockton, and became New Jersey’s first attorney general in 1776. As a delegate to the Constitutional Convention in Philadelphia, he authored the famous "New Jersey plan" that called for a unicameral legislature in which each state would enjoy equal representation. Paterson’s proposal was favored by the small states, but he eventually endorsed the Great Compromise and enthusiastically led the fight for ratification in New Jersey. He was elected to the United States Senate in 1788 and, along with Ellsworth, was one of the principal drafters of the Judiciary Act of 1789.45 In 1790 he became governor of New Jersey and held that post until 1793 when Washington tapped him for the Court.

Paterson’s legal credentials were impressive. 46 As governor, he had initiated a compilation of the statutes in force in New Jersey, 47 and his private practice had been one of the state’s most lucrative. Like Cushing, his opinions on the Court tilted strongly in favor of national power, 48 and on circuit he had been one of the most vigorous enforcers of the Sedition Act. Nevertheless, Paterson had been embarrassed by the efforts of hard-core Federalists to make him chief justice 49 and had written Marshall immediately upon his confirmation to congratulate him. Marshall replied by return post,50 and although the two men had not been well acquainted, they quickly became close friends. They both possessed superb legal minds and shared a Celtic penchant for strong drink and good talk. "Laugh where we can’ is one of the best maxims to pass through life with ease and comfort," Paterson had once counseled his High Federalist friends,51 and it was on his recommendation that Marshall was awarded an honorary LL.D. by Princeton in 1802.52

Samuel Chase of Maryland was the most outspoken of Marshall’s colleagues and would soon become the storm center in the Republican assault on the judiciary. Fourteen years older than the chief justice, he was appointed to the Court by Washington in 1796. His temperament was mercurial, and he was instinctively opposed to doing anything under the slightest duress. He was generally acknowledged to be the most intellectually gifted of the justices, but, like Elbridge Gerry, he was something of a loose cannon. Princeton professor Edward Corwin has characterized him as "a born leader of insurrection."53 Chase had spearheaded the drive for independence in Maryland and was the only member of the Marshall Court to have signed the Declaration of Independence.54 As a member of the Continental Congress, he had backed Washington steadfastly against the various intrigues mounted against him, a fact that the president undoubtedly recalled when he appointed Chase. On the Court his opinions ranked with those of James Wilson in their grasp of constitutional issues. In Ware v. Hylton, the famous British debt case argued by Marshall, Chase, in firm, clear language, established the supremacy of treaties over state laws to the contrary.55 In Hylton v. United States, another 1796 case, he laid down a definition of a "direct" tax that was accepted for the next 100 years.56 But as a trial judge on circuit, Chase was a holy terror, and when it came to enforcing the Sedition Act, he had no peer. His intemperate, overbearing charges to the jury earned him the reputation of an American Jeffreys,57 and the sentences he handed out to the government’s opponents tended to justify that label.58 Chase was by no means a reactionary, however. Of all the justices of the Supreme Court in the eighteenth century, he was the only one who had refused to convict under the common law, and his holding to that effect in United States v. Worrall59 was later adopted by the Marshall Court.60

Physically, Chase was enormous, well over six feet, with a massive head, broad face, and thick white hair. Massachusetts congressman Manasseh Cutler described him as one of the largest men he had ever seen.61 And despite his turbulent disposition, he was not without a rough and ready charm that his intimates found appealing. Indeed, it was in the close quarters at Conrad and McMunn’s that Chase’s human qualities came to be appreciated. Story wrote that Chase abounds with good humor [and] amuses you extremely by his anecdotes and pleasantry. His first approach is formidable, but all difficulty vanishes when you once understand him. In person, in manners, in unwieldy strength, in severity of reproof, in real tenderness of heart; and above all in intellect, he is the living, I had almost said the exact, image of Samuel Johnson.... I like him hugely.62

Bushrod Washington, who, at thirty-eight, was the youngest member of the Court, had been on the bench for two years. He was the son of George Washington’s brother Augustine and reputedly the general’s favorite nephew. 63 In appearance and temperament, he was the polar opposite of Chase. Short in stature, frail, and boyish in appearance, he had lost the sight of one eye because of excessive reading in poor light. Where Chase was bluff and blustery, Washington was mild and conciliatory. Where Chase was off-putting because of his thunder, Washington was difficult to know because of his reticence. As with Chase, however, Washington found respect and camaraderie in the intimacy of Conrad and McMunn’s. 64 That, at least, was Story’s conclusion, who said of Washington that "his mind was solid, rather than brilliant; sagacious and searching, rather than quick and eager."65

No one in public life was closer to Marshall than Bushrod Washington, and in the twenty-nine years they served together on the Court, they differed in opinion on only three occasions.66 That was not because Washington was under Marshall’s tutelage. It was simply that the two men saw matters the same way.67 Both had studied under Wythe at William and Mary in 1780; both revered the memory of George Washington (after Martha Washington’s death in 1802, Bushrod lived at Mt. Vernon); both were delegates to the Virginia ratification convention; and both had served together in the House of Delegates, where they had worked hard for the principles of moderate Federalism. As lawyers in Richmond during the 1780s and 1790s, each had had ample opportunity to appreciate the other’s talents and virtues, and their personal lives frequently intertwined. The two men were already collaborating on a proposed biography of Washington and were each coping with the demands of an invalid wife. Both were also concerned about the fate of slaves who had been set free. Bushrod became the first president of the American Colonization Society, which sought to relocate freed blacks in Liberia, and Marshall later became president of its Virginia branch.68

The most recently appointed associate justice, Alfred Moore of North Carolina, was, at forty-five, the same age as Marshall. Witty, animated, and caustic in debate, he was one of the founders of the University of North Carolina and was widely regarded as the most able lawyer in North Carolina at the time of his appointment.69 Like Marshall, Moore had served as a junior officer in the Revolutionary War and shared an attachment to moderate Federalism. In physical appearance, he was even smaller than Bushrod, standing only four feet five inches tall and weighing between eighty and ninety pounds. Like the elfin Gerry, his head was large for his body, and he was fine featured and dark-eyed.70 Of the five original associate justices of the Marshall Court, he was the most even-tempered and the easiest to get along with.

These were Marshall’s compatriots, the members of his judicial family: the elderly Cushing, the canny Paterson, the headstrong Chase, the reticent Bushrod, and the tiny Alfred Moore. They gathered slowly that August. Moore was the first to arrive, the beneficiary of seasonal winds that had facilitated his waterborne journey from Buchoi, his tobacco and rice plantation in Brunswick, the southernmost county in North Carolina. By Tuesday, August 4, a quorum was present, and the Court convened in its makeshift quarters, the oppressive heat of a Washington summer moderated only slightly by the thick masonry walls of the new capitol. Following Marshall’s lead, the justices were clad in black, a symbolic peace offering to the Republican ascendancy.71

Marshall’s courtroom appearance was not imposing. William Wirt, who had known Marshall for years, wrote shortly after his appointment that "the Chief Justice of the United States is tall, meager, emaciated; his muscles relaxed, and his joints so loosely connected, as not only to disqualify him for any vigorous exertion of the body, but to destroy everything like elegance and harmony in his air and movements."72 Joseph Story, as a young lawyer pleading his first case before the Court,73 described Marshall in similar terms: Marshall is of a tall, slender figure, not graceful or imposing, but erect and steady. His hair is black, his eyes small and twinkling, his forehead rather low.... His manners are plain yet dignified; and an unaffected modesty diffuses itself through all his actions. His dress is very simple, yet neat; his language chaste but hardly elegant.... In conversation he is quite familiar.... His thoughts are always clear and ingenious, sometimes striking. . . he possesses great subtilty [sic] of mind, but it is only occasionally exhibited. I love his laugh— it is too hearty for an intriguer—and his good temper and unwearied patience are equally agreeable on the bench and in the study. His genius is, in my opinion, vigorous and powerful, less rapid than discriminating, and less vivid than uniform in its light. He examines the intricacies of a subject with calm and persevering circumspection, and unravels the mysteries with irresistible acuteness.74

The August term commenced with the case of Talbot v. Seeman, a major prize case arising out of the quasi-war with France.75 In Talbot, the constitutional status of the quasi-war was once again called into question. The American Daily Advertiser called it "A cause of very great importance both on account of the legal principles applicable to neutral shipping and the magnitude of the pecuniary interest involved in the event, being no less than $180,000.76 It was also a case that divided sharply along partisan lines, the Federalists supporting the rights of the American captor, the Republicans against. Two prominent Federalist lawyers, Congressman James A. Bayard of Delaware and Jared Ingersoll of Philadelphia, represented the appellant, Captain Silas Talbot, commander of the famous American frigate Constitution ("Old Ironsides").77 Two equally prominent Republicans, John T. Mason of Maryland78 and Alexander Dallas, appeared for the respondent.

The case involved the Constitution’s capture of the Amelia, an armed merchant vessel owned by a Hamburg businessman, Hans Seeman. In 1799 the Amelia, bound from Calcutta to Hamburg with a load of valuable cargo, had been seized on the high seas by the French corvette La Diligente. Refitted with a prize crew, it was under sail to the French West Indies for condemnation when it was intercepted by the Constitution and redirected to New York for adjudication. Captain Talbot, on behalf of himself and his crew, claimed half the value of the vessel for rescuing it from the French. Seeman insisted that the ship should be returned to him without paying salvage since it was a neutral vessel and hence in no danger from French condemnation proceedings. The U.S. district court ruled in favor of Talbot, but when the matter was appealed, Justice Washington, sitting on circuit, reversed the ruling. Washington held that under international law the Amelia was not a lawful prize. Accordingly, Captain Talbot had rendered no service to its owners in recovering it.79 As befitted the high drama attached to the case, the appeal before Washington had been argued by Alexander Hamilton on behalf of Captain Talbot, while his nemesis, Aaron Burr, appeared for Seeman.

The argument before the Supreme Court lasted four days. Bayard and Ingersoll maintained that because the Amelia was armed and flying French colors, Captain Talbot was justified in seizing her; that in so doing he had saved the ship from inevitable condemnation by a French admiralty court; and that he was entitled to compensation for his efforts. But when Bayard sought to read into the record President Adams’s interpretation of the relevant congressional legislation that would have supported Talbot’s action, the justices objected. Paterson said that statutory interpretation was a task for the Court and that the president’s views were not binding.80 Chase and Moore agreed. Marshall said, "I have no objection to hearing them, but they will have no influence on my opinion."81 Ultimately, the Court refused to hear what Adams had said.82

When it came time for Dallas and Mason to respond, they emphasized that the Amelia was a neutral ship and that it was unlikely that she would have been condemned by French courts. The United States and France were not at war, they argued, and in seizing the ship, Captain Talbot had gone far beyond what Congress had authorized. They said that Justice Washington’s holding on circuit was correct and that it should be affirmed.83

Marshall and his colleagues wrestled with the case for almost a week. In the evenings at Conrad and McMunn’s, at mealtimes, and over the weekend, the justices discussed the arguments that had been presented. Congress was not in session, Jefferson and Madison were on holiday, and what little social life there was in the scraggly village of Washington revolved around the boardinghouse.84 By Sunday evening the justices had reached a consensus. It was now a matter of announcing it. Talbot v. Seeman is inordinately important in the history of American jurisprudence because it is the first case in which the justices of the Supreme Court labeled their decision the "Opinion of the Court." Marshall, amiable, unassuming, and considerate as always, not only brought his boardinghouse colleagues into a unanimous agreement concerning the law but also convinced them that the Court should speak with one voice. That style had been pioneered by Edmund Pendleton on the Virginia court of appeals,85 and Marshall emphasized its effectiveness to his colleagues. If a complex, politically charged case like Talbot could be resolved with a single opinion, not only would the holding enjoy greater legitimacy, but the identity of the Supreme Court as a nation’s highest tribunal would become manifest and its prestige would be enhanced enormously.

Like Pendleton, Marshall believed that the Court should speak through its chief justice. That would add to the Court’s aura of authority. Once again his colleagues concurred. During the next four years, the Marshall Court rendered forty-six written decisions, all of which were unanimous. Marshall participated in forty-two, and in each of those he announced the opinion of the Court. Whether he circulated his drafts among his colleagues is unknown since no annotated manuscripts from that period have survived.86 But whether he did or not, it is certain, given the independence of strongwilled colleagues like Chase and Paterson, that his opinions reflected the Court’s consensus.87

In Talbot, it seems obvious that Marshall was as much concerned about the cohesion of the Court as he was about the holding. The process of achieving unanimity and speaking with one voice was as important to him as the outcome, and his opinion judiciously balanced the claims of all the parties concerned. As chief justice, Marshall had a rare knack for expressing compromise with clarity, and Talbot v. Seeman is an example of that dexterity. The issue hinged on whether Constitution’s taking of the Amelia was lawful, which in turn depended on the nature of relations between France and the United States in 1799. Marshall began the Court’s opinion with a bow to Congress. In a passage often quoted, he stated that the nation’s war powers belonged exclusively to the legislature: "The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides in this enquiry."88 Since the Constitution specifies that the president is the commander in chief, Marshall’s observation was a slight overstatement. Nevertheless, from a political standpoint, it did not hurt for a Federalist Court to acknowledge Congress’s preeminence.

After a lengthy survey of the relevant legislation, Marshall held that Congress had authorized the taking of any French ship that might threaten American commerce. "The Amelia was an armed vessel commanded and manned by Frenchmen.... It is not then to be questioned, but that there was probable cause to bring her in for adjudication."89 In arriving at that conclusion, Marshall had to extrapolate considerably. There were no statutes on point, and he relied on what he called "the real intent of Congress."90 This aspect of the decision represented an important breakthrough for the Court insofar as it was asserting its right to determine what Congress meant when the laws were silent.

Having held the seizure to be lawful, Marshall turned to the question of whether Captain Talbot was entitled to salvage. That depended on whether he had rendered a service to Seeman. Marshall said that a neutral vessel normally is in no danger of condemnation. However, the laws of France authorized the seizure of vessels laden with products from English colonies.93 Since the Amelia was bringing goods from India, then part of the British empire, her condemnation by a French court of admiralty was "extremely probable."92 By recapturing her, Captain Talbot had rendered "an essential service, and the Court is therefore of the opinion that the re-captor is entitled to salvage."93

Marshall did not restore the district court judgment, however, which had awarded half the value of the vessel. That would have amounted to a clearcut victory for Captain Talbot. The Federalists would have rejoiced, and the Republicans would have taken it as another illustration of the bias of the federal judiciary. Instead, he once again went beyond the record to apply a standard of reasonableness. The Amelia was, after all, a neutral vessel, and "according to the law of nations, a neutral is generally to be restored without salvage."94 Marshall said that "considering the circumstances. . . one-sixth appears to be a reasonable allowance."95 The Court thus allowed Talbot to collect salvage for rescuing the Amelia, but cut his award by two-thirds. There was no statutory basis for such a judgment; the Court simply adopted a figure that seemed appropriate.

Marshall was not finished. To ease the impact of the holding for Seeman, the Court allowed him to deduct his costs from the money that was due Talbot.96 That too was not customary, since a losing litigant is rarely awarded costs. Finally, as a gesture to Bushrod, Marshall said that his holding on circuit reversing the district court had been correct and that it was incorrect only in not allowing salvage. Washington had been reversed, but it had been done as gently as possible.97 The decision in Talbot v. Seeman is a textbook example of navigating through a minefield. Determined to remove the Court from partisan politics, Marshall steered adroitly between the Federalists’ belief in the quasi-war and the Republicans’ doubts about its legitimacy. Congress received a big bouquet concerning its war powers, and the military action undertaken by the Constitution was vindicated. Captain Talbot and his crew were awarded salvage, but the amount of that award, after deducting costs, was not appreciable. In principle, the Federalist view of the quasi-war was sustained, but in practice, the Republicans could not complain about the judgment. The Aurora commended Marshall for examining "at length the arguments urged on each side." The National Intelligence; the organ of Jefferson’s party in Washington, reprinted the entire text of the decision, explaining to readers its importance.98

Talbot v. Seeman illustrated Marshall’s ability to find a middle ground. Under his low-key leadership, his colleagues, previously accustomed to expressing their individual views in seriatim opinions, worked through the complex issues together to reach a unanimous decision, a decision that they allowed Marshall to report. This seminal holding set a pattern that was followed not only by the Marshall Court but in virtually every Supreme Court decision since. The "Opinion of the Court" is a unique American innovation, and it can be traced to Marshall in Talbot.

When the Court adjourned, Marshall could reflect on a useful beginning. The Court had avoided taking sides in the quasi-war, it had explicitly recognized that the war powers belonged to Congress, and it had established its broad authority to interpret what Congress intended. Marshall had pulled the Court together. It had risen above partisanship to speak with one voice, and its collective identity had been established. The road ahead would be perilous, but Marshall and his colleagues had proved that they could work together. Judicial authority was intact.

John Marshall - Definer of a Nation Chapter 11 Opinion of the Court

John Marshall - Definer of a Nation
Chapter 11 Opinion of the Court