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  Jay delivered a unanimous opinion.* Basing his ruling not so much on jurisdiction as to whether a foreign power had the right to empanel a prize court on American soil, the Court ruled for the owners and against the French. Jay determined that district courts had an inherent right to rule on prize cases within their jurisdictions, and, in any event, the French consuls had no right to conduct prize hearings on American soil.3

  Although Chisholm is generally cited as the most important case to come before Jay as chief justice, Glass was of far greater significance. The decision not only upheld the doctrine of neutrality, but also, by inference, proclaimed the sanctity of American borders. No decision ever did more to assert the nation’s international rights.4 Federalists, of course, were overjoyed. By ignoring the letter of the law—by opting for broad construction—Jay had established principles necessary for the United States to establish long-term sovereignty.

  Glass was Jay’s first genuine triumph on the Court. It was also to be his last. Just after the February 1794 term ended, Washington approached the chief justice with an offer.

  Federalist favor notwithstanding, threat of war with England was far greater than with France. American ships were being seized in the West Indies with regularity, and British forts in the Northwest—still manned and ready, despite the treaty—were generally seen as jumping-off points for invasion. Yet, as Washington and most Federalists surmised, British belligerence was less a question of specific antagonism toward its erstwhile colonies than of thwarting France. The solution, therefore, should be diplomatic and not military. Washington decided to send a special envoy to London to negotiate terms of rapprochement. For the task, he chose Chief Justice Jay.

  Nothing bespeaks the lack of prestige of the Supreme Court more than the terms of Jay’s acceptance. Not only did he agree to go to England, probably for months, but he felt no need to resign his position as chief justice in order to do so. No specific provision of the Constitution prohibited him from serving in both capacities concurrently, though the practicalities of the job would dictate that the highest judicial officer in the land should be available to the people that he served. There is evidence that Jay considered the propriety of accepting, but not whether his absence would have an adverse impact on the affairs of state.5

  In any event, Jay’s mission was a success. On November 19, 1794, he signed a treaty with Britain’s Lord Grenville, later called “Jay’s Treaty,” which, while controversial—Jay was widely seen as having given up too much to get too little—effectively eliminated the threat of war with England. France’s enmity, however, was irreparably aroused. Eschewing a winter crossing, Jay did not sail for the United States until the following March. Absent a chief justice, the Court did little business, adjudicating but two cases in the February 1795 term.

  While Jay was at sea, New York was electing a governor. Once more Jay was a candidate, his name having been placed in nomination—with both his knowledge and consent—by Federalist associates. Jay arrived in New York in late May just in time to learn that this time he had won. Although not the slightest doubt existed that Jay would accept the governorship, he waited a full month, until June 29, 1795, three days after the Senate adjourned, to submit his resignation as chief justice to the president.6 Washington was therefore able to appoint a chief justice for the August term without gaining Senate approval. No record exists of why Jay delayed, but Republicans had been making gains in Congress, and saving Washington the embarrassment of an acrimonious confirmation hearing would have been very much in character for Jay.

  With the chief justice’s chair vacant, the remaining justices assumed that the replacement would be drawn from their ranks. Wilson, in particular, must have salivated at the prospect of gaining that which had been denied him five years earlier. Paterson, although new to the Court, was held in high regard and widely believed to be under serious consideration. But, far to the south, another, cleverer, supplicant was also waiting in the wings.

  John Rutledge had seethed for five years at being passed over for Jay, and never abandoned the view that high national office was his due. While in 1789 he had employed surrogates to plead for his appointment, this time he communicated with Washington himself.

  Anticipating Jay by three weeks, he wrote:

  Finding that Mr. Jay is elected Governor of New York and presuming that he will accept the office, I take the liberty of intimating to you privately that, if he shall, I have no objection to take the place which he holds, if you think me as fit as any other person and have not made choice of one to succeed him, in either of which cases I could not expect nor would I wish for it. Several of my friends were displeased at my accepting the office of Associate Judge (although the senior) of the Supreme Court of the United States, conceiving (as I thought, very justly) that my pretensions to the office of Chief Justice were at least equal to Mr. Jay’s in point of law-knowledge, with the additional weight of much longer experience and much greater practice. . . . When the office of Chief Justice of the United States becomes vacant, I feel that the duty which I owe my children should impel me to accept it, if offered . . . I have never solicited a place, nor do I mean this letter as an application. It is intended merely to apprise you of what I would do if selected.7

  Astoundingly, Washington, who had been so adroit in 1789 in frustrating the ambitions of Wilson, Livingston, and Rutledge by choosing Jay, now leapt on Rutledge’s fawning entreaty. The president wrote back to the South Carolinian on July 1, just three days after he had received Jay’s resignation, informing him that he was drawing up a commission.

  The delighted (and probably stunned) Rutledge received the letter in mid-July and was off to Philadelphia like a shot, arriving in time for the August term. While Rutledge was en route, however, Washington’s precipitous appointment acquired a suspicious odor.

  The president had considered Jay’s Treaty, for all its flaws, a brilliant diplomatic stroke, a triumph of neutrality. He expected Francophile Republicans to grouse, but Washington was never one to be deterred by yelping detractors. He had, however, expected his fellow Federalists to close ranks behind the treaty.

  What Rutledge had not bothered to mention in his June 12 letter was that he opposed the treaty, and opposed it vehemently. In fact, on July 16, mere days before Washington’s letter arrived in Charleston, Rutledge, who probably thought he was to be passed over once more, delivered an address in which he excoriated the Jay treaty. Northern newspapers received word of the speech late in the month. They reported that Rutledge had announced that he preferred Washington should die rather than sign the loathsome document.

  As Rutledge traveled north for the August term, scathing attacks began to circulate, impugning not just his loyalty but also his sanity. Attorney General William Bradford, who had recently replaced Randolph, called the speech “crazy” and observed that Rutledge was “daily sinking into debility of mind and body.” Timothy Pickering hinted at “private information” that indicated Rutledge’s commission “ought to be withheld.” Oliver Wolcott called him “a driveller and a fool.” Edmund Randolph observed that “reports of his . . . puerility and extravagances together with a variety of indecorums and imprudencies multiply.”8

  Rutledge arrived in Philadelphia unaware that word of the speech had preceded him. He was, not surprisingly, taken aback by his reception. Most Federalists refused to speak to him. The exception was Washington who, incredibly, overlooked Rutledge’s outburst and continued to press for his confirmation when the Senate next met. Federalist senators, in most cases utterly loyal to the president, demurred on this issue. Rutledge, they asserted, would never be confirmed. But Rutledge’s will was as strong as that of Congress. Having waited five years for high national office, he was not about to relinquish it. On August 12, he took the oath of office and assumed his seat as second chief justice of the United States.

  John Rutledge

  Fortunately for Rutledge—and likely the nation as well—only two cases were decided in the August term,
both prize cases and neither of the sort of lasting significance that attended Glass. The term mercifully ended and the new chief justice left for circuit duty, no doubt pleased to be done with Philadelphia. He would return neither to the Court nor the city.

  When the Senate returned to session, Rutledge’s nomination was finally presented for confirmation. Although Washington refused to withdraw his name, it took the Senate a mere six days to refuse to ratify the appointment. On December 15, the office of chief justice was once again officially vacant.9 Chief justice was not the only vacancy, however: during the interregnum, another seat had opened when John Blair resigned.

  Washington, burned by Rutledge, was not about to make a similar error in his next choice. In the interest of unity, he offered the position of chief justice to Patrick Henry, but Henry, who was by then almost sixty, declined. Washington next chose William Cushing, the eldest associate. (Upon Cushing’s confirmation, Washington would fill his seat.) For Blair’s seat, at the urging of James McHenry of Maryland, a Washington friend, ally, and new secretary of war, the president nominated the huge, volcanic Samuel Chase.

  Well over six feet tall and upwards of three hundred pounds, Chase was outsized in every way. Able, quick-witted, and completely without tact, he had at various times been accused of swindling, financial chicanery, misuse of office, and violation of oath, all with some degree or other of accuracy. Chase had also signed the Declaration of Independence, stuck by Washington in the darkest days of the Revolution, and was so intellectually incisive that some of his opinions stood for more than a century. He had a mane of white hair, and the constant flush to his skin earned the sobriquet “Bacon Face.” He was as ferocious a Federalist as existed anywhere in the Union.

  On January 26, 1796, Washington reported both nominations to the Senate, and both confirmations were rendered the following day. But Cushing had decided against accepting the position, thinking himself too old. He informed Washington that he intended to remain an associate.

  With only one of the two open seats filled, the Court was short one justice for the beginning of the February term, just in time to hear, among others, John Marshall argue the appeal of the circuit court ruling in Ware v. Hylton.

  *Although most decisions were delivered seriatim, there was no prohibition against the Court speaking on occasion through one voice.

  TEN

  A TASTE OF THE FUTURE: MARSHALL VISITS THE COURT

  BY FEBRUARY 1796, John Marshall was firmly established among both Virginia’s legal and political elite. As an attorney, he had been retained not only by Washington, but also by George Mason, one of the richest men in the state. So successful had his practice become that Marshall himself became engaged in an effort to purchase part of the vast holdings of Lord Fairfax.

  Politically, his fortunes were, if anything, greater. With the nation evolving into a distinct two-party system, Marshall had become perhaps the most prominent Virginia Federalist. Washington needed him since Jefferson, Monroe, and the now fully converted Madison had made Virginia into a bastion for the Republican opposition.

  In 1795, Washington had solicited Marshall to be his attorney general, but, once again citing the weight of his practice, Marshall declined. When a vacancy later appeared for secretary of state, Marshall was again Washington’s first choice, but the president by then knew that Marshall could not be pried out of Virginia.

  Marshall had not been north since his war days but, in early 1796, he left Richmond for Philadelphia to argue Ware. Only one of his original four defenses remained, that those who had paid into the Virginia treasury under the 1777 statute had legally discharged their debts. But even that defense had become thornier. With Jay’s Treaty now in force and under assault by Republicans, an attack on constitutional supremacy had greater ramifications than when the case had been heard in circuit court.

  Thus, by necessity, Marshall’s argument to the Supreme Court differed from the construction he had offered in Virginia. He intended to steer clear of state sovereignty and dance around Article VI, Section 2 of the Constitution, which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

  Marshall’s presentation to the Court contained some interesting assertions. The Constitution might be the supreme law of the land, but only for the “United States.” Marshall insisted that “Virginia, at the time of passing her law, was an independent nation.” In 1777, the United States, as it was now understood, did not exist. Neither the Declaration of Independence nor the Continental Congress created a single nation. That did not occur until the ratification of the Articles of Confederation in 1781.1 Yet, just moments later, Marshall noted, “It will be allowed, that nations have equal powers; and that America, in her own tribunals at least, must from the 4th of July 1776, be considered as independent a nation as Great Britain.”2 Thus, it seems, as an independent nation, Virginia had the power of confiscation, but as a part of a larger nation, previous debts had been canceled when the nation was formed.

  Having demonstrated Virginia’s right of confiscation, Marshall then noted, “So, when the government of Virginia wished to possess itself of the debts previously owing to British subjects, the debtors were invited to make the payment into the treasury; and, having done so, there is no reason, or justice, in contending that the law is not obligatory on all the world, in relation to the benefit, which it promised as an inducement to the payment.”3 That brought Marshall to the main question. “Having thus, then, established, that at the time of entering into the Treaty of 1783, the Defendant owed nothing to the Plaintiff; it is next to be enquired, whether that treaty revived the debt in favour of the Plaintiff, and removed the bar to a recovery, which the law of Virginia had interposed?”4

  Unwilling to attack the treaty power itself, Marshall employed the sort of light-footed logic that he would later employ in Marbury. “There cannot be a creditor where there is not a debt; and British debts were extinguished by the act of confiscation. The [treaty] articles, therefore, must be construed with reference to those creditors, who had bona fide debts, subsisting, in legal force, at the time of making the Treaty; and the word recovery can have no effect to create a debt, where none previously existed.” In other words, the constitutional authority to enter into treaties and expect those treaties to be enforced throughout the nation was moot; the repayment terms of the treaty did not apply to those Virginia debtors who had paid money into the state treasury in worthless currency. Lest anyone remained confused, Marshall added, “Without discussing the power of Congress to take away a vested right by treaty, the fair and rational construction of the instrument itself, is sufficient for the Defendant’s cause.”5

  The Court, however, was having none of it. With Justice Iredell absent, the remaining four justices were all staunch Federalists, and undermining fragile relations with Britain was not on their agenda.6 Chase, the newest justice, delivered the first (and longest) opinion. He actually agreed with Marshall that, at the time of passage of the law, Virginia had been independent, since the Articles of Confederation were not ratified until 1781. In fact, Chase agreed with all of Marshall’s points, even so far as that any Virginian who had paid money into the treasury was no longer a debtor.

  But none of that mattered. If the United States was to be able to operate as a nation, to end wars (which, according to Chase, could only be done by treaty), then the power vested in Article VI was absolute. “Our Federal Constitution establishes the power of a treaty over the constitution and laws of any of the States; and I have shown that the words of the fourth article were intended, and are sufficient to nullify the law of Virginia, and the payment under it.”7

  The other Federalist justices agreed, although differing on grounds. Cushing was te
rse, but no one stated the case more effectively. He wrote: “A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.”8

  And so Marshall and the Virginia debtors lost. But, unlike his clients, Marshall had also won. A cornerstone of Federalist policy was now firmly in place, while Marshall himself had enhanced his reputation for fairness and intelligence, bringing both, for the first time, to a national stage.

  Marshall reveled in his new status. Describing his visit to Philadelphia “to argue the cause respecting British debts,” he observed, “I became acquainted with Mr. Cabot, Mr. Ames & Mr. Dexter & Mr. Sedgwic[k], of Massachusetts, and Mr. Wadsworth of Connecticut and with Mr. King of New York. I was delighted with these gentlemen. The particular subject which introduced me to their notice was at the time so interesting, and a Virginian who supported with any sort of reputation the measures of the government was such a rara avis, that I was received by them all with a degree of kindness which I had not anticipated.”9

  ELEVEN

  YANKEES WIN: ELLSWORTH AT THE HELM

  AFTER JUSTICE CUSHING declined his nomination to be chief justice, Washington could easily have nominated Wilson, Iredell, or Paterson, but the nomination of one might well have aroused the enmity of the other two. Rather than risk internecine conflict, Washington once again chose to go outside the Court and, on March 3, 1796, nominated Oliver Ellsworth of Connecticut.