YEARBOOK 1987 ;UPREME COURT HISTORICAL SOCIETY

OFFICERS Chief Justice Warren E. Burger (Retired), Honorary Chairman Kenneth Rush, Chairman Justin A. Stanley, President

PUBLICATIONS COMMITTEE Kenneth S. Geller, Chairman Alice L. O 'Donnell E. Barrett Prettyman, Jr. Michael Cardozo

BOARD OF EDITORS Gerald Gunther Craig Joyce Michael W McConnell David O'Brien Charles Alan Wright

MANAGING EDITOR David T. Pride

ASSOCIATE EDITORS Kathleen Shurtleff Barbara Lentz ABOUT THE COVER The cover photo for the 1987 Yearbook is a partial view of a painting entitled "Wash­ ington as Statesman at the Constitutional Convention" by Junius Brutus Stearns. The painting is part of the collection of the Virginia Museum of Fine Arts in Rich­ mond, Virginia.

ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publication of this Yearbook. YEARBOOK 1987 Supreme Court Historical Society

Tributes to Associate Justice Lewis F. Powell, Jr. on the Occasion of His Retirement

Justice Powell's Contributions to the Court 5 Byron R. White

Lewis F. Powell and The American Bar Association 7 Bernard G Segal

Justice Powell and the Eighth Amendment: The Vindication 10 of Proportionality George Clemon Freernan. Jr.

Justice Powell and His Law Clerks 16 David L. Westin

Obstacles to the Constitution 19 Warren E. Burger

The Relationship of Church and State: The Views of the Founding Fathers 24 Kenneth W Starr

Roger B. Taney and the Bank of Maryland Swindle 38 David GrimSled

John Marshall's Selective Use of History in Marbury v. Madison 82 Susan Low Bloch and Maeva Marcus

The Judicial Bookshelf 108 D Grier Stephenson. Jr.

Contributors 127

Other Society Publications 128

Copyright © 1987, by The Supreme Court Historical Society llt Second Street, N.£., Washington, DC. 20002 ISBN 0-9J4785-00-3 The Supreme Court Historical Society

BOARD OF TRUSTEES

Chief Justice Warren E. Burger, Retired Honorary Chairman

Kenneth Rush Justin A. Stanley Chairman President Alice L. O'Donnell First Vice President

Vice Presidents Charles T. Duncan 1. Roderick HelJer III Frank B. Gilbert David Lloyd Kreeger Melvin M. Payne Virginia Warren Daly Peter A. Knowles Secretary Treasurer

Trustees

Noel J. Augustyn Francis R. Kirkham Ralph E. Becker Rex E. Lee Griffin B. Bell Sol M. Linowitz Hugo L. Black, Jr. Howard T. Markey Robert L. Breeden William Barnabas McHenry Vincent C. Burke, Jr. Richard A. Moore Gwendolyn Cafritz David A. Morse William T. Coleman, Jr. Norman E. Murphy Patricia Collins Dwinnell Dwight Opperman Kenneth S. Geller E. Barrett Prettyman, Jr. William T. Gossett William P. Rogers Erwin N. Griswold Walter S. Rosenberry III Lita Annenberg Hazen Fred Schwengel Joseph H. Hennage Bernard E. Segal William E. Jackson John C. Shepherd Frank C. Jones Leon Silverman Stanley N. Katz Chesterfield Smith Bruce E. Kiernat Obert C. Tanner James J. Kilpatrick M. Truman Woodward, Jr. Earl Kintner David T. Pride Acting Director Justice Powells Contributions to the Court by Byron R. White

Lewis Powell was the sixth new Justice to come to the Court after my arrival, and Justice Anthony Kennedy, who just filled the seat vacated by Justice Powell, is the eleventh. Whenever a new Justice is confirmed, the Court becomes a different instrument than it was. Judging is not a mechanical process but, among other things, an amalgam of ability, experience, and substantive views about the nature and role of government in general and the judicial function in particular. Justices are never carbon copies of each other and usually not even close to that description. Inevitably, a new Justice will decide some cases differently from his predecessor, and therefore the Court's product will be different than it would have been without the change in membership. This becomes readily apparent as the months after the new Justice arrives slip by, although it takes years really to determine his or her impact on the work of the Court. William 0. Douglas told me soon after I came to the bench that it would be ten years before I had been "around the track" for the first ti me; only then would I have the feeling that most of the cases presented Associate Justice Byron R. White (above) shared the issues that I had judged before. Likewise, only bench with Associate Justice Powell from 1971 to 1987. after such a time can one assess with some confidence how a new Justice has influenced the Court. But it is certain that there will be a lawyer and Justice. He brought with him an significant change, both in the sense that cases immediate and present knowledge of the are not being decided as they would have been practice and could express very current views in the past and in the sense that there are from the "real world" of the law about the role departures from prior legal doctrine. of the courts, the processes of governi ng, and It thus goes without saying that Lewis the place of Constitutional restraints upon Powell left his imprint on the Court. The those processes. His views were more than a scholarly journals will be full of the details of distant memory of what non-judicial life and how and when this occured. I shall just say in thought is like. Judges perhaps can only general that his impact is as plainly discerna­ speculate about the impact of their decisions; ble, if not more so, than that of any of the but those who have recently been in the Justices arriving since 1962. Justice Powell, trenches have considerably more to say on this who came directly from the practice, was a subject. Lewis Powell said it in his characteris­ very intelligent, experienced and effective tically quiet but extremely effective way, per- 6 YEARBOOK 1987 haps more effectively than ifhe had come from means, but over time, will have enormous ten or fifteen years of service as a federal or influence on the way the law develops. This is state judge. not to disparage the value of judicial experi­ Justice Powell's work on the Court again ence; those with it in many ways "hit the illustrated what history has time and again ground running" when they come here. They revealed - that prior judicial experience is not are not strangers to judging, and they normally a prerequisite for outstanding performance on arrive with mature and convincing views on the Supreme Court. Felix Frankfurter's semi­ important issues. But this does not gainsay the nal treatment of the issue, 105 University of distinctive contributions that Lewis Powell Pennsylvania Law Review 781 (1957), as well as made to the Court: distinctive in important the contributions of others, makes this very part because he was fresh from the un­ clear. Moreover, those who are nominated cloistered, relatively unstructured, general directly from the practice - in anyone of its practice of the law. many manifestations - may well exert an Of course, I do not mean to ignore Justice influence different from those with years of Powell's personal traits, for he was, and is, service on the bench behind them. This is highly thought of by all of us, and for good especially true if the nominee's experience, as reason. He was a very enjoyable colleague, one Lewis Powell's was, is rich and varied. whom I sought to spend time with, whether at Justice Powell is the perfect example of why lunch, in the office, or elsewhere. I miss him for Presidents not only should not confine their those reasons, bu t also for his views that were choice of Justices to those withjudiciaJ experi­ molded by a lifetime of experience in practice, ence, but should instead affirmatively strive dealing directly wi th those considerations that not to do so-to make sure that new arrivals on determine the quality of the country's exist­ the Court include those fresh from the practice ence. I'm sure he brought to us something that and hopefully more nearly reflecting the views might have been lost had he been on the bench of society, which, not in the short run by any for years on end before he arrived here. Lewis E Powell And The American Bar Association by Bernard G. Segal

In my initial draft of this article, I briefly summarized Justice Lewis F. Powell's more than 15 years on the Supreme Court as one of the most outstanding and highly regarded Justices in our nation's history. However, I then learned that Justice Byron R. White had agreed to submit an article on that subject for this issue of the Yearbook, and certainly no one is more qualified than he to do so. Accordingly, I proceed to my specific assignment. Born in Suffolk and reared in Richmond, Virginia, after a brilliant scholastic record in college, where he won high honors, including election to Phi Beta Kappa, and at law school, graduating first in his class, Justice Powell earned his LL.M. degree at Harvard, promptly after which he embarked upon his career as a practicing lawyer. His practice developed to be as extensive and diversified as it was efficient and effective. As a member of a leading law firm in Rich­ mond, he represented a wide assortment of individuals and corporations, as well as civic and charitable groups. He excelled in many Bernard G. Segal areas of practice having a very high reputation as a courtroom advocate at both trial and appellate levels. I had occasion, from time to been one of the most effective, most dedicated, time, to work with him directly, sometimes and most beloved Presidents and Presidents­ both of us representing a client in the same Elect the Association has ever had. During the matter. Accordingly, I was able to observe at year that he was President, he placed the firsthand the excellence of his representations. Association in a new position ofleadership in I say without doubt that whether in court, or terms of pragmatic institutional recognition solving an intricate legal problem, he was as of the vast social and technological changes skilled a lawyer as I have known. that characterized the times, and in the adop­ As ABA President (1964-65) and as Presi­ tion among others of highly significant pro­ dent-Elect as well, he initiated highly signifi­ grams and policies designed to improve the cant programs and policies to fulfill the obliga­ administration ofcriminaljustice, to fulfill the tions of the legal profession to the community­ obligations of lawyers to provide legal services at-large. He is conceded by everyone knowl­ to the needy members of our society, to edgeable in ABA affairs and history as having reevaluate the ethical standards of the profes- 8 YEARBOOK 1987

sion, and to enhance the general reputation of Sargent Shriver, he referred to the magnificent lawyers. leadership of Lewis Powell in the formulation I now proceed to a statement of the out­ and the effectuation of the national program. standing projects Lewis Powell initiated dur­ He praised, too, Powell's statesmanship in the ing his term of office. The limitation of space identification and critical appraisal of its however prevents my presenting as to each of obvious problems and uncertainties. Shriver these projects, the development in the years added that he had "come to believe that the that followed . Perhaps on some future occa­ Legal Services Program, small though it is, sion, I will have the opportunity to update will rank in history with the great triumphs of each project by giving its present status, in the Justice over Tyranny . . . (and) one of the achievement of which Powell continued to brightest achievements in our nation's history." playa role even after his appointment to the In recognizing the need for broader and Supreme Court. more efficient legal services for the poor, The Criminal Justice Act of 1964, providing Powell did not overlook the mounting prob­ for compensated counsel in federal courts for lems of other segments of the public in indigent defendants charged with felonies or obtaining adequate legal services - the mil­ serious misdemeanors, having been enacted lions of persons who are not so impoverished and gratifying progress having been made in a as to be qualified for legal aid but who number of states, Justice Powell, as President nevertheless require legal services and cannot of the Association, alerted the profession to afford to pay for them. A nd so, at his insistance the magnitude and urgency of the need for the American Bar Association created still counsel in criminal cases; and he skillfully another agency, this time to ascertain the stimulated action by the organized Bar to availability of legal services to all segments of meet that need. He also reminded the Bar that society, the adequacy of existing methods and its responsibility was no less crucial in the civil institutions for providing them, the need for justice field. group legal programs and their relation to the When the Economic Opportunity Act was profession's ethical standards, and the most enacted in 1964, authorizing community ac­ expeditious and effective way to provide such tion programs designed to help the im­ services to a greatly enlarged clientele. "But poverished through legal services and other even as study progresses," Powell urged, "the means in local communities across the coun­ organized bar at all levels must press ahead try, there was considerable concern among with every available means to improve existing some members of the profession as to whether methods.. . . It is axiomatic that those (the the legislation, because it involved massive legal profession) who enjoy a monopoly posi­ participation by the federal government in tion have higher duties and responsibilities. In legal aid, would receive the support of the discharging these, the ultimate test must be organized Bar. Most lawyers would have pre­ the public interest." ferred local rather than federal solutions. Recognizing the need for updating the However, under the leadership of Lewis Canons of Professional Ethics, including their Powell, who recognized that the complexities observance and enforcement, Justice Powell and demands of society required legal service appointed a new Special Committee on Evalu­ assistance that was beyond the will or capacity ation of Ethical Standards to deal with that of the profession, or even states and munici­ subject. In doing so, he directed the Commit­ palities, to meet, the American Bar Associa­ tee's attention to three examples of the need: tion assumed the national leadership in per­ (I) wider discourse on fair trial and free press, suading the organized Bar at all levels to lawyers being "a major source of news that embrace the OEO Legal Services Program may affect the fairness of trials;" (2) the then before the Congress. This not only helped representation of unpopular causes and the rekindle the conscience of the Bar in a critical providing of aid even to the most unpopular area in which it had certainly not distin­ defendants; and (3) the need to revise the guished itself; it provided the support the Canons of Ethics to recognize the need for program needed to get off the ground. In a group legal services through lay organizations. letter I received in 1970 from the eminent Reporting a growing dissatisfaction with JUSTICE POWELL AND THE ABA 9 the discipline maintained by the legal profes­ diminishing minority that still uses violence and sion, he courageously acknowledged that the intimidation to frustra te the legal rights of Negro citizens. This conduct is rightly condemned and dissatisfaction was justified and requested that deplored throughoutourcountry. The full processes the new canons lay down clear, peremptory of our legal system must be used as effectively, and rules relating directly to the duty of lawyers to with as much determination, against racial law­ lessness as against all other crime. their clients and the courts. One of the most massive undertakings in Evidence of the esteem in which Lewis the history of the Association undertaken Powell was held as a practicing lawyer by the during Lewis Powell's administration as Presi­ bar of the country was the extremely rare dent was the project to provide minimum occurrence of election as President of three standards for the administration of the crimi­ leading national organizations of our profes­ naljustice process-from prearraign men t and sion - the American Bar Association, the bail to sentencing, postconviction remedies American College of Trial Lawyers, and the and correctional treatment. Today, the historic American Bar Foundation. Reports of the distinguished committee of Lewis Powell lead these organizations with judges, lawyers, and others initially appointed enormous compassion, creativity and endless by Powell, provide innovative and effective energy. Anyone familiar with his record as standards to improve the criminal process. ABA President could have predicted, as in­ They were actively considered by legislatures, deed I did 16 years ago in my statement to the courts, and law enforcement authorities, and Senate Judiciary Committee in support of his proved, as Lewis Powell predicted they would, confirmation, that when he joined the Su­ to "help materially in improving the fair­ preme Court only seven years after serving as ness, the certainty and swiftness of criminal ABA President, he would prove to be one of justice." the truly great Justices of the Court. I said, in In the area of race relations, the following part: paragraph from President Powell's Address at the Association's Annual Meeting is note­ ... I have no doubt that as a Supreme Court Justice, law, as the will and wisdom of the people, is the client worthy: Lewis Powell will serve.... [HJe will bring to his task extraordinary capacities, a wise and under­ One cannot think of crime in this country without standing heart, and a deep and abiding sense of special concern for the lawlessness related to racial justice. I predict that a t the end of his term, Lewis unrest thatcastsa deepshadow across the America n Powell will have joined 'the enduring architects of scene. This takes many forms. That which is most the Federal structure within which our nation lives widely publicized is the criminal conduct of the and moves and has its being.' small and defiant minority in the South - a Justice Powell and the Eighth Anrendnrent: The Vindication of Proportionality

by George Clemon Freeman, Jr. J

One of the areas in which Justice Powell has had a major impact on current Supreme Court constitutional jurisprudence is the Eighth Amendment. That amendment provides that:

Excessive bail shall not be required , nor excessive fine s imposed and cruel and unusual punishment inOicled.

Justice Powell's more important Eighth Amendment opinions fall into two categories -the capital punishment cases and the length of sentence cases. The capital punishment opinions include his joint opinion with Jus­ tices Stewart and Stevens in Gregg v. Georgia, 2 his later opinions for the Court in Eddings v. Ok/ahoma, 3 Booth v. Mary/and,4 and Mc­ Cleskey v. Kemp, S and his dissent in Burger v. Kemp. 6 The non -capi tal, length of sen tences, cases are his dissent in Rumme/ v. Estelle 7 and his opinion for the Court distinguishing Rum­ mel three years later in Solem v. Helm. 8 In both lines of cases one of Justice Powell's principal contributions has been to help rescue and George Freeman, Jr. practiced law with Justice Powell in Richmond, Virginia from 1957 through 1971. restore the concept of "proportionality" to its rightful place in enforcing the Eighth Amend­ ment.

The "Death Penalty" Opinions system was unconstitutional. In Gregg, the Gregg v. GeO/gia 9 is unusual in that the Court upheld Georgia's new capital sentencing plurality opinion, announcing the judgment, system but was divided in the basic reasons for was written jointly by three Justices: Stewart, the result. Powell and Stevens. The case is one of the most The Court was split three ways. Justices important decisions involving capital punish­ Brennan and Marshall adhered to their view ment and the Eighth Amendment in the past that what is "cruel and unusual punishment" quarter century. It involved the validity of the evolves with the times and that under that statutory scheme for imposition of capital criterion the death penalty can no longer be sentences that the Georgia legislature enacted justified in any circumstances. I I Justices Stew­ in the wake of the Court's ruling in Furman v. art, Powel l and Stevens likewise viewed the Georgia, 10 which had held that Georgia's old concept as an evolving one, bu t they concluded JUSTICE POWELL AND THE EIGHTH AMENDMENT II that "the punishment of death does not unable even to consider the evidence." 18 The invariably violate the Constitution." 12 They Court reversed noting that "this sentence was focused instead on the procedures by which imposed without 'the type of individualized capital punishment was imposed. While, in consideration of mitigating factors .. . re­ their view, the old Georgia system permitted quired by the Eighth and Fourteenth Amend­ unguided jurors to impose "the death sen­ ments in capital cases.'" 19 As in many of tence in a way that could only be called Powell's opinions in this field, the Court was freakish," 13 the new Georgia system provided closely divided. Four Justices, Chief Justice significant guidance to the jury and the appel­ Burger and Justices White, Blackmun and late review process added an additional safe­ Rehnquist, dissented. guard against abuse. In Eddings, Powell traced the recent history of the Court's evolving views on the constitu­ The provision of appellate review in the Georgia capital-sentencing system serves asa check against tional parameters imposed on capital punish­ the random or arbitrary imposition of the death ment: penalty. In particular, the proportionality review substantially eliminates the possibility that a person As THE CHIEF JUSTICE explained, the rule in will be sentenced to die by the action of an aberrant Lockell is the product of a considerable history ju ry." reflecting the law's effort to develop a system of capital punishment at once consistent and prin­ Justice White, Chief Justice Burger and cipled but also humane 'and sensible to the uniqueness of the individual .. . Justice Rehnquist concurred in the judgment Beginningwith Furman, the Court has attempted in a separate opinion that avoided any discus­ to provide standards for a constitutional death sion of evolving social standards and placed penalty that would serve both goals of measured, consistent application and fairness to the accused. 20 principal emphasis on the role of the Georgia Supreme Court in appellate review. Turning to the facts, Powell wrote:

Indeed, if the Georgia Supreme Court properly We find that the limitations placed by these courts performs the task assigned to it under the Georgia upon the mitigating evidence they would consider statutes, death sentences imposed for discrimi­ violated the rule in Lockell. Just as the State may not natory reasons or wantonly or freakishly for any by statute preclude the sentencer from considering given category of crime will be set aside. Petitioner any mitigating factor, neither may the sentencer has wholly failed to establish . .. that the Georgia refuse to consider, as a mailer of law, any relevant Supreme Cou rt failed properly to perform its task in mitigating evidence. In this instance, it was as if the this case or that it is incapable of performing its task trial judge had instructed a jury to disregard the adequately in all cases; and this Court should not mitigating evidence Eddings proffered on his behalf. assume that it did not do so. 15 The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given The joint opinion of Justices Stewart, relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their Powell and Stevens is of interest not only consideration. l l because of the seminal quality of Gregg v. Georgia, but also for the insight it affords into Powell again showed special solicitude for Powell's subsequent Eighth Amendment juvenile offenders in his dissent in Burger v. opinions. In particular, the heavy reliance Kemp. 22 There he emphasized the special upon J#ems, Trop and Robinson,16 clearly problems presented where the defendant sen­ foreshadowed Powell's subsequent insistence tenced to death was age 17 and obviously that the Eighth Amendment's requirements of mentally retarded: proportionality apply to all sentences, those in I mposing the death penalty on an individual who is non-capital as well as capital cases. I ? not yet legally an adult is unusual and raises special In Eddings v. Oklahoma, Powell, writing for concern. At least, where a State permits the execu­ the Court, set aside a death sentence imposed tion of a minor, great care must be taken to ensure that the minor truly deserves to be treated as an upon a defendant who was only sixteen years adult. A specific inquiry including "age, actual old, emotionally disturbed and mentally re­ maturity, family environment, education, emo­ tarded at the time he committed the murder. tional and mental stability, and . .. prior record" is particularly relevant when a minor's criminal The Court did so because the sen tenci ngj udge culpability is at issue.23 "did not evaluate the evidence in mitigation and find it wanting as a matter of fact" but In McCleskey v. Kemp, Powell adhered to his "rather he found that as a matter o/law he was belief that the appropriateness or inap- 12 YEARBOOK 1987 propriateness of imposition of the death In this respect the State cannot channel the sen­ penalty should be objectively determined in tencer's discretion, but must allow it to consider any 28 light of facts directly related to the individual's relevant information offered by the defendant. character, conduct and the circumstances Thus, Powell concluded that "[i]n light of our regarding his crime. In this case thejury found precedents under the Eighth Amendment, two aggravating circumstances justifying im­ McCleskey cannot argue successfully that his position of the death penalty and the defend­ sentence is "disproportionate to the crime in ant offered no mitigating evidence. The lower the traditional sense." 29 court, on the recommendation of the jury, One ofthe more i nteresti ng parts of Powell's imposed the death sentence. Subsequently, the opinion in McCleskey is his treatment of the defendant sought to have the sentence set statistical study and its relationship to both the aside in a petition for a writ of habeas corpus. Eighth Amendment and Equal Protection His counsel presented a statistical study that arguments advanced by the defendant. Since purported "to show a disparity in the imposi­ the statistical study was used by the defendant tion ofthe death sentence in Georgia based on as the basis for two alternative constitutional the race of the murder victim, and to a lesser arguments, Powell chose to discuss the study's extent, the race of the defendant." 24 Speaking implications for each constitutional provision for himself, Chief Justice Rehnquist and Jus­ separately. tices White, O'Connor and Scalia, Powell Addressing the Eighth Amendment argu­ rejected arguments that imposition of the ment that the imposition of the death penalty death penalty on McCleskey violated the on McCleskey "is disproportionate to the Eighth Amendment and the Equal Protection sentences in other murder cases," Powell said Clause of the Fourteenth Amendment. that "absent a showing that the Georgia Several comments on this opinion are in capital punishment system operates in an order. From the perspective of the Court and arbitrary and capricious manner, McCleskey its continuing deep division over the constitu­ cannot prove a constitutional violation by tionality of the death penalty under the cruel demon strati ng that other defendants who may and unusual punishment clause of the Eighth be similarly situated did not receive the death Amendment, the opinion is yet one more penalty." 30 The Court's earlier opinion in precedent in the controlling line of decisions Gregg favored such an argument because it following in the wake of Furman v. Georgia 25 recognized that "opportunities for discretion­ and Gregg v. GeOlgia. 26 Thus, Powell's opinion ary leniency" would produce disparate results reaffirmed for himself and four other justices in individual application. But Powell rejected that so long as Georgia in fact provides for that extension of Gregg. So long as the sen­ procedures in the capital sentencing process tencing procedures "focus discretion 'on the that ensure the discretion unavoidably in­ particularized nature of the crime and the volved in sentencing is "controlled by clear particularized characteristics of the individual and objective standards as to produce non­ defendant; ... we lawfully may presume that discriminatory application," 27 the system it­ McCleskey's death sentence was not 'wan­ self is constitutional. Powell summarized this tonly and freakishly imposed; .. . and thus requirement as follows: the sentence is not disproportionate within In sum, our decisions since Furman have identified any recognized meaning under the Eighth a constitutionally permissible range of discretion in Amendment." 31 imposing the death penalty. First, there is a required Having disposed of the facial attack on the threshold below which the death penalty cannot be imposed. In this context, the State must establish Georgia statute, Powell then proceeded to deal rational criteria that narrow the decision maker's with the defendant's argument that "the judg~ent as to whether the circumstances of a Georgia system is arbitrary and capricious in particular defendant's case meet the threshold. Moreover, a societal consensus that the death application, and therefore his sentence is ex­ penalty is disproportionate to a particular offense cessive, because racial considerations may preventsa State from imposing the death penalty for influence capital sentencing decisions in that offense. Second, States cannot limit the sen­ tencer's consideration of any relevant circumstance Georgia." 32 Powell recognized that the statis­ that could cause it to decline to impose the penalty. tical study was relevant but, in his view, it was JUSTICE POWELL AND THE EIGHTH AMENDMENT 13

should such studies generally become criteria for finding constitutionally impermissible dis­ crimination against minority groups. In Boothe, writing for the Court, Powell set aside a Maryland statute that permitted evi­ dence of the impact of a murder on the family of the victim to be presented to a jury determining whether or not imposition of the death penalty was appropriate. He wrote that

[o]ne can understand the gri ef and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case [the sentence] on the relevant evidence concerning the crime and thedefendant. As we have noted any decision to impose the death sentence must "be, and appear to be, based on reason rather than caprice or emotion ...." The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence is clearly inconsistent with the reasoned decision­ making we require in capital casesH

The "Length of Sentences" Opinions Associate Justice Lewis F. Powell, Jr. 1971-1987 Powell's non-capital case "proportionality" opinions, his dissent in Rummel v. Estelle 35 and his opinion for the Court three years later not constitutionally determinative for two in Solem v. Helm, 36 provide an example of how reasons. The first was the inherent probative Powell ultimately persuaded a majority of his weakness of statistical evidence generally. colleagues to come around to his view on a To evaluate McCleskey's challenge, we must exam­ major constitutional issue. In this instance ine exactly what the Baldus study may show. Even Justice Stewart, who concurred in Rummel, Professor Baldusdoes not contend that his statistics prove that race enters into any capital sentencing had left the Court and been replaced by Justice decisions or that race was a factor in McCleskey's O'Connor who dissented in Solem. Thus the particular case. Statistics at most may show only a decisive vote in Solem came from Justice likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial Blackmun who had been with the majority in prejudice influencingajury's decision in acriminal Rummel but shifted to join Powell in Solem. case. There are similar risks that other kinds of The issue in both Rummel and Solem was prejudice will influence other criminal trials .... The question "is at what point that risk becomes whether the Eighth Amendment imposes any constitutionally unacceptable," .. . McCleskey asks limitations based on the principle of propor­ us to accept the likelihood allegedly shown by the tionality on the length of sentences legislatures Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing may establish for non-capital offenses. capital sentencing decisions. This we decline to do. Powell 's careful research into the English law . . . Where the discretion that is fundamental to our roots of the amend ment provided the answer. criminal process in involved , we decline to assume that what is unexplained is invidious. In light of the He went back to Magna Carta and its provi­ safeguards designed to minimize racial bias in the sions on amercements to find the origins of the process, the fundamental value of jury trial in our concept of proportionality and traced its criminaljustice system, and the benefits that discre­ tion provides to criminal defendants, we hold that descent through the English Bill of Rights of the Baldus study does not demonstrate a constitu­ 1689 to the Virginia Declaration of Rights, tionally significant risk of racial bias affecting the which was the immediate source of the lan­ Georgia capital-sentencing process.!} guage in the Eighth Amendment. Powell's second reason for rejecting the In light of this history, Powell could have study was the lack of any limiting principle rested his result on the concept of "original 14 YEARBOOK 1987 intent." But he chose to take a more expansive criteria, including (i) the gravity of the offense and approach. Evoking the "living Constitu­ the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdic­ tion," 37 Powell tied the proportionality cases tion ; and (iii) the sentences imposed for the com­ into the Furman v. Georgia 38 and Gregg v. mission of the same crime in other jurisdictions.46 Georgia 39 line of cases which had read limita­ tions on death penalties into the Eighth Powell emphasized that application of such Amendment to reflect changing social values. standards by courts is practical. "Application Powell stated in his Rummel dissent that of the factors that we identify also assumes "[t]he special relevance of Furman to this case that courts are able to compare different lies in the general acceptance by Members of sentences.... Decisions of this kind, although the Court of two basic principles. First, the troubling, are not unique to this area. The Eighth Amendment prohibits grossly exces­ courts are constantly called upon to draw sive punishment. Second, the scope of the similar lines in a variety of contexts." 47 Powell Eighth Amendment is to be measured by then proceeded to apply the criteria to the facts 'evolving standards of decency.' " 40 before him and concluded: In his Rummel dissent, Powell also rebutted Applying objective criteria, we find that Helm has the argument that the Court's review of the received the penultimate sentence for relatively scope of permissible punishment set by state minor criminal conduct. He has been treated more harshly than other criminals in the State who have legislatures is counter to the principles of committed more serious crimes. He has been separation of powers and federalism. He cited treated more harshly than he would have been in any a line of Fourth Circuit cases imposing propor­ other jurisdiction, with the possible exception of a single State. We conclude that his sentence is tionality constraints on sentences imposed significantly disproportionate to his crime, and is under state law as "impressive empirical evi­ therefore prohibited by the Eighth Amendment'B dence that the federal courts are capable of applying the Eighth Amendment to dispro­ A Final Observation portionate noncapital sentences with a high Justice Powell's contribution to current degree ofsensitivity to principles offederalism Eighth Amendment jurisprudence may have and state autonomy." 41 broader influence in the future in areas out­ Thus, once more we see the pragmatic side criminal sentencing. Commentators have Powell refusing to let abstract principles tri­ already noted the relevance of the concept of umph over according justice to the individual proportionality to awards of punitive dam­ standing before the Court: ages. 49 Its applicability to such damages was The sentence imposed upon the petitioner would be one of the issues recently before the Court in viewed as grossly unjust to virtually every layman Bankers Life and Casualty Company v. and lawyer. In my view, objective criteria clearly establish that a mandatory life sentence for defraud­ Crenshaw but the Court did not reach the ing persons of about $230 crosses any rationally issue. 50 The Supreme Court of Georgia did, drawn line separating punishment that lawfully however, and, relying heavily on Powell's may be imposed from that which is proscribed by the Eighth Amendment. 41 amendments analysis in Solem, held that the excessive fines provision of the Eighth Amend­ In Solem, for his new found majority, Powell ment and its Georgia Constitution equivalent answered the arguments that applying federal barred all excessive monetary penalties in­ scrutiny to sentences to see if they are consist­ cluding excessive punitive damages. 5I The ent with the concept of proportionality will proportionality concept has also been held allow the courts virtually unfettered discretion applicable by lower federal courts to forfeitures and deluge the courts with a flood of new under civil RlCo. 52 Thus, the concept of pro­ cases. He reached back to J#?ems v. United portionality, whether applied under the Eighth States 43 and the few subsequent cases in that Amendment or under the broader concept of line, such as Trop v. Dulles 44 and Robinson v. due process, may ultimately operate as an California,45 and to the death penalty cases to outer bound on the government's imposition find objective factors by which proportionality of all civil penalties. Finally, this concept may may be determined: be relevant to the application of strict, joint In sum, a court's proportionality analysis under the and several liability under statutes like the Eighth Amendment should be guided by objective Superfund Act,53 where, on the facts of a JUSTICE POWELL AND THE EIGHTH AMENDMENT 15 particular case, the liability imposed is so a major contribution by bringing new life to disproportionate to the conduct or contribu­ the almost moribund Eighth Amendment. tion of the particular defendant as to be Looking back into history to ascertain the punitive in effect. 54 evils that the founding fathers and their But whether or not these further extensions English forebears sought to avoid, Powell has of the doctrine of proportionality are upheld made its protections relevant to contemporary by the Court, Justice Powell has already made society.

Footnotes

I B. A. Vanderbilt 1950, LL.B. Yale 1956. Mr. 32 Id. (emphasis in original). Freeman clerked for Mr. Justice Black in the 1956 J3 ld at 1775-78 (emphasis in original). Powell's 1erm. Justice Powell practiced law with the author wariness of statistical studies is also evident in other from 1957 to 1971 in Richmond, Virginia. This contexts. See, e.g., Committee for Public Education article is based on one section of an article by this & Religious Liberty v. ;",Tyquist, 413 U.S. 756, 778 author on "Justice Powell's Constitutional Opin­ ("Quite apart from the language of the statute, our ions" which will appear in the Fall 1988 issue of the cases make clear that a mere statistical judgment Washington & Lee Law Review will not suffice as a guarantee that state funds will 2428 US. 153 (J976). not be used to finance religious education."), 787 J 455 US. 104 ([982). (HOur cases, however, have long since foreclosed the 4482 US. _, 107 S. Ct. 2529 (1987). notion that mere statistical assurances will suffice to 5481 US. _, 107 S. Ct. 1756 (1987). sail between the Scylla and Charybdis of'effect' and 483 US. _, 107 S. Ct. 3114 (1987). 'entanglement' [in Establishment Clause, First J 445 US. 263 (1980). Amendment cases].") 3463 US. 277 (1983). 482 US. at _, 107 S. Ct. at 2536. 9428 US. 153 (1976). 445 US. 263,285 (1980) (Powell, 1., dissenting). 10 408 US. 238 (1972). 36463 US. 277 (1983). 11428 US. 153, 227 (1976) (Brennan, 1., dissent- 37445 U.S. at 307. 428 US. 153, 231 (Marshall, 1., dissenting) 38408 US 238 (1972). 428 US. at 169. 39463 US. 277 (1983). 40 I) Id at 206. 445 US. at 291-92. 141d I ld. at 306. 151d at 224. 42 Id. at 307. 16 See Id at 171-174 (discussing ~J1?ems v. United 43 217 US. 349 (1910). States. 217 US. 349 (1910); TroPv. Dulles, 356 US. 86 44 356 US. 86 (1958). (1958) and Robinson v. California. 370 US. 660 45 370 US. 660 (1962). (1962». All these cases involved non-capital sen­ 46463 US. at 292. tences or offenses. 47 fd at 294. 17 Justice Powell's subsequent non-capital sen­ 48 fd. at 303. tences opinions in Rummel v. Estelle, 445 U.S. 263, 49 Jeffries, A Comment on the Constitutionality of 285 (1980) (Powell 1. dissenting) and in Solem v. Punitive Damages, 72 Va. L. Rev. 141; Massey, The Helm. 463 U.S. 277 (1983) are discussed below. Excessive Fines Clause and Puni t i ve Damages: Some 18 455 US. at 113 (emphasis in original). Lessons from History, 40 Vand.L. Rev. 1233 (1987). 19 Id at 104 (quoting Lockell v. Ohio, 438 US. 50 _ US. _ , 56 US. LW, 4418 (US. May 17, 586,606 (1978». 1988) (No. 85-1765, delivered May J6, 1988). 20 Id at 110-11. 5 I Colonial Pipeline Co. v. Brown, 258 Ga. J 15, 365 21 Id at 113, 114 (1980) (emphasis in original). S.E. 2d 827 (March 17, 1988). 22483 US. [07 S. Ct. 3[ 14 (1987). US v. Busher, 817 F.2d 1409 (9th Cir. 1987); 23 fd at 3140-41. Hall v. City ofSanta Barbara, 813 F. 2d 198 (9th Cir. 24 481 US. at 107 S. Ct. at 1763. 1987). 25 408 US. 238 (\972). 53 Comprehensive Environmental Response, 26 428 US. 153 (1976). Compensation, and Liability Act of 1980,42 USc. 27 481 US. at _, 107 S. Ct. at 1772 (quoting Gregg § 9601 el seq. v. Georgia, 428 US. 198 (1975». 54 See Jeffries, supra, n. 48; Freeman, Inappropri­ 28 Id at 1774. ate and Unconstitutional Retroactive Application of 29/d Superfund Liability, 42 Bus. Law. 215 (1986); Massey, 30 fd (emphasis in original). supra, n. 48. )1 Id 1775. Justice Powell And His Law Clerks by David Westin

Those of us who served as his clerks face many of the same difficulties in writing about Justice Powell that people must face in writing about their own parents. On the one hand, who knows better the "real person" behind the public persona? On the other, who can be trusted less to give an unbiased view? The Justice told us from the beginning that he and Mrs. Powell regard us as their own sons and daughters. Over the course of our time in the Powell chambers we indeed became part of the professional "Powell family" with all ofthe rights and responsibilities that entailed. We enjoyed the most intimate of professional relationships, observing the Justice closely as judge, supervisor, colleague, and friend . This relationship taught Powell clerks much about the man and how he filled the role of Supreme Court Justice. But it also colors anything that we say with the admiration and devotion that we feel for our professional father. There are those, however, without the bias of a Powell clerk who have recognized the remarkable qualities that the Justice brought to the bench. An example comes out of the Solicitor General's Office, whose lawyers had David Westin the opportunity to appear before the Justice in hundreds of cases over his years on the Court, sometimes in victory and sometimes in defeat. a skilled legal craftsman. Whether or not one I am told that in the middle of the Powell agrees with the outcome or the reasoning, a tenure a group of lawyers from the office Powell opinion stands out for its clarity, speculated over which of the Justices they structure, and essential honesty in dealing would choose if they were required to take just with the problems it addresses. The uniformly one to hear and decide all cases. The un­ high quality of Justice Powell's opinions re­ disputed choice was Justice Powell. sulted in large part simply from the time and What is it that has given Justice Powell such energy he put into them. It is difficult for those stature in the eyes of those who have not had who did not see it for themselves to appreciate the opportunity to work with him closely, as the ex ten t to which the Justice devoted h imsel f well as those of us who have? Surely part ofthe to the work of the Court. During my year with answer lies in the respect that lawyers have for him, Justice Powell would spend six very full JUSTICE POWELL AND HIS CLERKS 17 days in chambers each week and would carry there were some areas - for example, the home substantial work each evening and every public schools - where Justice Powell had Saturday - work that he evidently had spent done much work and thinking before coming most of his "free" time dispatching, judging to Court. But even after reaching a prelimi­ from what his briefcase held each morning nary view in a case, Justice Powell was invaria­ when he came to work. bly eager to hear arguments against his posi­ Justice Powell's long hours were certainly tion and to deal with such arguments fairly. In not the result of a lack of efficiency. His years at least one case with which I was involved, I leading a major law firm had made him watched as he struggled with the arguments extraordinarily able at focussing on the es­ against him, concluded that they could not be sence and delegating to his office staff, while disposed of honestly, and ultimately changed never abrogating his ultimate responsibility. his initial view (leading to a change in the Rather, Justice Powell worked hard because he outcome of the case). saw his position as a difficult one requiring Justice Powell's legal rigor was central to his much study, analysis, and reflection. He con­ contribution to the Court and its decisions sidered it his responsibility to understand all during his tenure. But taken alone it would tell aspects of the issues put before him. The of only half the man and ofless than half of his procedures he established within chambers contribution; in itself, it would not account for illustrate this combination of efficiency and the respect he has commanded, such as from full and fair consideration. When Justice the young lawyers in the Solicitor General's Powell was assigned a majority opinion to Office. prepare, he would appoint one of us to work What set Justice Powell apart was the way in with him in preparing the first draft. In my which his profound regard for people guided own experience, this would lead to the ex­ his legal talent and discipline in the cases that change of several drafts back and forth, meld­ came before him. We who served as Powell ing the law clerk's attempts to express the clerks felt this daily. Anyone who has met Justice's views with the infamous, lengthy Justice Powell can attest to his graciousness "riders" that the Justice would invariably and warmth. It is truly remarkable to see that dictate for insertion and replacement. Once this first impression is only expanded and the Justice was satisfied with the draft, another deepened by working by his side over pro­ clerk would perform a substantive review, longed periods. As I have suggested, Justice including studying all authorities cited and, Powell felt deeply the enormous responsibility often, going back to first principles on the of serving as a SupremeCourtJustice. And the reasoning of the opinion itself This regularly workload of the Court, particularly as the first would lead to substantial revisions, to be of June deadline approaches for circulation of worked out with the Justice and the clerk all majority opinions, is enormous. Yet the originally assigned to the opinion. The revised Justice was unfailingly kind, considerate, and opinion would then be printed by the Print understanding toward each of his law clerks. Shop in the basement of the Court as a In addition to being a part of his nature, this "Chambers Draft" to be reviewed and dis­ concern over the interaction with and among cussed by the Justice with all of the clerks en his clerks and other staff was . specifically masse. It was only after all clerks' suggestions intended. I recall that during my first inter­ had been considered that the opinion would view with him I learned that in Justice Powell's be circulated to the other Justices for their eyes nearly all of the several dozen applicants consideration. he was considering were intellectually The same goal of ensuring full considera­ qualified to be his clerk; what he was searching tion of all points of view determined how for were the few individuals who would best fit Justice Powell approached decision-making. personally with himself, with Sally Smith and Time after time I watched as he made a his other long-time staff, and with one another. conscious effort to keep his mind open right If my year is any sign, Justice Powell suc­ up to the point when the Conference would ceeded, for my three co-clerks are among my take a preliminary vote in a case. Occasionally closest friends, as well as being among the this would prove difficult or impossible, as lawyers whom I respect the most. 18 YEARBOOK 1987

Justice Powell's regard for people went well chanical or theoretical solution to what he beyond his chambers. Throughout the Court, viewed as the complex and subtle problems of wherever we would walk, he would know the humans. From his broad background in deal­ names of the employees and would invariably ing with people - in the military, as a promi­ have some ongoing discussion with them, nent commercial lawyer, as the head of a whether about the security guard's duck hunt­ school board, as an advisor to Presidents-the ing season or about the elevator operator's Justice experienced first hand many of the convalescing daughter. situations and dilemmas confronting individ­ The genius of Justice Powell, then, came in uals at all levels of our society. In working on the way that he put together what might have particular cases with him I learned of his appeared in others to be conflicting traits - experiences riding in police cars in the middle remarkably high standards pursued under of the night in the inner city, sitting on the pressure and a sensitivity to the human side of Richmond School Board during desegrega­ life. For example, one might have expected tion efforts, and helping a poor youth deal someone who apparently demanded so much with the consequences of an abortion in the of himself to make some similar demands on world before Roe v. Wade. Because Justice his staff. I cannot remember a single instance, Powell was concerned with the individual however, when Justice Powell ever demanded people involved in such situations, he gained anything of us. Instead, he simply assumed from these experiences a powerful sense of that we would function at the very highest of what could and could not be expected of our abilities and, as a result, received far more humans and their institutions. Indeed, this from us than more direct means could have very sense formed Justice Powell's views on extracted. Failing to meet the demands of an what guidance and supervision the Supreme employer is one thing; disappointing a surro­ Court itself could and could not usefully give. gate father is quite another. For the Justice, it would have been wrong to set The unusual combination of excellence and out abstract societal theories in Supreme appreciation for people appears in Justice Court opinions because it would have had the Powell's written legacy. I know that some have Court go beyond what it, as an institution suggested that Justice Powell's great strength created and populated by humans, could was also his great weakness - that a great and competently do. careful lawyer does not necessarily make a First and foremost, Justice Powell saw peo­ great and timeless jurist. I leave it to scholars ple - whether law clerks, support staff, or and historians to pass on Justice Powell's place litigants-as ends in themselves, ratherthan as in history. History would sorely misjudge this mere means to achieve his own ends. He saw it great man, however, ifit were thought that the his duty in each case to treat the individual weighing and balancing in his opinions re­ parties before him with fairness and under­ sulted from only a fine lawyers' mind and its standing. For those of us who watched him propensity to draw fine distinctions. To be closely, the Justice epitomized the ideal of the sure, his rigor and intellectual honesty made it competent and unbiased decisionmaker - impossible for him to accept broad, simple something that would have made him just as rules where he saw that they could not be great ajudge ifhad sat on a local court hearing universally applied. But Justice Powell's ap­ misdemeanors. Because he was caJled to serve proach to jurisprudence resulted from his on our highest Court, his wisdom born of rigor sense of people and their institutions every bit and humanity has illuminated the pressing as much as from his analytic care. issues of our day to the great benefit of all. Justice Powell was suspicious of any me- Obstacles To The Constitution

by Warren E. Burger

Last September 17 marked the 200th anni­ political setting in which it was drafted. versary of the signing of the first constitution Put most simply, in 1787 the thirteen former of its kind in all history. The focus was on British colonies were not behaving like a Philadelphia, but the whole nation watched­ nation, and of course they did not constitu te a and much of the world. This organic law, true nation. There was much that tended to defining and allocating the powers granted to unify Americans in the late eighteenth cen­ the federal government, and dividing powers tury; they had a common language and a between the state and federal governments, common tradition; they or their immediate reflected much more than the work of 55 ancestors had come here seeking greater re­ delegates over a period of four months. It was ligious and political freedom and new oppor­ an affirmation of ideas and ideals evolvi ng over tunities; they had shared in the hardships of centuries, including concepts of the French the long war for independence. But the com­ thinkers, British, and of the Scottish En­ mon language, the common urge for freedom, lightenment. and the shared war experiences were offset by The remarkable success of this charter of regional and ideological conflicts, commercial government controlled by the governed is rivalries, and widespread fear of a strong suggested by the fact that in our time most central government. Americans simply take it for granted. It is In 1787, the 13 states were made up of a difficult even to imagine what our "America" collection of small farms and small commu­ would be like today if, during the last two nities-and plantations-stretching along the centuries, it had been governed as the thirteen Atlantic coast from Canada to Spanish Flor­ sovereign states functioned under the Articles ida. The largest city, Philadelphia, had only of Confederation-that treaty of "firm friend­ 40,000 people. Only one significant river, the ship" explicitly preserving thirteen independ­ Charles in Boston, had been bridged; others ent sovereign states. Perhaps the states of that were crossed only by ferry - weather and America would resemble the states of Central floods permitting. Boston and Atlanta were and South America where the sharing of a weeks of travel apart; it took almost as long to common tradition, a common language-and get a letter to Atlanta from Boston as from largely a common religion - has not been London. Some settlers had crossed the Ap­ enough to unite them in a federal union. Had palachians into the Western lands. Many early we tried to continue under the loose, feeble leaders questioned whether a federal republic Articles of Confederation of 1781 perhaps the could possibly extend over such a large area. area between Canada and Mexico would How could representatives of the people stay resemble the Central and South American in touch with their constituents so many states of today. miles, so many weeks apart? The creation and acceptance of a Constitu­ Such manufacture as there was in the tion that unified the thirteen former colonies colonies was largely in New England, although under a strong national government soon after even that region consisted for the most part of the victory of Yorktown was far from inevita­ self-sufficient family farms. Much of the eco­ ble. To appreciate what an extraordinary ac­ nomic wealth of the South resided in large complishment the Constitution represents plantations that had become dependent on one must recall the historical, economic, and the evil institution of slavery. By 1787, the 20 YEARBOOK 1987 tensions between the slave states and the abolitionist states had emerged and posed a great obstacle to uniting the states into a true nation. Individual loyalty to the states was strong in the eighteenth century and, indeed, well into the nineteenth century. People tended to think of themselves as Virginians or New Yorkers first and Americans second. They regarded themselves as allies of people in other states. During the Revolutionary war, when New Jersey troops reporting for duty with General Washington at Valley Forge were asked to swear allegiance to the "United States," the soldiers at first declined, saying, "New Jersey is our country." Quite aside from their loyalty to their own states, the American people in 1787 had a great and understandable fear of central govern­ ments as a result of their experience as colonists. They had fought a revolution to escape from a strong, unresponsive central Patrick Henry refused to serve as a delegate to the government in distant London. Patrick Henry Constitutional Convention. of Virginia was so opposed to the idea of a strong central government that he refused even to be a delegate to Philadelpha, saying he default of its "dues" for the previous five years. "smelt a rat." The " rat" he feared was born at That Congress had become so ineffectual that Philadelphia, and he tried to kill it at the many Members stopped attending - during a Virginia ratification convention in 1788. four month session beginning in October These strong local interests defined the 1785, it had a quorum on only ten days. political map in America after British au­ Friction between the states was exacerbated thority was cast off in 1776. The former by their exercise of sovereign powers to pro­ colonies became, literally, separate, independ­ mote their differing and often conflicting ent, sovereign states who joined in an alliance interests. New York, for example, erected trade under the Articles of Confederation to con­ barriers and imposed duties on goods bound duct the war against England. But this was for Connecticut and New Jersey through New hardly more than a multilateral treaty - a York harbors. This was profitable for New "firm league of friendship" as the Articles York, but it enraged its neighbors. When the recited. If George III and his ministers had not Continental Congress failed to take any action needed to keep their powder dry with a wary against this practice, the New Jersey legis­ eye on France and Spain, that "firm league" lature voted to withhold its financial support might not have prevailed over a great world from the Confederation. Other states with power. good ports - Pennsylvania, Massachusetts, Under this "alliance" of 1781-1789, the states and South Carolina - treated their less fortu­ sent representatives to the Continental or nate neighbors in much the same way that Confederation Congress, but that body's lack New York treated Connecticut and New of powers caused despair to the leaders of the Jersey. Revolution. For example, the Congress had no Each state was also free to issue its own power to tax, relying instead on "contribu­ currency; in the mid-1780's, seven different tions" from the states - Alexander Hamilton state currencies were in circulation, along with was "receiver of revenues" not collector of foreign currency, and promissory notes issued taxes. The states were not always prompt with by the Continental Congress. The states their payments; in 1787, one state was in seemed almost to compete with each other to OBSTACLES TO THE CONSTITUTION 21 see which could issue the most paper money; but Pennsylvania's officials simply ignored the not surprisingly, much of the state-issued decision. In another case, the Continental money was eventually worth next to nothing. Congress successfully resolved a dispute over The same was true of currency issued by the land claimed by Connecticut in part of what is Continental Congress - "not worth a conti­ now Pennsylvania - but not before Connecti­ nental," some said. cut had sent settlers there, who ended up The weaknesses of the Confederation were fighting with Pennsylvania troops. acutely evident in the area of foreign relations. Although the post-Revolution years re­ The Continental Congress could not force the vealed that the Articles of Confederation had states to abide by the treaties it made. People many flaws, relatively few people thought that resisted repayment of debts owed to British unifying the states under a strong central creditors, as required by the Treaty of Paris, government was the best remedy. From 1781 to until, in 1796, the Supreme Court decided the 1783 several men who would become impor­ only case ever argued by John Marshall in the tant figures at the Philadelphia Convention­ Supreme Court - f111re v. Hylton, 3 Dallas 199 notably Madison, Pennsylvania's Robert Mor­ (1796). Several states entered treaties with ris and Hamilton -attempted without success Indians that conflicted with treaties made by to strengthen the Articles of Confederation by the Continental Congress. We could not pro­ interpretation and amendment. Beginning in tect American shipping from the Barbary early 1785, however, several events helped pirates-to whom we paid great sums in gold people to recognize the disadvantages of the to ransom hostages. The charge for insuring loose-knit alliance under the Articles. goods on American ships in that day was The meeting we now call the Mount Vernon double the rate for British and French ships. Conference of March 1785 was one of the first. Our Navy could not protect freedom of the Virginia and Maryland were quarreling over high seas. boundaries and the use of the Potomac River States often had very different foreign policy and Chesapeake Bay - the sort of dispute that interests. States whose western lands extended had often led to war in other parts of the world. to the Mississippi River wanted a treaty with Spain that would permit Americans to use the river and the Gulf of Mexico for shipping agricultural and other products. States with no western lands, on the other hand, were not wi Iling to risk a con frontation that migh t bri ng a Spanish Armada that would threaten trade with cities on the East Coast. In 1785, Massa­ chusetts and New Hampshire restricted Brit­ ish trade in their ports in an effort to pressure the British to reopen trade with the West Indies. But Connecticut, seeking more trade for herself, promptly undercut the other states by announcing that British ships would be welcome in its ports. Differences among the states on trade mat­ ters also led to political strife, said Madison, "Most of our political evils may be traced to our commercial ones." Here Madison, Wash­ ington and Hamilton were of one mind . . The Continental Congress had little success resolving disputes between the states. In one case, involving the distribution of prize money resulting from the capture of a British ship, James Madison astutely observed that trade and com­ merce rivalries were generally the most dh'isive issues commissioners of the Continental Congress facing the delegates from the various states at the overturned a Pennsylvania court's judgment, Constitutional Convention. 22 YEARBOOK 1987

In an effort to resolve the conflict, both states appointed commissioners, but they could not agree. George Washington then invited them to Mount Vernon. Under the influence of his great prestige they were able - no doubt with some nUdging - to resolve their differences. That meeting dramatized the need for a comprehensive political solution to the com­ mercial and other rivalries that separated the states. After the Mount Vernon meeting the Vir­ ginia legislature invited all the states to send representatives to a meeting at Annapolis, Maryland, to discuss interstate commercial issues. Only five states attended in September, 1786; those delegates adopted a resolution noting the grave crisis and the futility of considering commercial problems without also addressing the underlying political issues. The resolution was sent to all the states as well as to the Confederation Congress; the Con­ gress proposed that the states send representa­ George Washington used his considerable prestige in tives to Philadelphia in May 1787 to discuss all order to resolve a commercial dispute which threatened matters necessary "to render the Constitution relations between Maryland and Virginia - one of many such conflicts over waterways which divided the various of the Federal Government adequate to the states. exigencies of the Union." They were calling themselves the "United States," but calling a Finally, on February 21 , 1787, the Continen­ thing by a name does not make it true. The tal Congress, with some reluctance, officially Virginia legislature approved, and its legis­ invited the 13 states to send delegates to lature placed George Washington at the head Philadelphia. Although Washington , of its delegation. Six other state legislatures Hamilton, Madison and others had urged followed suit in short order. calling a true constitutional convention, the In 1786, an episode then occurred that made Continental Congress- many of whose mem­ a tremendous impression on the states when bers shared Patrick Henry's fears- refused to some were uncertain whether to send dele­ comply fully. Its resolution was explicit: the gates to Philadelphia. An uprising now known convention was "for the safe and express as Shays' Rebellion broke out in western pwpose of revising the Articles of Confedera­ Massachusetts. It began as a series of protests tion." There was no hint of drafting a wholly by indebted farmers who wanted paper money new Constitution. Patrick Henry's "rat" still and more favorable foreclosure and bank­ worried many people. ruptcy laws. An armed band led by Daniel The Convention was scheduled to begin on Shays - a former officer in the Revolution - May 14, 1787, in Philadelphia, but even at that defeated the state militia and forced some state late date, it appeared that the meeting might courts to adjourn. Late in 1786 and early in not come to pass. Only two out-of-state dele­ 1787, Shays gathered a large force and at­ gates - Madison and Washington - had tempted to seize the federal arsenal at Spring­ arrived by May 14. Rhode Island flatly refused field , but he and his men were routed by to appoint any delegates, it would be many Massachusetts troops. George Washington weeks before New Hampshire had enough summarized the sentiments of many of his money to send its representatives, and all five countrymen by expressing disgust that the delegates initially selected by Maryland de­ states, having just won a difficult war, could clined to serve. By May 25, however, enough scarcely keep order in peacetime. delegates from other states were present to OBSTACLES TO THE CONSTITUTION 23 form a quorum and the meeting began its agreed on language in a document was one official deliberations. thing, but convincing the states to ratify the The beginning of the convention, however, novel concepts embraced in the docu ment was was, of course, not the end of controversy. quite another. The legislatures of five states­ Regional and ideological conflicts shaped the Delaware, Pennsylvania, New Jersey, Georgia, views of many of the delegates and fueled and Connecticut - ratified the Constitution heated debates on the Convention floor. But within a few months; Rhode Island and North those who desired a strong cen tral govern men t Carolina initially rejected it. The vote in a few took the initiative and soon it became clear to key states was perilously close. Massachusetts all the delegates that it was not enough simply affirmed by a vote of 187 to 168. The Virginia to "revise" the Articles of Confederation; Ratification Convention took place over the instead they drafted a wholly new constitu­ course of three weeks with the great patriots tion. Some did not agree; two of the three New Patrick Henry and George Mason strongly York delegates walked out early, happily leav­ opposed. Even the support of George Wash­ ing Alexander Hamilton alone to speak for ington, James Madison, Edmund Randolph, New York. and young John Marshall secured ratification Many of the differences were of such magni­ by a vote of only 89 to 79. Meanwhile, in New tude that they threatened to deadlock the York, Alexander Hamilton, John Jay, and convention. For example, the delegates had a James Madison published a series of widely­ great deal of difficulty in agreeing on a means read newspaper articles supporting the Con­ of apportioning representation for the legis­ stitution that were later collected as the "Fed­ lature ofthe new national government. Finally, eralist Papers." Even with these efforts, New they reached the "Great Compromise": equal York affirmed by only 30 to 27. New representation for each state in the Senate, and Hampshire became the ninth state to ratify, 57 proportional representation in the House. for and 46 against. Rhode Island, the last hold­ They also forged a compromise on the divisive out, did not ratify the Constitution until 1790, issue of slavery which, flawed as it was, by a vote of 34 to 32. resolved an impasse that threatened to abort Looking back, we see that the charter for the the convention. Congress was given power to new United States of 1789 was conceived, regulate interstate and foreign commerce - drafted, and ratified in the face of great including the slave trade - but could not regional and ideological conflicts and a per­ prohibit the importation of slaves for 20 years. vasive, lingering fear of a strong national The anti-slavery voices were not silent and, government. The Constitution, as a plan for while the delegates debated, the Continental government, is remarkable for many reasons. Congress on July 13 enacted the Northwest It has succeeded in securing freedoms, oppor­ Ordinance, precluding slavery in the new tunities, and prosperity for millions of people; states to be formed in the Northwest Territory it has served as a blueprint for constitutional states. Tragically, it would take a bloody civil democracy for other people, and it has sur­ war finally to end the terrible evil of human vived two centuries of change and strife. But slavery. perhaps the most remarkable thing about the The Constitution's drafting, however, was Constitution - given the conditions of 1787 - just the first step. That a group of delegates is that we secured it at all. The Relationship of Church and State: The Views of the Founding Fathers

by Kenneth W. Starr

Editor's Note: Judge Slflrr served as the Annual task, even to the food hardy soul who would Speaker at the Society's Tweljih Annual Meeting dare to wade into these difficult waters. And held on May 18, 1987 This paper is the text a/that thus I will try to limit my observations in the speech. main to the historical foundations of that It is a great pleasure and high honor to be relationship at the founding of the American with you in this historic chamber as we come republic, both at the Constitutional Conven­ together in the Society for the first time during tion in Philadelphia in 1787 and in the framing the Bicentennial celebration now underway of the First Amendment to the United States under the leadership of our retired Chief Constitution by the First Congress of the Justice. United States in 1789. It seemed fitting and proper in this Bicen­ I now ask you to travel back mentally to the tennial year to reflect on one of the recurring Constitutional Convention in Philadelphia, and most intriguing issues in our system of with the delegates arriving in the wake of government - the relationship between re­ conferences at Mt. Vernon and Annapolis in ligion and religious activities and the instru­ prior years focusing on the foibles and inade­ mentsofgovernment. A relationship which we quacies of government under the Articles of characterize by shorthand as the relationship Confederation. between church and state. The Convention was to have begun on the To ruminate on so sweeping and yet so 14th of May, exactly 200 years and four days fundamental a topic is a hopelessly daunting ago. But things didn't go as planned. As the

George Washington addresses the Constitutional Convention in this painting by Junius Brutus Stearns. CHURCH AND STATE 25

Journal of the Federal Convention recounts, lowing Monday, the 28th. The Convention at "sundry deputies to the Federal Convention last was organized and under way. appeared; but a majority of the states not The level of activity picked up on the second being represented, the members present ad­ day of the Convention. Franklin and three journed, from day to day, until Friday, the 25th colleagues from Pennsylvania took their seats; of the said month." the future Chief Justice of the United States, On that historic day, the Bicentennial of Oliver Ellsworth ofConnecticut , arrived as the which we shall mark only one week hence, 29 first delegate from that State, and a solitary delegates were in place from nine States. In delegate from Maryland took his seat. The addition to the three missing States, one of eminent Virginia lawyer, Mr. Why the, re­ which, Rhode Island, was destined never to ported from the rules committee on that attend, Massachusetts and Georgia each body's work over the preceding weekend. boasted a modest single delegate. The ranks, Debate ensued and the rules, with two excep­ in short, were thin. tions, were adopted. The first order of business was the election But no sooner had the standing rules been of the President of the Convention. Two agreed upon than the first sour note occurred, delegates were obvious candidates for that in the form of a letter from what the Journal high honor, but only one nomination was describes as "sundry persons of the state of offered. The logical choices were Benjamin Rhode Island, addressed to the honorable the Franklin, who did not appear at the Con­ chairman of the General convention, was vention until the following Monday, and presented to General Washington by Mr. G. George Washington, who along with six other Morris." The letter was actually a word ofcheer colleagues from Virginia was dutifully in from a group of merchants and tradesmen attendance on the inaugural day. The dye was who were appalled at the decision of their immediately cast when Franklin's colleague home State, known not so affectionately as from Pennsylvania, the wealthy industrialist, Rogue's Island, to stay home. Rhode Island, to Robert Morris, moved the nomination of be blunt, was in social turmoil. The General Washington. The Journal of the Con­ beleagured merchants of Rhode Island urged vention states: the Convention to do its best - Rhode Island's business community was sending an S.O.S. The nomination [of General Washington] came A final housekeeping matter had to be taken with particular grace from Pennsylvania, as Dr. Franklin alone could have been thought of as a care of. Would the proceedings be public or competitor. The doctor was himself to have made not? A delegate from South Carolina, Pierce the nominatio!l of General Washington, but the Butler, whose namesake would eventually sit state oftheweather andofhis health connned him to his house. on the Supreme Court, offered what might seem in the Bicentennial era to be a rather Franklin, then a mere 81 years of age, was at colorful motion, namely one against what the home suffering from the gout. Journal refers to as "licentious publication of Washington, to no one's surprise, was unan­ their proceedings." The motion was referred to imously elected. He was then conducted to the the hardworking Rules Commi ttee, and on the presiding chair by his nominator, Mr. Morris following day, which is of considerable signifi­ (who was coincidentally the General's host at cance to the final result of the Convention and his home in Philadelphia, situated a conven­ to our more narrow focus this afternoon, that ient block away from the State House) and committee, through the tireless Mr. Wyeth, John Rutledge of South Carolina. After the reported the three rules aimed at protecting election of a Secretary, the appointment of a the confidentiality of the proceedings. messenger and a door-keeper, and the ap­ With the rules finally in place on that day, pointment of a three-member committee on Tuesday, the 29th of May, the time was right for rules (George Wythe of Virginia, Thomas the introduction of the first substantive set of Jefferson's law teacher at William & Mary; proposals for the Convention's consideration. Alexander Hamilton of New York; and These were 15 resolutions advanced by Ed­ Charles Pinckney of South Carolina), the mund Randolph, destined to be the Nation's Convention adjourned until 10 a.m. the fol- first Attorney General in the Washington 26 YEARBOOK 1987

i:' ~ \:) .~ ~ ~ ~ <; "'2 ~ Both George Washington (left) and Benjamin Franklin (right) were considered likely candidates to preside over the Constitutional Convention. Probably influenced by considerations of Franklin's age and poor health, fellow Pennsylvanian Robert Morris moved Washington's nomination.

Administration. At the time, Randolph was an judiciary, were to compose a council of revi­ ever so young Governor of Virginia, at the ripe sion," with power to examine and invalidate old age of 32, and though he was destined to every act of the legislature. enjoy high office in the first Administration, And here we must conclude our introduc­ Randolph was also destined to be one of three tion to the Philadelphia Convention and turn delegates - along with George Mason of our focus more specifically to that portion of Virginia and Elbridge Gerry of Massachusetts the text of the Constitution that bears upon - present at the Convention on its historic religion. The genesis of what is now Article concluding day, September 17, 1787, who re­ Six, Clause Three, of the Constitution - our fused to sign the document. Ironically, Wash­ Oath of Office Clause - can be found in ington's future Cabinet officer objected to a Randolph's fourteenth resolu tion. It was admi­ single Executive, which he viewed with alarm rably brief. "Resolved, that the legislative, as the "foetus of monarchy." executive and judiciary powers within the But back to May 29 and Governor Ran­ several states ought to be bound by oath to dolph's proposal, which had been crafted in support the articles of union." the main by James Madison. This was, of This portion of the Virginia Plan was thus course, the Virginia Plan, or the Large State aimed at securing the loyalty of the States and Plan, calling for a radical revision of the state officials to the new national charter of structure of government under the Articles of government. This tack prompted no little Confederation. The Plan called for a bi­ discussion, both within and ultimately outside cameral legislature and an executive to be the convention. Madison's notes indicate that chosen by the legislature, but eligible to serve this resolution came on for debate two weeks only a single term. Intriguingly, the executive later, on June 11, and prompted sharp opposi­ and a "convenient number of the national tion. Roger Sherman ofConnecticut, destined CHURCH AND STATE 27 to author the Great Compromise between the is the only time the word "ever" appears in the Large and Small States, opposed this resolu­ text of the Constitution.) tion as unnecessarily intruding into the States' * * * * jurisdiction. Now, I think it would be quite wrong to draw Governor Randolph, on the other hand, from this record the sense that the members of vigorously defended the oath as necessary, to the Constitutional Convention were hostile to prevent the unbridled competition between religion. Far from it. Indeed, to the contrary, state and national laws experienced under the religious influences were widely viewed as Articles of Confederation. As officers of the important to the well-being of the body politic. several States were already under oath to their The entire notion of a democratic society in respective States, Randolph argued, to pre­ the rather undemocratic age of the Enlighten­ serve a due impartiality they ought to be ment was grounded on the principle that the equally bound to the national government. people were capable of public virtue. "We the Besides, Randolph continued, the national people" were the opening words of the Consti­ authority needs all the help we can give it. tution, not "we the mob." In the words of Elbridge Gerry of Massachusetts was un­ Edmund Burke, "[i]t is ordained in the eternal moved. He allowed his dislike for the oath constitution of things that men ofintemperate clause. In his view, there wasas much reason to minds cannot be free. Their passions forge require national officers to take an oath of their fetters." fidelity to the States. The proposal proved Asably chronicled in a forthcoming book by deeply divisive. Six States voted in favor of it, 5 Richard Betterli and Gary Bryner, "the peo­ States voted no. The Solid South, led by ple" represented a value, an ideal, of a citi­ Virginia, plus Pennsylvania and Massachu­ zenry that displayed the great public virtues of setts (notwithstanding Elbridge Gerry's op­ self-restraint, obedience to law, and of honesty position) carried the day. and morality in public dealings. Churches Subsequently, as the Convention was near­ were seen as nurturing public virtue, much in ingits final two weeks of work, a simple change the way the family taught and inculcated was added to the Oath Clause. It was moved values of right and wrong, of decency and and seconded to add the words "or affirma­ morality. In the vernacular of the modern day, tion" after the word "oath." Unlike the closely churches represented vital intermediating in­ divided question over whether to have any stitutions between the invidual and the state. oath at ail, this act of toleration passed For every iconoclast like Thomas Paine, rail­ overwhelmingly, with little debate, 8 to I, with ing against organized religion, there were 2 States divided. The spirit of toleration, which numerous more thoughtful, balanced observ­ is implicit in the command of the First ers who were friends of liberty but were also Ammendment, was plainly at work in the City friends of the church. of Brotherly Love. The Framers were quite This can be seen in the debate over the oath willing to draft the basic charter of govern­ clause in the Constitution. One reason ad­ ment so as to take religiously based scruples vanced against a specific religious test was that into account. the oath itself vindicated society's interest in Then, Charles Pinckney of South Carolina having decent, God-fearing individuals hold­ moved to add to the Clause the following: "but ing national office. Luther Martin, the high­ no religious test shall ever be required as a living Attorney General of Maryland and one qualification to any office or pu blic trust under of its delegates to the Convention, wrote in the authority of the United States." Roger 1788 that the clause was adopted by a great Sherman, ever the doubter, thought the provi­ majority of the convention and without much sion unnecessary. Others, including Gouver­ debate. But he indicated that various members neur Morris and General Pinckney of South of the Convention were of the view that belief Carolina, expressed their approbation. Again, in God would provide security for good in contrast to the divisive question whether to conduct of our rulers. Religious belief was thus have an oath at all, the motion carried over­ seen even on the Convention floor as having whelmingly, with only North Carolina voting what the professoriat would today call instru­ no and Maryland divided. (This, incidentally, mentalist value. 28 YEARBOOK 1987

liberty in a federal system. The story of the demand within the several states for a Bill of Rights is well known and need not be dwelt upon in these reflections. Suffice it to say that several States urged inclusion of a Bill of Rights, and proposed specific language for Congress to consider. Virginia and North Carolina proposed identical provisions with respect to religion, which sounded the theme of natural rights and articulated both free exercise and non-establishment values. Sim­ ilar proposals were advanced by New York and New Hampshire. With a typically New Eng­ land economy of words, the proposal offered by New Hampshire provided: "Congress shall make no laws touching religion or to infringe the rights of conscience." * * * * Religion, in short, did riot figure promi­ nently in the deliberations at Philadelphia two hundred years ago, but it was of considerable prominence in the debates on ratification leading up to the proposal by the First Con­ gress in 1789 for a Bill of Rights. And if the Charles Pickney of South Carolina introduced a clause First Amendment enjoys, as is ofttimes said, a precluding religious tests as a Qualification for public office. preferred place in our constitutional con­ stellation, it should not go unnoticed that the This view - that the oath itself provided a Religion Clauses are further set apart; as the sufficient test of virtue - was evident in Oliver first of the first. It is only after the Establish­ Ellsworth's pro-Constitution essay in De­ ment Clause and the Free Exercise Clause that cember 1787, where during the ratification the reader of the words of the First Amend­ process he stoutly defended the absence of a ment arrives at the other fundamental free­ religious test to serve in office. The oath itself doms- of speech, of press, of assembly and of would suffice; any additional test would be petitioning the Goverment for redress of tyrannical, the future Chief Justice main­ grievances. The operative language, an eco­ tained, and what is more, in the already nomical sixteen words, is undoubtedly embla­ pluralist United States, such a test would be zened in the memory of many here: "Congress absurd. Here are Ellsworth's words: "If [the shall make no law respecting an establishment religious test] were in favour of either con­ of religion , or prohibiting the free exercise gregationalists, presbyterians, episcopalians, thereof." baptists, or quakers, it would incapacitate Curiously enough, while we know a good more than three-fourths of American citizens deal about the Constitutional Convention for any publick office. There need [be] no itself and the ratifying conventions that fol­ argument to prove that the majority of our lowed, the record is surprisingly sparce about citizens would never submit to this indignity." the background of the Religion Clauses of the Ellsworth's opponents - the Anti-Feder­ First Amendment. We know of course that alists, were deeply alarmed, of course, not Madison himself took the project in hand as a simply by virtue of the libertarian bent as member of the First Congress which convened evidenced in the Oath of Office Clause. Iron­ in 1789 and that he undertook the task armed ically, the Anti-Federalists, while championing with the proposals from several States. religious qualification tests and the like, were As chronicled in Professor Michael Malbin's fearful of the power of the central leviathan useful monograph, entitled Religion and Pol­ and the dim prospects - as they saw it - for itics, Madison introduced two proposed CHURCH AND STATE 29

amendments pertaining to religion on June 7, hasten to add, went on to protect the freedom 1789. The words are brief and bear repeating, of the press and the right to trial by jury in with the first proposal the more germane: criminal cases; it was not devoted exclusively to religious freedom. The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any Nor should it go unnoticed from these two national religion be established, nor shall the fu II measures that Madison entertained a bifur­ and equal rights ofconscience be in any manner, nor cated notion as to governmental power to on any pretext infringed. establish religion: under his two proposals 1 Annals of Congress 434 (June 8, (789). Congress clearly could not establish a national This proposal embodied the thrust of the religion, but the States, in contrast, could Virginia and North Carolina formulations' establish their own state religions, at least if and it bears noting thatFeedom of conscienc~ they did not infringe upon "the equal rights of was expressly protected in the Madisonian conscience." proposal, as it had been in the proposal This too, upon reflection, is unexceptional. advanced by New Hampshire, as well as by For at that time 5 of the 13 States maintained Virginia and North Carolina. establishments of religion, the last of which, Madison's second proposal was more radi­ Massachusetts, was not dissolved until 1833. cal , in view of the Anti-Federalist stirrings The trend since the Revolution had been about the position of the States vis-a-vis the toward disestablishment, which was itself an new government. For Madison would have indication of the vigor of variety of various accomplished at the Founding, at least in part, religious groups. For at the time ofthe Revolu­ what the Supreme Court was destined to hold tion, 9 of the 13 colonies had established 160 years later. Madison crafted his second churches. Disestablishment occurred during proposal very simply: "No state shall violate the Revolution itselfin the States of New York, the equal rights of conscience." The proposal, I Maryland and North Carolina. In Virginia, the largest and most powerful State, dises­ tablishment occurred only one year before the convention. That effort, led of course by Jefferson and Madison, resulted in Madison's famous Memorial and Remonstrance, di­ rected agai nst a tax measure to assist teachers of the Christian religion. Here are the words of the Supreme Court in Everson v. Board of Education, authored in 1947 by Justice Black, as to the thrust of Madison's historic essay:

In it, [Madison] eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind: that the best interest of a society required that the minds of men always be wholly free ; and that cruel persecutions were the inevitable result of govern­ ment-established religions.

330 U.S. I, 12 (1947). The Memorial and Remonstrance was founded on natural rights theory, which had provided, ofcourse, the intellectual underpin­ ning of the Declaration of Independence. It was emphatically not an anti-religion docu­ ment, as the most cursory reading of it demonstrates. For, in Madisonian terms, that James Madison introduced two proposed amendments which is a right enjoyed by the individual pertaining to religion in the First Congress. against other members of civil society is a duty 30 YEARBOOK 1987 owed to God. The duty to God, Madison including by formal establishment, into mat­ stated, was "precedent both in order of time ters ecclesiastical. It is thus no accident that and degree of obligation, to the claims of Civil Jefferson's famous letter in 1802, with its Society." As Madison put it in the majestic metaphor of a wall of separation, was written language of natural rights theory, "[b] efo re any to the Danbury Baptists, in a State-Connect­ man can be considered as a member of Civil icut - which still maintained an established Society, he must be considered as a subject of church at the time of Jefferson's writing. the Governor of the Universe." Man's du ty to But back to the First Congress. The two God was of a higher order than man's duty to proposals advanced by Madison were referred the State. And if this freedom of conscience to the Committee of the Whole on the same was abused, Madison concluded, it was an day. There, they sat idle for a month and a half. offense against God, not against man. "To Finally, on July 21, 1789, the proposals were God, therefore," Madison wrote loftily, "not to referred to a specially formed II-member men, must an account of it be rendered." Select Committee, which included Madison. I Lest this theory sound entirely wedded to Annals of Congress 665. Even that procedural Eighteenth Century thinking of less relevance tack was not without controversy. Congress­ to the current era, let me move forward for a man Thomas Tudor Tucker ofSouth Carolina, fleeting moment to the J980s, to an opinion a Bermuda-born physician trained at Edin­ authored by Justice Stevens, joined by Justices burgh and who served as a surgeon during the Brennan and Marshall. In Hewill v. Helms, Revolutionary War, rose in opposition. The these contemporary Justices reembraced the subject was of too great importance to be Jeffersonian and Madisonian principle that spirited away to a Select Committee, Tucker liberty is a God-given right. "I had thought," complained; with Anti-Federalist tones of Justice Stevens wrote, "it self-evident that all States' rights, Congressman Tucker-destined men were endowed by their Creator with for appointment by Jefferson as treasurer of liberty as one of the cardinal unalienable the United States-objected vehemently. "The rights." 459 U.S. at 483. God, not the State, was States will expect," Mr. Tucker complained, the source ofliberty; it was the high function of "that their propositions would be fully government to protect and preserve that lib­ brought before the House, and regularly and erty - principles that connected modern-day fully considered; if indeed then they are opinions of present Supreme Court Justices to rejected, it may be some satisfaction to them, the views that informed the Founding. to know that their applications have been This, then, was the grand theme of the treated with respect." Better to postpone the Memorial and Remonstrance. Madison was matter for a month or even for a whole session. later to write that his Memorial had, in his Elbridge Gerry of Massachusetts seconded words, "met with the approbation of the the objection. He taunted the Madison fac­ Baptists, the Presbyterians, the Quakers and tion. "Shall we give the whole of the legislative the few Roman Catholics universally; of the power to select committees?" Here are Gerry's Methodists in part; and even of not a few of the words, as recorded in the Annals of Congress: Sect formerly established by law." Quoted in "Are gentlemen afraid to meet the public ear Everson, 330 U.S. at 12 n.l2. The Memorial, in on this topic? Do they wish to shut the gallery short, was supported not so much by the local doors." Let the House as a whole debate the town athiest, if there were any in Virginia, but issue. I Annals 663-64. But the objections by by much of the organized religious com­ Tucker and Gerry were unavailing; the House munity. was prepared to risk this symbolic affront to Religious pluralism, in shorl, was firmly the States, sendi ng the proposed Bill of Rights rooled in American cullure. Not surprisingly as off to a Committee by a vote of34-15. a result, much of the mood for disestablish­ As Professor Malbin has helpfully re­ ment of churches came from the churches counted, the Select Commi ttee acted promptly themselves, as suggested by Madison's letter. -shades of George Wythe's Rules Committee The Baptists, as they are to this day, were at the Convention only two years before. The ardently opposed to governmental intrusion, difference was that, unlike the Whythe Com- CHURCH AND STATE 31

Both Elbridge Gerry of Massachusetts (left) and Thomas Sumter of South Carolina (right) felt Madison's proposed "religion" amendments were not being given adequate discussion by the full Congress. mittee at the Convention, the Select Commit­ Maynard's IO-day jail sentence for covering tee made only minor adjustments to the over the State motto, "Live Free or Die," on his second proposal of Madison concerning the license plates. States. As to the first proposal, the Committee The Select Committee's handiwork thus had taken a heavier editing pen. The longer completed, the drama moved to the floor of Madisonian version (which we quoted earlier) the first Congress on August 15, 1789. While was shortened to the following sentence: this may seem by modern standards lightning­ like speed, the actual fact is that stalli ng tactics No religion shall be established by law, nor shall the equal rights of conscience be infringed. were underway. This was all part of an effort by Anti-Federalists to erode support for the new Now, notable among the changes is that the Constitution. One member of that First Con­ word "national" before the word "religion" gress wrote the following: "the Antis, viz, had been dropped out. In addition, the Select Gerry, Tucker, etc. appear determined to Committee dropped the Madisonian clause, obstruct and embarrass the business as much "the Civil Rights of none shall be abridged on as possible." (Times, it would appear, haven't account of religious belief or worship." There changed much.) were, alas, no committee reports, so the And thus it was that even at the Founding, reasons for the latter changes are enshrouded the First Congress was laboring under severe in mystery. But of greater interest is that time constraints. Adjournment was nearing, freedom of conscience very much remained and Madison was working assiduously to alive in the proposed language, thus fore­ expedite debate and move the measures to shadowing what Justice Jackson was to call in passage. Resistance was stiff. Congressman the Barnette flag salute case, overruling the Sumter of South Carolina, whose name was to Supreme Court's decision just three years adorn the fort in Charleston Harbor where the previously, a freedom of mind that all individ­ Civil War was destined to begin 75 years later, uals enjoy. And it was this basic freedom that rose to his feet and complained of the haste the Supreme Court reaffirmed two decades with which proponents of the Amendments later, in the New Hampshire Live Free or Die were trying to act. Full debate was needed. case, J#Jo!ey v. Maynard, overturning Mr. Here was Congressman Sumter's opinion, 32 YEARBOOK 1987

uttered to Madison's undoubted chagrin: The debate on what we now call the Re­ ligion Clauses concentrated on the establish­ It cannot be denied but that the present constitution is imperfect; we must, therefore, take time to ment issue, bypassing the "rights of con­ improve it. If gentlemen are pressed for want of science" clause. The debate opened with an time, and are disposed to adjourn the session of expression of concern about the Establish­ Congress at a very early period, we had better drop the subject of amendments. and leave It untIl we ment Clause, articulated by a member from have more leisure to consider and do the bUSIness New York. Congressman Sylvester from the effectually. *** The people have already complained Empire State complained that as drafted the that the adoption of the Constitution was done In too hasty a manner; what will they say to us if we clause was susceptable to a construction dif­ press the amendments with so much haste?" ferent from that intended by the committee. (Here, then, was the familiar sight ofa lawyer Annals at 745. expressing fears about how language in a legal Madison took the offensive. This rather instrument might later be construed.) In Mr. intellectual man in politics-who of course as Sylvester's view, the language might be thought Jefferson's Secretary of State would become to have a tendency to abolish religion al­ fourteen years later the defendant in Marbury together, a concern shared by another Mem­ v. Madison, the case that established as a ber, Congressman Huntington. This would cornerstone of our constitutional edifice the not do. principle of judicial review - had had quite The Sylvester attack ends there; the Journal enough. Here are Madison's words: moves crisply on to a modest change suggested It is said that we are precipitating the business, and by one Congressman, Mr. Vining of Delaware, insinuated that we are not acting with candor. I to put the "equal rights of conscience" provi­ appeal to the gentlemen who have heard the voice of sion before the establishment provision. Lib­ their country. to those who have attended the debates of the State conventions. whether the erty was to be protected first and foremost. amendments now proposed are not those most Elbridge Gerry, that astute politician who had strenuously required by the opponents of the Con­ served at Philadelphia but refused to sign the stitution? It was wished that some security should be given for those great and essential rights which document, suggested a better version than they have been taught to believe were in danger. *** that fashioned by the Select Committee. In Have not the people been told that the rights of Gerry's view, the amendment would read conscience, the freedom of speech, the liberty of the press, and trial by jury, were in jeopardy? That they better ifi t were that no religious doctrine should ought not to adopt the constitution until those be established by law. The tactics of delay were important rights were secured to them? continuing. At that juncture on that historic Saturday, Annals at 745. It was time to get on with the Roger Sherman of Connecticut wt;:ighed in business at hand. with the classic Federalist view that no protec­ The debate did not go on indefinitely. The tion at all was necessary. As Madison had Religion Clauses were debated in the House argued previously, the national government for the most part on a single day, Saturday, was one of th~ delegated powers. Since Con­ August 15. That debate was memorialized in a gress had not been delegated power by the modest two pages in the Annals, but it would Constitution to make religious establish­ be more than that devoted to any other single ments, the entire provision, Sherman argued, provision of the Bill of Rights. Indeed, consid­ should be struck. It was totally unnecessary. erably more attention was devoted to whether This recurring theme - the lack of need for the people should be given the express right such protections-was sounded in the ensuing under the Constitution to give instructions to debate on the remainder of the First Amend­ their representatives. This Burkean discussion ment - on freedom of speech, of press and over the nature ofa representative democracy, assembly. This enumeration of rights ran a especially as engaged by Madison, on the one risk, some Congressmen warned. If there is hand, and Elbridge Gerry on the other, is a freedom of speech, Congressman Sedgwick of triumph of debate, with the touch of immor­ Massachusetts argued, how could there not be tality rarely found in public discourse save for freedom of assembly. Here are his words from such treasures as the Lincoln-Douglas debates 198 years ago: just 69 years later. Bu t this too had to conclude. CHURCH AND STATE 33

Ifpeople freely converse together, they must assem­ exercises, not religious exercises, that new in ble for that purpose; it is a self-evident unalienable right which the people possess; it is certainly a thing the teeth of the First Amendment. It was just that never would be called in question; it is deroga­ like the Fifth Amendment in this respect - tory to the dignity of the House to descend to such there is no protection against self-incrimina­ minutiae. tion, as is so loosely thought to be the case. Every lawbreaker is entirely at liberty to This task of inclusion of rights to be protected incriminate himself The crucial distinction had no obvious stopping point, Congressman for constitutional purposes is that the individ­ Sedgwick argued. They might as well have ual is to be free from compelled self-incrimina­ declared, he retorted, that a man should have a tion. right to wear his hat ifhe pleased; that he might Madison then went on to respond to Roger get up when he pleased, and go to bed when he Sherman's charge that the Amendment was thought proper. simply not needed in a government oflimited, But Sedgwick's warnings proved unper­ delegated powers. Whether these words were suasive. The Members were obviously moved necessary or not, Madison opined, he would by two considerations: first, and most impor­ not say, but he repaired to the political reality tantly, the reality that several States had of the times. These words were required, specifically enumerated such rights as merit­ Madison observed, by some of the State ing protection, and the Constitution had not Conventions, which were concerned about the been unanimously ratified; and second, that breadth of the "necesary and proper clause" of the rights articulated in the First Amendment the Constitution. were of especial importance. These were, in The First Amendment was, as it were, an act of Elbridge Gerry's terms, "essential rights." accommodation to the concerns ofthe American But I'm straying beyond the debate on the people, just as the modifications to the Oath Religion Clauses themselves. The response to Clause had been in Philadelphia two years Roger Sherman's concerns - that the amend­ earlier. Madison would not stand on legal ment was purporting to deny a power to doctrine, sound though it might be, that in the Congress that Congress did not have in the very nature of things Congress had no power first place-was set forth by two members, Mr. over religious affairs; these were basic and Carroll (of Maryland) and, not surprisingly, by delicate rights, and the sensibilities of the Madison himself. Carroll emphasized the people, even if not well grounded in law, rights of conscience. These, Congressman should be accommodated. And thus it was Carroll emphasized, were by their nature of that the value ofaccommodation, dominant at peculiar delicacy. They would not bear what he times in Religion Clause jurisprudence in the called the gentlest touch of the governmental Twentieth Century, was the animating force in hand. It was thus, again, the nature of the the crafting of the First Amendment itself rights-freedom ofconscience- that required Congressman Huntington stood as singling out for express protection. Madison took his seat. He agreed with the He then resorted to the ever present poli tical Madisonian reading of the clause, and felt reality. There was strong sentiment to the strongly that the anti-establishment principle effect that these rights were not well secured was sound. He observed that Rhode Island, a under the present Constitution. rather tumultous place you will recall, had by Madison came in on Carroll's heels. He charter provided that no religion could be began by setting forth his interpretation of established by law and that this was a blessed what the Religion Clauses meant. The freedom. The Congressman's concern was Madisonian view was majestic in its thus not substantive, it was one of appearance. simplicity: "Congress should not establish a Let us protect ourselves agai nst establishment, religion," Madison intoned, "and enforce the he said, but let us not while securing the rights legal observation of it by law, nor compel men of conscience patronize those who professed to worship God in any manner contrary to no religion at all. their conscience." The notion of compulsion Madison took the floor again. All these was at the heart of Madison's interpretation of concerns, he felt, could be satisfied if the word the Religion Clauses. It is compelled religious "national" would be inserted in front of the 34 YEARBOOK 1987 word "religion." This was not an anti-religion delegated powers. provision, after all, but to the contrary was a Thus, alas, ends the entirety of the recorded pro-religion clause. Religion would flourish debate in the First Congress on the Religion where there was liberty. The sole concern was Clauses. This is a sharp disappointment for that one religious sect might obtain preemi­ historians, both professional and buff, and nence, or two sects combine together and leaving not a few judges a bit wistful. The establish a religion at the seat of government. intriguing point is that as the recorded debates But the Madisonian effort to revive his end, the Clause as passed by the House refers original, proposed language, which certainly to the rights of conscience but not to the free would have aided clarity in modern day exercise of religion. interpretation of the Constitution, met with But there is no mystery, thankfully, in this vigorous opposition. Nonetheless, that op­ respect because we know, albeit without the position was not on the specific merits of the benefit of debates and discussions that surely Clause and its proper meaning. It was, rather, occurred, that a Congressman from Massa­ on the very basic, overriding issue of the chusetts, Fisher Ames, came forward on nature of this new government. Was it a Thursday, August 20, with a revised proposal. national government or something else, It was, in the main, a proposed return to the namely a federal government? version drafted by the Select Committee, but The ever-present Elbridge Gerry took up with a third provision added with respect to the cudgels on this fundamental point. The protecting the free exercise of religion. So as Anti-Federalists had taken umbrage at the Ames proposed it, the rights of conscience and notion that they opposed a federal govern­ the free exercise of religion were protected. ment, Gerry complained. That was dead What, then, was the relationship between wrong. They were not at all opposed in principle. It was, in the opponents' view, the supporters of the Constitution who were favoring a national government. The real issue had been over ratification of the Constitution as it emerged from Philadelphia, without a bill of rights. Gerry then concluded on a colorful note: In light of this true distinction, he said, the competing factions should not have been called federalists and anti-federalists, but rats and anti-rats. Madison, not given over to humor, threw in the towel. The Annals record that he there­ upon withdrew his motion, but protesting all the way that the term, "national religion," by no means implied that the government was a national one, rather than a federal one. The vote was then taken on the Religion Clauses - the vote was 31 in favor, and 20 against. Not, one might conclude, an over­ whelming vote ofconfidence but nonetheless a comfortable margin. And the opposition, it bears repeating, was not one based on singling out religion for protection. To the contrary, the opposition was grounded, first, on the fear that the language might be construed so as to give comfort and qu.arter 10 those who were irreligious, and second, on the lawyerly objection, pressed by George Mason (above) had co-authored a guarantee of the free exercise. of religion with James Madison which Sherman, that the entire exercise was unneces­ was included in the Virginia Declaration of Rights of sary in a government of limited and expressly 1776. CHURCH AND STATE 35 the "free exercise" and the "rights of con­ faith or a mode of worship, or prohibiting the free science" clauses in the proposal? [ must leave exercise of religion. that intriguing issue ultimately to historians The bill then went to conference, and a and scholars, but [will by your leave venture to distinguished conference committee it was. offer an amateur, perhaps horseback opinion, From the House came Madison, Sherman of a quick ruling from the bench as it were. And Connecticut and ViningofDelaware; from the that is that the two were so intimately related Senate came Ellsworth, Carroll (of Maryland) that they were, in effect, substitutes one for and Paterson of New Jersey, who was the another. What was the protection of the right principal architect at the Philadelphia Con­ of conscience but the protection of religion, at vention of the New Jersey (or Small State) least at that time. Indeed, it would be quite Plan. [n his character sketches of delegates to wrong to view the Framers in the First Con­ the Convention, William Pierce, a delegate gress as somehow downplaying conscience from Georgia, described Paterson - at 34 only and elevating religion, as some might tend to 3 years younger than Madison - as "one of bifurcate the two in the contemporary age. those kind of Men whose powers break in The two - conscience and free exercise - were upon you, and create wonder and astonish­ intimately linked. An act of conscience free of ment." Paterson, as a Member of the First state compulsion was, in effect, the free exer­ Congress, had now reached the ripe old age of cise of religion. This view is at least partially 36. buttressed by the Virginia Declaration of It was from the hand of these six men, Rights of 1776, the pertinent clause of which laboring outside the public eye, that the final was coauthored by a then 25-year old lawyer, language of the Religion Clause emerged, the James Madison, and George Mason, 59 at the sixteen words which we quoted earlier. That time and dubbed by Jefferson as "the wisest language was promptly accepted by the House man of his generation." It was from the 1776 on September 24, 1789 and by the Senate on Virginia Declaration that Madison drew so the following day. effectively in his Memorial and Re­ * * * * monstrance. And Article 16 of that historic What emerges from this return to the First Declaration stated in clear terms that all men Congress is the overriding concern at the enjoyed "equal title to the free exercise of Founding of securing the liberty of the people. Religion according to the dictates of con­ This act - the crafting of the Bill of Rights in science." general and the Religion Clauses in particular The two concepts - conscience and free - was ultimately an exercise in accommoda­ exercise - were plainly linked in this historic tion by virtue of the importance ofthe rights­ statement of liberty, just as Madison implied an importance suggested by three tangible in the great debate of August 15, 1789, when he factors: first, that the Religion Clauses are first referred to the Religion Clauses as protecting of the first , they are preeminent. Second, quite the rights of conscience. But in any event, it apart from the symbolic location of the Re­ was Ames' version, with minor stylistic ligion Clauses in the constitutional con­ changes, that the House accepted on August stellation, the First Congress quite obviously 24 and sent to the Senate as the final proposed focused in its debates on religiOUS liberty more versIon. than on the other freedoms enshrined in the Like the Constitutional Convention itself, Bill of Rights, no matter how dear those other the floor debates on the Senate were kept freedoms might be; and third, that religion was secret in the early days of the Republic. We universally seen as a positive good and that have only records of the proposed amend­ while securing religious liberty, the amend­ ments and motions. On September 9, the ment should not give governmental aid and Senate passed a rather different Religion comfort to religious unbelief. And it was to this Clause proposal than that sent to it by the latter concern that Madison specifically re­ House. In contrast to the more general House sponded by seeking incorporation of t~e version, the Senate measure stated: concept of a national religion. Under thiS Congress shall make no law establ ishing articles of concept, the area of verboten activity would be 36 YEARBOOK 1987 limited to the narrow ground of compulsion in little debate, and with only two Congressmen matters of belief and of elevating a particular having been recorded as harboring misgivings sect or combination ofsects to govern mentally about the resolution, the matter passed and mandated primacy in a society characterized the committee was appointed. by a healthy diversion of religious viewpoints In addition to this action, as recounted in and affiliations. the Supreme Court's opinion in March v. And thus the Amendments were proposed Chambers upholding the constitutionality of to the States, and were ultimately ratified legislative chaplaincies, the House of Repre­ effective December 15, 1791. The Religion sentatives and the Senate both elected chap­ Clauses were, of course, destined to be the lains in April and May 1789. Indeed, this past source ofconsiderable legal and constitutional Law Day marked the Bicentennial of the day debate as the Twentieth Century unfolded. But on which Madison's House of Representatives one clear message appears from the history of appointed its first chaplain, a practice that has the First Congress. The First Congress - the continued for 200 years. Madison himself body which debated and crafted the First served on the Committee recommending the Amendment as we still know it (in the precise institution of a chaplaincy. And the two language that stirs our hearts) - plainly, chaplains were, as of the early Fall of 1789, no indisputably did not hold the notion now longer volunteers but were paid by Congress. gaining currency that all religious references Madison himself, it bears noting, voted in and observations would be eliminated from favor of that measure. the official life of the Federal Government. Finally, that First Congress also repassed the For on the very nex t day after approval of the Northwest Ordinance of 1787, a measure proposed Bill of Rights, on Friday, September originally passed by the Congress under the 25, the House turned to an appropriations bill Articles of Confederation. The Ordinance, and then considered a resolution to request among other things, set forth Congress' rea­ President Washington to recommend a day of sons for setting aside for education purposes public thanksgiving and prayer, "to be ob­ federal lands in the territory northwest of the served by acknowledging, with grateful hearts, Ohio River. The first reason advanced by the many signal favors of Almighty God." Congress was religion. In the words ofour First Now it did not go unnoticed that this Congress, "Religion, morality, and knowledge recommendation had to do with religion. Our being necessary to good government and the now-familiar friend from South Carolina, the happiness of mankind, schools and the means Bermuda-born surgeon and future Treasurer, of learning shall forever be encouraged." Congressman Tucker, complained that "this is We will leave the remainder to historians a business with which Congress has nothing to and others. What has since transpired over the do; it is a religious matter, and, as such, is past two centuries since ratification of the Bill proscribed to us." Annals at 915. But Mr. of Rights is in large measure a recurring theme Tucker's opposition was, again, based entirely in our decisional law in favor of the overarch­ on his Anti-Federalist views of state power, ing value found in the Religion Clauses, that of versus the power of the new central govern­ religious liberty. It was the philosophy of ment. Any such matter, this ardent Anti­ natural rights - of liberty - which animated Federalist maintained, lay within the province Jefferson and Madison and which so clearly of the States. informed the discussions and debates at the But this States rights view garnered little Convention and the First Congress. support, and Roger Sherman, the architect of True it is that the earliest cases involving the the Great Compromise in Philadelphia, Religion Clauses were not so clearly oriented mounted a spirited justification for the resolu­ toward the libertarian theme of the First tion based primarily on precedents in Holy Amendment. But with the first case applying Writ. Another Congressman, Mr. Boudinot, the First Amendment through the Fourteenth cited precedents from the practice of Congress Amendment to the States, the 1940 case of under the Articles of Confederation. He ex­ Cantwell v. Connecticui, a dominant theme has pressed hope that the motion would meet wi th been one ofliberty-the protection of the free a ready acceptance. It did. Apparently with exercise right. And this theme has continued CHURCH AND STATE 37 into the most recent weeks of the October 1986 that it is the evil of compulsion at which the Term of the United States Supreme Court, as Establishment Clause was aimed in a pluraJist evidenced by the decision so recently in society. The question for us as a Nation is Hobbie v. Unemployment Appeals Commission, whether in the name o/tolerance and sensitivity, reaffirming the Court's earlier decisions in we are in danger o/inadvertently entering an age Sherbert v. ~rner and Thomas v. Review Board, 0/ intolerance, thinking- strangely, oddly-that concerning the rights of religious believers to religion is like discrimination, something to be unemployment compensation. eliminated from public life, root and branch. The note of tension (about which so much It is, in this Bicentennial year, an appropri­ has been said and written in recent years) has ate time to reflect upon our commitment as a been sounded where the vaJues enshrined in Nation to the principles of tolerance and the Free Exercise Clause come under attack by understanding, as reflected at the Founding. It invocation of the Establishment Clause, such is a time for reflecting upon respect for the as attacks on historic practices as chaplaincies, conscience of all our citizens. We must re­ prayers at public events and the like, all of member those who through the Constitution's which are events the legaJity of which, upon protection bave the inalienable right not to be reflection, will be seen to implicate vaJues compelled to participate in any religious ob­ enshrined in the Free Exercise Clause. Who servation or activity; we aJso must remember shall, after all, command a President or Sen­ those who are mindful, in the words of Justice ator not to invoke the Deity in a public Stevens, that the source of liberty in civil pronouncement, implicating as those do both society is their Creator. We must remember free speech and free exercise values. those who believe in the words of that great That is to say, in closing, that the desire to friend of religious liberty, James Madison, in erect an impenetrable wall of separation may his immortal Memorial and Remonstrance, ultimately come to be viewed, by vi rtue ofsuch that their ultimate allegiance is owed to the teachings as Justice Brennan's opinion for the Governor of the Universe and the UniversaJ Court in Hobbie, as constitutionally curious. Sovereign. In the modern day, it is useful to remember Robbing the Poor to Aid the Rich: Roger B. Taney and the Bank of Maryland Swindle by David Grimsted

Prologue of the mid-1830's. Williams was only one of In March 1836 Captain Thomas Williams thousands who lost a considerable part of their wrote a letter to the Baltimore Republican that small savings in the Bank of Maryland col­ told much of his life story. A few years earlier lapse, and this incident was only one of prolonged illness caused Williams, then near­ thousands of similar failures that punctuated ing sixty, to retire after forty-years labor at sea. the era. Most losers in this process su ffered less When he retired, he deposited his lifetime than Williams only because they pursued their savings of about $5000 in the Bank of Mary­ just dues without the sea-dogged tenacity of land,judging that he and his wife could live on the old Captain. By 1836 when Williams the five percent interest that the Bank offered. penned his lament, most of the original Williams thought that the prominence of the creditors of the Bank of Maryland had sold Bank's directors and its state charter would their credits for a fraction of their value to insure his money's safety. Almost exactly two speculators who made probable profits of years prior to the time Williams wrote his upwards of $2,000,000, all of it taken from letter, the Bank of Maryland closed its doors innocent lenders and depositors, most of them and reduced him "in a moment . .. from of modest means. 2 Captain Williams is a good competence to wretchedness and poverty." "representative man" for the kind of person With only five dollars on hand, he had to sell whom economic historians commonly ne­ his furniture while hoping for a speedy settle­ glect: the thousands of small investors whose ment of the Bank's accounts. Instead, the funds somehow disappeared in the tri­ trustees who took charge of the bank's affairs umphant but bumpy "take-off" of American delayed. Williams soon felt obliged to send i nd ustrial capital ism . 3 "the decrepid widow" of an old sea-faring Captain Williams' misfortune was related to friend, whom he'd pledged to support, to the two of the thorniest and most important alms-house. Then he resorted to borrowing questions about the Jacksonian period: the from friends, although "the honest pride of my nature and function of the power elite in that life had been to live by the sweat of my brow, vociferously democratic society, and the and ... never be bent down by pecuniary motivation and influence of Andrew Jackson's obligation." When he wrote, Williams was attack on "the monster" second Bank of the beset by creditors, his wife was "literally in United States. If the events behind Captain rags," and his house was empty and in danger Williams' plight can only give shadow of of being forfeited for non-payment of taxes. answer to such large questions, the shadows "Something must be done to save us from reveal something about the shape of those despair," he begged, and concluded his appeal structures themselves. for help pathetically, "My former employers, all my neighbors and many others, will cheer­ fully testify that I have ever been an honest I. Speculating man and good citizen." I Many honest men and women in the Jack­ It's good to be shifty in a new country - William Tappan Thompson, sonian era, good citizens ail, suffered hard­ - The Adventures a/Capt. Simon Suggs ships similar to those of the old Captain. Thomas Williams' letter gives human shape to The story behind the Baltimore swindle a common enough reality in the "flush times" began in the summer of 1831 when thirty- TANEY AND THE BANK OF MARYLAND 39 eight-year-old Quaker banker, Evan Poultney, derived from trading and transporting, at a gained control of the old but largely inactive slight margin, the notes issued by individual Bank of Maryland. 4 Poultney was a prototype banks in all parts of the nation. Such bank of the era's small businessman with large notes w~re the country's primary currency, the plans, optimistic and sharply aware of new real value of each depending on the solvency business opportunities. In the next few years and the reputation of the issuing bank. Poul­ he was to build his bank up quickly by offering tney's discount business created acute aware­ favorable terms to small depositors and by ness of the profits to be made from being able using the connections of a well-placed group to issue bank notes, which were in part a kind of supporters to get large governmental depos­ of loan from the public to the originating its, local, state, and national. With this group institution. So long as a bank's credit was he was to engage in wide-scale speculations, good, it could basically print money for some one of them dependent on foreknowledge of of its purchases and loans. When Poultney the pet bank plans of Andrew Jackson's bought controlling interest in the state-char­ administration, that were to lead to the closing tered Bank of Maryland, he purchased the of his bank. While Poultney bore a full share of financial opportunities that came with the the responsibility for the speculations, he did legal right to print bank notes. The second not participate in the subsequent swindle Bank of the United States, with branches in all which was to swallow both his and most small sections of the country, was the main monitor investors' savings. As a banker Poultney over­ of banks, credit, though its watchdog role over reached himself, but ironically the economic this currency was being threatened by the tragedy for thousands owed less to his ac­ developing political war between President quisitiveness than to his generous wish to hurt Jackson and his opponent Henry Clay over its neither his speculating allies nor his un­ recharter. 6 All of this, of course, was somewhat suspecting depositors. distant background to the more immediate Poultney's purchase of the Bank of Mary­ problem the new President of the Bank of land in 1831 created few rippJeson the bustling Maryland faced. He needed to shake off the Baltimore financial scene of these years, ex­ "inactive" status of his new business and gain cept for the people immediately involved. John sufficient deposits to allow him to issue bank B. Morris, a leading old-line Baltimore finan­ notes safely on a wide-scale. cial figure, perhaps felt some pique at being Poultney probably already had a plan in removed, somewhat unceremoniously, from mind when he took over, a simple idea but one the Presidency of the bank. Certainly Lydia unusual in American banking circles and Morris was not pleased by this turn of events, unprecedented in Baltimore at this time. despite the fact that her husband made sub­ Baltimore's banks were willing to act as care­ stantial profit from the sale of his stock. The taker for people's money, but were unwilling to presidency had been "a most agreeable post" pay for that privilege except in the case oflarge and, she said "with regret," the position "gave or long-term deposits. Poultney announced an occupation to Mr. Morris." 5 Morris re­ that his bank would offer 5% annual interest tained substantial real estate investments, but on all deposits, large or small, short or long­ his ouster as president must have rankled. At term. The plan was attractive to a number of least this is the kindest explanation of the people with small savings, like Captain Wil­ crucial role he was to play when he was fully liams, because it seemingly offered some occupied three years hence in support of the secure profit as well as protection. 7 It was swindle that was to destroy Evan Poultney and doubtless unpopular with other bankers who to cause Captain Williams' money to disap­ must have lost deposits through Poultney's pear. more generous terms, but Poultney was not to The genially ambitious Poultney had no feel their wrath until some years later. premonitions of disaster in 1831. One of a Money quickly came into the Bank of coterie of up-and-coming businessmen in Maryland in quantity. Between Poultney's these prosperous times, he had run for a take-over in 1831 and the bank's first crisis in number of years a successful "discount September of 1833, the bank's specie reserves house," a banking establishment whose profits increased five-fold , $8,500 to $45,000; its 40 YEARBOOK 1987 deposits jumped almost twenty-fold, $89,000 credible that they would pay for and own a to $1 ,720,000; and its note circulation nearly controlling interest in a bank with whose trebled, $213,000 to $620,000. The most pub­ affairs they were not involved. On top of this licly noticeable change, the increase in note was the gross implausibility of the secret circulation, caused worry about the bank's owners "explanation" of why they owned the soundness among conservative bankers and stock. Though they scarcely knew Poultney, businessmen; the Union Bank, Baltimore's said the five, they had agreed to become strongest, put a limit on theamount of Bank of indebted for the Bank's stock at Poultney's Maryland notes it would accept. Yet note request to protect the interest of Poultney's issuance was hardly out of line with the infant son should his father die. This was increases in deposits and specie reserves that indeed a strange favor to do, especially since it Poultney's new policies, and shortly his new involved tying up huge amounts of capital for secret co-owners, attracted. someone who was a distant acquaintance. Nor Poultney's genial zest, popularity and repu­ is there any conceivable explanation of how tation allowed him to attract a prominent having the majority holdings in the Bank in Board of Directors for his new bank, as law the hands offive comparative strangers wholly required, but these were figureheads for his ignorant of its workings would "protect" any personal direction of the operation. This heir. situation changed in the fall of 1832, however, Clearly the interests of the secret five were as it was becoming increasingly clear that not philanthropic as they later pretended, but Andrew Jackson would win his second term calculatedly financial. Alexander Hamilton, with what he considered a mandate to kill the son of the nation's first and greatest Secretary 'monster bank' of the United States. For of the Treasury, reported that in Baltimore "it several years national and local prosperity had became very fashionable to laud Poultney for been steady, in part because of the helpful his great genius and abilities in banking." The financial guidance of the national bank, but its secret owners perhaps did not think of Poult­ decreasing power suggested that even richer ney "as a second Rothschild," bu t they decided opportunities awaited innovative capitalists a large degree of control and of ownership of like Evan Poultney. The Bank of Maryland at his bank could prove very profitable to them, this point began buying up its own stock at especially if kept secret. 9 The advantages to somewhat inflated rates. Within months, six Poultney seemed equally great. Working with men owned 900 of the 1000 shares of stock in these men put him in contact with some of the Bank of Maryland. The largest block, 400, Maryland's ablest younger lawyers and busi­ belonged to Evan Poultney, but the majority nessmen, people of his own age, but better were in the hands - 100 each - of five other established politically, socially and financially. men. Until the bank closed its doors about a The offer must have seemed both attractive year after this stock takeover, these six men and flattering to the ambitious Poultney, who were to control the main financial maneuver­ throughout his coming ordeal was to show ings of the Bank of Maryland. tragic incapacity to be suspicious of those Sometime after the Bank's coiIapse, first in professing friendship to him. the summer of 1834 and once again in the None of Poultney's five cohorts ever showed spring and summer of 1835, a vigorous public any of his genial naivete. Yet they brought to debate occurred about exactly who ran the their connection to the bank substantial abil­ bank during this year. Poultney said that the ities and position. Hugh McElderry and Evan various activi ties were fully cooperative efforts T. Ellicott were wealthy and prominent young by the six large shareholders until the first businessmen. Ellicott beonged to a leading crisis developed in the late fall of 1833. The industrial family; his father had founded a other five owners and their friends claimed multi-faceted business establishment at they had played no more active role in the Ellicott Mills, a center for wheat-growing and Bank's affairs than had the official directors. 8 milling and iron-making. Ellicott was the All the evidence supports Poultney's position. much younger half-brother of Baltimore's A number of letters from the secret owners leading banker, Thomas Ellicott, a family tie prove most active involvement. Nor is it that was the source of deep animosity at the TANEY AND THE BANK OF MARYLAND 41

moment, as members of Andrew Ellicott's first and second families legally battled over his estate. 10 McElderry was repu tedly wealthy and served in a gentlemanly way on the boards of directors of several banks, although Thomas Ellicott had recently removed him, much to McElderry's embarrassment and anger, from a Directorship of the Union Bank. Seemingly McElderry was a Democrat; certainly he must have been friendly with Roger Taney, who had Andrew Jackson appoint McElderry one of the government directors to the Bank of the United States. II The other three secret owners were attor­ neys. Reverdy Johnson and John Glenn were among the best known of Baltimore's young lawyers. The families of both men were re­ spectably prominent, and by dint of their professional abilities and, in Johnson's case, social skills were well on their way already to a place in the Baltimore elite. Glenn, "preemi­ nently a business lawyer," had gained some All of the secret owners of the Bank of Maryland public reputation as a man of considerable numbered themselves among Roger B. Taney's closest ambition. Johnson shared this trait, but tem­ friends. pered it with greater subtlety. His brilliance at legal maneuvering won him a leading place at been one ofsecretary; he was the one who took the bar, in lobbying work and in Maryland minutes, wrote notes, copied documents, and politics. Having served already in the Mary­ carried messages. 13 land legislature and as assistant Attorney Though the secret owners shared many General of the state, Johnson had ahead of common ties, their most important link was him a career that was to make him a Whig that they were all among Roger B. Taney's United States Senator and Attorney General of closest friends. The ties with Ellicott and the U.S. , as well as Lincoln's chief political McElderry are least clear, though McElderry's strategist in Maryland during the Civil War. appoint ment as a government Director to the An incredibly resourceful antagonist, Johnson Bank of the United States indicates Taney's destroyed almost all his personal papers (writ­ personal favor. Johnson, Glenn and Perine ten in the first place in an almost undeciphera­ were his closest contacts in Baltimore, people ble script), causing him to remain, as he he supported and who supported him at all doubtless wished, one of those shadowy crucial junctures. That Johnson and Glenn "prominent men" who flourished in the nine­ were Whigs was part of the practical teenth century. 12 usefulness of the affiliation. Johnson could use The fifth of these lOO-share men was a less his Whig ties to lobby effectively in Washing­ successful attorney. David Perine was never ton for Taney's appointment, all three men active at the bar, but made his living by worked earlier for Perine's Clerkship and later managing trusts and property and through his Glenn's Judgeship, and Taney, whenever the fairly lucrative Clerkship of the Orphan's Jacksonian paper in Baltimore became angry Court, seemingly his chief source of income about the swindle, could be brought in to prior to the swindle. From a fairly prominent sanction his friends' positions or even to lobby family, Perine led a respectable life noted, as he for their interests in Annapolis. Ideological made clear in his manuscript collections, divisions such as they were - and they ex.isted more for his friendship with the notably over slavery issue at least, with Taney approv­ successful than for his own achievements. His ing that institution and Johnson cautiously position among the owners seems to have hostile - faded in the face of such practical 42 YEARBOOK 1987 considerations. The Perine Papers in the five hidden owners and to their dependable Maryland HistoricaJ Society are organized and indispensable ally, Taney, who first specu­ around the "lasting friendship" of the four lated and then manipulated the swindle after men which long predated the secret clu b fraud. the bank closed in March, 1834. Taney, Johnson, and Glenn had served to­ The Secret Club members shared one final gether as counsel for the Baltimore and Ohio common trait. Between 1834 and 1836 they all Railroad. When Taney became Attorney Gen­ bought, built, expanded or refurbished the eraJ of Maryland, he appointed Johnson his mansions or estates that marked their secure chief assistant. When Taney went to Washing­ entrance into the elite. Johnson and Glenn ton, Perine took charge of his local finances, bought and remodeled mansions in down­ even the hassles of renting his house. 14 town Baltimore in 1835. The same year Perine What is most important about this friend­ added 250 acres to his suburban estate and ship was Taney's support of the secret owners shortly began to build a "classical mansion" on at every juncture: in their early speculations, it that burned in 1840. Hugh McElderry had in the perpetration of the fraud, and in the just completed building a mansion in the long cover-up that ensued. His aid was essen­ summer of 1835. And Roger Taney, pressed tial at several key points and was always given, with debts in 1834, bought his substantial sometimes at considerable risk to himself. On home in Baltimore in 1835. To Baltimoreans Taney's prior information, the group specu­ angered at the swindle in the summer of 1835, lated in bank stock; through his aid about many of these homes stood symbol of the $500,000 of government funds were injected status that had been bought at Captain Wil­ into the Bank of Maryland when the secret liams' and others' tragic expense. When sev­ owners controlled it; through his maneuvers, eral of the culprits left town to avoid tar and the only leading banking figure fighting the feathering, a mob attacked these homes, their swindle was removed from power; through his profits made visible. intervention, public and partisan sentiment Taney was older and more prominent than against the swindlers was quieted; through his the other Secret Club members, but his finan­ lies, the cover-up, at the time and since, was cial position was precarious, and his political­ reinforced. Since even Taney's staunchest ad­ judicial future uncertain though highly prom­ mirers picture him as hard-headed rather than ising in 1832. That all six had done well gave generous, friendship seems a much less likely them confidence and reputation to do better, explanation of this conduct than a concealed while the insecurities of their status attracted financial interest in the plot. The serious them to an opportunity like that of the Bankof political risks he took and the elaborate Maryland which seemed tailor-made for quick deceptions that he perpetrated make it highly profits with little risk in this heady stage of probable that Taney was the seventh and most American capitalism. Accelerating growth secret owner in the secret club that ran the cast doubt on the older economic verities and bank between the fall of 1832 and the spring of restraints, and these men, following what 1834. seemed newer and shorter paths to wealth, When Poultney first revealed the secret were at a stage in life that made them quite ownership in a pamphlet of the summer of willing to treat "old-fashioned notions of 1834, he called the relationship a partnership. banking" with "levity and badinage" in the His former co-owners jumped on this term to pursuit of prompter happiness. 15 show Poultney's dishonesty, arguing correctly Things briefly went well. The early Club that there had never been a legal partnership. dealings diverged little from the commonplace Although Poultney had used the term in a if somewhat speculative practices of most colloquial rather than a legal sense, he was banks or businesses with good political con­ careful in subsequent writings to refer to the nections, made devious only by the secrecy of group as an association or club. Club seems as the Club's ownership and control. The first good a term as any. The Club will refer to problem, as the Club saw it, was increasing the Poultney and the five secret stock owners, capitaJ they had to work with. Through Re­ Johnson, Glenn, Perine, McElderry, and Evan verdy Johnson's lobbying efforts, the state of T. Ellicott. The Secret Club will refer to these Maryland deposited over $335,000 of its funds TANEY AND THE BANK OF MARYLAND 43 in the Bank of Maryland, and David Perine, clerk of the Orphan's Court, directed most of that agency's lucrative accounts there. Reverdy Johnson and Hugh McElderry also lobbied a legislative charter for the General Insurance Company, of which Johnson became Presi­ dent and the four other secret owners direc­ tors. Taking its own stock as security, the Bank of Maryland lent Club members the money for their shares in the insurance company. These capitalists well understood the profitable, if dangerous, investment principle that came into active use in these years: buy on margin and use what you've "bought" to finance further speculation. Borrow to buy Bank of Maryland stock, and then borrow on it to buy General Insurance Corporation shares. If things went well, it could be the source of great wealth, but the indebtedness was perilously stacked if economic winds blew wrong. The Club's second application ofthis pri nci­ pie occurred in this same spring. The Bank of President Andrew Jackson's desire to bring down the Bank of the United States initially figured prominently Maryland bought, largely on credit, $500,000 in the Bank of Maryland's owners' plans to build their worth of Tennessee Bonds from the Union fledgling institution into a major regional financial Bank of Tennessee; seemingly the Club in­ house. tended to sell these quickly for cash to give them speculative capital while they slowly nessee bonds, which the Bank of Maryland retired the debt to the Tennessee bank. This owned, to the Union Bank as security on a decision to invest in "stocks from the South" personal loan to him to buy the Union stock. for some quick cash perhaps resulted from a Only months later was Glenn's debt transfer­ failed speculation in the North. On March 19 red to Poultney and then to the Bank of Evan T. Ellicott wrote Poultney from New Maryland. Such strategies make the transac­ York City a letter that gave clear suggestion of tions difficult to trace, but make amply clear the Club's speculative breeziness before trou­ Secret Club members' deep personal involve­ bles developed . "I have the satisfaction of ment in all the affairs of the Bank of Mary­ announcing to the Club that the duplicates of land. 17 the contract have been by mutual agreement Only one reason for such a large stock cancelled. A good anthracite fire did the purchase at inflated rates makes sense. The important service of annihilating this evi­ Club knew that the Union Bank was to be dence of indiscretion and misapplied con­ made a federal repository under the " pet" fidence," Ellicott explained. Little daunted, he system which Andrew Jackson intended to added, "We may lose about as much as we institute, and concluded that the worth of the ought to lose to make admonishment im­ stock would rise quickly once this accession of pressive," before urging that their speculations government funds to its coffers became now look southward. 16 known. In May of 1833 the Club launched a major The two people from whom Club members new project. They decided to buy 6000 shares could have learned this inside information of the Union Bank of Maryland, for which they were two of the men most responsible for paid more than the going rate. This transac­ Jackson's special deposits system, Roger B. tion made clear how Club management blur­ Taney, who suggested the policy to the Presi­ red lines between personal and corporate dent, and Union Bank president Thomas responsibility. In buying the Union Bank Ellicott, who devised it for Taney. Profits and stock, John Glenn personally gave the Ten- politics were obviously converging here, and 44 YEARBOOK 1987 an understanding of the coming manipula­ of whom expected thatJackson would change tions about the Bank of Maryland require or replace it so that its primary functions some filling in of the political history con­ regarding economic convenience and control cerning Jackson's reelection in 1832 and its would remain. There was hope for this policy financial-political aftermath. even within Jackson's administration. Van Jackson's first term had climaxed with a Buren had not been enthusiastic about the sharp political battle focused on the recharter­ veto, and remained dubious about, or at least ing of the national bank. The opposition aloof from, Jackson's subsequent policies. 19 candidate, Henry Clay, sensing the need to But his primary concern - shaking as little as embarrass Jackson politically if he were to possible the boat that seemed to be carrying have much chance against the popular presi­ him to the Presidency - also made him dent, worked with Nicholas Biddle, President hesitant to suggest any serious opposition to of the United States Bank, to ask for early whatever Jackson came up with. Much less recharter, four years before the existing charter cautious was Louis McLane, Jackson's able ran out. Biddle, who'd been trying to cajole and ambitious Secretary of the Treasury. Jackson into support for the Bank in some McLane had told Biddle, prior to the early form with ambiguous results, calculated that recharter attempt, that Jackson's reservations his chances were better now than ifhe waited about the Bank were not such that would until Jackson's second term neared its end. imperil its existence unless Biddle allowed it to Biddle believed it probable that the bank bill become tied to politics. When Biddle ne­ would pass, and Jackson would approve it glected Mclane's advice, the results were rather than face the election saddled with precisely those the Secretary of the Treasury having attacked what seemed a popular and predicted. 20 effective institution. And Clay wanted early Jackson's second presidential victory was recharter because he felt a Jackson veto would immediately followed by McLane's first report provide the issue that would propel this secure as Secretary of the Treasury. It was the most friend of the Bank to the White House. comprehensive and integrated bit of financial The Bank's friends could not have been planning since Alexander Hamilton's days, more mistaken in their calculations. Taney and as politically bold as Hamilton's various correctly wrote Ellicott that the Biddle action measures. McLane urged modified recharter had caused "what those opposed to it [BUS] of the Bank of the United States in a way that could not have done. He has insured its certain would continue its financial functions while and inevitable destruction." The obvious in­ putting them more fully in governmental tention to embarrass him politically by early rather than private hands. 21 It was a politically recharter brought out Jackson's immense daring tack for Mclane to take, who made combativeness. The Bank became the mon­ clear that this position was his and not the ster, and Jackson's resounding veto the prelude President's. McLane understood Jackson well. to resounding electoral victory. In many ways He knew the President would appreciate the the Bank issue less injured Jackson than complex intelligence of the report and also the salvaged a kind of political integrity for his first honesty of an opinion opposed to his general administration which had been characterized feelings but frankly and fairly expressed. Jack­ up to that point by the tragedy of Indian son admired the report, though he disagreed removal and the farce of Peggy Eaton's social with the evaluation of the BUS. Possibly problems. There's no indication that the Bank Mclane's plan would have become adminis­ issue fueled Jackson's success, but, because of tration strategy had not Roger B. Taney and it, his perhaps inevitable triumph became Thomas Ellicott devised an alternative pro­ invested with a political point it would have gram that appealed much more to Jackson's otherwise lacked. Certainly for Jackson his desire "to strangle this hydra of corruption." election was a mandate to destroy the bank. IS. Taney and McLane were rivals within the This situation was less clear to others than to administration for Jackson's favor, in much the Jackson himsel( The political ploy involved in same way John C. Calhoun and Van Buren early recharter gave his veto an aura of justice had been in the first years of his presidency. even to many sympathetic to the Bank, some While the earlier competition had centered on TANEY AND THE BANK OF MARYLAND 45

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,/ /-' r • ; " .f ·"".( r \.:" If ~ Specie issue by the Bank of the United States (top) was not the sole currency in circulation during the early Nineteenth Century. As illustrated by the other two bank notes above, many financial institutions issued their own currency. The trading value of which was usually a reflection of public confidence in the institution. becoming Jackson's presidential heir appar­ times precisely what Jackson most wanted to ent, the Taney-Mclane rivalry involved favor­ hear. itism for appointment to the Supreme Court. What Jackson most wanted to hear, Taney Taney's strategy for Jackson's support was correctly concluded as soon as the effort for much less intricate than Mclane's; it also early recharter developed, was some means of proved more successfuL He told Jackson at all directly counter-attacking the BUS. The veto 46 YEARBOOK 1987

message was gratifying, but it left intact the "never fails to be abused by the people who Bank's position as government repository enjoy it." Ellicott barely mentioned constitu­ until 1836. Jackson wanted something done tional or states' rights objections to the bank; more quickly; he argued, and perhaps be­ either these he considered unimportant, or he lieved, that unless the Bank were crippled felt they properly fell into Taney's political­ immediately it would "corrupt" the election of legal bailiwick. 1834. 22 Hardly a realistic fear, it was nonethe­ Ellicott's plan foresaw the replacement of less a good barometer of Jackson's anxiety to the BUS with one or more banks chartered in move offensively. To gratify this desire Taney each state. These several designated banks contacted an old Baltimore acquaintance, would at once insure competition and reduce Thomas Ellicott, President of the Union the total number of banks of issuance because Bank, Baltimore's strongest, to get sugges­ each state would develop a vested interest in its tions. Perhaps piqued at his failure to be made designated federal repository which would President of the BUS years before, Ellicott had curb wide-scale issue of charters to competing penned a pamphlet questioning the necessity institutions. The federal government, as price or desirability of the national Bank. When of its favor, would require repositories to Taney asked Ellicott's opinion, the latter re­ provide ample securities for government plied so that Taney concluded, 'The views of funds, and also regulate their emission ofbank the subject taken by you are unanswerable." notes through Treasury Department direc­ On February 20, 1832 Taney wrote Ellicott tives to insure a stable and dependable cur­ lamenting the way in which the national bank rency. Ellicott's confidence that this system was given credit for sound currency when any would naturally lead to the curtailment of the bank - say, the Union Bank - whose notes number of banks seems questionable, and were sound could do as well. Taney requested time was to show how difficult the Jacksonians that Ellicott send him some copies of his found imposing controls on the state banks of pamphlets outlining this position, and sug­ deposit. Still no document so coherently gested his hope that, if Congress demanded a outlines a Jacksonian economic vision at the national banking system, a series of "different time when Jackson's determination to destroy independent Banks" would replace this "gi­ Biddle's bank required and received some gantic machine." 23 posi tive action. Clearly Ellicott appreciated Taney claimed to have carelessly misplaced the BUS' positive functions, and wished to Ellicott's letters in these years, though proba­ replace them as well as the Bank itself, a reality bly he destroyed them when the discrediting of clear later in the policies of Taney's replace­ Ellicott became necessary to the Club's finan­ ment as Secretary of the Treasury, Levi Wood­ cial plot. At any rate, the "Taney coHection" in bury. Ellicott's argument also makes clear how the Library of Congress are really the letters he a commitment to laissez-faire and commer­ sent to Ellicott, along with a few to Ellicott cial expansion was perfectly compatible with a from Amos Kendall and a very few Ellicott desire for some banking and currency con­ letters on topics he considered major enough trol. 24 The way Taney and Jackson imple­ to require drafts. One of these drafts is the plan mented the plan, however, shows their imme­ which Ellicott sent Taney once Jackson's re­ diate disinterest in its controlling features. election was assured. Though brief, it offers When a trial balloon of the plan was sketched the fullest statement of the financial thought in the Jacksonian Pennsylvanian a month after behind Jacksonian removal policy. Ellicott's Ellicott wrote it, it stressed the possible con­ theoretical position rested on Adam Smith's trols of the new system, but skirted the state laissez-faire idealism: "Experience has proved monopoly and Treasury directive aspects where there exists no monopoly . .. the effect which, rhetorically and practically, might have of competition will reduce prices to the very been politically disruptive but which were the smallest measure of profit." The best system heart of Ellicott's idea.25 Taney later charged was one unencumbered by legal restraint and that Ellicott used the pet bank system to left open to the greatest degree ofcompetition , finance speculation and urged immediate for the power to regulate exchange inevitably withdrawal of all BUS funds, but no evidence suggested a monopoly somewhere which exists supporting such charges. 26 Ellicott's TANEY AND THE BANK OF MARYLAND 47 plan showed a concern for restraint that was the folly of his personally buyi ng stock in a not apparent in any of the early actions or bank whose "pet" status seemed already arguments of Jackson, Kendall or Taney. secure, when the plan, much less the specifi­ Whatever the Administration's interest in cally favored banks, had not been publicly the long-range ideas Ellicott outlined, re­ announced. Some dangers lurked in such self­ sponse was favorable to their immediate as­ evident use of privileged political knowledge pects. Ellicott wrote Taney summing up their to line the pockets even of sisters and sister-in­ discussions of the issue that now stretched law. 30 The letters that followed took on a over a year, "I know there is so little discre­ cryptic vagueness suggesting that what went pancy in our views." Taney must have shown on subsequently between the two men Taney or revealed the Ellicott plan to his ally Kendall judged safer to say than put in writing. The and probably to Jackson. Three weeks after men had at least two conferences within the Ellicott sent the proposal and one week before month, one in Baltimore and one in Washing­ the public suggestion appeared in the Pennsyl­ ton, for "a free discussion of other matters" vanian, Taney wrote, "It is not intended at the and to discuss things "before you go about the present moment to enter upon the arrange­ various matters we spoke of." 31 ments you speak of - and when the proper It was at this point in mid-May that political time arrives you may rely on it that I shall not action in Washington and financial action of forget what you mention." 27 The Bank issue the Bank of Maryland Club converged. While was to be held in abeyance until Jackson Ellicott and Taney talked of "other matters," handled the more pressing nullification crisis which Taney hesitated to put to paper, the which South Carolina and John C. Calhoun Bank of Maryland Club began negotiations to fomented in these months. purchase 6000 shares of Union Bank stock at By March 26, 1833 the proper time had something above the market rate. There could come. Taney wrote Ellicott, "It will be well for only have been one reason for such action: the you to come to Washington." On April 1 or 2 Club knew the Union Bank was to become a Ellicott visited Jackson and on April 6 he federal repository and concluded that its stock formally submitted a sketch for weakening the would rise in value once this became public BUS by establishing other depositories for knowledge. Taney ignored this transaction in government funds, which seemingly became all his subsequent complicated defenses of the basis for the pet bank system. On April 13 himself and the secret Club; Ellicott feigned Ellicott wrote Kendall, who with Taney was surprise at this transaction in what seems the the only member of the cabinet supportive of least honest part of his history of the Bank of the scheme, soothing fears about note ex­ Maryland swindle. 32 Both men must have change if the deposits were removed. 28 known who was doing what and why at this By early May Jackson had apparently fully point, despite later pretensions to innocence. accepted the plan. Taney claimed on the 5th Taney's "laundered" interest in the Club's that, since nothing was fully determined, what speculations was obviously a safer way to he had to say could wait until he saw Ellicott, profiteer than any sudden personal purchases, but assured him, "I have nothing to say to you and Ellicott may have arranged the transac­ on that subject that you will not be pleased to tion partly out of his desire to enrich his son as know." In the same letter Taney mentioned well as to curry Taney's favor. Part of the mens' that he'd asked the cashier at the Union Bank discussions in these days must have involved "to invest the money I have on deposit in that a third of the stock purchase was to go to Union Bank stocks - at whatever the market Evan Poultney's discount house, Poultney, price." Obviously having sober second Ellicott and Co., now run by Evan's brother, thoughts about what he'd done, Taney now Samuel, and William Ellicott, who was piled on qualifications: it was not intended Thomas Ellicott's only son. "for profit and resale," but as "a permanent The money to purchase the stock the Union investment" for his sisters and sister-in-law, Bank loaned to John Glenn against the surety while he'd welcome any other investment of the Tennessee Bonds Glenn personally suggestions. 29 Perhaps Ellicott pointed out deposited despite Bank of Maryland owner­ what Taney seemed on the brink of realizing: ship. Glenn then distributed the shares to the 48 YEARBOOK 1987 to the Bank of Maryland and Poultney, Ellicott trouble reached a head six weeks later, the and Co. to camouflage the purchase. So just national political crisis developed in early before the pet banks were to be chosen, a large September around the removal plan. McLane chunk ofthe stock in that bank most certain to gained appointment as Secretary of State and be designated fell into the hands of Taney's William J. Duane was made Secretary of the friends, with a portion of it going to Ellicott's Treasury. Duane, whose credentials as a hard son's company. money advocate were clearer than anyone Jackson chose Amos Kendall to locate else's in the administration, had doubts about suitable depositories and Taney ostentatiously the political legality ofthe administration plan avoided having anything to do formally with which lacked any Congressional seal of ap­ the selection of Baltimore's "pet." Taney later proval. He also recognized that the project as claimed that his Baltimore friends warned instituted was without mechanism for cur­ both him and Jackson about the shakiness of rency or bank control while undercutting the Union Bank, but that Jackson personally those functions by the BUS. It would foster, he chose it. 33 That Jackson should be supportive correctly claimed, speculation, not sound of the Bank of the man who laid the ground­ currency. 36 He also incorrectly argued cabinet work for his revenge against the BUS is not officer's independence from presidential surprising. But that Taney's friends, who had control regarding legally mandated orders. just bought large blocks of stock in the Union Jackson had no doubts about his own Bank, were spreading reports hostile to it is responsibility for controlling his administra­ not credible. Taney's argument that the Union tion or about the legality of any orders he man­ Bank was unsound was proved untrue by all dated. On September 19 Taney told Ellicott subsequent events, including Taney's deter­ not to come to Washington unless Duane mined effort to create a crisis of confidence in refused Jackson's orders; two days later he it the following year when such a policy suited asked Ellicott to be in the capitol the next the ends of the Secret Club. Perhaps some day. 37 Duane had been fired, Jackson had thought was given to making the upstart Bank designated Taney to replace him, and the new of Maryland the bank of deposit. In August, acting Secretary of the Treasury apparently 1834 the Whig Nation£li Gazette charged that wanted Ellicott on hand to offer procedural Kendall had wanted to put government funds advice as the special deposits system began into Evan Poultney's "leaky canoe" and the operation. Bank's letterbook showed much correspond­ At the same time, the Club which ran the ence about getting deposits. 34 Yet by May Bank of Maryland faced several problems. there was probably no serious doubt of the Though basically sound, the heavy invest­ selection of the Union Bank. In late July ments in the General Insurance Company, Kendall wrote Ellicott that he'd like to see him Tennessee Bonds and Bank of Maryland and in Baltimore, and Taney informed Ellicott that Union Bank stock had strained their liquid he might find Kendall in the North if he'd left capital. The Union stock was worth only a bit Baltimore before the banker returned. On less than had been paid for it, but the expecta­ August 10, Kendall's Baltimore investigation tion was that it would rise as the pet bank ended, Taney wrote Ellicott coyly that he system gained stability and acceptance. What would be glad to learn "that in Baltimore, was most desirable for Clu b mem bers was that arrangements that are likely to prove satisfac­ they resell the Tennessee Bonds, but this had tory have been offered by the banks in relation not proved as easy as they had expected. to the public deposits." 35 A week later the list Johnson wrote Nicholas Biddle begging both a of pet banks, including the Union, was made loan, and that Bank of Maryland notes be public. accepted. When Biddle refused to be accom­ Jackson's initiation of the special reposito­ modating, the best solution seemed to be to ries system precipitated two crises. For Club hire Thomas Ellicott, who had some interna­ members the trauma concerned the failure of tional as well as national reputation and Union Bank stock to rise and the resulting excellent ties with England's wealthy Quakers, cash flow crisis which terminated their various to go to Great Britain to peddle the bonds. 38 loose speculations. While this local economic But the economic uncertainties of the new pet TANEY AND THE BANK OF MARYLAND 49

system brought on a crisis too quickly for this money, Ellicott was to get ownership of a part strategem. Two days before Ellicott was to of the Tennessee Bonds, which, Perine in­ leave for London, Club members realized that structed, he should be prepared to send to their speculations and their reputations would Washington as collateral for the government be endangered unless the Bank of Maryland funds. This letter makes clear Ellicott spoke immediately gained some funds to avoid honestly ofthese events. The whole procedure failure. was concocted in Washington between The one quick source of sufficient funds for Johnson, Perine and Taney, and then Ellicott their needs was the United States Treasury was informed of it. Not only was Ellicott not which was luckily under the control of their asking for money, but was being asked to hand collaborator, Taney. Yet a direct federal loan to out to the Bank of Maryland more than he the Bank of Maryland threatened embarrass­ took in from the federal treasury, something he ment to the acting Secretary; there was need to was readily able to do. And finally the drafts have some excuse if the transaction came to came with instruction not only that they be public attention. Protecting pet banks from cashed right away, but that the Bonds be sent sudden runs by the BUS seemed legitimate, immediately to Taney, a provision explained and Taney sent drafts to all the pets, $100,000 only by Taney's central role in devising it. to Ellicott, with instructions that they be used Johnson wrote to Poultney as "Dear Evan," only against a run. A request from a pet suggesting the unusual closeness of the Club. banker would justify sending additional funds In the nineteenth century close acquaintances -and place the onus on him if trouble brewed. - even married couples - wrote each other David Perine and Johnson asked Ellicott to formally as Dear Mr. , Dear write a note to Taney requesting aid for Colonel and even "Sir." Baltimore banks, and Johnson insisted that "Dear Evan," wrote Johnson, "We have suc­ the Bank of Maryland not be specifically ceeded in our visit and will bring up tomorrow mentioned. Ellicott agreed, but made amply a draft for the Bank of the United States for clear that the money was not needed at the $200,000. Have the bonds ready to be sent to Union Bank, so the letter proved of no use in Ellicott. The secretary was prompt in the the Secret Club's later deceptions. Hence it matter ... He acted with his usual kindness disappeared. Johnson, Perine and Glenn said and despatch out of no other motive than later it begged money for the Union Bank; friendship for me." That Taney when he saw Taney said merely he'd misplaced it and had these letters never blamed the Secret Club no memory of the gist of the note that makes clear that no one tricked him, but that supposedly triggered his $200,000 federal he, Kendall and the Club all lied about contribution. 39 Ellicott. Johson's last clause is interesting. Johnson and Perine travelled to Washington Presumably Johnson stressed personal friend­ to talk to Taney, and on Thursday, October 3 ship, hardly a very good reason for handing out wrote back to Thomas Ellicott and Evan $200,000 in government funds, to convince Poultney that the acting Secretary had acted Poultney that personal interest had no influ­ with his "usual kindness and despatch." These ence on this "prompt" and generous decision letters, saved by the recipients, are the crucial of the acting Secretary of the Treasury. 40 documents in the crisis. Printed during the Johnson's greed in large and small matters controversy of the next years, Taney and Secret was to disprove his claim that he went to Club members never questioned their authen­ Washington for the Union Bank rather than ticity, though they insisted that what happened the Bank of Maryland. He charged the latter was very different from what these letters institution for his visit, a fee that later ap­ make apparent. Perine wrote to Ellicott with peared on its books.41 precise instructions about how the drafts The peculiarities of the specific transaction Taney was sending with them were to be used. also suggest Taney's active role in devising it. Two of them were to be cashed, and $300,000 The money went immediately to the Bank of sent to the Bank of Maryland in the form of Maryland, but on the Union Bank's books it personal loans of $75,000 each to Johnson, was officially recorded as personal loans of Glenn, Poultney, and Evan Ellicott. For this $75,000 each to Johnson, Glenn, Evan T. 50 YEARBOOK 1987

Ellicott, and Evan Poultney. Certainly the transmission of these drafts." This letter wor­ Club members, whose centrality in the Bank's ried Taney not because the drafts had been affairs were secret, would have preferred not used, but because Ellicott tied their use being personally named in the transaction directly to the wishes of the acting Secretary should it ever come to public attention; and his friends. Taney's letter chided Ellicott's Johnson, Glenn, and Evan Ellicott fought conduct, and said that the final draft should be hard and successfully in the spring and sum­ used only "if made indispensable by the mer of 1834 to get these personal loans conduct of the Bank of the United States," in changed to one drawn on the Bank of Mary­ accord with the official instructions that he'd land. Nor was there any advantage in this sent with the original draft. A longer letter of strategy to Thomas Ellicott whose bank's part the same date, seemingly the one first sent, in the transaction was fully protected by the made clear however that Taney wanted the purchase of the Tennessee Bonds. Only taney transaction completed: he trusted Ellicott to could have wanted the loan in this form, for the "take measures to enable you to relieve the good reason that, if the Bank of Maryland present pressure in Baltimore" and not to failed despite this financial transfusion, it allow "the $200,000 you have received to be would be less easy to trace in its books the locked up in a manner that will give no sudden appearance of $200,000 in govern­ advantage to the commerce of your city." 43 ment funds. 42 The two secret Club members Taney's problem at this point was to express not directly involved in this deal were those anger at the transaction, while ensuring that with closest ties to the administration: Ellicott went ahead with it. McElderry, who held a Jacksonian appoint­ The next day Ellicott wrote apologetically, ment, and Perine, who was Taney's financial explaining he'd acted on the verbal representa­ errand boy in Baltimore. tions of Perine and Johnson when they handed The scheme Taney worked out with John­ him the two drafts. Taney, not pleased at this son and Perine had a number of advantages: statement of fact, wrote a note to Johnson, the government would hold the Tennessee who showed it to Ellicott, which seemingly Bonds as collateral insurance against any real chided Johnson and Perine for their misrepre­ loss; the Bank of Maryland would get enough sentations. This letter was to suggest to Ellicott cash to prevent or postpone its demise; the that Taney's will had really been distorted, but, government "loan" to the Bank of Maryland as a letter in Johnson's possession, it could not would be indirect and veiled; secret Club be used to prove deception on their part and members would have some time to extricate innocence on Ellicott's. The letter, of course, themselves and their money. Perhaps most disappeared, and Johnson and Taney never important to Taney, Thomas Ellicott could be remembered it, much less found it or a copy made scapegoat if the transaction drew public when these events became the subject of criticism. controversy. Its existence however is proved in The Taney-Ellicott letters in these days Ellicott's next letter to Taney which mentions make clear that Taney was not only fully aware it, saying that both Johnson and Perine "feel that the government money was going to the most keenly the effect they have produced by Bank of Maryland, but that he was as ready in their verbal statements to me," and explains October as he would be the next May to ruin how deeply entwined both men were with the the reputation of Ellicott, if that proved insecure Bank of Maryland. 44 necessary, in the hard business of saving his The scenario that Taney, Perine and John­ own. Ellicott, following Perine's instructions, son wanted to impose kept being frustrated by cashed two of the three $100,000 drafts on either the shrewdn«ss or the naivete of Saturday, October 5, two days after Johnson Ellicott's responses. Seemingly he didn't know and Perine rushed to Washington. On Mon­ at this point that Taney was fully aware of how day Ellicott informed Taney of the transac­ deeply involved Johnson and Perine were with tion, "It seemed to me clear, and I was the Bank of Maryland, but no "news," set confirmed in the impression by persons in down in writing about this transaction, could whose judgement I place much reliance, that have pleased Taney less. It triggered his longest this was your wish and intention by the and harshest Jetter to Ellicott in which he TANEY AND THE BANK OF MARYLAND 51

fumed that Perine, Johnson and the recipient Both Jacksonians claimed that a haggard and - "there are no three men on whose honor or furtive Thomas Ellicott rushed to Washington personal friendship I more firmly rely" - had on the weekend of October 5 and 6, demanded acted "in a way to do me serious injury and and begged $500,000 more, confessed in effect injustice." Here Taney again made clear that to corrupt speculations, and finally, in the face he knew the Union Bank was not in danger; of their invincible rectitude, backed down and Ellicott was "authorized to use the drafts to slunk back to Baltimore. Kendall, who maintain the Bank of Maryland or any other claimed he just happened to be visiting Taney Bank in Baltimore which was solvent" from when Ellicott appeared, described the inter­ attack by the United States Bank. The prob­ view this way: lem was, Taney lamented, that the money had been used to protect a speculation and not Mr. Taney told him he had sent for him for the against a run. Aware obviously of the Bank of purpose of ascertaining why he had used the transfer drafts confidentially placed in his hands, Maryland's speculations, Taney's greatest when the contingency upon which alone he was source of distress was evident: "and all this is authorized to use them had not occurred. Mr. managed in such a way to bring upon me the Ellicott made a stammering, incoherent statement about transactions in connection with a bank in suspicion of having sanctioned it - and to Tennessee, and upon his conclusion Mr. Kendall make it difficult for me to vindicate myself said, ' If! understand you, MrEllicott, you have used from the unjust imputation." All three friends those government funds to sustain a stock specula­ tion.' To this statement of the case Ellicott virtually would have acted differently "if the painful assented . .. Under other circumstances the of­ and mortifying situation in which it may place fender would have been at once exposed and me had occurred to you." Ellicott's letters, like denounced. But such a measure at that time would have put a powerful weapon into the hands of the the alleged Johnson-Perine "deceptions," had enemy ... such exposure would have been pointed tied Taney to rather than extricated him from out as proof that the entire movement had origi­ the plot. 45 nated in similar motives, as had indeed been charged. The next day, October II, the acting Secre­ tary wrote Ellicott a pacifying note. He re­ peated his instructions about not cashing the Kendall's concern that exposure might have final draft, but expressed his entire con­ served as proof"that the entire movement had fidence" in Ellicott's judgement, suggested originated in similar motives" seems the one that the Bank of Maryland, if a run occurred, true statement in his account. Taney, with his should not have been left to its fate even if love for invented self-sacrifice, says he turned guilty of speculation, and praised Ellicott for down Ellicott's half-million dollar request his support of the Susquehanna Bridge and despite the fact that the Union Bank's failure Bank Company, where a part of the govern­ might have driven him from public life "with ment draft had gone. On October 12, Ellicott disgrace and contempt" "Whatever might be thanked Taney for his letter ofthe II th because the effect on myself personally, the path of "the letter of the day before had given me the duty was a plain one."48 blues." 46 The crisis, for the time being, was Yet Taney's path of duty never led him to over. refer to this remarkable interview, in which All these letters, Taney's, Ellicott's, Perine Ellicott allegedly showed himself a desperate and Johnson's prove the claims of Ellicott and and semi-criminal man, in the daily letters of Poultney that Taney intended the government complaint, crimination, explanation, and rec­ drafts to shore up the Bank of Maryland. onciliation that flowed between Ellicott and Throughout these trou bles, the fi nancial Taney the next week. Within a few weeks strength of the Union Bank was clear. While it Taney was writing Ellicott casually again, and cashed government drafts for $200,000, it in early November he privately authorized the actually sent $300,000 in cash to the Bank of banker to use the final $100,000 draft if he Maryland without any strain on its re­ wished. Two weeks after Ellicott "virtually sourcesY This makes more remarkable the assented" to having used government funds key "event" in this crisis which Taney de­ for stock speCUlation, Kendall asked him for scribed in his manuscript history of it and advice on banking matters and signed the which Kendall related in his Autobiography. letter "your friend ." 49 52 YEARBOOK 1987

Taney and Kendall must have contrived ality" in assuming this indebtedness while their supportive fabrications of this interview letting the Secret Club retain access to its together. Why they did so raises some ques­ funds. Though directly responsible for the tions about what their basic relation to the Bank of Maryland and of sanguinely spec­ Bank War was. Emotion, time and human bias ulative temperament, Poultney behaved to­ always distort one's perception and memory of ward both his secret partners and to the events, but the literary invention of a non­ creditors of his bank with steady generosity existent incident suggests a determination to and decency. He wanted to make quick money blame Ellicott and to misdirect attention from obviously, but he also showed concern that he the financial history of the Bank of Maryland not hurt others in doing so. It was his tragedy that's hard to ex plai n in term s other than those that his finer traits of generosity, trust, and of deep involvement with the Secret Club and concern were to be the sources of his help­ the "historical lies" that these men fought to lessness when Johnson, Taney and others sanctify later. Kendall's invention in support plotted his ruin, as well as that of hundreds of of Taney, his later letters and his placing of post small investors. Naivete was a fatal weakness office funds in the Bank of Maryland con­ given the willingness to be unscrupulously ceivably grew from friendsillp for Taney. 50 calculating of those who surrounded him. Certainly Kendall's involvement with the Se­ Because he was much less guilty than Taney cret Club was much less direct than Taney's, and the Secret Club, Poultney, asone paper put but this imagined tale creates some suspicion it, "got off worse than anybody else." 53 of his being connected, as Taney almost The ending of the October crisis did not end certainly was, with the maneuverings and the problems of Roger B. Taney. When John H. financial interest of the Secret Club. B. Latrobe visited Washington in December, Secret Club members took advantage of the 1833, Taney was fu ming abou t a pu blic letter of federal treasury's help in easing this financial Ellicott's defending him which he judged crisis to begin to extricate themselves from the insufficiently strong, although he wrote more dangerous aspects of their ties to the Ellicott in praise of it. "As the remover of the Bank of Maryland. Poultney later reported Deposits," Latrobe concluded, Taney was "not that the agreement between them was burned, on a bed of roses." 54 On the same day he talked and Poultney agreed to buy the 500 shares of to Latrobe, Taney asked Ellicott to come to Bank of Maryland stock that the Secret Club Washington again, probably to consult on the members had owned. The stock purchase Treasury report to Congress Taney was finish­ certainly took place at this time, and there ing. 55 seems no reason to doubt that what Evan T. Taney, as remover of deposits and Secret Ellicott called, in another context, some "well Club supporter, wason a bed of thorns again in placed anthracite" was used to end this ar­ early 1834 when another and much more rangement. 51 Quite probably the extrication of general financial panic occurred. The United the Secret Club from direct ties with the Bank States Bank, its government funds dwindling, of Maryland was part of the solution Johnson began to call in its loans. Money was tight, the and Taney worked out when the $200,000 patronage and speculative aspects of the pet drafts were sent to Baltimore. bank system were clear, and political pressure The burning of the formal agreement did for recharter in some form became intense. At not end Secret Club connections to the Bank the largest public meetings the country had of Maryland, unfortunately for Evan Poultney, known, a broad spectrum of citizens, ranging its new majority owner. The General Insur­ from businessmen to laborers, protested the ance Company continued to borrow, and admi nistration's economic course. A stream of Secret C1u b members Ellicott, McElderry, and delegations poured into Washington to ask especially Glenn continued to run branches Jackson to reconsider only to be met by Old set up in other states to facilitate circulation of Hickory with growing suspicion, impatience Bank of Maryland notes. 52 Probably the seeds and hostility. A Washington Democrat wrote of the coming failure were sown, as the most that he had "never seen such a time as tills thorough investigator of the Ban k of Maryland when our country is threatened with civil war, later claimed, by Poultney's "imprudent Iiber- revolution and ruin," while Nicholas Biddle TANEY AND THE BANK OF MARYLAND 53

predicted, with evident satisfaction, that "an Iiams whose $5000 life-savings had been experiment begun in ignorance must end in deposited there a few months earlier. The ruin." S6 Bank had some wealthy creditors, of course; If the dire predictions about the national the Union Bank of Tennessee was to be the economy proved decidedly exaggerated, or at largest loser. But the popular impression was least premature, the activities of the Bank of true that the losses fell mostly on "the savi ngs Maryland were reaching a crisis point. In of poor people" or on "the working classes." S9 February over $200,000 more went from the Evan Poultney published a card after clo­ Federal treasury into the coffers of the Bank of sure assuring the public that the Bank of Maryland, in much the same way money had Maryland was basically solvent, but faced travelled in early October. Now instead of immediate problems that caused him to close special drafts, Taney arranged to have govern­ its doors rather than take the risk of substan­ ment funds from Philadelphia's Girard Bank, tial real losses. He also pledged his personal which was withdrawing from its pet status, estate to compensate for any creditor loss.60 transferred to Baltimore. With this money the Poultney's was basically an honest statement, Union Bank bought the rest of the Tennessee but one that was to be discredited as a result of Bonds which again went to the U.S. Treasury decisions that the Secret Club had made a few as collateral for the federal funds. This system weeks earlier. permitted both Taney and Ellicott to say with The renewed problems of the Bank of technical truthfulness that there had been no Maryland must have become apparent in special transfer of funds into the Union Bank February or earlier. After the second influx of that year and no loans from the Union to the government money, the Secret Club began Bank of Maryland. 57 By early March however, systematically to withdraw their assets. The Taney and the Secret Club had decided against General Insurance company collected as a policy of further help, and on March 24 the much money from the Bank as possible while Bank of Maryland suddenly ceased operation. paying none of its much larger debts to Poultney's institution. In early March John II. Swindling Glenn began to take the assets of the Bank of Maryland branch he controlled and to loan An' you've gut to git up airly ef you want to take in himself, Secret Club members, and especially God. companies they had an interest in, notably the -lames Russell Lowell General Insurance Company, large amounts of money. 61 These actions make clear that the "Today may truly be called Black Monday," decision to let the Bank of Maryland fail had wrote John H. B. Latrobe in his diary of March been made in early March, since they both 24: contributed to the impending crisis and made it advantageous to the Secret Club members. The stoppage of the Bank of Maryland was an­ The "effort" of David Perine and Hugh nounced in the papers of the morning. The great number of the customers that the Bank had, the McElderry to persuade Taney to a last minute immense amount of its notes in circulation, the loan was a charade, intended probably to large and numerous deposits that had been made in mislead Poultney about his former associates' it, its great popularity heretofore, and the sudden­ ness of its failure all conspired to produce a panic friendship, or perhaps to draw an incriminat­ and consternation which for many a long day has ing request from Thomas Ellicott. Again at not been equalled in Baltimore ... People at the Johnson's solicitation, Ellicott wrote Taney corners with long faces -crowds before the banks, all in consternation.5a suggesting the shakiness of the Bank of Mary­ land and correctly stressed that he had no For the whole Baltimore community, the direct interest in it. Taney reported that when Bank's failure was "felt with a heavy shock," Perine and McElderry showed him a financial partly because of its extensive bank notes and statement from the Bank of Maryland, he partly because it "held a large amount of glanced at it, asked a few questions, saw money of widows and orphans, small dealers immediately the Bank was unsound, and and thrifty persons, mechanics and others." peremptorily refused the request for aid.62 If Those others included Captain Thomas Wil- this scene ever occurred, Taney showed much 52 YEARBOOK 1987

Taney and Kendall must have contrived ality" in assuming this indebtedness while their supportive fabrications of this interview letting the Secret Club retain access to its together. Why they did so raises some ques­ funds. Though directly responsible for the tions about what their basic relation to the Bank of Maryland and of sanguinely spec­ Bank War was. Emotion, time and human bias ulative temperament, Poultney behaved to­ always distort one's perception and memory of ward both his secret partners and to the events, but the literary invention of a non­ creditors of his bank with steady generosity existent incident suggests a determination to and decency. He wanted to make quick money blame Ellicott and to misdirect attention from obviously, but he also showed concern that he the financial history of the Bank of Maryland not hurt others in doing so. It was his tragedy that's hard to explain in terms other than those that his finer traits of generosity, trust, and of deep involvement with the Secret Club and concern were to be the sources of his help­ the "historical lies" that these men fought to lessness when Johnson, Taney and others sanctify later. Kendall's invention in support plotted his ruin, as well as that of hundreds of ofTaney, his later letters and his placing of post small investors. Naivete was a fatal weakness office funds in the Bank of Maryland con­ given the willingness to be unscrupulously ceivably grew from friendship for Taney. 50 calculating of those who surrounded him. Certainly Kendall's involvement with the Se­ Because he was much less guilty than Taney cret Club was much less direct than Taney's, and the Secret Club, Poultney, as one paper put but this imagined tale creates some suspicion it, "got off worse than anybody else." 53 of his being connected, as Taney almost The ending of the October crisis did not end certainly was, with the maneuverings and the problems of Roger B. Taney. When John H. financial interest of the Secret Club. B. Latrobe visited Washington in December, Secret Club members took advantage of the 1833, Taney was fuming about a public letter of federal treasury's help in easing this financial Ellicott's defending him which he judged crisis to begin to extricate themselves from the insufficiently strong, although he wrote more dangerous aspects of their ties to the Ellicott in praise of it. "As the remover of the Bank of Maryland. Poultney later reported Deposits," Latrobe concluded, Taney was "not that the agreement between them was burned, on a bed of roses." 54 On the same day he tal ked and Poultney agreed to buy the 500 shares of to Latrobe, Taney asked Ellicott to come to Bank of Maryland stock that the Secret Club Washington again, probably to consult on the members had owned. The stock purchase Treasury report to Congress Taney was finish­ certainly took place at this time, and there ing.55 seems no reason to doubt that what Evan T. Taney, as remover of deposits and Secret Ellicott called, in another context, some "well Club supporter, was on a bed ofthorns again in placed anthracite" was used to end this ar­ early 1834 when another and much more rangement. 5 1 Quite probably the extrication of general financial panic occurred. The United the Secret Club from direct ties with the Bank States Bank, its government funds dwindling, of Maryland was part of the solution Johnson began to call in its loans. Money was tight, the and Taney worked out when the $200,000 patronage and speculative aspects of the pet drafts were sent to Baltimore. bank system were clear, and political pressure The burning of the formal agreement did for recharter in some form became intense. At not end Secret Club connections to the Bank the largest public meetings the country had of Maryland, unfortunately for Evan Poultney, known, a broad spectrum of citizens, ranging its new majority owner. The General Insur­ from businessmen to laborers, protested the ance Company continued to borrow, and administration's economic course. A stream of Secret Clu b members Ellicott, McElderry, and delegations poured into Washington to ask especially Glenn continued to run branches Jackson to reconsider only to be met by Old set up in other states to facilitate circulation of Hickory with growing suspicion, impatience Bank of Maryland notes. 52 Probably the seeds and hostility. A Washington Democrat wrote of the coming failure were sown, as the most that he had "never seen such a time as this thorough investigatorofthe Bank of Maryland when our country is threatened with civil war, later claimed, by Poultney's "imprudent liber- revolution and ruin," while Nicholas Biddle TANEY AND THE BANK OF MARYLAND S3 predicted, with evident satisfaction, that "an Iiams whose $5000 life-savings had been experiment begun in ignorance must end in deposited there a few months earlier. The ruin." 56 Bank had some wealthy creditors, of course; If the dire predictions about the national the Union Bank of Tennessee was to be the economy proved decidedly exaggerated, or at largest loser. But the popular impression was least premature, the activities of the Bank of true that the losses fell mostly on "the savings Maryland were reaching a crisis point. In of poor people" or on "the working classes." 59 February over $200,000 more went from the Evan Poultney published a card after clo­ Federal treasury into the coffers ofthe Bank of sure assuring the public that the Bank of Maryland, in much the same way money had Maryland was basically solvent, but faced travelled in early October. Now instead of immediate problems that caused him to close special drafts, Taney arranged to have govern­ its doors rather than take the risk of substan­ ment funds from Philadelphia's Girard Bank, tial real losses. He also pledged his personal which was withdrawing from its pet status, estate to compensate for any creditor loss. 60 transferred to Baltimore. With this money the Poultney's was basically an honest statement, Union Bank bought the rest of the Tennessee but one that was to be discredited as a result of Bonds which again went to the U.S. Treasury decisions that the Secret Club had made a few as collateral for the federal funds. This system weeks earlier. permitted both Taney and Ellicott to say with The renewed problems of the Bank of technical truthfulness that there had been no Maryland must have become apparent in special transfer of funds into the Union Bank February or earlier. After the second influx of that year and no loans from the Union to the government money, the Secret Club began Bank of Maryland. 57 By early March however, systematically to withdraw their assets. The Taney and the Secret Club had decided against General Insurance company collected as a policy of further help, and on March 24 the much money from the Bank as possible while Bank of Maryland suddenly ceased operation. paying none of its much larger debts to Poultney's institution. In early March John II. Swindling Glenn began to take the assets of the Bank of Maryland branch he controlled and to loan An' you've gut to git up airly ef you want to take in himself, Secret Club members, and especially God. companies they had an interest in, notably the - James Russell Lowell General Insurance Company, large amounts of money. 6 1 These actions make clear that the "Today may truly be called Black Monday," decision to let the Bank of Maryland fail had wroteJohn H. B. Latrobe in his diary of March been made in early March, since they both 24: contributed to the impending crisis and made it advantageous to the Secret Club members. The stoppage of the Bank of Maryland was an­ The "effort" of David Perine and Hugh nounced in the papers of the morning. The great number of the customers that the Ba nk had, the McElderry to persuade Taney to a last minute immense amount of its notes in circulation, the loan was a charade, intended probably to large and numerous deposits th at had been made in mislead Poultney about his former associates' it, its great popularity heretofore , and the sudden­ ness of its failure all conspired to produCe a pa nic friendship, or perhaps to draw an incriminat­ and consternation which for many a long day has ing request from Thomas Ellicott. Again at not been equalled in Baltimore .. . People at the Johnson's solicitation, Ellicott wrote Taney corners with long faces - crowds before the banks, all in consternation. 58 suggesting the shakiness of the Bank of Mary­ land and correctly stressed that he had no For the whole Baltimore community, the direct interest in it. Taney reported that when Bank's failure was "felt with a heavy shock," Perine and McElderry showed him a financial partly because of its extensive bank notes and statement from the Bank of Maryland, he partly because it "held a large amount of glanced at it, asked a few questions, saw money of widows and orphans, small dealers immediately the Bank was unsound, and and thrifty persons, mechanics and others." peremptorily refused the request for aid.62 If Those others included Captain Thomas Wil- this scene ever occurred, Taney showed much 54 YEARBOOK \987

w..;;rO-._~~:a.;:~!(!!!I·_A"~"'~ -? ..,..; Denied access to their savings when the Bank of Maryland closed its doors, many depositors were unable to meet their financial obligations and saw their property auctioned off to satisfy creditors. quicker econorn.ic comprehension than he was Union Bank end, but confidence grew that the to in later months where careful accountants' Bank of Maryland would be able to pay its reports never dented his support of the posi­ debts. This owed much to Poultney's card tion that Bank of Maryland funds were radi­ which asserted the Bank's basic solvency and cally deficient. pledged his personal estate to make up any Probably the original intention of Secret deficit. The latter was an act of liberality Club supporters was simply to rake off some suggesting Poultney's sincerity in not wanting quick profits over the uncertainty and panic to hurt anyone. At the same time, Thomas bound to follow the closing of a bank. The Ellicott, at Reverdy Johnson's request, agreed failure of the Bank of Maryland triggered a to become trustee for the Bank of Maryland - run on the Union Bank, because of rumored that is the person responsible for controlling ties to the collapsed institution. John H. B. and settling the Bank's affairs - if the presi­ Latrobe found the Union Bank beseiged by dents and cashiers of Baltimore's other banks creditors on March 24, with even its directors so requested. When they did so, Ellicott helping count out silver. It stayed open until became sole trustee and prorn.ised prompt 4:00 to meet the rush and passed out $20,000 settlement. The whole picture brightened to depositers while a huge crowd watched sharply. Latrobe concluded that Poultney had "having to their infinite sorrow no doubt no been "unfortunate and injUdicious, but is as checks to present." Latrobe, himself a director honest a man as lives;" on his way home he of the Union Bank, knew it was safe; "all the called to shake hands with the ex-banker. And other banks in the town were indebted to it." the son of a small Baltimore businessman The next day the town was quieter. $12,000 travell ing in Ken tucky wrote his father to warn more was withdrawn from the Union Bank him of the Bank of Maryland's failure on the before its obvious ability and willingness to day it happened; three days later he suggested pay restored confidence in it. 63 The run on the the Bank seemed to have money to pay its Union Bank provided a comfortable political debts and, ifhis father had the chance, it would cover for Taney. Henry Clay demanded a be a good investment to pick up Bank of Senate study of it and Taney's tie to it - and Maryland notes at 213 their value.65 Renewed had to conclude that it was sound and that hope sprang for Thomas Williams and thou­ Taney had bought no stock in it for a number sands like him. of years.64 The wisdom of Taney's buying What was good news for most people was through the Secret Club rather than directly as bad news to those few who owed large he'd contemplated the previous May was never amounts of money to the Bank of Maryland. If clearer. there was confidence in the Bank and in a On March 25 not only did the run on the quick settlement, those who held credits on it TANEY AND THE BANK OF MARYLAND 55 would not be willing to sell them at much of a Bank of Maryland personally and corporately discount. On the other hand, ifit was believed when it closed its doors about $665,000, on that funds for payment were partial or would which they must have made a profit af"at least be slow coming, many would want or have to $300,000." 67 This seems a conservative esti­ sell their credits at a fraction of their value. The mate; Poultney was never allowed to examine money that Glenn and others in the Secret or get information from the Bank's books after Club got at full value could then be paid back he became aware of the Secret Club plot, and at only 50 or even 25 cents per dollar. Taney he had no knowledge of some of their last and Johnson consequently launched a cam­ minute maneuvers. The probable profits on paign of pressure to discredit the Bank of those transactions of the General Insurance Maryland's solvency and to insure long delay Company, just before the bank closed, suggest on any settlement. the scantiness of Poultney's estimate. While The extraordinary tactics the Secret Club sending the Bank of Maryland soon-to-be supporters were to employ can be explained valueless stock, its own and the Bank's, the only in terms of the huge profits attendant Secret Club took in nearly $398,000 in cash. upon their success. There is no way of know­ Though this stock retained some value, the ing how much particular individuals won or profits to the Secret Club and their supporters lost in this business, but the gross profits - must have been over $350,000 on these trans­ every bit tied to losses by innocent depositers actions alone. At the same time their General and note holders-can be roughly judged from Insurance Company owed the Bank at its the official audits that Joshua Atkinson later closing $101,000; of this sum $65,000 was published of Bank of Maryland debts as of never repaid, the largest outstanding bad debt March, 1834, and September, 1836. When it at the final settlement of the Bank of Mary­ closed its doors, the Bank of Maryland owed land. 68 If a convenient bankruptcy gave $3,110,000; two and a half years later it still $65,000 to the Secret Club and friends, the owed $828,000. Thus in the interim about discount rate would have made their profits on $2,282,000 worth of credits had been retired. the rest of the debt $18,000 or $27,000, for a Using the highest rumored rate ofexchange for total gain of between $83,000 and $92,000. the Bank's credits during most of this period, Thus by forcing the Bank's closure and trans­ one-half, would suggest that smaller creditors ferring good money for bad stock and "cheap" and depositors in the Bank lost about debts, these men put something just under $1,141,000 which went into the pockets of the $450,000 in their hands through the General Bank's wealthy debtors and speculators. Of Insurance Company alone, almost all of it course, a part of the retired debt, especially from third parties like Captain Williams. that settled prior to the majority trustee's The Secret Club members were flexible deceptive report in May, 1834, was handled ata men. They had expected quick substantial fairer rate. Yet in April, 1834, before this report profits from secret speculations, and had tried and the initiation of court cases that promised to capitalize on governmental foreknowledge interminable delay, Niles' Register said credits and favor. Both efforts had failed, but they were selling at 40 cents on the dollar, and the came to see how to turn this failure into much rates most often mentioned thereafter was 25 greater profits than they could have expected cents. In addition, of the $828,000 debt out­ from success. When the Bank of Maryland standing in 1836, probably only about closed its doors, Captain Williams' money was $100,000 was still in the hands ofthe original really there, as Poultney claimed, but the holders. Given these figures almost $1,500,000 Secret Club had already devised the strategy were lost and won, if one uses the high 50% that would rob the bank and put most of its rate, and about $2,200,000 if one uses the low funds into their pockets and those of people 25% rate. If the figures are necessarily rough, who cooperated with them. they make clear enough the tremendous stakes If it was a profitable journey that the Secret in the plot Taney and Secret Club members Club embarked on in March, 1834, it was also launched in late March, 1834. 66 a complicated and risky one which at times In the summer of 1835 Poultney claimed threatened disaster to them. Their first prob­ that the five Secret Club members owed the lem was in combatting the confidence and 56 YEARBOOK 1987 prompt settlement that seemed likely in the creditors repeatedly requested this, and re­ few days Ellicott was sole trustee. Whatever his fused all offers and demands for arbitration of connivance at the profiteering involved with claims to allow settlement. Appointed at the the purchase of Union Bank stock prior to its behest of the Secret Club, they at every point official designation as a pet, Ellicott would served the interests of that group and sacri­ have nothing to do with the more vicious plan ficed those whose interests were entrusted to of March, 1834. As soon as they realized this, them. Taney and the Secret Club launched an attack The crucial issue over which Thomas to remove him first as single trustee of the Ellicott fought Morris and Gill (who had the Bank of Maryland, and then from his position support of the Secret Club and Taney) con­ of power and influence in Baltimore, the cerned how solvent the Bank of Maryland was presidency of the Union Bank. when it closed its doors. Poultney insisted that As early as March 29, a few days after Ellicott . the credi ts were there to cover ail, or almost all, assumed the trust, a meeting of some Bank of debts, but the majority trustees claimed huge Maryland creditors requested that two addi­ deficits explainable only by fraud. The argu­ tional trustees be appointed to act with ment could be resolved only by auditing the Ellicott. Probably Reverdy Johnson and bank's books, but Gill and Morris refused to friends quietly organized this "suggestion," have this done promptly, indicating that they playing upon the rumors of Ellicott's ties to the did not believe in the stories they circulated or Bank of Maryland. Certainly Taney put max­ the court cases they initiated. Even clearer imum pressure on Ellicott to accept the new evidence of their deception comes from their set up. A financial report that Ellicott submit­ refusal to acknowledge or consider the prelim­ ted on the Union Bank during the run on it inary but accurate findings of the accountant gave Taney "entire confidence" in its stability, whom they were finally forced to allow access but, on March 27, in conjunction with the to the books. Their only reaction to this clear pressure from the "creditor's" meeting, Taney indication that their policies were hostile to urged Ellicott to resign the trusteeship or to the interest of those they were allegedly serving associate two others in it. He told Ellicott that was to bar the accountant's further access to Jackson also urged him to do this, and implied the books. Every accounting told the same loss of favor for the Union Bank if this was not story: despite the cash flow crisis that the done. 69 There is no other evidence regarding Secret Club had prodded, despite some bad Jackson's concern, but it seems likely, since loans mostly to Secret Club members and Ellicott and Jackson were acquaintances, that supporters, despite the loss of the value of its Taney presented - and misrepresented - the charter by long delay, the Bank of Maryland situation in such a way to gain the president's was solvent when it closed its doors. When the assent to the Secret Club strategem. trust finally ended, not only were the out­ Ellicott reluctantly succumbed to this pres­ standing debts paid at full value, but with a sure, in what he later saw as the greatest 10% dividend. 70 Captain Williams certainly mistake of his life. Certainly it was a tragic deserved this good fortune; if he somehow decision for him, for Poultney and his rela­ managed to retain his credits, small payment it tives, and for the Bank's creditors, including was for five years of suffering and uncertainty Captain Williams. With the addition of by an elderly man and the two eldely women Richard Gill and John B. Morris as trustees, dependent on him. Yet the typical and much legal control was assured to the Secret Club in more substantial beneficiary was John B. their maneuvers. The majority trustees Mor­ Morris whose deceptions as trustee allowed ris and Gill, over Thomas Ellicott's protest, him to profit immensely as banker. initiated a policy of delay, of circulating false Once Taney and the Secret Club badgered reports suggesting gross deficiencies and Ellicott into accepting Gill and Morris as co­ frauds in the Bank of Maryland, and of trustees, the stage was set for the legal farce that instituting specious legal cases to justify pro­ was the heart of the swindle. Over the next longed non-settlement. They refused to heed three years, individuals would fulminate careful and correct accountants' findings against the plot, pamphlets would expose it, about the Bank, refused to resign although the creditors would demand legal redress, part of TANEY AND THE BANK OF MARYLAND 57

land "without regard to the period at which such debtors may have become proprietors of such notes, certificates or accounts, or the value they may have paid for them." 71 Imme­ diately, Johnson laid down the ground rules on which the swindle depended: debtors to the bank, mostly wealthy businesses and business men, could take advantage of any delay or indication of insufficiency of funds to buy at a fraction . of their value creditors' holdings. Ellicott had wanted to have a quick accounting and setting up of a schedule of repayment to creditors so that profiteering from small hold­ ers' uncertainty or desperation would be minimal. Obviously other policies with other ends in view were instead to be initiated. The one person with sufficient position and ~ influence to hamper these plans was Thomas , Ellicott, a fact that alone could explain the <3 '

public announcement of a policy that prom­ was large, almost $275,000. When the Morris­ ised very delayed and very limited settlement Gill report appeared, Gibbs was immediately for Bank of Maryland credi tors. Over Ellicott's suspicious of trickery, and tried with broad strenuous protest, Morris and Gill published support from other creditors to enjoin the at the end of May their brief pamphlet suggest­ trustees from receiving credits for debts. A ing that the Bank of Maryland's assets would court order squelched this attempt to end cover scarcely half its debts, and that legal profiteeri ng. prosecution of Evan Poultney, his relatives, Frustrated in his various efforts and furious, and Thomas Ellicott might be necessary to Gibbs in late July publicly declared that the collect some of the immense deficiency. 87 Union Bank of Maryland had no right to sell Public controversy built quickly once Mor­ the Tennesse Bonds. That bank promptly had ris and Gill issued their initial report. Less him slapped in jaB for libel and held there in than a week after the pamphlet appeared, City lieu of an incredible $500,000 bail. 90 The attorney Richard Gill convinced the Grand wheels of justice ground slowly in Maryland Jury, conveniently headed by Secret Club during this controversy, except when Taney, member Hugh McElderry, to issue criminal Johnson and the Secret Club clique, the indictments against Evan Poultney and Poult­ leading members of the bar, wanted action. ney, Ellicott, and Co. At the same time Morris Perhaps most infuriating to Gibbs was the fact and Gill began civil recovery suits against that Morris and Gill would not allow him to Evan Poultney, his brothers and brother-in­ inspect the Bank of Maryland books. They law and Thomas Ellicott. Fully aware for the toyed with his request until they knew he had first time of the treachery of those he'd made to leave Baltimore-according to the terms of such sacrifices to protect, Evan Poultney in his release from jail - when they consented early July published A Brief Exposition of the that he personally, but no representative of his, Affairs of the Bank of Maryland which made might inspect them. Because Gibbs was not a public for the first time Secret Club activi­ trained accountant, the concession was really ties. 88 Poultney's mild and accurate descrip­ meaningless. The cynicism of this offer trig­ tion clearly worried the swindlers. Consider­ gered a meeting of Baltimore business men to ing it too clever a production for Poultney, who disassociate themselves from such shoddy had given substantial indication of naivete, doings. Coming on the heels of Poultney's they thought Ellicott wrote it. When Perine pamphlet and Gibbs' jailing, these busi­ sent a copy to Taney, the latter assured his nessmen were obviously angry at the majority friend that they could expect only "dark Trustees and the new directors of the Union insinuations" from the banker, because Bank, now clearly associated with the Club. Ellicott was "too vulnerable and he knows it to They pledged to provide Gibbs' bail. 91 provoke retaliation." 89 Taney was right. In these days one also got the first batch of Ellicott would eventually expose vigorously reflections in letters to the press of the broad the Secret Club swindle, but he would offer injustices suggested in the affair. Perhaps most only "dark insinuations" about that bank's telling were the musings of "Honesty" in the sudden purchase of Union Bank stock prior to Baltimore Republican: its designation as a pet because he was as morally vulnerable on that issue as Taney and The very bread has been taken from the mouths of the poor. The widow and orphan have lost their the Club. dower and their heritage - the laboring man has While Ellicott's influence was neutralized in been deprived of the savings from the pittance of his these months, the opposition to the Secret weekly toil. By whom has this been done? By those who gave themselves forth as fathers to the fa­ Club swindle found a new leader in the man therless, husbands to the widowed, and sure deposi­ representing the largest creditor of the Bank of tories of the garnered store that has come from the Maryland. George M. Gibbs, President of the sweat of the poor man's brow; those whom the confidence of the community had honored with its Union Bank of Tennessee, was in town trying trust, and who from that confidence discovered the to salvage the money his bank had tied up in means to bring desolation on the confiding.... Is the unpaid balance on the Tennessee Bonds. elevated station, or wealth, or family, or influence, to chain the hands of retributive justice? Are our laws Gibbs had enjoined about $100,000 in a but weak spider's webs through which the large flies Virginia branch bank, but the unpaid balance may break their way at pJeasure? 92 62 YEARBOOK 1987

Even Honesty's melodramatic tone but little Evan T. Ellicott's explanation repeated the exaggerated the contours of this situation, main details of the general pattern. He -like which continued to provide a resounding Johnson and Glenn - had become a director "yes" to the rhetorical questions with which he of the Bank of Maryland when Poultney took closed. it over in 1831 purely as a friend "not wishing In the meantime, the Secret Club and its to embarrass him." He and the other directors supporters acted quickly to shutter the win­ never had knowledge of how the bank ran, dow that seemed to be opening on the truth. "confiding and unsuspicious as we were," but Johnson had been collecting material for the he agreed to the large stock transfer in his impending court cases, and Poultney's pam­ name because Poultney wanted it to protect phlet caused him to gather everything he cou Id his infant son. This "explanation" seems to refute Poultney's contention that the Secret typical of the need to stress philanthropy even Club, later aligned with the majority Trustees, when it undercut all credibility in the story. were instrumental in bringing on and per­ Intelligent men might have bought blocks of petuating the Bank of Maryland difficulties. stock in what they considered a promising Johnson and John Glenn published this mate­ enterprise without being active in its opera­ rial in pamphlet form in early August, but the tion, but it makes no sense that they would Club supporters probably used its materials to make large financial commitments to aid the darken public understanding even before it infant son of a casual acquaintance. appeared. Seemingly they were able to create Ellicott also insisted that he had no knowl­ enough pressures and uncertainties to fend off edge of any Bank transactions, especially public hostility at this point. On July 29, just those involving Union Bank stock, or connec­ five days after their first meeting, Baltimore tions wi th any branches, con tentions that a few businessmen again convened, now to de­ letters he wrote Poultney would amply refute nounce economic chicanery in general, while in the next round of pamphlets. "Some of our saying they had no one in particular in mind names were loaned in kindness and in con­ and specifically denying support of Gibbs in fidence" reported the speculator, "but it was his fight with the Union Bank.93 without any interest." Everyone in the Secret In their August pamphlet, Johnson and Club professed this same total indifference to Glenn asserted the Secret Club's innocence of profits, and willingness to endanger their own any connection with the Bank of Maryland financial position by such stray and strange except for a few little favors done out of acts of generosity. Despite his total lack of kindness to Poultney. The authors did have knowledge of the Bank's operations, Evan one valid point which they labored a good Ellicott, like the other Clu b members, was now deal: Poultney had called the Club arrange­ sure there was "an enormous deficiency," ment a partnership, whereas a partnership had which money must have been stolen. 94 never been legally set up. Poultney seemingly Such personal testimonials of Club mem­ used partnership in the commonplace rather bers' friendship for Poultney were interspersed than the legal sense, but it was a technical error with letters from other people, intended to which he corrected in his later pamphlet by refute minor parts of Poultney's account, but calling the group an ''Association'' or a "Club." which in fact testified to Secret Club members' Aside from this issue, the Johnson-Glenn substantial involvement. They also dragooned pamphlet depended on a standard debater's friends and supporters into testimony cor­ trick of obscuring a weak case by a plethora of roborating their lack of financial calculation. information on unessential points. Letters For example, Taney's protege, the Jacksonian from all Club members and from scores of Congressman from Baltimore, Benjamin others gave the pamphlet a superficial solidity Chew Howard, wrote a letter saying that it was compared to Poultney's affinned nine-page he who had suggested that the Generallnsur­ statement. The Secret Club's crucial explana­ ance Company take nearly $400,000 of cash tion of its members' relation to Poultney was out of the Bank of Maryland just before it incredible, but what was lacking in probability c1osed.95 So this huge transaction occurred was compensated for in volume as they sang out of no financial calculation but only be­ the refrain in unison. cause one minor share holder suddenly de- TANEY AND THE BANK OF MARYLAND 63 cided it was a good idea. These men expected Ellicott, sent it to Johnson and McMahon the world to believe that they were the most urging an immediate end to the suits and an other-worldly of financial philosophers. immediate meeting of the trustees. Johnson The evidence in the pamphlet could confuse replied that that wasn't practicable, because if not convince an honest reader, and doubt­ the majority trustees could not meet for less this was all Johnson and Glenn really awhile, being in distant Annapolis. In the wanted. The longer public judgment could be meantime, Fowler had progressed far enough held in abeyence, the more securely powerful on the books of the Bank of Maryland to see would be the Club members and the more that there was no foundation for the charges of insignificant those with a clear interest in fraud against Evan Poultney. On March 4 exposing the fraud. In time, what Baltimore's Fowler asked Morris and Gill if he might leaders believed could gently merge with what reveal his findings; on March 5 they ordered they wished to believe: that the culprits were their attorney to interdict Fowler from further those citizens who had been removed from access to the books. Poultney, Ellicott and Co. positions of power rather than those who published Fowler's findings about them in advanced toward them. The furor of late July February and in March Fowler made known and early August quieted in part because his conclusions about the Bank of Mary­ Gibbs, who had provided leadership for the land. 96 creditors, was forced out of town as the price These reports revived public and creditor for his being released from jail. There seemed concern, as well they might. Unless Fowler nothing to do butawait the accounting and the were lying or wholly mistaken, his reports law cases. proved that the legal actions of those who Morris and Gill, who had crushed an audit controlled the trust were unwarranted and order by Ellicott in April, showed remarkable tended-and, ifsuch evidence were neglected, determination to avoid one still. Through the must have been intended - to defeat the fall of 1834 Poultney, Ellicott and Co. pressed legitimate interests of the creditors. When the for access to the Bank of Maryland books, but creditors organized to force an immediate Gill and Morris coolly refused on the strange opening of the Bank of Maryland books, ground that Poultney, Ellicott and Company Morris and Gill confirmed the more sinister had not yet been audited. In December, legal interpretations of their actions by refusing, threats from lawyer Nathaniel Williams forced while giving no reason except the pending them to agree to let Poultney, Ellicott and trials. When the courts refused the creditors' Company hire at that Company's expense an petition for access to the books, the creditors accountant to audit first the company's books demanded that the trustees resign so that ones and then the Bank's. While willing to pay sympathetic to creditor interests could be Reverdy Johnson high legal fees, the majority appointed.97 They delayed, stressing that the trustees would pay nothing to understand the group did not prove that all its members were basic financial situation on which those cases bonafide creditors and arguing their need of depended. Morris and Gill also extorted a legal advice of counsel, in this case John V L. promise that the accountant would discuss no McMahon and Roger B. Taney. findings without their approval. Johnson doubtless had Taney speak for him Poultney, Ellicott and Co. hired a respected at this point because of the rising popular English Quaker accountant, Francis Fowler, anger against Johnson whose role as Club for the job. By January 19, 1835 he had member, a president of the soon-to-be-bank­ compiled a report which revealed that there rupt General Insurance Company, as former was no basis for the fraud charges against legal counsel to Poultney, and as legal counsel Poultney, Ellicott and Company. Gill and to the Union Bank and to the majority trustees Morris were notably indifferent; they wrote had raised some doubts about his judicial the company that they could not consider such disinterestedness. There was also some advan­ a brief report and that sometime when they tage in having a prominent Jacksonian justify were less busy they would talk to Fowler about the majority trustees, especially as the Jackso­ it. When Gill and Morris refused to acknowl­ nian Republican had been taking an in­ edge the report, the third trustee, Thomas creasingly pro-creditor tack. The MacMahon- 64 YEARBOOK 1987

Taney opinion of May 2 was disingenuous; if the Secret Club's protestation of philanthropy, the trustees resigned they would be still finan­ especially the tales about helping an infant son cially responsible. True so far as it went, the and Poultney's wanting to give them shares of trustees could ask that the courts relieve them Bank of Maryland stock: "The gentlemen officially of their duties and appoint others in have endeavored to prove me a knave, and yet their stead - a perfectly common legal pro­ they here represent me to be an idiot." Perhaps cedure. Taney, who had insisted that the trust most moving is Poultney's honest self-evalua­ be reconstituted to include Morris and Gill, tion in this account. "In this business," he now pretended such action a legal impos­ wrote, "r do not pretend to exonerate myself sibility. Gill made clear he'd not resign; Morris from imprudence-from downright folly." He piously announced that he'd like to give up the insisted that the Club's early speculation, trust, but that the McMahon-Taney. opinion "however wild and visionary it may appear to revealed "the insurmountable barrier" to his many," involved no fraud and "only needed doing so. 98 success to free it from the charge of even During this spring of 1835, the majority hazard." What Poultney most regretted was trustees also turned a cold shoulder to a that not only he but thousands of others creditor plan, supported strongly by George suffered so much because his generosity to the Gibbs, to reopen the Bank of Maryland as the Club had permitted their profiteering. "In­ Phoenix Bank with a new charter from the deed, I have sufficient experience of their legislature. By late May the only creditor hope prudence and professional knowledge to teach was to go to court again, now to try to force the me a lesson for the balance of my life." 100 The trustees to resign. This case dragged on balance of Poultney's life was to consume less through the summer and into August, with time than Morris and Gill were to require to little happening except the Union Bank an­ audit the Bank of Maryland books. He died in nouncing, hardly surprisingly, that they fa­ 1837, bankrupt and broken less by financial vored retention of the majority trustees.99 In follies than by those of friendship and trust. this situation, stagnant but frought with the The simplicity and clarity of Poultney's frustration that greeted creditors wherever expose following on the heels of the extraor­ they turned legally, a second round of pam­ dinarily cynical response of Gill, Morris and phlets appeared, which triggered a riot. Johnson to the audit, and of Taney, McMahon and the others to the creditors' desire to Poultney's second pamphlet was longer than reconstitute the trust aroused a current of the one of the previous summer. It reproduced popular passion. To counteract this Glenn and some of the documents that reinforced the Johnson quickly compiled a second pamphlet, main outlines of his story -letters from John A Final Reply which was longer and louder Glenn and Evan T Ellicott, showing extremely than their first effort, and more glaringly active involvement in the bank, and those unconvincing if read closely. They took issue from Perine and Johnson proving that they with several points, most of them minor or well knew that Taney had sent the October insignificant. How could the Club be "secret" drafts to aid the Bank of Maryland. Even more as Poultney claimed when the stock transfers important it laid out publicly for the first time were on the books? they asked. The answer was the contours of the Secret Club's profiteering simple. It was secret because the public had no through Gill and Morris' manipulation of the knowledge that Glenn, Johnson, McElderry, Trust. And Poultney showed roughly but Evan Ellicott, Perine and friends owned the accurately how Johnson, Glenn, McElderry, majority interest in the bank and determined and Evan T Ellicott secretly removed their and along with Poultney its major transactions. their friends' credits from the bank in the Much of the pamphlet was comprised of month and a half before it closed, knowing of documents supposedly upholding their posi­ and encouraging its demise, because they saw tion, but several in fact attested strongly to the that a delayed settlement would allow them to very active interest Secret Club members had reap hundreds of thousands of dollars without taken in the Bank of Maryland. A Jetter from risking a cent. W. Atterbury who had been in charge of one Poultney also made clear the incredibility of branch, for example, said that on March 12, TANEY AND THE BANK OF MARYLAND 65 two weeks before the Bank of Maryland failed, Johnson and Glenn held their tissue of the General Insurance Company told him to testimonial and falsehood together with the send all funds that came in there. 101 This rhetoric of moral melodrama, their perfect confirms Poultney's main argument that the innocence contrasted with Poultney's black Secret Club grabbed all the good credits in the chicanery: days before the Bank closed so that they could We have ceased to entertain any resentment towards profiteer on their debts afterward. Atterbury Mr. Poultney. We regard him as a melancholy said that there had been articles between him instance of the depth of the abyss into which and Glenn to run the agencY,just as Glenn and humanity, when once it departs from perfect rec­ titude, is capable of falling . . . . He is below our Evan T. Ellicott were empowered in the Little enmity. . . . Hereafter we doubt not, if there is a Rock branch. Glenn and Ellicott held this moral monitor in every bosom, he will deeply grieve power, Atterbury pretended, just in case of his over the occurrences of the present day. He will weep sudden death. Keeping their hands on other in sackcloth and ashes over his betrayed friendships and violated assurances. 104 people's money as some kind of strange life insurance policy was the Secret Club's favorite Glenn and Johnson's Final Reply is puzzling philanthropy. Atterbury's evidence really fits less because so much of the information is in with Poultney's claims, not those of the false than because so little of the argument is Club. credible. The basic goal is clear enough - to Other testimonials were false, either ex­ throw enough dust in the air to confuse things torted from others or given because of the until the impending trials when, the authors meshing of their own interests with those of promised, the huge deficits, the money stolen the Club. Benjamin Chew Howard repeated by Poultney and his relatives would be clear. his account of how the removal of General Yet the psychology, the analysis, even the Insurance Company monies from the Bank in arithmetic is so clearly faulty that it hardly February and March was all his idea, and suggests the calculating intelligence that al­ Taney testified that the October government lowed the Secret Club to succeed. Yet it seems drafts had been sent to aid the Union Bank. too MachieveIlian, even for Johnson or Taney, The Club members now testified not only to that they could have foreseen how helpful to their total lack of real tie to the Bank of them the reaction to the second pamphlet was Maryland, but about their lack ofdebts to that to be. Bank and/or their quick payment of them. In the collection of papers David Perine They all had been maligned and cheated. compiled to "prove" his and Taney's inno­ Johnson, who never underdid his deceptions, cence in the Bank of Maryland swindle, he claimed that not only did he have no personal claimed the riots occurred in 1835 because the debts to the bank - in contrast to what the real culprits, Poultney and friends, wanted to books said - but the Bank really owed him destroy the "evidence" that had been collected $32,865, for which he'd (trusting man that he to prove their guilt. lOS In fact, it was the was) asked for no receipt of deposit. Poultney publication of this evidence prior to the riot had simply stolen his money. 102 which seemingly capped the public conviction The Secret Club's greatest embarrassment that the Secret Club members and their allies was coming to be the General Insurance were unquestionably guilty as Poultney Company, which had been a main conduit of charged. A few days after it appeared, riots funds from the Bank of Maryland to their began which reached their climax on the night pockets. Its stock was almost at par they of August 6. The mob wished to tar and feather claimed; in fact, no one would buy it. Its only the Club members and the majority trustees, problems were the frauds perpetrated on it by but as violence simmered these men left Poultney; none were described. Its credit was Baltimore. What they left behind was what the excellent; in less than a year it would be rioters believed to be the fruit of their manip­ bankrupt. If only all the Bank's debts were so ulations: the houses or mansions that they had well protected there would be no problem; recently bought or built. In the Final Reply, when the books were closed the largest bad Johnson had a friend testify that his attorney debt was that of the General Insurance Com­ fees were enough to explain his ability to pany.103 purchase a mansion within the past year. 106 66 YEARBOOK 1987

Whatever the specifics of finances, the Secret Saturday night, but the mob was too large and Club had become deeply involved in the too fluid to control. The deaths and injuries in expensive housing market. McElderry and these conflicts however turned the mob's Evan T. Ellicott were building mansions, attention to punishing those active in the Perine was building an estate and Glenn had guard once they finished sacking, unopposed, moved to a larger home. And these buildings, the homes of the major profiteers. And this symbols of the aspirations to new status and expansion of mob scope along with growing new security that had motivated the Secret embarrassment at the city's tolerance of riot Club, became the most fitting mob target. created a reaction the followi ng day. A large With the law so firmly on the side of the citizen's protective group was organized, and exploiters, there seemed little to be done to riotous activity vanished. Taney got Jackson to procure justice but to destroy those symbols of send federal troops to the scene but they the profits most visible. weren't needed. The violence in fact was to In the context of the riot, many other serve the profiteers well in the longrun. Public motivations became obvious, of course; more attention was deflected from the financial generalized social anger, a distaste for author­ issues to the question of mob law, and the ity, a taste for the liquor found in many of the Secret Club members and their friends could, houses, euphoria with the sense of power in this context, justly portray themselves as suddenly and directly held. Yet there re­ victims. Especially for the powerful who mained, in the general direction of the mob wished to believe them, the riot was a wel­ and in the limitations the rioters set on their come, possibly even an essential, diversion. activities, a central concern with redressing The way sentiment played into Secret Club the moral balance. The Glenn, Johnson and hands is made clear by one instance. L. W P. Morris houses were the worst damaged; Per­ Balch wrote a note of sympathy to Johnson ine, McElderry and Ellicott suffered less be­ after the riot, to which the latter replied, "In cause there was some question about on the midst of all my troubles, tears have never whom the financial losses would fall. Stealing come from me until reading your most kind was sometimes stopped because the mob letter. There is somethi ng so touchi ng in heart­ wanted to destroy, not obtain ill-gotten gains. felt sympathy I was overcome by it." Through Yet some mob members stole carefully things his tears, however, Johnson suggested, "with worth the amount they'd lost in the bank, and diffidence" and confidence that his motives special enthusiasm was shown at the burning would be "duly appreciated," that Balch might of Johnson and Glenn's law books, symbols of write a letter to a local paper stressing course of the mechanism through which the Johnson's "reputation." Within the week, the fraud was maintained. And, when some ofthe Baltimore Gazette and several Whig papers mob went to Evan Poultney's, they not only did were reprinting Balch's letter to the Frederick no damage but washed away the mud that had Political Examiner. 109 Johnson's importance been tracked on his steps. One rioter said they in the Whig party and Taney's Democratic wanted to do no harm to "honest men." 107 status allowed them to squelch any party press The number of active rioters was never rumblings, and the banking friends of the more than two or three hundred, but at times Secret Club made the commercial press disin­ much of the ci ty looked on with some approval terested in the truth. In August 1835 the only or at least comprehension. One observer ex­ paper to speak honestly about the Bank of plained the situation to a friend in terms that Maryland manipulation was the New York suggest this general understanding: "The Evening Post. The Administration had recently Bank of Maryland injured thousands. All who cut this paper from its patronage rolls when were connected with that institution at the temporary editor William Leggett failed to time it failed have been considered by the show proper enthusiasm for anti-abolition people at large as enriched at their expense. mobs and actions. Un susceptible to direct The sufferers bore their loss with commenda­ Jacksonian pressure and with stronger anti­ ble fortitude until they supposed no lawful riot credentials than any of the party journals, remedy would avail." 108 the Post alone insisted that "the mob was right A citizen's guard tried to prevent the riot on in everything but their measures of redress and TANEY AND THE BANK OF MARYLAND 67 retaliation." 110 binding the Bank of Maryland to pay him, During September, action reverted to the Ellicott's fee was doubtful and Ellicott him­ courts. Early in the month Judge Stevenson self had long suggested arbitration.112 But Archer, who had suggested the appointment of Johnson was legally sure of this case, and Gill to the trust and of Johnson and Mac­ thought he could wrap enough of the Secret Mahon as its counsel, ruled that the creditors Club's version of the scandal around his could not legally remove the trustees. Beside victory to disgrace his opponents and vindi­ the obvious frustration, creditors suffered cate his friends. He trumpeted his intention to another significant loss in his decision. Upon take a stenographer to the trial so the "truth" its announcement, the Union Bank of Ten­ could at last be made public and William nessee gave up the fight. Unable to gain a Gwynn's Baltimore Gazette agreed to print hearing outside of Maryland's courts, that accounts of the trial, seemingly written by Bank's administrators concluded that redress Johnson or one of his lackeys.113 would be impossible within them. Hence they All did not go well for the Secret Club, agreed to sell their remaining $264,000 worth however. Ellicott was no mean opponent, and of credits for $60,000 to W. H. Freeman, a he hired lawyers from Washington, DC. who banker with close ties to the Secret Club, were familiar with Maryland law but com­ whose Susquehanna Bridge and Bank Com­ paratively free from the pressures of its legal pany had been bailed out in October, 1833, by elite. And Francis Fowler, who had investi­ Taney's indirect loan to the Bank of Maryland, gated the books extensively before the major­ only to fail in 1834. The Tennessee Bank sent ity trustees barred further access, was un­ the credits to Freeman through Reverdy shakable in his testimony and integrity. Since Johnson and those two then transferred them the Secret Club supporters could not audit the to the Union Bank of Baltimore, Ellicott's old books without supporting the case of those bank whose current officers had been put they prosecuted, Fowler's testimony was cru­ there by Taney and the Secret Club. III This cial. Hence Johnson resorted to his bottomless bank still held them at the time of settlement bag of strategems to discredit Fowler. When in 1838, when they were redeemed at full value one John Duer announced in the press that plus a to percent dividend, a tidy reward of Fowler had threatened violence if Johnson some $230,000 for that Bank's public faith in took part in the Ellicott trial, Fowler made the Secret Club and the majority trustees, and Duer admit that the accountant had only said testimony to their private surety that they were in passing that Johnson's presence might lying. The discount rate, in this case, under 25 trigger a disturbance. Duer also admitted that, percent suggests that the higher probable after mentioning it to a friend, the friend told amount for the swindle, over $2,000,000, is Johnson, who came around to get Duer to probably correct. write it up in a way that preved misleading. In The creditors lost their most powerful addition, during the trial, Johnson or some supporter in this transaction and, without it, Secret Club supporter privately circulated a Johnson thought it safe to begin the court letter, real or forged, impugning Fowler's cases that were to provide those involved in the character. When Fowler got wind of it, he swindle with permanent camouflage. demanded in the press that "the concealed Johnson, of course, started with his strongest slanderer" print it so that he could expose its case, that involving the $25,000 Thomas falsi ty. I 14 Ellicott was paid for agreeing to go to London The trial ended in recovery of the money to sell the Tennessee Bonds. The fee was high, from Ellicott, which Johnson and crew could and was dubious because the crisis situation of trumpet as justification for their conduct. Yet October, 1833, forced Perine, Johnson and there was not the propaganda victory that had Taney to work out other ways of getting quick been expected. William Gwynn began pub­ money for the bonds. Ellicott in effect was paid lishing in the Baltimore Gazette the Secret for not going to London -or more probably for Club version of the trial, but this differed so his extensive services in making possible from the actual events that he had to apologize Taney's indirect infusion of funds into the for the letters as the work of "a trusted friend" Bank of Maryland. In lieu of a contract and publish future ones with elipses. On 68 YEARBOOK 1987

October 14, the Gazette published a note from insisted upon as "evidence" of criminal fraud the Harford (Md.) Republican of a week earlier to prosecute his client if that came to suit saying that the letters in the Baltimore papers Secret Club ends. I IS about the trial "are not to be relied for either In May, 1836 Evan Poultney, who had been fact or impression." Since the Gazette was the forced into bankruptcy, lacked funds to con­ only paper regularly publishing accounts, test the civil cases against him, and Johnson Gwynn must have been embarrassed by this trumpeted this as a great victory for the opinion and even more so when, on October trustees, though of course not a cent was 17, he announced discontinuation of the series collected. In the case against Poultney, Ellicott because of "the wish ofthe court." 115 The folly and Co., the trustees won some $34,000 - of publishing the trial record also became almost exactly the amount Fowler said they clear to the Secret Club; presumably the owed a year earlier and which the Company stenographic transcript was destroyed except had offered to pay - but the bulk of the claim for Johnson's long concluding argument. This was denied. Johnson managed to get a new David Perine kept in the papers the Secret trial in this case and in 1837 Poultney, Ellicott Club compiled to prove historically the inno­ and Co., now bankrupt, allowed Johnson cence of those actually guilty. This document another financially meaningless legal "vin­ reveals Johnson's basic problem: the most he dication." could do to impugn Fowler's testimony was to In the meantime the Secret Club and their point out, at least a dozen times, that the supporters made one other profitable foray accountant was an Englishman. 116 into public funds which triggered a last popu­ lar outburst, not riotous this time but equally Johnson's strategems, however, needed little angry and equally futile. In the spring of 1836 factual support. To salvage something from the riot victims asked the state legislature to the Ellicott trial, Johnson got thejury to sign a compensate their losses. Knowing the state statement saying that nothing at the trial would never appropriate its own funds, suggested guilt on the part of Johnson and his Johnson, MacMahon, and Taney devised a friends. Of course, they had not been on trial bill whereby Baltimore would pay all costs. and no evidence could be directly offered Johnson worked the Whig side, while Roger B. against them, but the Gazette. ever faithful in Taney went to Annapolis personally to corral its support of the clique, rejoiced at this Democratic support for his financial cronies "wonderful vindication." I 17 (armed wi th a letter of support from his friend , The weak criminal cases against Poultney Andrew Jackson.) Though all Baltimore Jack­ and Poultney, Ellicott and Company resulted sonians refused to call on Taney, perhaps in quick acquittal. The fraud charge against because Johnson made such public point of Poultney revealed Reverdy Johnson's un­ his reliance on the advice of his "friend and scrupulousness in its fullest flower. As Evan counsel" Taney, the plan worked. 11 9 The Poultney's legal counsel when the Bank of "country" legislators, happy enough to do a Maryland closed, Johnson had told his client little favor that would cost only the city, passed that there should be personal notes for the bill that compensated from Baltimore $400,000 on file on the Bank's books for the harbor funds all sufferers at full- and proba­ 400 shares of stock in it Poultney owned. III in bly much exaggerated - value. Johnson re­ bed at the time, Poultney signed the notes as ceived $40,600; Glenn, $37,300; John B. Mor­ Johnson suggested when David Perine ris, $16,800; Evan T. Ellicott, $4,800 and brought them by his house. Someone predated several thousand dollars in small amounts these notes on the Bank's books so it super­ went to others.1 20 Since no buildings were ficiallyappeared that Poultney had personally structurally injured in the riot, the awards abstracted $400,000 just before closure. Since seem grossly inflated in a period when one the notes themselves were dated sometime could buy a comfortable home for $500 or after the trust was set up and since no $600 dollars. $400,000 was removed in its last days, the This was too much for many Baltimoreans. charges clearly had no foundation. Johnson The Whig Baltimore Patriot condemned the obviously gave the legal advice to the sick bill, and the Democratic Republican lividly Poultney so he could later use the action he labelled it "a shameful infringement on the TANEY AND THE BANK OF MARYLAND 69

rights of the people," something a good deal And check the growth of these domestic spoilers more vicious than any of the causes of the That make us slaves, and tell us 'tis our charter. American Revolution. It proved, the Re­ publican concluded, that "in this land of liberty, the power of wealth and influence Junius claimed that any decent government controls those who make the laws." A few other would feel more financial obligations to the papers joined in; the Elktown Gazetle suc­ sufferers from the bank failure than to the cinctly remarked that the indemnity bill was victims of the mob. When the indemnity bill "robbing both Peter and Paul to pay Judas passed, Junius urged civil disobedience against it. The legislature, he argued, had no Iscariot." 121 Most important, the Republican published a series ofletters by "Junius" on the more right to pass "a law compelling Captain riots and their financial sources that raised Thomas Williams to put a portion of the telling questions: remnant of his property into the bands of Reverdy Johnson than to compel the said What let me ask is a mob? . .. I conceive a mob to be Captain to take off his hat whenever he meets - a handful of villains, PLEBIANS or PATRI­ CIANS, combined for the purpose of injuring the John Glenn." Perhaps by this time Captain innocent by EVADING or VIOLATING the laws of Williams had no hat to take off. the land. It will be seen that this definition, stripped Major pu blic con troversy was over. Not even of all technicalities and plain as it is, embraces the very essence of those evils which may commonly be the Bank settlement in 1839, which proved the supposed to be the result of a mob. .. . I will even truth of Pou I tney's contentions, nor the subse­ venture so far as to say - an open violation of the quent publication of Thomas Ellicott's able laws of the land through the medium of physical force, IS not as dangerous to liberty and property, as expose of the swindle revived any widespread the more silent exercise of mental power, exerted for interest. Taney simply created his manuscript the purpose of making the laws themselves instru­ histories to deflect any future attention from ments of tyranny and oppression. 122 the event, and Reverdy Johnson penned a fi nal The first Junius letter provided an able pamphlet. Now candidate for the United summary of the fraud, and was so popular that States Senate, Johnson seemingly felt com­ editor Samuel Harker had it republished as a pelled to "answer" Ellicott in print. 124 This broadside. It caused so much concern to the document was once again mostly a compila­ Secret Club supporters that Trustee and City tion of testimonials to his perfect rectitude Attorney Richard Gill had Harker and cred­ from fellow lawyers and judges. These al­ itor leader Andrew Ruff arrested for publish­ legedly proved the falsity of Ellicott's claims, as ing and circulating it, and tried to prevent did the fact that Ellicott had not made his William P. Preston's being admitted to the bar charges in the trial of late 1835. Just as under the seemingly mistaken impression he Johnson's virtue was demonstrated in 1835 by was "Junius." 123 These extraordinary meas­ a jury saying he was innocent of charges that ures failed to silence Harker who pu blished a had never been brought or weighed, he now variety of protests against the profiteering in "proved" his case by showing Ellicott had these two months, including Captain Wil­ failed to mention during the trial questions liams' story of his suffering. Nor was "Junius" which were not at issue in it. Seemingly this silenced. He continued, passionately and in­ strange argument proved another "remark­ telligently, to tie the incident to broad evils able vindication," though Johnson's Whig "growing at the vitals of our society." A supporters waited a few years to send him to quotation from Thomas Otway's play Venice Washington as their Senator. Preserv'd that introduced the final letter sum­ marized Junius' attack on the injustices inci­ Ill. Speculating on the Swindling dent to the kind of capitalist manipulation Men under the influence of interest or passion do represented in the Bank of Maryland affair: not always acknowledge even to themselves the motives upon which they really act. They some­ The foundation of the common good is lost, tImeS persuade themselves that they are acting on a Unholy cunning feeds upon the common weal principle not inconsistent with their own self­ And bad men fatten with the good man's labors. respect, and sense of right, and shut their eyes to the All that bear this, deserve ten-fold as much one which in fact governs their conduct. For natural justice bids us rise as one - Roger B. Taney 70 YEARBOOK 1987

No single incident can unravel the complex­ ing his convictions about the need to destroy i ties of poli tical motivation or of the sources of the bank. Obviously Taney found in Thomas power in a given society, but it may ravel the Ellicott a man who could provide a reasonably contours of prevalent interpretations. The responsible plan for doing so, and both Taney story of Thomas Williams' fleecing offers and Kendall rode the special deposit plan to a some significant clues about both the chief central place in Jackson's affections, which political battle of the age, Jackson's bank war, made one man Chief Justice of the Supreme and about the broader pattern of power and Court of the United States and the other Post status in the era. Master General and the major political oper­ The "war" against the United States Bank ative in the administration. Even after he left that came to be the central issue of the politics office, Jackson expressed his lasting gratitude of the 1830s had its clearest roots in Nicholas to Taney for "the talented and energetic aid I Biddle's decision to push for recharter before received from you and Mr. Kindle." 127 the election of 1832, which convinced Jackson Long after these events, both Taney and that it was a "monster" determined to "de­ Kendall wrote at length about their convic­ stroy" him personally, and hence by definition tions in the bank controversy, and historians an agent of political "corruption." Repeated have largely taken these statements at face investigations by hostile Congressional and value. Along with skepticism about the total administrative sources revealed great and po­ disinterestedness both men professed, there tentially dangerous power, but no clear misuse are three reasons for doubting Taney's later of it. Yet such facts never shook Jackson's explanations. First, no evidence exists of convictions. Perhaps the best example of Taney's reservations about the national bank Jackson's certainty that corruption existed prior to the movement for early recharter, came in his faith in Reuben Whitney, who which turned Jackson into an inveterate en­ provided the clearest testimony of BUS cor­ emy of the institution. Second, all of Taney's ruption but perjured himselfso clumsily while writings at the time of the struggle seem a close doing so that Jackson, Kendall and Taney parroting - in the personal letters to Jackson never dared give him an official position, almost a parody, so fulsome is their flattery­ though an anonymous letter attesting their of what Jackson wanted to hear. Bernard support earned him the seemingly profitable Swisher, who has most explored the syco­ post of de facto liaison between the govern­ phancy of these letters, absolves Taney on the ment and the pet banks. 125 Whitney's note to grounds that he is not to be blamed for making Henry D Gilpin, who in early 1833 was sent to use of Jackson's weakness for "judicious flat­ investigate the BUS, makes clear Whitney's tery." 128 This is, of course, true, but it seems vision of the political and economic oppor­ significant that the flattery had nothing to do tunities lying in confirming Jackson's con­ with instituting policy, since Jackson was clusions: "I can only tell you that your situa­ unalterably committed to removal, but with tion is an enviable one. It would be the currying personal favor. Third, Taney's rela­ happiest day of my life to investigate the affairs tion with Baltimore's banks, especially the of the bank." Another Whitney letter makes Secret Club's manipulation of the Bank of clear the ethics of this Jackson favorite in Maryland, suggests a willingness to use his regard to the pet selections. When he wrote position and knowledge to support financial William David Lewis that his bank was to be speculation and corruption that far exceeded named a Philadelphia pet, Whitney made anything that has ever been tied to the BUS. clear he'd be pleased "if you can turn an honest The deceptions of both Taney and Kendall penny to mutual advantage after you get about their relations with Thomas Ellicott this . . . . Burn this letter." 126 certainly suggest men with agood deal to hide, Within the administration, Roger B. Taney specifically a relationship to the Bank of and Amos Kendall were the only clear suppor­ Maryland. The only reason to invent inter­ ters of Whitney and of what became the Bank views with Ellicott that never occurred, and to war. Certainly brighter than Whitney, both pretend that the speculative unsoundness of men must have seen as clearly as he that the his banking practices were the cause of his loss route to Jackson's favor was through facilitat- of favor must have grown from their mutual TANEY AND THE BANK OF MARYLAND 71 desire to hide the United States Treasury's and David Perine chided him more harshly. 131 relation with the various speculations of the Such pressures were minor and to be expected Secret Clu b who ran the Bank of Maryland for in any system of government favoritism, but almost a year, and then made fortunes from its even they show more political "corruption"­ failure. that is support exacted directly for favors Taney's connection with the Secret Club granted - than was revealed in all the inves­ members was intimate and his support of their tigations of the BUS. strategems essential. The Secret Club bought Even Jackson's warmest enthusiasts have Union Bank stock because they knew it was to recognized that the special deposit plan in­ be designated a pet; Taney saw that $200,000 creased rather than lessened questionable of government money was deposited in the political influence; encouraged speculation Bank of Maryland when it was necessary for rather than restraint; fostered loose credit the Secret Club's protection; he was instru­ rather than hard money. The relations of mental in insisting that Ellicott give up control Taney, and less directly of Kendal I, to the Bank of the trust when the Secret Club hit on delay of Maryland fraud suggests only that this may in settlement as the way to wealth; he worked have been as much intent as chance result. to discredit Ellicott by precipitating a cash Certainly there seems some significance in the flow crisis in the spring of 1834 in the Union fact that the one part of Ellicott's plan ne­ Bank; he managed to get Ellicott removed glected was his desire to replace the controlling from power in Baltimore when that was of note issue by the BUS with a substitute necessary to the plotted fraud; and he publicly system. Probably such manipulations less backed the majority trustees and worked to get motivated the action than were accepted as riot indemnity for the Secret Club allies even desirable side effects in a policy which was though such actions posed some political primarily intended to win Jackson's favor in danger to him. Though there is no direct relation to these men's political ambitions. If evidence of his economic involvement in the one keeps in mind how frequently the most schemes, such extreme support for the Secret extreme rhetoric of Taney or of Johnson and Club speculations and fraud make a "laun­ Glenn precisely inverted reality, Kendall's dered" financial interest by far the most improbable description of Taney's reaction to probable explanation. Taney's biographers are becoming Secretary of the Treasury takes on favorable to the point of being uncritical, but significance: "But, said he, raising his hands to none suggest any traits of naivete or humane heaven, in doing so, I give up the most generosity that would make likely his going to cherished object of my life. I am not a such lengths merely out of friendship. 129 In politician and have never sought political some ways the question of direct financial office. The summit of my ambition has been a interest matters little. Taney's conscious sup­ seat on the bench of the United States Su­ port and cover up of the swindle make it clear preme Court and that desire [ surrender in that he felt no commitment to aiding "pro­ accepting the Treasury now." 132 Taney rode ducers" against "speculators," indeed showed the special deposit system to Jackson's favor no compunction about abetting a fraud in and to the Supreme Court with success; that which wealthy men made hundreds of thou­ he made considerable money, or at least sands of dollars simply by concocting a clever helped his friends make considerable, on the scheme to bilk comparatively poor people. way was probably a secondary consideration. Historians have long realized that the pet That Taney, the Secret Club, and their bank scheme had some obvious political supporters labored to proclaim their inno­ motivations. Kendall clearly was enthusiastic cence because of their guilt is to be expected. about the political leverage that such pa­ That powerful people at the time and histo­ tronage gave to the party. 130 John Pendleton rians since accepted their self-justifications Kennedy's diary gives some sense of how this seems more surprising. The Secret Club operated in Baltimore. When Kennedy began members obviously were shrewd. If they got moving into the anti-administration camp in rid of Thomas Ellicott, they sensed they could December of 1833, Thomas Ellicott warned win; if they got rid of the last powerful creditor, him that "I quarrel with my bread and butter," the Union Bank of Tennessee, they sensed 72 YEARBOOK 1987 they could get state compensation for their riot Fowler get access to the Bank's books, also losses, even though the strategy was sure to learned how Johnson begged tough. Williams trigger anger in Baltimore. But the question was anxious to get home from the Bel Air trial, remains why the power elite in Baltimore who but Johnson insisted he stay; "I wish my were not directly in the swindle remained clients thought my services and presence to be oblivious to facts that were grasped accurately of as little importance as I know them to be." ifroughly by rioting fireboysand laborers. Part Alexander Hamilton reported that Glenn and of the explanation was that of a crude cap­ especially Johnson threatened that anyone italism: the profits from the swindle for the "who openly or secretly" questioned their time were immense and could be widely position "render themselves liable to a suit, shared. Presumably John B. Morris's crucial and might be mulcted into heavy dam­ support came from, or at least became tied to, ages." 135 The extraordinary legal actions his bank's speculating in the credits he as against Gibbs in 1834 and against Harker and trustee disparaged. It would be surprising if others in 1836 make clear such threats weren't some others who might have caused trouble empty. were not let in on some of the profits being Certainly Taney must have used the Admin­ manufactured in the fraud. A cartoon, pub­ istration's favor and patronage to get Harker's lished at the height of the agitation in the Republican back in line at times when it was summer of 1834, accurately suggested part of most furious about the swindle. In the midst of the elite's incentive to quietness: while the printing the angriest and best newspaper Club transported money out of the bank, a exposes of the fraud, Harker inserted reports solid citizen, dressed in Taney's habitual black from an "Annapolis correspondent" favorable and looking rather like him, piously intoned to the riot victims' indemnity claims. The "Judge not, that ye be not judged" while dates of these letters, March 16 to 20, 1836 monkeys of avarice dangled money in front of correspond with the days Taney was in An­ him and the citizenry. 133 napolis lobbying for his cohorts, and one Probably more influential was the power assumes that only someone ofinfluence in the and the advantage that came from not crossing party could have induced Harker to publish those who were Baltimore's best lawyers, who them at this time. Baltimoreans were right to controlled its largest banks, who exerted influ­ be intimidated by such opponents. There was ence most effectively in the city. They could a calculating hardness about Taney and arrange favors. John H. B. Latrobe worried Glenn, and a sleekly gloved ruthlessness about briefly about the money he had deposited in Johnson, that made them most dangerous the Bank of Maryland, but the cashier ar­ enenues. ranged that it be returned to him from some For most of the elite such rewards or such debt payment. 134 Latrobe did not profiteer, intimidations were unneeded. Once Thomas but he got his money back through extra-legal Ellicott lost power, the Club knew that there personal influence - while thousands of was no powerful Marylander who would chal­ poorer folks like Captain Williams did not. lenge them, and they could proceed, under the And such favors, discreetly granted, prevented cover of pending court cases, in their fraud. many from asking the questions the evidence Harker might yelp, minor politicians like should have raised, so long as Johnson, Taney Samuel Mass and Leon Dyer might attack, and Morris provided some legal smokescreen small businessmen like creditor Andrew Ruff to justify delaying judgment. and fledgling lawyers like William P. Preston There were also threats, usually discreet but might try to organize legal and popular pro­ often clear enough. Johnson's letter to Be­ tests,136 but such folk didn't matter much. njamin Chew Howard during the Bel Air trial Pavers and carpenters might riot, but this suggests this tactic: "it is now very important action only gave the sanction of upholding law to my vindication in the case now trying here and order to the less noble business of ignoring to have the benefit of your evidence, and I beg fraud among one's peers. And so a man as you to come up without delay. . . . I had a intelligent as John Pendleton Kennedy con­ summons issued for you on Sunday." Lawyer cluded, after reading Johnson and Glenn's first Nathaniel Williams, who at one point helped Reply, that it fully refuted Poultney, that TANEY AND THE BANK OF MARYLAND 73

"Quaker scoundrel." Likewise Niles' Register the one accurate historical account of what initially found Fowler's audit dubious, never happened financiall y, Alfred Bryan's in 1899, mentioned it again, and mildly remarked in uses only economic data, not the rich man­ 1839, after the final settlement, that all would uscript-pamphlet sources, most of them in­ have been well had the original creditors held tended to deceive. on to their deposits. And so John Latrobe Some lack of critical skepticism about accepted John B. Morris' specious explanation sources, some tendency to see history from the of why he couldn't open the Bank's books' in viewpoint of those who win distorts even the the spring of 1835, and failed to remember why one serious handling of this question, Frank Thomas Ellicott, whom he deeply admired, Gateli's study of Taney and the Baltimore was drummed out of Baltimore. They, like banks. Gatell passingly mentions some of the others of their class, believed what they wanted oddities in Taney's account, but this leads him to believe, what it would have been dangerous to no exploration of them, in part because of a or trou blesome for them not to · accept, and basic disinterest in the financial matters, what it was best to credit for communal, as well apparent in such factual errors as having the as personal, reputation and profit. No one wrong Poultney (Evan rather than Samuel) wanted, as Kennedy put it, to "kill poor and the wrong Ellicott (Evan T. rather than Baltimore with arrows feathered from its own William) running Poultney, Ellicott, and wing." With the innocent already ruined and Company, or having Thomas Ellicott paid by the guilty in power, Niles'refused to look at the his own bank (rather than the Bank of second round of Poultney and Johnson-Glenn Maryland) for his London preparations to sell pamphlets: "Of this we are sure, the welfare of the Tennessee Bonds. Gatell lists the Secret the city is not promoted by such things." 137 Club members as speculators who embar­ For the powerful in Baltimore, Johnson and rassed Taney, but fails to note that they were, Taney structured things so that a half-willed before and after the event, Taney's closest blindness to fraud became a form of civic duty. associates whom he specifically absolved of all The silence of Baltimore's elite on the fraud responsibility for trouble and whom he went to influenced but doesn't fully explain historians' great lengths to aid. And though he sees Taney failure to unearth it. Perhaps concern with playing a "double game" in 1834 and Johnson larger national issues - the bank war, for "perhaps a triple," he pays so little heed to example-has left local history to antiquarians what Thomas Ellicott clearly described in his who, until recently, usually were as concerned book that he pictures Ellicott's dispute with with communal reputation as were Taney and the other trustees as occurring "for murky Johnson's contemporaries. Second, most of reasons" which show only the banker's in­ those who have touched on the issue most ability to get along with others. 138 directly have been those writing biographies of That historians as able as Carl Swisher and Taney and Johnson which verge between Gatell could be so misled by documents friendly and hagiographic. Third, historians intended to deceive and by the tendency to have tended to take at face value their easiest accept the word of those who won suggests "respectable" source on a particular problem, simply the dangers all historians run, the and Taney's manuscript histories, written to probable sweep of the errors committed by deflect attention from Ellicott's account, have even those with the best intentions and abil­ worked well. Historians of the age of Jackson ities. History is a prisoner of documents, and of the Schlesinger school have followed Taney's this instance well suggests how these may manuscript's broad account of acts and chain - indeed may be intended to chain - as motivation with little skepticism about its much as they champion u nderstandi ng. While obviously self-serving quality, and Taney's Taney claimed that he was so busy at the analysts have accepted his account of his Treasury that he carelessly misplaced those dealings with Ellicott (and the other sources in letters proving Thomas Ellicott a desperate the carefully compiled Peri ne collection) with­ speculator and swindler, he carefully pre­ out consideration of the major conflicts be­ served a copy of his letter to a man who sent tween it and the Taney letters Ellicott saved, him, when acting Secretary of the Treasury, a now in the Library of Congress. It's telling that gi ft of a box of cigars. He appreciated the ki nd 74 YEARBOOK 1987 gift of a box of cigars. He appreciated the kind and Roger B. Taney whose financial chicanery gesture, he wrote, but his "fastidiousness" was but a backwater of successful careers demanded that he pay for the present. And running toward substantial public and histor­ that able chronicler of Jacksonian administra­ ical prominence, though these two carefully tive practices, Leonard White, has used this destroyed and, in Taney's case, created docu­ letter, doubtless as intended, to prove high ments that "posterity" might not glimpse the Jacksonian ethical standards. 139 For histo­ truth. rians, like others, a good cigar may sometimes Perhaps what happened matters only to be, to misquote Freud, simply a smokescreen. those with a certain antiquarian interest in And does the truth about the Bank of glimpsing human nature or, more modestly, Maryland affair matter now? Not, one pre­ the nature of politics, power, and finance in sumes, to Captain Williams and thousands the good old days when American democracy like him whose losses and sufferings have and capitalism were abirthing. And for them, turned to quiet dust as surely as have their the moral of this particular story at least predator's gains and triumphs. Not to John accords with John Pendleton Kennedy's sober Glenn, Evan T. Ellicott, David Perine, Hugh second thoughts about the fraud: "This is McElderry, John B. Morris, and Richard Gill a wicked world and the rogues have the ma­ who turned profits from the fraud into com­ jority." 140 Such was, of course, the elite view. fortable respectability for the rest of their lives. Captain Thomas Williams and his fellow Not to Evan Poultney and Thomas Ellicott victims were, no doubt, the almost historically whose grievances passed with them from the silent majority. Baltimore scene. Not even to Reverdy Johnson

Endnotes

I Letter of Captain Thomas Williams, March 11 , the Creditors (Philadelphia, 1839). Ellicott's version 1836 in BaltimDre Republican and Commercial in a few places has a quality of special pleading, but Advertiser (hereafter Republican) March 19, 1836. is careful and accurate in what it asserts. Williams later thanked several men for giving him 5 Lydia Hollingsworth Morris to Rachel Tobin, $65 which he promised to repay as soon as the Bank January 30, 1832 in Hollingsworth Letters, MdHS. of Maryland settled its affairs. Republican March 21, 6 Bray Hammond, Banks and Politics in the 1836. United States from the Revolution to the Civil I1ilr 2 According to a report by the trustees of the (Princeton, 1957) most fully sketches the functions Bank of Maryland of Sept., 1836, Williams had a of the Bank of the United States in these years. total of$4,700 owed him; the Bank owed one Mary 7 Alfred C. Bryan, The History ofState Banking in Williams $600. John B. Morris and Richard Gill, Maryland (Baltimore, 1899), 89-95, offers the only Repol'l of Tn/stees ofth e Bank ofMaryland upon the accurate historical outline of the financial aspects of Situation of its Affairs Up to September 1, 1836 the Bank of Maryland swindle. Bryan, and Gary L. (Baltimore, 1836), 10. Williams is used here as Browne, Baltimore and the Nation, 1789-1861 representative of the victims of the swindle, al­ (Chapel Hill, 1980), 21-25, 71-79, describe Bal­ though, if he somehow managed to hold onto his timore's earlier practices in banking. credits until late 1838, the failure might have cost 8 The basic situation Evan Poultney described in him nothing save five years of suffering. A BriefE xposition ofMail ers Relating to the Bank of J There is general agreement among economic Maryland (Baltimore, n.d.), a nine-page legally historians that the 1830s represented a kind of affirmed deposition, published (according to a "take-off' stage of American capitalism, but in notation in the David Perine papers, MdHS) on their concern for the broad economic pattern there July 18, 1834. Almost precisely a year later, he has been little attention to the accumulative and published a fuller and more detailed account, An ethical structure of business investment. DouglasC. Appeal to the Creditors ofth e Bank ofMar yland and North, The Economic Growth of the United States, the Public Generally (Ba 1t i more, 1835). 1790-1860 (Englewood Cliffs, 1961); George Rogers Reverdy Johnson and John Glenn published two Taylor, The Transportation Revolution, 1815-/860, pamphlets in reply to Poultney's which contain (New York, 1966). statements from all five secret Club members and 4 The best general account of the Bank of much other material: Reply to a Pamphlet Entitled Maryland's history is Thomas Ellicott, Bank of ':4 BriefE xposition ofMatters Relating to the Bank of Maryland Conspiracy as Developed in the Report to Maryland," With an Examination Into Some of the TANEY AND THE BANK OF MARYLAND 75

Causes of the Bankruptcy of that Institution (Bal­ tried to use his position as government director of timore, 1834) and A Final Reply to the Libels ofEvan the BUS to sell the Tennessee Bonds to Biddle, Poultney . . . , and a Further Examination of the doubtless to finance the Union Bank stock pur­ Causes of the Failure ofthat Institution (Baltimore, chase. McElderry to BUS, May 22, 1833, John 1835). Secret owner David Perine published a Sargent Papers, HSPa. similar if much shorter pamphlet, To the Creditors of 18 Taney to Ellicott, July 23, 1832, Taney Papers, the Bank ofMaryland (Baltimore, 1834). LC. Two books suggest persuasively that Jackson 9 Alexander Hamilton, "The Late Bank of Mary­ was reelected not because of but despite his anti­ land," Broadside, dated September 4, 1839, MdHS. bank position; Jean Alexander Wilburn, Biddle's 10 The data on those involved with the Club and Bank: The Cruciallears (New York, 1967); Robert the swindle is taken predominantly from the clip­ Remini, Andrew Jackson and the Bank War: A Study ping and vertical files of the MdHS. Materials are in the Growth of Presidential Power (New York, scantiest on Evan T. Ellicott and McElderry for 1967), 40-42. whom no personal papers exist. 19 James C. Curtis, The Fox at Bay: Martin T1ln II Jackson's official designation of McElderry as Buren and the PreSidency, 1837-41 (Lexington, government director of the BUS are in the BUS 1970), 45-46, 65-66; Martin Van Buren to Andrew Papers, Etting Collection, Historical Society of Jackson, July 29 and Spetember 4, 1833, Jackson Pennsylvania, December 30, 1831 and January 3, Papers, LC. 1833. 20 Others passed on Mclane's warnings to Bid­ 12 The standard biography of Johnson offers a dle: Samuel Smith, December 7, 1831 and Thomas eulogistic chronology and excerpts from the sparse Cadwaiader,December21, 1831 to Nicholas Biddle, surviving Johnson writings. Bernard Steiner, The Biddle Papers, LC: Joel R. Poinsett to Dr. Joseph Life of Reverdy Johnson (Baltimore, 1914). The Johnson, January 25, 1832, Henry Gilpin Papers, Glenn family papers, MdHS, suggest the social and HSPa. civic significance of the family, after John Glenn 2 1 McLane's report was printed as House Execu­ established its fortune, but little that is personally or tive Document No.3, 22nd Congress, 1st Session. professionally telling about its founder. Jackson's respect for the report and reservations 13 The David M. Perine collection in the Mary­ about the Bank sections, he made clear in a letter to land Historical Society, organized statedly to prove Martin Van Buren, December 6, 1831, Jackson the life-long friendship of Perine, Taney, Johnson, Papers, LC. McLane's skill in keeping presidential and Glenn, was clearly intended to support the favor while on the losing side of most issues is shown secret Club's version of the Bank of Maryland affair. in his letter to Henry Gilpin, December 11, 1833, Taney placed a few Ellicott letters here that might Gilpin Papers, HSP. John A. Monroe, L ouis suggest, out of context, his version of what hap­ McLane: Federalist and Jacksonian (New Bruns­ pened, his two 1839 manuscript accounts and wick, 1973) offers a rich account, especially of the letters to his son-in-law, John Mason Campbell, or McLane-Taney rivalry, 290-424. to Perine. Evan T. Ellicott, Gill, and Taney all signed 22 A telling account of Jackson's feelings, and Van Perine's petition to obtain the Orphan's Court clerk­ Buren's reluctance, about removal is found in the ship in 1825, Perine Papers. notes that White House resident and Jackson's close 14 The Perine papers contain much evidence of friend, Major William Lewis kept at the time. the mutual support of these men, support probably Printed in James Parton, The Life of Andrew enhanced because it cut across party lines. Carl Jackson (New York 1860) III: 501-7. When Lewis Swisher discusses Taney's and Johnson's close ties to argued gently against removal, Jackson insisted that the Baltimore and Ohio Railroad, and Bernard the government funds would corruptly disappear Steiner chron ides their many shared legal struggles and the elections of 1834 be corruptly bought unless in the 1820s and 1830s. Roger B. Taney (New York he acted right away. These same issues were the 1935) 114-116; Life of Roger B. Taney (Baltimore, heart of his final removal message to the cabinet, 1922), 89-98. September 18, 1833, Jackson Papers, LC. 15 Ellicott, Conspiracy, 5. Ellicott was reporting 23 Taney to Ellicott, December 12 and 23, 1831 ; an interview with Perine and Johnson. January 25 and February 20, 1832. I've not been 16 Poultney had the Evan T. Ellicott letter pub­ able to locate Ellicott's pamphlet, nor a letter in lished, after the first Johnson-Glenn Reply, to refute support of Jackson's veto he seemingly wrote also. secret Club contentions of non-involvement; E. T. Taney to Ellicott, July 23 and August 28, 1832, Ellicott answered that the letter was merely Taney Papers, LC. "jocose" and showed no real activity. Baltimore 24 Someone dated Ellicott's draft of his plan in Gazette, August 6 and 7, 1834. pencil November 5, 1833, but it must have been 17 Ellicott, Conspiracy, 6-7; Francis Fowler, written and sent a year earlier. This misdating Broadside Statement on the Bank of Maryland explains its neglect by historians. John McFaul, The [March 1835] in the William P. Preston papers, Politics ofJa cksonian Finance (Ithaca, 1972), 60-106, MdHS. The subterfuge in these transactions, espe­ 143-77, describes the attempts and difficulties in cially where they touch on the U.S. Treasury instituting controls, though oddly suggests that any deposits and pet banks, makes clear the concern to evidence of desire to control currency and banks mask the ties to Taney. In May, Hugh McElderry refutes an "entreprenurial" thesis. 76 YEARBOOK 1987

25 Pennsylvanian, December 6, 1833. 42 According to Ellicott, Perine and Johnson 26 Stuart Bruchey, ed, "Roger Brooke Taney's remained unsure of the security of the Bank of Account of his Relations With Thomas Ellicott in Maryland and said, (for about a week), they might the Bank War, Maryland Historical Magazine 53 have to tum on Poultney, at which point Taney's (1958): 68 The manuscript, deposited in the Perine letters become conciliatory rather than accusatory. Papers, MdHS, was intended as an answer to Johnson prepared the specific procedural instruc­ Ellicott's published account of the Bank of Mary­ tions regarding the Tennessee Bonds for the Union land affair. Bank Board of Directors, October 5, 1833, Conspir­ 27 Ellicott to Taney, November 5, 1832 ; Taney to ac){ 16-17,70-71. Ellicott, November 28, 1832, Taney Papers, LC 43 Ellicott to Taney and Taney to Ellicott (twice), 28 Taney to Ellicott, March 25 and April I, 1833; October 7, 1833, Taney Papers, LC Ellicott to Jackson, April 6, 1833 ; Ellicott to 44 Ellicott to Taney, October 8 (twice) and Oc­ Kendall, April 13, 1833, Taney Papers, LC tober 10, 1833, Perine Papers, MdHS. That Taney 29 Taney to Ellicott, May 5, 1833, Taney Papers, kept these letters is interesting. What they say LC discredits Taney's story, but presumably the tone of 30 Frank B. Gatell, "Secretary Taney and Bal­ confusion and apology was judged incriminating. timore Pets: A Study in Banking and Politics," 45 Taney to Ellicott, October 10, 1833, Taney Business History Review, 39 (1965), 217, chides Bray Papers, LC Hammond for suggesting a profiteering motive on 46 Taney to Ellicott, October II, 1833, Taney Taney's part. Yet it's hard not to believe that Taney's Papers, LC; Ellicott to Taney, October 12, 1833, sudden interest in Union Bank stock reflected a Perine Papers, MdHS. desire to speculate on his insider's knowledge. 47 Of the $300,000 that went to the Bank of 3 I Taney to Ellicott, May 20 and 24, 1833, Taney Maryland, $50,000 was in turn loaned to W. H. Papers, LC Freeman's Susquehanna Bridge and Bank Com­ 32 Ellicott, Conspiracy, 6-7. Browne implies that pany, and Ellicott loaned Freeman another $25,000 Ellicott's ties to Poultney meant that he was con­ during the crisis. Ellicott to Taney, October 8, 1833, nected to the secret Club, but this seems precluded Perine Papers, MdHS. Freeman was often to serve by his bitter feuds with Evan T. Ellicott and the secret Club in their subsequent financial and McElderry as well as the evidence from the period. legal maneuverings. The criminal case against Baltimore in Ihe Nation, 122-125. Poultney, Ellicott, and Co. involved his claim that .13 Bruchey, "Taney's Account," Maryland HiSlor­ he'd repaid the $52,000 borrowed from the Bank of ica! Magazine, 53: 69. Maryland but it was not credited to him in the 34 National Gazelle (Philadelphia), August 27, books and he had no receipt, an improbable claim 1834; Frances Fowler, Broadside on Bank of Mary­ exactly parallel to Johnsons later public story. Case land, William P. Preston Papers, MdHS. of Bank of Maryland versus Poultney, EllicOll, and 35 Kendall to Ellicott, July 25 and August 3; Company (Baltimore, 1837) 15 -17. Taney to Ellicott, July 24 and August 10, 1833, Taney 48 Amos Kendall, AUlobiograph){ ed. by William Papers, LC Stickney (New York, 1949) 389-90; Bruchey, 36 William I. Duane, Narrative ofCorrespondence "Ta ney's Account, Maryland Historical Maga zine, Concerning the Remova! of the Deposils (Phila­ 58: 142-45. Here Taney admitted knowing the Bank delphia, 1838),2-6. Duane was the only member of of Maryland received the money, something proved the administration to express concern about the by his letters to Ellicott which he'd denied in his evident speculative aspects of the plan. To Hen ry D. 1834 public letters supporting the secret Club. Gilpin, July 7, 1833, Gilpin Papers, HSPa. 49 Kendall to Ellicott, October 23, 1833; Taney to 37 Taney to Ellicott, September 19 and 21, 1833, Ellicott, October 21 and 22 and November 5, 1833, Taney Papers, LC Taney Papers, LC .18 Reverdy Johnson to Nicholas Biddle, October 50 The Fredericktown (Maryland) Examiner, June 9, 1833, Biddle Papers, LC; Ellicott, Conspirac){ 25, 1834 reported that post masters in the area had 11-12. been ordered for some time to deposit funds in the 39 Poultney, Brief Exposition, 6-7; Ellicott, Con­ Bank of Maryland from which Postmaster General spiraCj{ 14-18; Johnson and Glenn, Reply, 8-9, 51. William Barry had borrowed money. Quoted in Taney's public letter on July 25, 1834 strongly Naliona! Gazelle, June 27, 1835. The Post Office was asserted his faith in "the truth, the honor, and the in September, 1836, still a creditor to the Bank of integrity" of Perine and Johnson and said they'd Maryland for$22 ,695. Morris and Gill, Report ofthe mentioned nothing about the Bank of Maryland in Trustees, 1836, 5. the October interview. fn September he wrote 51 Poultney, BriefExposition, 6-7; Evan T. Ellicott Ellicott saying he had no recollection of the con­ to Evan Poultney, March 19, 1833 in Poultney, tents of the note, which he'd tossed away "as not Appeal, 37. worth preserving," though it elicited $200,000 in 52 John Glenn controlled the branches in Little drafts on the federal treasury. Printed in Ellicott, Rock, Louisville, Wheeling, Elktown and Cum­ Conspiracy, 66-77 berland; Evan T. Ellicott those in New York; and 40 Poultney, Appeal, 41-42. Poultney those in New Orleans and Virginia. 41 Ellicott, Conspirac)\ 11-12. Poultney, Brief Exposition, 7-8 ; Appeal, 20-35. The TANEY AND THE BANK OF MARYLAND 77 latter contains letters showing Glenn's control of the ical Magazine, 53: 71-73 ; Kendall, Autobiography, branches. 390. 53 Fowler, Broadside Statement; Harford (Md) 73 Gatell, "Secretary Taney and the Pets," Busi­ Republican, quoted in Baltimore Republican, July 4, ness History Review, 39 (1965): 218-19. 1836. 74 Taney to Ellicott, March 30, 1834, Taney 54 Latrobe, "Diary," December 20, 1833, MdHS; Papers, LC Thomas Ellicott letter to National Intelligencer. 75 Kendall to Ellicott, April 15, 1834; Taney to December 12, 1833. Ellicott, April 15, 17, and 18, 1834, Taney Papers, LC 55 Taney to Ellicott, December 13, and 20, 1833, 76 Taney to Ellicott, April 20, 21 and 24, 1834, LC Taney Papers, LC 56 Benjamin French, "Diary," March 21 , 1834, 77 Taney to Ellicott, May 15, 20, 21 and 23, 1834, LC; Nicholas Biddle to John A. Stevens, February Taney Papers, LC: Ellicot to Taney, May 22, 24, 22, 1833, Dreer Collection, HSPa. Parton, Life of 1834, Perine Papers, MdHS, Andrew Jackson, III: 537-61, offers an excellent 78 Taney to Ellicott, May 24, 25, 27 and 28, 1834; resume of protests, public and private, in favor of Kendall to Ellicott, May 28, 1834, Taney Papers, LC recharter in these years. Kendall said, unconvincingly, he wrote on impulse 57 Baltimore American, March 27, 1834 ; Swisher, without Taney's knowledge. Taney, 268-69. 79 Roger Taney to Reverdy Johnson and Charles 58 Latrobe, "Diary," March 24, 1834, MdHS. Howard, May 28, 1834; Johnson and Howard to 59 Baltimore American, March 25, 1834; Niles' Taney, and Taney to Johnson and Howard, June 20, Register, 48 (August 15, 1835): 413 ; National Gazelle, 1834, Treasury Dept. Letters, National Archives; March 26, 1834; Eloise Baker to a friend, [April, Roger Taney to Martin Van Buren, March 7, 1836, 1834], Harwood Collection, MdHS. Van Buren Papers, LC; Ellicott, Conspiracy, 26-27. 60 Baltimore Gazelle, March 25, 1834. 80 Taney to Ellicott, May 28 and 29, 1834, Taney 61 Poultney, Appeal, 19 ; Ellicott, Conspiracy, Papers, LC; Taney to Perine, May 28, 29 and Ju ne 2, 36-37. The General Insurance Company "sold" - 1834, Perine Papers, MdHS. that is sent to it - $200,000 of that Bank's stock for 81 Perine to Taney, May 29, 1834, Perine Papers, which it took cash from the branches while it MdHS. collected $197,943 that the Bank "owed" for its 82 The best character sketch of Ellicott survives in General Insurance Company stocksjust prior to the the respectful reminiscences of John Latrobe in Bank's closing. John E. Semmes, John H. B. Latrobe and his Times 62 Roger B. Taney to Evan Poultney, February 14, (Balti more, 1917), 399-401. Ellicott's imperiousness 1835, Perine Papers, MdHS. is suggested in Latrobe's "Diary" February 15 and 63 Latrobe, " Diary," March 24, 1834, MdHS. March 10, 1834, MdHS, and in John Pendleton 64 Congressional Globe, April 3, 1834, 284-5. Kennedy's "Diary," December 10, 11 and 21 , 1833, 65 Latrobe, "Diary," April 2, 1834; Henry Baker Peabody Institute, Baltimore. to his father, March 25 and April 2, 1834, Baker 83 Baltimore Gazetle, June 13, 1834; Reverdy Family Papers, MdHS. Johnson to Nicholas Biddle, May 29 and June 4, 66 The report of the trustees of September 1836, 1834; Biddle to Johnson, June 2, 1834, Biddle which contains a summary of the official audit by Papers, LC Joshua Atkinson as of March 1834 and of 1836 is the 84 Taney's letters to Perine, June 4, 5, and 7, 1834, most precise source of information from which to MdHS, make clear the outlines of the attack. guess at profits. Morris and Gill, Report of. .. 1836, Taney's son-in-law, John Mason Campbell acted 9-16 ; Niles' Register. 46 (April 19, 1834), 118. with Gill, Johnson, and Perine in these transac­ 67 Poultney, Appeal, 44-45. tions. 68 Ellicott, Conspiracy, 35, and Atkinson's audit, 85 Baltimore Gazelle, June 13 and 15, 1834; 84, 121-22. Baltimore Republican, June 14, 16 and 21, 1834. 69 Ellicott, Conspiracy, 19-28; Taney to Ellicott, 86 Baltimore American, July 8, 14, 15 and 16, 1834. March 25, 27 and 30, Taney Papers, LC The same stories were published in the Gazelle and 70 The correspondence between Fowler, trustees Republican as well, and the latter on July 9 printed and attorneys is printed in Morris and Gill, Ex­ Ellicott's announcement that, whatever the out­ tracts, 26-43. Fowler, Broadside Statement; Niles' come of the vote, he would make public all the Register, 54 (February 2, 1839), 189. Fowler's initial relations between the Union Bank and the Bank of report was within $7,600 of Atkinon's final one, and Maryland. $6,000 of this was an admitted Atkinson mistake. 87 John B. Morris and Richard Gill, Report [May Thus the deficit was about $20,000 at time of 28, 1834, Baltimore], 1-7. closure, less than Poultney, Ellicott, and Co. legit­ 88 Baltimore Gazetle, June 3, 1834. Poutlney's imately owed and were willing to pay immediately. Exposition was legally affirmed, so he could have Frances Fowler and Evan Poultney, Testimony in the been indicted for perjury had the secret Club not Case of the Bank of Maryland vs. Samuel Poultney known his statement to be accurate. and William T Ellicotl. (Baltimore, 1840). 89 Taney to Perine, June 20 and July 10, 1834; 71 Baltimore Gazelle, April 8, 1835. Johnson and Glenn, Final Reply, 98. 72 Bruchey, "Taney's Account," Maryland HislOr- 90 George Gibbs outlined the plot fairly accu- 78 YEARBOOK 1987 rately in a long letter to the Directors of the Union timore American, August 21,28, September 7, 9, 14, Bank of Tennessee [July, 1834) in Jonathan Mer­ 17, 19, October 2, 1835 ; Baltimore Gazette, August edith Papers, LC. Letters from Robert Mickle 21,1835. (cashier of the Union Bank of Maryland), Hugh 114 The Duer and Fowler statements and letters Evans (its new President), Sheriff Henry Sanderson were published in the Baltimore Gazette, Sep­ and Gibbs recount the controversy in the Baltimore tember 3, 4 and November 10, 1835. Republican, July 21,23,24 and 26, 1834. 11 5 Baltimore Gazette, September 19, October 14 9 1 The letters between Gibbs and the majority and 17, 1835. trustees were published in Morris and Gill, Ex­ 116 Stenographic transcript of Johnson's trial tracts, 50-54. The Republican of July 26, 1834 summation, Perine Papers, MdHS. published the proceedings of the meeting ofJuly 24. 117 Letter of the jury to Reverdy Johnson, De­ 92 Baltimore Republican, July 25, 1834. See also cember 15, 1835 in Baltimore Gazette, December the Republican of July 24 and the Baltimore 12, 1835; Baltimore American, December 18, 1835. American, July 25, 1834. 11 8 Poultney, Brief Exposition, 3; Ellicott, Con­ 93 Baltimore Republican, July 31, 1834. spiracy, 25-26; Fowler, Broadside Sto.temenl. 94 Evan T. Ellicott to Reverdy Johnson, July 26, 119 Niles'Register; 50 (June 25, 1836),295 reported 1834 in Johnson and Glenn, Reply, 41-44. the amounts recovered in the trials to date: from 95 Letter of Benjamin Chew Howard in ibid., 30. Thomas Ellicott, $28,100; from Poultney, Ellicott, 96 Richard W. Gill to Samuel Poultney, October 4, and Co., $34,400; and from Evan Poultney, 1834, 1. Hall Pleasants Papers, MdHS; Thomas $400,000. Niles' must have known, but didn't Ellicott letter, Baltimore Republican, April I, 1835; mention, that the Poultney settlement was only de Morris and Gill, Extracts, 26-42. The last repro­ jure with no money really gained. duces the correspondence relating to Fowler's find­ 120 Reverdy Joh nson, Memorial . .. to the Legis­ ings, with Fowler and Ellicott urging consideration, lature of Maryland Praying Indemnity for the De­ and Morris, Gill, Johnson and MacMahon refus­ struction ofhis Property . .. bya Mob . .. [Baltimore Ing. 1836];John 8. Morris, Memorial to the Legislature of 97 Baltimore Republican, March 3, 1835. The Maryland (Baltimore, 1836): Roger 8. Taney to William P. Preston Papers, MdHS, have several John Mason Campbell, March 6, 1836, Howard clippings and drafts of letters, some of them by Papers, MdHS. Preston, on this spring's controversies and creditor 121 Baltimore Republican, March 25, April 2 and schemes. 6, 1835; Baltimore Pal riot, March 27, 1836. The 98 The Taney-McMahon opinion and the trust­ Whig Chronicle supported the bill very quietly, and ees' responses were printed in the Baltimore Gazelle the Gazette was, of course, enthusiastic for it. and the Republican in early May, 1835. 122 The lengthy "Junius" letters were published in 99 Baltimore Gazelle, June 4, 1835. the Baltimore Republican on February 4,26, March 100 Poultney, Appeal, 3-7, 23-36, 48. 5, 17, 31 , 1836. 101 Johnson and Glenn, Final Reply, 52-58. 123 Baltimore Republican, February II, 1836. The 102 Johnson and Glenn, Final Reply, 108-9 William P. Preston Papers, MdHS, contain drafts of 10 3 Johnson and Glenn, Final Reply, 73, 87-94, several Preston proposals and letters attacking the 130. . secret Club or supporting the creditors at this time, 104 Johnson and Glenn, Final Repl) ~ 4-5. but none are nearly so broad-gauged or well-written 105 "Memorandum" by Perine accompanying as the Junius letters. the mob handbills in the Perine Papers, MdHS. 124 Reverdy Johnson, Memorial . . . to the Legis­ 106 Johnson and Glenn, Final Reply, 124-25. lature of Maryland (Baltimore, 1840). 107 T. 1. Beach, A Full and AuthenticAccoUnl ofthe 125 John N. McFaul and Frank O. Gatell, "The Rise and Progress of the Late Mob in the City of Outcast Insider: Reuben M. Whitney and the Bank Baltimore . .. (Baltimore, 1835); David Grimsted, War," Pennsylvania Magazine ofHistory and Biogra­ "Rioting in its Jacksonian Setting" American His­ phy, 91 (April, 1967), 115-44. torical Review, 77 (April, 1972): 376-89. 126 Reuben Whitney to Henry D. Gilpin; January 108 William Bartlett to Edward Stabler, August 27, 1833, Gilpin Papers; Whitney to William David 12, 1835, Maryland Historical Magazine, 9 (June, Lewis, September 25, 1833, Lewis-Neilson Papers, 1914): 161. HSPa. 10 9 Johnson to Balch, August 17, 1835 in Steiner, 127 Jackson to Taney, April 14, 1838, Taney Life ofJohnson, 13-14; Frederick Political Examiner Papers, MdHS. in Baltimore Gazette, August 24, and National 128 Taney to Jackson, August 5, 1833 Jackson Gazelle, August 28, 1835. Papers, LC; Swisher, Taney, 228-230. 11 0 New York Evening Post, August 14, 1835. 129 Tyler, Memoir ofTaney; Swisher, Taney; Lewis III Bass to Jonathan Meredith, July 30, 1835; Walker, Without Fear or Favor: a Biography ofChief Meredith to A. Van Wyck, October 7, 1835: Van Juslice Roger Brooke Taney (Boston, 1965). Wyck to Meredith, November 20, 1835 in Jonathan 130 Frank Otto Gatell, "Spoils of the Bank War: Meredith Papers, LC. Political Bias in the Selection of Pet Banks," 11 2 Ellicott, Conspirac) ~ 7. American Historical Review, 70 (October, 1964) II) Baltimore Republican, August 20, 1835; Bal- 35-58 offers the best survey of the general political- TANEY AND THE BANK OF MARYLAND 79 economic considerations influencing selection of 137 Kennedy, "Diary," August 7, 1834; March 24, the pets. 1835, Peabody Library, Baltimore; Niles'Register, 54 131 John Pendleton Kennedy, "Diary," December (February 2, 1839); 189; (July 26, 1834); 10, II and 21, 1833, Peabody Library, Baltimore. Semmes, Latrobe, 401. In his novel Quodlibet 132 Kendall, Autobiography, 386. Kendall noted, (Philadelphia, 1840) Kennedy mixed the two sides however, among the "political consequences" of of the Bank affair in his satire on Jacksonian policy, removal, that "it made Mr. Taney Chief Justice of while his "Diary," January 27, 1835, greeted Taney's the Supreme Court" and himselfPostmaster-Gen­ nomination to Chief Justice with dour enthusiasm: eral,422. "With reference to Taney's power of doing mischief, 1JJ The cartoon, from the MdHS, is reproduced it is probably best that he should be pockelled, as a in Grimsted, "Rioting in its Jacksonian Setting," billiard player would say, in the Supreme Court." American Historical Revie""l 77: 381. 138 Gatell, "Secretary Taney and the Balti more 134 John H. B. Latrobe, "Diary," March 24, 1834, Pets" Business History Review, 39 (1965), 207-23. MdHS. 139 Letter printed in Samuel Tyler, Memory of 135 Reverdy Johnson to Benjamin Chew Howard, Roger Brooke Taney LL.D (Baltimore, 1872), 239 ; August 23, 1835, Howard Papers, MdHS. Leonard White, The lacksonians (New York , 1959), 136 The William P. Preston Papers, MdHS, sug­ 201. gest Preston's legal and publicity efforts for the 140 Kennedy, "Diary," August 10, 1834, Peabody victims of the swindle. Library, Baltimore.

Appendices

CHARACTERS Speculator-Swindlers.' Ellicott, Evan T. - businessman; Democrat; son of Gwynn, William - attorney and editor; edits wealthy Quaker businessman and much younger Baltimore Gazelle, 1834-38. half-brother of Thomas Ellicott, with whom he's Howard, Benjamin Chew-attorney and politician; locked in an intense legal contest over their Democrat; Episcopalian; United States congress­ father's will. man, 1835-38, 35-39; U.S. Supreme Court Re­ Glenn, John - attorney and businessman; Whig; corder, 1843-62. Episcopalian; made a U.S. judge, 1844. Howard, Charles - attorney-businessman; Episco­ Johnson, Reverdy-attorney and politician; Whig; palian. Episcopalian; Maryland assistant attorney-gen­ Kendall, Amos - editor, politician, and busi­ eral under Taney, 1828; United States Senator, nessman; Democrat; Baptist; "Kitchen Cabi­ 1845-49, 1863-68; United States Attorney-Gen­ net," 1828-33; Postmaster-General, 1834-39. eral, 1849-51 ; Ambassador to Great Britain, McMahon, John YR. - attorney; Whig; legal 1868-69. advisor to Bank of Maryland trust, 1834-38. McElderry, Hugh - Busi ness man ; Democra t; Epis­ Mickle, Robert - cashier, Bank of Maryland, copalian; government representative on the 1831- 36; faci litates paymen t ofBank of Maryland board of the Bank of the United States, 1831-35. debts to important people and Club favorites. Perine, David - trust attorney; Democrat; Episco­ Niles, Hezekiah - edi tor of Niles' Register, 1811-37; palian; Roger Taney's financial aide in Baltimore. avoids presenting any material suggesting swin­ Taney, Roger B. - attorney and politician; Demo­ dle. crat; Catholic; Maryland Attorney-General, 1828-30; United States Attorney-General, Speculators Victimized by Swindle: 1831-33; Secretary ofthe Treasury, 1833-36; Chief Ellicott, William - businessman; Quaker; Demo­ Justice of the Supreme Court, 1836-64. crat; with Poultney, Ellicott, and Co. until 1837; son of Thomas Ellicott. Trustee-Swindlers: Poultney, Evan - banker, Quaker; Democrat; Presi­ Gill, Richard - attorney; Whig; Episcopalian; dent, Poultney, Ellicott, and Co. until 1831; Bank Baltimore City Attorney, 1834-1838. of Maryland, 1831-34. Morris, John B.-banker and businessman; Episco­ Poultney, Samuel - businessman; Quaker; with palian; president of Bank of Maryland, 1820-31 ; Poultney, Ellicott, and Co. until 1837; brother of Mechanics Bank, 1834-44. Evan Poultney. A//ies to the Swindlers: Other Victims Evans, Hugh - banker; president, Union Bank, Ellicott, Thomas - banker; Quaker; Democrat; 1834-41. President, Union Bank, 1814-34; trustee, Bank of Freeman, W.H. - banker and businessman; presi­ Maryland, 1834-38. dent, Susquehanna Bridge and Bank company, Poultney, Philip - hardware store owner; Quaker; 1832-36. brother of Evan and Samuel Poultney. 80 YEARBOOK 1987

Williams, Thomas - ship captain; invests life leader of riot, 1835. savings in Bank of Maryland on retirement in Preston, William P. - attorney and politicia 1832. Democrat; Cathol ic; arrested as suspected auth of "Junius." Public Opponents of Swindle: Ruff, Andrew - creditor leader in the struggle Fowler, Francis - accountant; English Quaker; have the Bank of Maryland books opened al publishes accurate resume of Bank of Maryland the majority trustees removed . finances in early 1835. Gibbs, George - banker; Whig; President, Union Observers: Bank of Tennessee, largest loser i n swindle;jailed Latrobe, Benjamin - engineer and diarist; Oem and forced out of Baltimore, 1834. crat; Episcopalian. Harker, Samuel - editor; Democrat; edits Bal­ Latrobe, John H.B. - attorney and diarist; Dem timore Republican, 1830s, which publishes anti­ crat; Episcopalian. swindle material at times. Kennedy, John Pendleton - author, businessma "Junius," - anonymous author of the fullest attack and diarist; Whig: Episcopalian. on the swindle, published in Harker's Republican, Atkinson, Joshua-accountant; his official audit 1836. 1838 confirms Fowler's findings against the S Mass, Samuel - cooper and politican; Democrat;' cret Club claims. President, Executive Council of Maryland, 1834; TANEY AND THE BANK OF MARYLAND 81

CHRONOWGY

Financial Events Sept., 1835 - Union Bank of Ten­ Oct., 1835 - majority trustees re­ nessee sells its Bank of Maryland cover $25,000 from Ellicott in first May, 1831 - Evan Poultney gains credits at less than a quarter of legal case, but without the pub­ control of the Bank of Md. and their value. licity victory they'd expected. John B. Morris is removed as Summer, 1838 -settlement of Bank Nov. , 1835 - E. and S. Poultney and president of it. of Maryland affairs pays current William Ellicott are acquitted of May, 1832 - Secret Club formed to creditors full value plus a 10% criminal charges run Bank of Md . dividend; accountant's report March, 1836 - Taney goes to An­ Fall , 1832-Secret Club buys up 900 supports Poultney's claims and napolis to lobby successfully for of the 1000 Bank of Md . shares; it Fowler'S earlier findings. riot indemnity for the swindlers; gains deposits from Baltimore Or­ Johnson goes to o.c. to lobby phan's cou rt , state of Maryland, successfully for Taney's confirma­ and US. Post Office. tion as Chief Justice of the Su­ Jan ., 1833 - Secret Club uses Bank Polil ical-Legal Events preme Court. of Md , funds to finance its newly May, 1836 - Poultney, now bank­ chartered General Insurance JUly, 1831 - bill to recharter Bank of rupt, doesn't contest second suit Company. US. introduced. for damages. May, 1833 - Secret Club uses Bank Feb., 1832 - Taney asks Ellicott to Spring, 1837 - Poultney, Ellicott and of Md . fundsto buy 6000sharesin olltline a substitute for the Bank Co., now bankrupt, doesn't con­ Union Bank of Md .; 2000 shares of U.S. test second suit for damages go to Poultney, Ellicott, and Co. July, 1832 Jackson vetoes bill to Oct. , 1833 -Johnson and Perine ask recharter Bank of US. with a Wrilings Taney to save Bank of Md.; message written largely by Ken­ $2,000,000 of federal deposits go dall and Taney. Late 1820s or early 1830s - Thomas to Union Bank, which sends Fall, 1832 - Jackson reelected Ellicott pamphlet on desirability $300,000 to Bank of Md . in pur­ April, 1833 - Ellicott explains his of substituting new system for chase of Tennessee bonds. plan to Jackson in an interview Bank of US. Nov., 1833 - agreement between Taney arranges. JUly, 1834 - Poultney sworn deposi­ secret owners and Poultney burnt. Summer, 1833 - Kendall goes on tion A Brief Exposilin of Mailers Jan., 1834 - $200,000 additional tour to select pet banks for special RelGling 10 Ihe Bank of Maryland. government deposits go to Bank deposits. Aug., 1834 - Johnson and Glenn of Md. as Union Ban k purchases August, 1833 - Ellicott's Union pamphlet, Reply 10 a Pamphlel rest of Tennessee bonds, Bank named Maryland pet. Emilled . .... Perine pamphlet, To Feb. , March, 1834 - Secret Club Sept., 1833 - hard money Secretary Ihe CredilOrs oflhe Bank of Mary­ members abstract their credits of Treasury William Duane fired land. from the Bank of Md ., while in­ and Taney appointed to institute March, 1835 - Fowler publishes cresing their personal and corpo­ pet system. broadside account of his findings rate debts to it. Oct., 1833 - Taney issues drafts to July, 1835 - Poultney pamphlet An March 24 , 1834 - Bank of Md. pet banks in case of a ru n on them Appeal 10 the Credilors oflhe Bank closes, and Ellicott quickly made by the Bank of U.S.; sends extra of Maryland. . ; Johnson and sole trustee. $200,000 with Johnson and Per­ Glenn pamphlet A Final Reply 10 April, 1834 - Ellicott agrees to re­ ine to Union Bank with verbal the Libels of Evan Poultney.. constitute the trust with Richard instructions it go to Bank of Md. Early 1836 - Johnson and Morris Gill and John B. Morris as co­ Jan., 1834 - Taney sends $200,000 publish pamphlets asking legis­ trustees. more to Bank of Md. through lative indemnity for riot damage. May 1834- trustees Morris and Gill Union Bank. Feb., March, 1836 - "Junius" letters issue sketchy report suggesti ng Spring, 1834 - public meetings and expose swindle in Republican. huge Bank of Md. deficit and long petitions call forrecharterofBank Early 1839 - Ellicott book Bank of legal delays. of US. in some form . Mar),land Conspiracy. . July. 1834 - Ellicott ousted from Late March, 1834 - Taney, allegedly Later, 1839 - Taney composes his Union Bank and replaced by Se­ with Jackson's support, pushes manuscript histories to absolve cret Club choice, Hugh Evans. Ell icott to resign sole trust. the Secret Club and refute Ellicott Dec., 1834 - Poultney, Ellicott and April, May, 1834 - Taney connives to 1840 - Johnson publishes a memo­ Co. gains permission for an ac­ create a cash crisis in the Union rial to absolve the Secret Club, countant to examine Bank of Md . Bank. refute Ellicott, and aid his quest books. May, June, 1834 - Secret Club orga­ for a US. Senate seat March 1835 - Accountant Francis nizes effort to oust Ellicott from Fowler tells trustees books show presidency of Union Bank. no major deficit nor grounds for July, 1834 - George Gibbs arrested legal cases; trustees bar him from for criticizing new policies of the fu rt her access. Union Bank and required to leave Spring, 1835 - creditors try to force Baltimore, Ellicott removed. opening of books and resignation Aug., 1835 - rioters sack the homes of majority trustees legally; court of Glenn, Johnson and Morris rules against creditors and Morris and damage property of other and Gill refuse to resign. swindlers. John Marshalls Selective Use ofHistory in Marbury v. Madison by Susan Low Bloch and Maeva Marcus

EDITOR'S NOTE: The following article is based sub­ stantially upon materials collected by the Documentary History Project of the Supreme Court of the United States, 1789-1800. The project is co-sponsored by the Supreme Court Historical Society and the Supreme Court of the United States and funded through the Supreme Court, the National Historical Publications and Records Commission and the generosity of various private donors. This article, which first appeared in the Wisconsin LaHi RevieHl, would not have been possible without the research conducted by the Documentary History Proj­ ect's staff members: Maeva Marcus, James Buchanan, Christine Jordan, James Perry, Steven Tull.

Wisconsin Law Review Editor's Note: Professors Bloch and Marcus shed new light on a landmark case. They examine ChiefJustice John Marshall's opinion in Marbury v. Madison and argue that Marshall misused precedent to support his controversial conclusions. In Mar­ bury, the Court decided that the judiciary could issue a writ ofmandamus to an executive official, but that Congress couid not authorize the Su­ preme Court to issue such a writ in its original jurisdiction. The Court thereby asserted au­ Chief Justice John Marshall (1801-1835) thority over both the executive and legislative branches, while avoiding a confrontation with President Jefferson. The authors maintain that the single, unnamed case Marshall relied on to because they undermined his conclusion that the support his first conclusion was in fact a com­ COurl lacked jurisdiction and were not easily posite ofthree unreported suits entertained by the distinguishable. The authors surmise that Mar­ Supreme Court during the decade preceding shall disregarded precedent in order to take Marbury. Professors Bloch and Marcus then advantage of the unique opportunity Marbury argue that Marshall, in his discussion of Con­ presented to establish the judiciary as an inde­ gress's power to define the Court's original juris­ pendent and equal branch ofgovernment without diction, ignored these same cases, and others, risking a confrontation with the executive. JOHN MARSHALL 83

I. Introduction writ in the exercise of its original juris­ diction? Marbury v. Madison, 1 perhaps the most This was not the first time the Supreme Court famous case in American constitutional his­ had faced these inquiries. Similar issues had tory, is renowned for a variety of reasons but arisen in suits dealing with Congress's pension rarely for its selective use of precedent. 2 The programs for wounded Revolutionary War first case in which the Supreme Court, speak­ veterans. Mashall knew of these cases and ing unanimously through Chief Justice John referred to them, but his use of them is MarshalJ,3 held an Act of Congress uncon­ remarkable. He discussed an unnamed case stitutional, declared judicial authority to order dealing with these pension programs, but it executive officials to perform specific stat­ appears that he in fact merged several different utory duties, and laid the foundation for the proceedings to create this single case. Thus, modern "political question" doctrine,4 Mar­ the only American precedent the Chief Justice bury is considered a masterpiece' of judicial relied on in the entire Marbury opinionS statesmanship. Chief Justice Marshall is both apparently did not exist as he described it. praised and criticized for the clever selection Marshall employed this conflated case to and ordering of issues that enabled him to support his first conclusion that a writ of assert judicial power over both the legislative mandamus could issue to , order a cabinet and executive branches, while simultaneously official to do his duty, but disregarded the same insulating these controversial assertions from proceedings when they conflicted with his confrontation and defiance. 5 As Professor second conclusion that the Supreme Court McCloskey noted: "The decision is a master­ could not issue such a writ in the exercise of its work of indirection, a brilliant example of original jurisdiction. This Article will exam­ Marshall's capacity to sidestep danger while ine this notably selective and arguably disin­ seeming to court it, to advance in one direc­ genuous use of history by the Chief Justice. As tion while his opponents are looking in an­ we will show, the initial misstatement of other."6 precedent may have been inadvertent; the What is rarely noted about Marbury, convenient omission of the same precedent a though, is Marshall's striking use, or misuse, few paragraphs later could not have been. of history. Yet, recent research on Supreme Court precedents from the initial ten years of II. The Invalid Pension Cases its existence suggests that the Chief Justice's clever craftsmanship went beyond skillfully Before we discuss the confusion in Chief selecting and ordering issues. Our analysis of Justice Marshall's treatment of precedent in these earlier cases suggests that Marshall took Marbury, it is necessary to recount briefly the substantial liberties with these precedents. history of the disabled veterans cases. The The facts of Marbury are well-known. Fed­ story begins with Congress's passage, on eralist William Marbury had been selected to March 23, 1792, of "An Act to provide for the be ajustice of the peace by outgoing Federalist settlement of the Claims of Widows and President John Adams. Marbury's commis­ Orphans barred by the limitations heretofore sion had been signed and sealed just hours established, and to regulate the Claims to before Adams left office but had not been Invalid Pensions."9 The act described the delivered. The case arose when Marbury procedure by which a disabled veteran could petitioned the Supreme Court to issue a writ of obtain a pension from the United States. The mandamus ordering the new Republican Sec­ applicant was required to appear before the retary of State, James Madison, to deliver the Circuit Court of the United States for the commission to him. 7 district in which he resided 10 and prove that he In deciding whether the Court could grant had been wounded during the Revolutionary Marbury the relief he sought, Chief Justice War in the service of the United States and had Marshall confronted several difficult legal not deserted. II Upon receipt of such proof, the questions, two of which concern us here: circuit court had to inquire into the nature and ( 1) Could a writ of mandamus ever issue to degree of the disability and recommend to the the head of an executive department? Secretary of War whether the applicant should (2) Could the Supreme Court issue such a be placed on the pension list and how much of 84 YEARBOOK 1987

William Marbury (left) never received his commission as a justice of the peace, although it was duly signed by the outoing Federalist President, John Adams, on his last day in office. His suit against President Jefferson's newly appointed Secretary of State, James Madison (right), who had refused to deliver the commission, touched off a political storm between the federalist-dominated Court and the newly elected Democratic-Republic President. a pension he deserved. When the Secretary the constitution, neither the Secretary of War, nor received all this information, he was to add the any other execu tive officer, nor even the Legislature, are authorized to sit as a court of errors on the applicant's name to the pension list, provided judicial acts or opinions of this court. 14 he found no reason to suspect any "imposition or mistake." If he had such suspicions, the Thejudges of the New York circuit court, John Secretary was empowered to withhold the Jay, William Cushing, and James Duane, then applicant's name from the list and was re­ declared that, in view of the benevolent pur­ quired to report his decision to Congress at its poses of the Act, they would agree to conduct next sessionY the invalid pensions business as commis­ The judges of the circuit courts refused to sIoners: proceed under the Invalid Pensions Act of As, therefore, th e business assigned to this court by 1792, claiming that the duties assigned to the the act is not judicial, nor directed to be performed judicially, the act can only be considered as appoint­ courts were not of a judicial nature and, ingcommissioners for the purposes mentioned in it therefore, that the courts had no constitu­ by official instead of personal descriptions. tional power to perform them. J 3 As explained That the judges of this court regard themselves as being the commissioners designated by this act, and by the judges of the Circuit Court for the therefore as being at liberty to accept or to decline district of New York: that office. 15

That, by the constitution of the United States, the These judges, as well as some others, then Government thereof is divided into three distinct and independent branches; and that it is the duty of heard invalid pension claims as commis­ each to abstain from and to oppose encroachments sioners.16 on either. The cases that formed the precedent re­ That neither the legislalive nor the executive branch can constitutionally assign to the judicial ferred to in Marbury v. Madison arose as a any duties but such asare properly judicial, and to be result of the judges' willingness to serve as performed in a judicial manner. commissioners under the 1792 Act. From That the duties assigned to the circuit courts by this act are not of that description, and that the act April, 1792, until Congress passed a new itself does not appear to contemplate them as such, invalid pension law in February, 1793,17 the inasmuch as it subjects the decisions of these courts judges-acting as commissioners and not as a made pursuant to those duties, first to the consid­ eration and suspension of the Secretary of War, and circuit court-processed the claims ofRevolu­ then to the revision of the Legislature; whereas, by tionary War veterans in the manner pre- JOHN MARSHALL 85 scribed by the 1792 Act. Congress, in the mandamus to the Secretary of War ordering course of that year, became convinced that the him to put Chandler on the pension list of the judges' doubts about the constitutionality of United States in conformity with the recom­ the Act were well-founded; 18 the new law mendation of James Iredell and Richard Law, replaced the circuit courts with district judges judges of the Circuit Court of the United States and reduced their role to merely hearing the for the district of Connecticut sitting as com­ evidence. Wishing to settle the question of the missioners. Chandler, a Revolutionary War validity of pensions granted under the 1792 veteran resident of Connecticut, had pre­ law, Congress also ordered the Secretary of sented to the judges of the circuit court War and the Attorney General to seek an affidavits indicating that he had been disabled adjudication from the Supreme Court of the during the war. In addition, he produced United States of rights claimed under the depositions stating that he had resigned his Invalid Pensions Act of 1792. 19 As will be seen commission in the Continental Army because in Part III,20 the various proceedings brought of his in firmities. 25 The judges apparently had to determine the legitimacy of actions taken accepted the evidence Chandler submitted by the circuit judges as commissioners became and certified his eligibility to be placed on the the raw material from which Marshall fash­ pension list, but Secretary of War Knox had ioned his invalid pension case in Marbury not done so. The Supreme Court told Edmund Attorney General Edmund Randolph that it would hear argument on his motion as quickly responded to Congress's directive to soon as the case presently before it was seek a judgment from the Supreme Court. In concluded. 26 August, 1793, the term of court after the 1793 Cryptic entries in the minutes of the Su­ Act to Regulate the Claims to Invalid Pensions preme Court give little information about the became law,21 Randolph moved the Court for substance of the argument in Chandler. On a mandamus to the Secretary of War com­ February 7, the Court heard Edmund on "the manding him to put on the pension list of the subject of his motion made on the 5th in­ United States an applicant whose claim had stant."27 Almost one week later, on February been approved by thejudges acting as commis­ 13, the Court again heard "argument of coun­ sioners. Randolph did not appear as counsel sel on the motion of Mr. Edmund for a for any particular applicant, and two of the five mandamus to the Secretary of War."28 The justices in court, Randolph reported in a letter very next day the Court announced its deci­ to the Secretary of War, "expressed their sion: "The Court having taken into Considera­ disinclination to hear a motion in behalf of a tion the motion of Mr. Edmund of the 5th man who had not employed me for that instant, and having considered the two Acts of purpose, and I being unwilling to embarrass a Congress relating to the same, are of opinion great question with little intrusions, it seemed that a Mandamus cannot issue to the Secre­ best to waive the motion until some of the tary of War for the purposes expressed in the invalids themselves should speak to coun­ said motion. 29 Based on this brief entry in the sel."22 The Attorney General urged the Secre­ minutes, no rationale for such a decision can tary of War to write to some of the invalid be advanced with any certainty, although, as veterans whom the judges had certified as will be seen, several are plausible. 3o eligible for pensions to inform them of the way The second invalid pension case on the matters stood. Although there had been an Supreme Court's docket in February, 1794, invalid veteran in court when Randolph made United States v. Yale Todd, was brought specifi­ his motion, the invalid had failed to identify cally in response to Congress's directive to seek himself to the Attorney General until after the an adjudication of rights claimed under the Court had adjourned, too late for Randolph to Invalid Pensions Act of 1792. Because Ran­ appear as his cou nsel. 23 dolph's motion for mandamus had failed in At the February, 1794 term, the Supreme August, 1793, newly-appointed Attorney Gen­ Court heard two cases dealing with invalid eral William Bradford sought a new hearing pensions, Ex parte Chandler and United States before the Court. 31 The case is not reported v. Yale Todd. 24 On february 5, William Ed­ and there is only one entry dealing with it in mund, counsel for John Chandler, moved for a the minutes of the Supreme CourtY Our 86 YEARBOOK 1987

knowledge of the case is greatly amplified, taken "1O o.btain a decision o.fthe Supreme Co.urt o.f however, by the existence of a copy of the the Untted States uPo.n the validity o.fthe adjudica­ lIo.ns of certain perso.ns styling themselves co.mmis­ papers filed in the Yale Todd suit that Chief slOners under the act o.fthe 23d of March 1792" that Justice Taney ordered appended to the report co.urt has this day determined (in the case o'f Yale 4 of United States v. Ferreira in 1852. 33 These To.dd) that such adjudicatio.ns are no.t valid I papers note that on February 15, 1794, William The Secretary of War then related this result to Bradford, Attorney General of the United Congress in his report of February 21, 1794. States, came before the Court34 and informed The Secretary noted Attorney General Ran­ it that on May I, 1793, Yale Todd of North dolph's ineffective attempt to obtain an ad­ Haven, Connecticut was indebted to the judication of the Supreme Court in August, United States in the sum of $172.91 "for so 1793, and Attorney General Bradford's recent much money had and received."35 Todd had successful litigation in which the Court had obtained this money as a result of the favorable decided that "the determinations of the com­ ~ction on his pension claim taken by the missioners were held to convey no legal rights Judges of the Circuit Court for the district of to the invalids claiming under them."42 As we Connecticut and the Secretary of War in May, will argue in part III, the fact that neither the 1792. Bradford stated that Todd had promised Secretary of War nor the Attorney General to repay the United States but had not done so discussed the Chandler case suggests that the despite having been asked several times. 36 government had had nothing to do with John Hallowell, attorney for the defendant, instituting Chandler's motion and did not declared that his client had never agreed to consider it part of the government's efforts to repay the United States.37 Presumably the settle the question of the invalid pensioners' theory underlying the suit was that Todd's legal rights under the 1792 Act. pension had been improperly granted, be­ cause the Judges, acting as commissioners, had III. Marshall's Selective Use of Precedents no authority to grant a pension. The suit was a in Marbury standard action on the case for money had and received, with a plea of non assumpsit. 38 In the When William Marbury petitioned the final paragraph of the papers submitted in Supreme Court to issue a writ of mandamus court the Attorney General and counsel for ordering the Secretary of State to deliver Todd agreed that Marbury's commission, Marshall divided his analysis into three questions: if this Court ~hall be o.f o.pinio.n that the said judges o.f said Orcult Co.urt sitting as Co.mmissio.ners and (1) Did Marbury have a right to the no.t as a Circuit Co.urt had Po.wer & autho.rity by commission? virtue o.f Said Act so. to. o.rder and adjudge o.f and (2) If he had a right and that right had been Co.ncerning the premises that then judgment shall be given fo.r the defendant - Otherwise fo.r the violated, did the laws of this country United States fo.ro.nehundred & seventy two. do.llars afford him a remedy? & ntnety one Cents damages and Six Cents Cost. 39 (3) Ifthelaws did afford him a remedy, was the remedy a writ of mandamus A single entry in the minutes of the Su­ directed to the Secretary of State from preme Court records the history and the the Supreme Court?43 decision in United States v. Yale Todd: "The After answering the first two questions in Pleadings; and agreement of the Attorney the affirmative,44 Marshall turned to the third. General of the United States and the Attorney He subdivided this question into two parts: for the defendant being read and filed; and the (a) Was a writ of mandamus directed to the Case argued the Court having also taken the Secretary of State the appropriate remedy? same into Consideration are of opinion that (b) Could the Supreme Court issue such a Judgment be entered for the plaintiff in the wnt.. ?45 M arshall knew that the earlier pro- above suit."40 The Attorney General commu­ ceedings involving the invalid pension acts nicated the significance of this result to the were relevant to the first of these two inquiries Secretary of War in a letter dated the day that and used them, but he discussed those pro­ the decision came down. ceedings imprecisely. More remarkably, when [ have to. repo.rt, that, in co.nsequence of measures those same proceedings undermined his an- JOHN MARSHALL 87 swer to the second question, he ignored them. his description. As we will show, it is likely that the pension "case" Marshall had in mind was A. Marshall's Seleclive Scrambling ojPrecedenl a composite of the three different pension proceedings set forth in Part II. The form of To support his view that a court could issue the action, the parties in the "case," and the a writ of mandamus to a cabinet official, motivation for the litigation - a mandamus Marshall referred to an unnamed case. But motion brought by the United States Attorney there was no such case, at least not as he General against the Secretary of War to carry described it. Marshall stated the case as follows: out Congress's directive to obtain a Supreme Court adjudication of rights claimed under It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the the 1792 Act - seemed to be derived from pension Jist such disabled officers and soldiers as Attorney General Randolph's mandamus ac­ should be reported to him , by the circuit courts, tion pursuant to Congress's 1793 directive. The which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of disposition of the "case" -denied because the the judges thinking that the law might be executed commissioners' reports conferred no legal by them in the character of commissioners, pro­ right - appears to be borrowed from ceeded to act, and to report in that character. This law being deemed unconstitutional at the Chandler's motion for a writ of mandamus. circuits, was repealed, and a different system was Finally, the legal consequence of the "case"­ established; but the question whether those persons requiring all veterans recommended by com­ who had been reported by the judges, as commis­ sioners, were entitled, in consequence of that report, missioners' reports to start anew under the to be placed on the pension Jist, was a legal question, 1793 Act - seems to have come from the suit properly determinable in the courts, although the brought by Attorney General Bradford against act of placing such persons on the list was to be performed by the head of a department. Yale Todd. That this question might be properly settled, Marshall's "case" involved a motion for a congress passed an act in February, 1793, making it writ of mandamus from the Supreme Court to the duty of the secretary of war, in conjunction with the Secretary of War. As related earlier, two the attorney-general, to take such measures as might be necessary to obtain an adjudication of the such actions had been initiated. Attorney supreme court of the United States on the validity of General Edmund Randolph brought one in any such rights, claimed under the act aforesaid . August, 1793 and veteran John Chandler After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, instituted one in February, 1794. It is not clear commanding him to place on the pension list, a which, if either, of these ChiefJustice Marshall person stating himself to be on the report of the had in mind. judges. There is, therefore, much reason to believe, that One's first impression is that he was refer­ this mode of tr ying the legal right of the complai­ ring to Chandler's motion in 1794. Marshall nant was deemed by the head ofa department, and said the mandamus was moved to direct the by the highest law officer of the United States, the most proper which could be selected for the pur­ Secretary of War "to place on the pension list, pose. a person stating himself to be on the report of When the subject was brought before the court, thejudges."47 This sounds like a motion made thedecision was, not that a mandamus would not lie 48 to the head of a department directing him to by an identified person on his own behalf. perform an act , enjoined by law, in the performance Randolph had made his motion as Attorney of which an individual had a vested interest; but that General of the United States, without being a mandamus ought not to issue in that case, the decision necessarily to be made if the report of the employed by any veteran, and in fact, appar­ commissioners did not confer on the applicant a ently for that reason 49 had not been allowed by legal right. the Court to proceed with his motion. Mar­ Thejudgment, in that case, is understood to have decided the merits of all claims of that description; shall's wording suggests he was thinking not of and the persons, on the report of the commis­ Attorney General Randolph's motion but of sioners, found it necessary to pursue the mode Chandler's motion on his own behalf. prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place But the opinion also suggests that the "case" themselves on the pension list. was brought to implement the 1793 congres­ The doctrine therefore, now advanced, is by no sional directive ordering the Attorney General means a novel one.46 and the Secretary of War to seek a Supreme Marshall appears to be describing a single Court adjudication on the validity of veterans' case, but there is no one case that exactly fits claims under the 1792 Invalid Pensions Act. 88 YEARBOOK 1987

Again, two cases fit that description, but neither seems to be Chandler's motion. At­ torney General Randolph's motion in 1793 was an effort to carry out Congress's directive. Randolph so characterized it in his letter to Secretary of War Knox on August 9, 1793:

(n consequence of our arrangement I moved the Supreme Court of the United States on Tuesday last for a mandamus to be directed to you , as Secretary of War, commanding you to put on the pension list one of those who had been approved by thejudgesacting in the character of commissioners. 50

Subsequently, Randolph's successor, Attorney General William Bradford, made another effort to carry out Congress's directive by bringing suit against Yale Todd in February 1794. But that was not a mandamus action. Chandler's motion, by contrast, does not appear to have been inspired or directed by the highest law officer of the United States. 51 Marshall's characterization of the decision in the "case" suggests that he was reporting the Attorney General Edmund Randolph carried the Invalid result in Chandler but giving the rationale Pension case to the Supreme Court. from Yale Todd. Marshall wrote:

[T]hedecision was, not thata mandamus would not pension laws and was not a statement regard­ lie to the head of a department directing him to perform an act, enjoined by law, in the performance ing the Court's authority to mandamus cabi­ o f which an individual had a vested interest; but that net officers generally. a mandamus ought not to issue in that case; the However, Marshall also suggested that a decision necessarily to be made if the report of the commissi oners did not confer on the applicant a mandamus was inappropriate in the "case" he legal right. was discussing because the report of the Thejudgment, in that case, is understood to have commissioners conferred no legal right and decided the merits of all claims of that description; and the persons. on the report of the commis­ that, after the Court's ruling, all persons sioners, found it necessary to pursue the mode recommended by commissioners' reports had prescribed by the law subsequent to that which had to follow the newly revised procedures of the been deemed unconstitutional, in order to place themselves on the pension list." 1793 Act to get onto the pension list. This description may fit Chandler but not nearly as Marshall was describing a case where the well as it fits Yale Todd. The Court may have Court denied the wri t not because it could not denied Chandler the wri t because, as Marshall issue a writ of mandamus to a cabinet officer suggested, the commissioners' report con­ but because mandamus was inappropriate ferred no legal right. In fact, there are several under the circumstances of the particular case. theories under which the Court could have so He obviously was not recounting the man­ concluded and which would have meant that damus motion of Attorney General Randolph all applicants in Chandler's position - recom­ since that motion was never ruled on; indeed mended by the commissioners but not listed Randolph never even completed the motion. by the Secretary - wou ld have to proceed anew Marshall may have been describing the ruling under the revised procedures of the 1793 Act. 54 in the Chandler case. The Court in Chandler However, it is also possible that the Court said that "having considered the two Acts of denied Chandler's motion, not because the Congress relating to [invalid pensions, it was] commissioners' reports generally conferred no of opinion that a Mandamus cannot issue."53 legal right, but because there were reasons This statement is certainly consistent with a specific to Chandler justifying the Secretary's suggestion that the denial was specific to the decision not to put Chandler's name on the JOHN MARSHALL 89 list. 55 Had Chandler's motion been denied for procedures.6o any of these reasons, one could not conclude If Marshall had this larger class of claims in that all veterans recommended by reports of mind, then his characterization described the commissioners would have to start anew consequences of Yale Todd, not Chandler. The under the 1793 Act. decision in Chandler, even read most broadly, In contrast to the uncertainty regarding the settled, at most, the rights of veterans who had Court's rationale in Chandler, there is no been recommended but never placed on the question that in YaJe Todd the court did pension list. It is only YaJe Todd that required conclude that the commissioners' report con­ all those recommended by commissioners' ferred no legal right. Attorney General Brad­ reports, including those already successfully ford so characterized the decision in his report placed on the pension list, to begin anew. to Secretary Knox immediately after the Todd Thus, Marshall's portrayal of both the reason­ decision: "The Court has this day determined ing and the consequences of the "case" seems that such adjudications of ceriain persons to fit Attorney General Bradford's assumpsit styling themselves commissioners ... are not action against Yale Todd better than it does valid." 56 Similarly, in Knox's report to Con­ Chandler's mandamus motion. gress he noted that the Court in Yale Todd had That Chief Justice Marshall's mandamus decided that "the determinations of the com­ case may never have existed but is instead a missioners were held to convey no legal rights composite of three different proceedings is to the invalids claiming under them." 57 Thus, interesting but not shocking. None of these Marshall's characterization unambiguously three cases was reported. Getting information describes the holding of Yale Todd. Again, on cases was a far-cry from the modern day use however, that was not a mandamus action. of Lex is and Westlaw. 61 Marshall probably was Marshall's description of the legal con­ relying on the argument of Marbury's counsel, sequences of the "case," though again ambigu­ discussions of the invalid pension cases in the ous, also suggests he was thinking of Yale Todd, congressional debates on the repeal of the not Chandler. Marshall wrote: "the judgment, Judiciary Act of 1801,62 and the memories of in that case, is understood to have decided the the two Justices who had been on the bench in merits of all claims of that description."58 It is 1793 and 1794, William Cushing and William unclear to what claims he was referring. If Paterson.63 Marshall also may have been Marshall meant only claims of veterans who depending on his own recollection of these were recommended by the commissioners' events, even though they had occurred nine or reports but who were not placed on the ten years earlier while he was engaged in pension list by the Secretary of War, then, if private practice in Richmond, Virginia. 64 one gives Chandler the broadest of all possible Moreover, Marshall's scrambling did not readings, the "case" Marshall describes may seriously distort history; he could have made be Chandler. However, several factors suggest most of his points even with an accurate that Marshall's phrase "claims of that descrip­ portrayal of the proceedings. Nonetheless, one tion" designated a larger class of claims - cannot ignore the fact that Marshall appar­ namely, all claims based on the 1792 Act ently chose not to give his "case" a name, did including those of persons the Secretary of not specifically mention the name "John War had already placed on the pension list. Chandler" anywhere in the opinion, and The "case" Marshall had in mind was, he portrayed a composite case that offered more suggested, brought to carry out the 1793 effective precedent than an accurate depiction congressional directive to the Attorney Gen­ of the three proceedings would have pro­ eral to obtain a Supreme Court adjudication vided.65 Had Marshall focused on Chandler's of the validity of rights claimed under the 1792 motion accurately and not relied on conven­ Act and Congress wanted a determination of ient borrowings from Randolph's motion and the validity of all claims under that Act. 59 the suit against Yale Todd, his argument would Moreover, Marshall indicated that after the have been less forceful and less neat for several judgment in the "case," it was necessary for all reasons. First, it would have been difficult to persons recommended by the commissioners' suggest that the head of an executive depart­ reports to start again with Congress's new ment and the country's highest legal officer 90 YEARBOOK 1987

turned to the question of the Supreme Court's power to grant such a remedy. Part of Mar­ shall's genius in Marbury. as commentators have often noted, was his ability to assert power over the executive without providing an opportunity for anyone to object to or to defy the Court.69 Marshall accomplished this by declaring that the Court had no jurisdiction in the case. He decided that section 13 of the Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs o~ man­ damus to executive officials but that artIcle III . of the Constitution did not permit Congress to grant such authority to the Court. Thus, by simultaneously assumingand rejecting power, Marshall not only asserted authority over the executive, but over the legislature as well. 70 As both admirers and detractors have ob­ served, Marshall had to work hard to find this conflict between the Judiciary Act and the Constitution.7 1 It would have been easy to '" interpret section 13 in such a way as to avoid ~ having it confer original jurisdiction .on the ~ Court72 or to read article III to permIt Con­ ~ gress to move cases from the S~p .rem~ C?U~t's :3 appellate jurisdiction to its ongmal Junsdlc- Because Attorney General Randolph's motion for man- tion. 73 In light of the fact that many of the damus failed in August, 1793, his successor William drafters of section 13 were the same individu- Bradford (above) sought a new hearing before the Court. als who had participated in the Constitutional Convention, the existence of a conflict be­ were behind the suit.66 Second, while Marshall tween the two documents was neither likely could have contended that the Supreme Court nor obvious. 74 Yet, Marshall carefully ignored denied the writ, not because mandamus could that fact notwithstanding his willingness to not be addressed to an executive official but embrace' the point on the occasions when it because the commissioners' report conferred was more useful. 75 no legal right, Marshall would have had to But Marshall did more than ignore the fact acknowledge that the Court's statements were, that it was unlikely that the same men who had in fact, ambiguous. 67 Finally, Marshall c?uld drafted article III in 1787 could unwittingly not have suggested that the judgment deCIded enact a conflicting jurisdictional statute only the fate of all veterans recommended by the two years later. He also totally disregarded.the commissioners or that it settled all questions fact that the pension "case" that he had Just of rights under the 1792 Invalid Pensions Act. relied on in his mandamus discussion ap­ By scrambling several proceedings, either peared to raise the same jurisdictional prob­ knowingly or inadvertently, Marshall created lem he faced in Marbury Whichever man­ useful precedent.68 However, even more re­ damus action one considers, whether the one markable is the way he disregarded the same brought by Attorney General Randolph or the precedent only a few paragraphs later when it one brought by the veteran Chandler, it was an undermined his jurisdictional argument. original motion in the Supreme Court seeki.ng a writ of mandamus directed to an executIve B. Marshall's Convenient Omissions official. Marshall could not have been unaware oj Precedent that the jurisdictional posture seemed to be Having concluded that mandamus was the identical to the one in Marbury His descrip­ appropriate remedy for Marbury, Marshall tion of the pension case made the identity JOHN MARSHALL 91 obvious. He simply ignored the obvious. 76 asserted that the Court failed to discuss the Marshall also ignored the fact that, in jurisdictional issues in the prior mandamus addition to the Randolph and Chandler mo­ cases because it was able to deny the motions tions to mandamus the Secretary of War, the for other reasons. When Marshall found him­ Court had entertained another case in which it selfin a comparable situation in United States was asked to issue a wri t of mandamus agai nst v. More,83 that is, confronted by precedent in an executive officer and the Court never which the Court had exercised jurisdiction questioned the constitutionality of such juris­ where Marshall believed no jurisdiction ex­ diction. In 1794, the Supreme Court in United isted, he distinguished the conflicting prece­ States v. Hopkins,77 considered a motion for a dent. He states in More: "No question was writ of mandamus to direct John Hopkins, made, in [the prior case], as to thejurisdiction. Commissioner of Loans for the district of It passed sub silentio, and the Court does not Virginia, to allow one Richard Smyth to consider itself as bound by that case."84 He did subscribe to a loan authorized by Congress. not think the distinction too obvious to After "argument and full consideration," the warrant mention. Court denied the motion because "the right Another potential distinction could have claimed by the petitioner in the present case been to suggest that Chandler's motion was an does not appear sufficiently clear to authorise attempt to invoke the appellate, not the orig­ the Court to issue the Mandamus moved inal, jurisdiction of the Supreme Court. As for."78 Jurisdiction apparently was never ques­ Marshall noted in Marbury: "It is the essential tioned . criterion of appellate jurisdiction, that it re­ Inadequate reporting of the early cases vises and corrects the proceedings in a cause might explain Marshall's scrambling of prece­ already instituted, and does not create that dents; it cannot, however, explain why he cause."8S Thus, Marshall could have asserted ignored the conflicts these cases appear to that when Chandler petitioned the Supreme present. He clearly knew of the pension case Court for a mandamus to the Secretary of War, (or cases) because he hadjust cited it (or them) he was not initiating a new judicial action but only a few paragraphs earlier. He was also was continuing an action already begun by his clearly aware of the existence of other man­ earlier application to the circuit judges/com­ damus motions in the Supreme Court that missioners.86 Marshall, however, made no presented similar jurisdictional issues. In oral mention of this rationale at all. Perhaps argument, Charles Lee, attorney for Marbury Marshall and his colleagues did not believe the and former Attorney General of the United distinction accurate. After all, the circuit States,79 cited both Chandler and Hopkins and judges had carefully said they could not and noted that on these occasions, as well as on would not act as judges. Perhaps Marshall several others, the Court had entertained believed that whatever the merits of the dis­ mandamus motions without questioning its tinction for Chandler, it would not distinguish jurisdiction.8o Lee observed: Hopkins, and distinguishing only Chandler would make the contlict with Hopkins more In none of these cases, nor in any other,81 was the power of this court to issue a mandamus ever apparent. denied. Hence it appears there has been a legislative Perhaps Marshall thought that citing or construction of the constitution upon this point, distinguishing precedent was simply unneces­ and a judicial practice under it, for the whole time since the formation of the government a2 sary in this portion of the Marbury opinion. While this would be inconsistent with his Marshall, however, never mentioned any of citing of the pension case (or cases) earlier in these cases in his opinion. the opinion and his treatment of conflicting Why did he make no attempt to distinguish precedent in More, and other cases,87 it would them? It is not that distinctions were unavaila­ not be surprising given his general disinclina­ ble. Marshall could have tried to dismiss these tion to cite precedent88 and his "celebrated precedents by noting that the jurisdictional absent-mindedness and disorderliness."89 As issues in these cases were not argued and were Professor Currie noted, Marshall's "disdain decided at most sub silentio. He could have for precedent in general was extraordinary 92 YEARBOOK 1987 even when it squarely supported him."90 For case-suggest that prior to Marbury, the Court example, the question in Marbury as to not only never questioned the constitu­ whether the Court could examine the consti­ tionality of section 13, but also did not read tutionality of a statue and, if it found it article III as restrictively as Marshall did in inconsistent with the Constitution, refuse Marbury. Moreover, the legislative history of enforcement, was not an issue of first impres­ the Judiciary Act of 1801 indicates that even sion despite Marshall's indications to the John Marshall may not have read article III as contrary. Marshall could have found support restrictively as a congressman in 1800 as he did for his conclusion in a number of earlier as a judge in 1803. federal and state cases as well as in The Throughout the 1790's, the Court adjudi­ Federalist. 9t Nonetheless, he cited no prece­ cated cases brought under section 13 without dent, notwithstanding the fact that, as his ever questioning the constitutionality of that biographer Albert Beveridge said: "No case section. In addition to the previously dis­ ever was decided in which a judge needed so cussed mandamus cases brought against exec­ much the support of judicial precedents."92 utive officials- Chandler and HopkinstO'-the Similarly, in other major cases such as Trustees Court also entertained several petitions seek­ of Dartmouth College v. Woodward,93 ing writs of mandamus to be directed to a McCulloch v. Maryland,94 Hodgson v. Bower­ judge or court and never raised a concern bank,95 Cohens v. Virginia,96 and %yman v. about jurisdiction. t02 This lack of concern Southard, 97 Marshall wrote as if he were may be attributed to the fact that these cases, confronting questions of first impression seeking to issue a mandamus to a judge or when in fact helpful precedent was available. court, were within the appellate, and not the It is, of course, impossible to be certain why original, jurisdiction of the Supreme Court Marshall failed to use precedent more often, and therefore involved no enlargement of the but in most ofthe instances we have examined Court's originaljurisdiction. t03 What is signif­ it is possible to hypothesize plausible explana­ icant, however, is not the lack of concern here, tions. In several cases, he was probably un­ but the absence of any attempt to compare or aware of or had forgotten the earlier prece­ contrast issuing a mandamus to an executive dents.98 In others, he may have believed the official with issuing one to ajudge. This lack of precedent was poorly presented or not very discussion suggests that the constitutionality helpful and preferred to start his own analysis of the mandamus motions directed to execu­ fresh.99 Whatever his reasons, inmost of these tive officials was not questioned, and there was cases, the neglected precedent su pported Mar­ therefore no reason to distinguish those mo­ shall's position. In those instances in which we tions from the mandamus motions directed to found Marshall faced with precedent that judges. ,o4 As Marshall's biographer Albert undermined his position, he found ways to Beveridge indicated, Marshall's suggestion distinguish the cases. tOO Marbury stands alone that section 13 was unconstitutional was a as the only case we have found where Marshall "novel" idea: ignored conflicting precedent he obviously The theory of the Chief Justice that Section 130fthe knew about. old Judiciary Law was unconstitutional was abso· lutely new, and it wasasdaringasit was novel. It was We believe the most likely reason Marshall the only original idea that Marshall contributed to ignored these precedents in Marbury was not the entire controversy. Nobody ever had questioned that he thought the conflicts trivial or nonexis­ the validity of that section of the statute which tent but, on the contrary, that he believed they Marshall now challenged. 105 could not be dismissed or distinguished easily. We believe that the constitutionality of The mandamus cases the Court entertained in section 13 was not an issue in the 1790's the 1790's were not isolated examples that because, prior to Marbury, the Court and could be lightly dismissed as aberrations or Congress believed that article III permitted unusual readings of section 13 or article Ill. Congress to move cases from the Court's Rather, as we will show, the Supreme Court appellate jurisdiction to its original jurisdic­ decisions in the 1790's - the motions for tion.,o6 The Court's adjudication of the man­ extraordinary relief under section 13 of the damus motions discussed above, its consid­ Judiciary Act of 1789 as well as the Yale Todd eration of the Yale Todd case and the legislative JOHN MARSHALL 93 history of the Judiciary Act of 1801 all provide Court's original jurisdiction. evidence that this was the general understand­ Thus, this relatively long-standing legis­ mg. lative interpretation of article III and the In Yale Todd, the Court entertained the Court's acquiescence therein suggest why, if United States' suit notwithstanding the fact Marshall wanted to depart from this under­ that it was exercising original jurisdiction over standing, he had to do so by ignoring the prior a case that clearly did not fall within the two conflicting mandamus cases. He could not categories of original jurisdiction specified by dismiss them as isolated aberrations. 11 2 Nei­ article 111. ,07 The case fell within the judicial ther could he contend that the Court in the power of the United States because the United 1790's was generally unconcerned with ques­ States was a party, but it involved neither a tions of jurisdiction. 113 Nor could he deny the state nor any ambassadors, public ministers, force in counsel's argument that the First or consuls. Nonetheless, the Court, apparently Congress's construction of the Constitution, without ever questioning its jurisdiction, ad­ accepted by the Court, was entitled to great judicated the case and awarded judgment for weight. '14 As the following discussion indi­ the United States. Thus, the Court appeared to cates, Marshall frequently used that argument be untroubled by the possibility of Congress's to great effect himself. enlarging the Supreme Court's original juris­ When Marshall confronted the question of diction to include cases that fell within the the constitutionality of another provision of broad category of the judicial power of the the judiciary Act of 1789 in Cohens v. Virginia, United States. Indeed, Chief Justice Taney he said: agreed with this reading of Yale Todd. As he Great weight has always been attached, and very said: rightly attached, to contemporaneous exposi­ [n the early days of the government, the right of tion .... congress to give original jurisdiction to the supreme A contemporaneous exposition of the constitu­ court, in cases not enumerated in the constitution, tion, certainly of not less authority than that which was maintained by many jurists, and seems to have has been just cited [having just cited and discussed been entertained by the learned judges who decided The Federalist], is the Judiciary Act itself. We know Todd's case. I DS that in the congress which passed that act were many eminent members of the convention which formed Moreover, Congress, and even John Mar­ the constitution. Not a single individual, so far as is shall himself as a congressman, seemed to known, supposed that part of the act which gives the maintain this interpretation of article III supreme court appellate jurisdiction over the judg­ ments of the state courts in the cases therein through at least 1800. In addition to enacting specified, to be unauthorized by the constitu­ section 13 in 1789 and thereby enlarging the tion .... Court's original jurisdiction, Congress in an This concurrence of statesmen, of legislators, and of judges, in the same construction of the constitu­ early draft ofthe Judiciary Act of 1801 contem­ tion, may justly inspire some confidence in that plated another enlargement of the Court's construction. I 15 original jurisdiction. This draft would have given the Supreme Court jurisdiction over Marshall's brethren also frequently used suits in tort or contract against the United this technique of constitutional interpreta­ States by "any state, body politic or corporate, tion. 11 6 In Stuart v. Laird, 11 7 decided only six company, or person," without regard to days after Marbury, the Court upheld the whether such suits involved a state or aqtbas­ constitutionality of the practice of having sad or, public minister, or consul. '09 This Supreme Court Justices sit on the circuit generous remedial provision ultimately was courts. The Court relied on the fact that the struck from the bill, but the legislative history First Congress had imposed the duty in the nowhere suggests that any concern for consti­ Judiciary Act of 1789 and that the justices had tutionality motivated the deletion. I 10 It seems complied continuously with the assignments. clear that whatever the reasons for the dele­ The Court observed: tion, at least the House committee that drafted [P]ractice and acquiescence under it for a period of the bill- including John Marshall, who was a several years, commencing with the organization of member of the committee and an apparent the judicial system, affords an irresislible answer, and has indeed fixed the conslruclion. It is a supporter of the bill III - did not doubt contemporary interpretation of the most forcible Congress's power to enlarge the Supreme nature. This practical exposition is too strong and 94 YEARBOOK 1987

obstinate to be shaken or controlled. Of course, the had to persuade his associates to reject what question is at rest, and ought not now to be appears to have been a settled understanding disturbed. I 18 and practice for more than a decade. Given that this history provided "an irresisti­ We have no evidence that proves how ble answer" and "fixed the construction" ofthe Marshall persuaded his colleagues, but it Constitution, one understands how it might seems beyond dispute that politics played a have been hard for Marshall in Marbury to significant part in the final outcome of Mar­ explain why the exact same history of legis­ bury As soon as Marbury brought his case to lative construction of article III and judicial court, the legal issues and their repercussions acceptance of the constitutionality of section became the subject of much discussion, and 13 did not provide an equally "irresistible interest remained high throughout the thir­ answer." Ignoring the history was easier. teen months that the suit was pending. The We have suggested why Marshall dis­ Justices had this long period to mull over the regarded precedent in Marbury-he could not possible political consequences of their deci­ easily distinguish or dismiss the conflicting sion because shortly after Marbury's motion cases - but the question remains, why did was initiated in December, 1801, Congress Marshall knowingly depart from past cases changed the Supreme Court terms so that the and past Court practice? Perhaps the political Court did not meet again until February, 1803 situation in which the Court found itselfled it when Marbury was finally decided. 122 to such a decision. We believe that Marshall The connection between the Supreme wanted to make clear the Court's authority to Court's response to Marbury's motion and the review certain acts of the executive as well as of general political situation was lost on no one. the legislature, but feared that ordering the When, on December 19, 1801 , the Federalist executive to do something would risk a con­ Supreme Court ordered the Secretary of State frontation. He could achieve the dual assertion to show cause why a mandamus should not of power over the executive and the legislature issue to compel him to deliver Marbury's without providing the executive an oppor­ commission, comments in the nation's capital tunity to defy the Court only by doing pre­ focused on the political nature of that action. cisely what he did in Marbury: I) assert the For the first time since the Constitution had power to issue the writ of mandamus; 2) find been adopted, the three branches of govern­ that section 13 gave the Supreme Court that ment were not controlled by the same political authority; 3) conclude that article III did not party, and it was an open question whether a permit Congress to give the Court such au­ Federalist judiciary could survive with a thori ty; 4) hold that the Court therefore had to Republican president and a RepubJican­ declare section 13 unenforceable; and 5) re­ dominated legislature. Since taking office, fuse the writ. The way to accomplish this Republicans had been talking about a repeal persuasively was to ignore the conflicting of the Federalist-enacted Judiciary Act of precedent. 1801 ,123 as well as the possible impeachment of But the Chief Justice had the difficult task of the most extreme Federalist judges. Some convincing his colleagues on the bench to go observers saw the show-cause order as a along with such a result. I 19 All his brethren political threat issued by the Court. A Wash­ had served on the Court in the 1790's, and two ington correspondent of the Salem Register of them, William Cushing and William Pater­ observed: son, had actually participated in the invalid The mandamus, then, would in the first instance act pensions case decisions. Further, two col­ as a check, and in any case tend to throw doubts leagues, Paterson and Bushrod Washington, among weak men and afford at least room for invective; again, if the Court should carry the had advised the congressional committee that assumed right of mandamus to Executive officers drafted the jUdiciary bill that would have into practice, the precedent would not only per­ enlarged the Supreme Court's original juris­ petually enable the Supreme Court to cont rou l [sic] the Executive but to perplex the Administration by diction. 120 Moreover, Marshall himself had similar litigations on the repeal of the law... U o been a member of that committee and had supported the bill. 121 Thus, the Chief Justice But Republicans viewed the Court's action JOHN MARSHALL 95

Associate Justices William Cushing (left) and William Paterson (right) had served on the Court when the invalid pension cases were considered and were essentially being called upon by Chief Justice Marshall. to ignore the precedents set in those cases to arrive at the conclusion that the Court reached in Marbury v. Madison. in a different light. A letter from an unidenti­ establishing a sphere in which the Supreme fied member of Congress printed in the Court could remain supreme. During the year Philadelphia Aurora, as well as other news­ between the issuance of the show-cause order papers, noted that: and the Court's decision in Marbury, the Federalists and the Court had suffered a It is supposed that no further proceedings will be had; but that the true intention of the gentlemen is tremendous defeat: Congress had voted, in to stigmatize the executive, and give the opposition February, 1802, to repeal the Judiciary Act of matter for abuse and vilification. The consequences 1801 and return the judiciary, with minor of invading the Executive in this manner, are deemed here a high-handed exertion of ludiciary changes, to the system created under the 1789 power. They may, perhaps, think that this will exalt Act. The repeal annulled the broad grant to the the ludiciary character, but I believe they are federal courts of jurisdiction of all cases mistaken. ' 25 "arising under" the Constitution and laws of Senator John Breckenridge characterized the the United States and left the courts with the Supreme Court's issuance of the rule as "the much more circumscribed jurisdiction spec­ most daring attack, which the annals of ified in the 1789 Act. The repeal also elimi­ federalism have yet exhibited." 126 Senator nated the system of circuit courts set up by the Stevens Thomson Mason declared that "the 1801 Act, meaning Supreme Court Justices conduct of the Judges on this occasion has once again had to act as circuit judges. J28 excited a very general indignation and will After Congress repealed the 1801 Act, Fed ~ secure the repeal of the judiciary law of the last eralists placed their hopes in the judiciary. 129 session, about the propriety of which some of They expected that the circuit judges ap­ our republican friends were hesitating." 127 pointed under the 1801 Act would legally The fact that the Court put the case over to the oppose their removal from office - this never next term suggests that it was well aware of the happened - and that the Supreme Court delicate legal and political situation in which it would declare the repeal unconstitutional. found itself. Before the Justices could determine officially In working out a solution to the problem, as a court what their response to the repeal Marshall appears to have wanted to accom­ should be, they had to decide individually plish a number ofgoals , foremost among them whether they would conduct the circuit courts 96 YEARBOOK 1987 assigned to them. 130 After much correspond­ Congress from enlarging the originaljurisdic­ ence among the Justices, Marshall and Chase tion of the Supreme Court, the Court said, in acquiesced in the views of the other Justices effect, that it could no longer entertaiQ suits and agreed to hold the faJ! circuit courts. 13 1 like those it had considered in the 1790's. I 34 Republicans interpreted this decision as a Yet, in the part of the opinion on this point, the great victory. Thus one can understand why Court ignored these suits. We can never know the Chief Justice may have seen Marbury as an whether Marshall and his colleagues made a ideal opportunity for the Court to recover not conscious decision to avoid mentioning con­ only lost prestige but its proper place in the flicting precedent, but we can surmise that the federal polity. persuasive Chief Justice convinced his associ­ By purporting to separate law and politics ates that the new political situation demanded in Marbury and clearly enunciating the doc­ a new posture by the Court. A unified Feder­ trine of judicial review, Marshall sought to alist government no longer existed. The judi­ capture for the Court a special role in inter­ cial branch remained the only hope of the preting the Constitution. While appearing to Federalists to contain the perceived dangers of remove the Court from participation in the majoritarian democracy. The repeal of the realm of partisan politics, the Chief Justice Judiciary Act of 1801 had just returned the defined an area, the "law," in which it was the jurisdiction of the federal courts to the more duty of the Court to provide the guidelines restricted version contained in the 1789 Act. It under which the federal government would may have seemed like a small price to pay for function. Although Marshall claimed to be the Court to give up a congressionally-en­ eliminating political questions from review by larged original jurisdiction in order to main­ the Court, in reality he assumed for the Court tain its supremacy by exercising judicial re­ the critical power to determine which issues view in the context of appellate jurisdiction. If were political and which were law. I 32 This was Marshall could persuasively maintain the indeed a bold proposition, but, given the Court's supremacy only by disregarding the political context, he was able to proclaim it in precedents of the 1790's, his brethren probably Marbury only by denying to the Court juris­ gave him their blessing. Thus, the ChiefJustice diction in the case. and the Court were willing to take liberties As we have shown, Marshall could not have with the historical record to reach a decision achieved his goals in any other way. Thus, in they thought was essential to the survival of Marbury, the Court turned its back on a constitutional government. decade of jurisprudence. 1JJ By prohibiting

Footnotes

*Copyright © 1985 by Susan Low Bloch and virtually every constitutional law and federal courts Maeva Marcus. All. rights reserved. course, as well as many administrative law classes. It **Susan Low Bloch, Associate Professor, is reprinted in most casebooks on constitutional Georgetown University Law Center; Maeva law, federaljurisdiction, and administrative law and Marcus, Director, Documentary History Proj­ is discussed in numerous books and articles. See ect, Supreme Court of the United States. The e.g., R. BERGER, CONGRESS V. THE SUPREME authors wish to thank Frank Flegal, Steven COURT(l969); 3 A. BEVERIDGE , THE LIFE OF JOHN Goldberg, John Kramer, Tom Krattenmaker, MARSHALL 101-56 (1919); A. BICKEL, THE LEAST Jim Oldham, Roy Schotland, Warren Sch­ DANGEROUS BRANCH (1962); w. CROSSKEY, I & 2 wartz, Louis M. Seidman, Girardeau Spann, POLITICS AND THE CONSTITUTION IN THE HIS­ Mark Tushnet and Emily Van Tassel for their TORY OF THE UNITED STATES (1953) ; R. valuable comments on earlier drafts and Chris FAULKNER, THE JURISPRUDENCE OF JOHN MAR­ Celentino, David Eisenberg, Kate Harrison, SHALL 200-12 (1968); c. HAINES , THE AMERICAN Samia Rodriguez, Robert Teir, and Stephen DOCTRINE OF JUDICIAL SUPREMACY(2d ed. 1959); Tull for their helpful research assistance. G. HASKINS & H. JOHNSON, 2 HISTORY OF THE I 5 U.S. (1 Cranch) 137 (1803). SUPREME COURT OF THE UNITED STATES (1981); 2 The case of Marbury v. Madison is studied in JUDICIAL REVIEW AND THE SUPREME COURT JOHN MARSHALL 97

SELECTED ESSAYS (L. Levyed. 1967); C. WARREN, ars have debated whether politics, economic con­ THE SUPREME COURT IN UNITED STATES HISTORY victions, or neutral judicial principles motivated (1922); Bice, An Essay Review of Congress v. The Marshall. See, e.g., R. BERGER, supra note 2, at Supreme Court, 44 S. CAL. L. REV 499 (1971); 321-22; A. BICKEL, supra note 2, at 1-14, 23-28; T. Corwin, Marbury v. Madison and the Doctrine of COOLEY, A TREATISE ON THE CONSTITUTIONAL Judicial RevieHi 12 MICH. L. REV. 538 (1914); Currie, LIMITATIONS 237-38 (7th ed. 1903); E. CORWIN, The Constitution in the Supreme Court: The Powers COURT OVER CONSTITUTION 98 (1938); 2 w. ofthe Federal Courts, 1801-1835, 49 U CHI. L. REV. CROSSKEY, supra note 2, at 50-192; R. FAULKNER, 646 (1982) [hereinafter cited as Currie II]; Frank­ supra note 2, at 200-12; HASKINS & JOHNSON, furter, John Marshall and the Judicial Function, 69 supra note 2, at 182-86; T. POWELL, VAGARIES AND HARV. L. REV. 217 (1955); KELLY, HARBISON, & V ARIETIES IN CONSTITUTIONAL INTERPRETATION BELZ, THE AMERICAN CONSTITUTION 179-81 (6th 12-23 (1956); 1. THAYER, JOHN MARSHALL, re­ ed. 1983); Mendelson, Hill Chief Justice Marshall printed in THAYER, HOLMES AND FRANKFURTER an Activist?, in SUPREME COURT ACTIVISM AND ON JOHN MARSHALL 58-59, 77-78, 84 (P Kurland RESTRAINT (Halperin & Lamb eds. 1982); Mon­ ed. 1967); C. TIEDEMAN, THE UNWRITTEN CON­ aghan, Marbury and the Adminisirative State, 83 STITUTION OF THE UNITED STATES 163 (1890); 1 C. COLUM. L. REV. I (1983); Nelson, The Eighteenth­ WARREN, THE SUPREME COURT IN UNITED Century Background of John Marshalls Constitu­ STATES HISTORY 503-04 (1922); Frankfurter, supra tional Jurisprudence, 76 MICH. L. REV. 893 (1978); note 2, at 219-21; Nelson, supra note 2, at 894-95. Strong, Judicial Review: A Tri-Dimensional Concept 8 Marsha.ll referred to only two cases in Marbury. ofAdministrative-Constitutional Law. 69 W. VA . L. One is the celebrated English opinion of Rex v. REV. III (1967); Van Alstyne, A Critical Guide to Barker. 3 Burr. 1265 (1762), in which Lord Mansfield Marbury v. Madison, 1969 DUKE L.1. I; WECHSLER , established a very broad role for the mandamus Toward Neutral Principles of Constitutional Law. 73 remedy. The other is the pension case to be HARV. L. REV. I (1959). discussed in this Article. 3 The lack of a recorded dissent, especially in the 9 I STAT. 243 (1792) [hereinafter referred to as the early years of the Marshall Court, did not neces­ "1792 Act" or the "Invalid Pensions Act of 1792" sarily mean a unanimous court. See, e.g., HASKINS (pronounced "INvalid," not "in VALid")]. & JOHNSON, supra note 2, at 385-88; D. MORGAN, 10 In 1792, the circuit courts of the United States JUSTICE WILLIAM JOHNSON: THE FIRST DIS­ were composed of two Justices of the Supreme SENTER 168-69 (1954); Currie II, supra note 2, at 670 Court and the district judge of the state in which the n. 158; Roper, Judicial Unanimity and the Marshall circuit court met. Any two of these judges con­ Court-A Road to Reappraisal, 9 AM. 1. L. HIST. 118 stituted a quorum. See section 4 of "An Act to (1965); White, The %rking Life of the Marshall establish the Judicial Courts of the United States" Court, 1815-1835, 70 VA. L. REV. I, 34-38 (1984). [hereinafter cited as the "Judiciary Act of 1789"], I According to the testimony of one of Marshall's STAT. 74-75 (1789). colleagues, Justice Johnson, "in some instances" II Act of March 23, 1792, §2, I STAT. 244 (1792). the ChiefJustice delivered the opinions of the Court 12 Id. §4. "even when contrary to his own Judgment and 13 The judges made their sentiments known in Vote." Quoted by W. CROSSKEY, 2 POLITICS AND letters addressed to the President of the United THE CONSTITUTION IN THE HISTORY OF THE States who, pursuant to the judges' request, then UNITED STATES 1080 (1953). communicated them to Congress. See letter from 45 US. (l Cranch) at 165-67, 169-71. See discus­ John Jay, William Cushing, and James Duane to sions in C. HAINES, THE ROLE OF THE SUPREME George Washington (Apr. 10, 1792); letter from COURT IN AMERICAN GOVERNMENT AND POL­ James Wilson, John Blair, and Richard Peters to ITICS 1789-1835, at 256 (1946); KELLY, HARBISON & George Washington (Apr. 18, 1792); and letter from BELZ, supra note 2, at 179-81; C. WRIGHT, THE LAW James Iredell and John Sitgreaves to George Wash­ OF FEDERAL COURTS 74-81 (4th ed. 1983); Currie ington (June 8, 1792), I AMERICAN STATE PAPERS, II, supra note 2, at 652; Van Alstyne, supra note 2, at MISCELLANEOUS 49-53 (Washington 1834). The 11-13. only sui t directly challengi ng the judges' determi na­ s See 3 A. BEVERIDGE, supra note 2, at 126-27; tion arose in the Supreme Court of the United Corwin, supra note 2, at 543 ; Currie II, supra note 2, States after the Circuit Court for the district of at 661 ("We . . . see in Marbury the work of a Pennsylvania refused to consider the petition of masterful tactician."); Frankfurter, supra note 2, at William Hayburn to be placed on the pension list of 221; Nelson, supra note 2, at 894-95; KELLY, the United States. See Hayburn's Case, 2 US. (2 HARBISON, & BELZ, supra note 2, at 181. Dall.) 409 (1792). Edmund Randolph, the Attorney 6 R. MCCLOSKEY, THE AMERICAN SUPREME General of the United States, acting as Hayburn's COURT 40 (1960). counsel, moved the Supreme Court for a writ of 7 For a discussion of the political background of mandamus to the Circuit Court of Pennsylvania Marbury v. Madison, see 3 A. BEVERIDGE, supra ordering it to hear Hayburn's petition. After argu­ note 2, at 105-11; R. ELLIS, THE JEFFERSONIAN ment, the Supreme Court postponed a decision CRISIS; COURTS AND POLITICS IN THE YOUNG until the case was made moot by the passage of a REPUBLIC 43-45, 58, 64-68 (1971). Countless schol- new law by Congress stipulating a different pro- 98 YEARBOOK 1987 cedure for examining the Claims of Revolutionary the United States, on the validity of any such War veterans. See "An Act to regulate Claims to rights claimed under the act aforesaid , by the Invalid Pensions," I STAT. 324 (1793). Hayburn's determination of certain persons styling them­ Case played no part in Chief Justice Marshall's selves commissioners. opinion in Marbury. I STAT. 324, 325 (1793). 14 Extract of the minutes of the Circuit Court for 20 See infra notes 43-68 and accompanying text. the district of New York, I AMERICAN STATE 21This bill was reported on the floor of Congress PAPERS , MISCELLANEOUS, at 50 (Washington one day before the February, 1793 term of court 1834) (emphasis in original). The letters from the ended and passed several days later. I SEN. LEG. 1. other judges expressed similar views as to the 476 (1793). unconstitutionality oftheact. See letters cited supra 22 Letter from Edmund Randolph to Henry note 13. Knox (Aug. 9, 1793), 1 AMERl CAN STATE PAPERS, 15 Letters cited supra note 13 (emphasis in orig­ MIS CELLANEOUS , at 78 (Washington 1834). No inal). report of Randolph's motion for this mandamus 16 Some of them performed these duties notwith­ appears in the minutes of the Supreme Court or in standing grave doubts as to their authority to do so. any other official records of the Court. See THE See letter from James Iredell and John Sitgreaves to DO CUMENTARY HISTORY OF THE SUPREME George Washington (June 8, 1792), I AMERI CAN COURT OF THE UNITED STATES, 1789-1800, at STATE PAPERS , MIS CELLANEOUS, at 53 (Washing­ 169-474 (M . Marcus & 1. Perry, eds. 1985) ton 1834). Before Iredell heard invalid pension [hereinafter cited as Marcus & Perry]. claims he wrote a memorandum, possibly to as­ 2.1 See letter from Edmund Randolph to Henry suage his own doubts, justifying his authority to act Knox (Aug. 9, 1793) supra note 22. Randolph as a commissioner. See "Reasons for acting as a apparently believed that a decision on his man­ Commissioner on the Invalid Acts," (undated), damus motion would have settled the question of CHARLES E. JOHNSON COLLECTION, North Car­ the validity of rights granted to invalids under the olina State Department of Archives and History. 1792 Act. In his letter to Knox, Randolph stated: AssociateJustice James Wilson, however, refused "Thedecision ofone case would have involved every to hear any claims as ajudge or a commissioner. See other." Jd. However, a denial of the writ would have letter from James Iredell to Hannah Iredell (Sept. been much less informative than a grant. It is 30, 1792 ) in G. McREE, LIFE AND CORRESPOND­ unlikely that a denial of the writ would have EN CE OF JAMES IREDELL (rep. ed . 1949) at 361 ("We resolved the question of the validity of the rights of have had a great deal ofbusiness to do here [Circuit all claimants under the Act. See discussion at notes Court for the district of Connecticut], particularly 54-55. as I have reconciled myself to the propriety of doing 24 These cases are not reported by Dallas in the the Invalid-business out of court. Judge Wilson U.S. Reports, but are recorded in the minutes and altogether declines it."). docket of the United States Supreme Court. See 17 "A n Act to regulate the Clai ms to Invalid Marcus & Perry, supra note 22, at 222, 228. The Pensions," I STAT. 324 (1793). earliest U.S. Reports (Volumes 1, 2, 3, and 4) were 18 See 3 ANNALS OF CONGo 556-557 (Apr. 13, compiled by Alexander James Dallas, a private 1792); General Advertiser (Philadelphia), Nov. 10, entrepreneur not officially appointed by the Court, 1792 (report of Nov. 9, 1792 debate in House of and are denominated by his name. For a discussion Representatives); Independent Gazetteer (Phila­ of the deficiencies of the early Supreme Court delphia), Dec. 22, J792 (report of Dec. 14, 1792 reporting system, see Joyce, The Rise oflheSupreme debate in House of Representatives). There were Courl Reporler, 83 MICH. L. REV. 1291 (1985). other causes for changes in the 1792 Act as well . See 25 See Depositions of Jonathan Prindle, Samuel 3 ANNALS OF CONGo 733-34 (Dec. 3, 1792). Ferris, RG21 ; Fed eral Records Center (Wal­ 19 "An Act to regulate the Claims to Invalid tham, MA). Pensions," §3, which provided: 26 Minutes of the Supreme Court of the United That no person not on the pension list, before the States, in Marcus & Perry, supra note 22, at 222. twenty-third day of March , one thousand seven 27 Jd., at 223. hundred and ninety-two, shall be entitled to a 28 Jd. , at 226. On this occasion it is not clear who pension, who shall not have complied with the counsel was, nor whom he represented. rules and regulations herein prescribed; saving 29 Jd. , at 226. however to all persons, all and singular their 30 See infra notes 54-55. rights founded upon legal adjudications under 31 William Bradford replaced Edmund Ran­ the act, intituled [sic] "An act to provide for the dolph as Attorney General after Randolph had been settlement of the claims of widows and orphans, appointed Secretary of State. I SEN. EXEC. 1. 147 barred by the limitations heretofore established, (Jan . 27, (794). and to regulate the claims to invaJid pensions:" 32 See Marcus & Perry, supra note 22, at 228. [sic] But it shall be the duty of the Secretary of 33 54 US. (13 How.) 40 (1851). The original War, in conjunction with the Attorney General, papers filed in the Yale Todd suit no longer exist. to take such measures as may be necessary to They probably were destroyed in a fire in the late obtain an adjudication of the Supreme Court of nineteenth century when many early Supreme JOHN MARSHALL 99

Court records were lost or damaged . Browning & 51 In theory, it is possible that Chandler had been Glenn, The Supreme Courl Colleclion al the Na­ urged by the Attorney General, either Randolph or lional Archives, 4 AM. J. L. HIST. 241-S6 (1960). Bradford, or by Secretary of War Knox to bring his 34 Although the final version of the Supreme motion, and thus Marshall could accurately suggest Court minutes does not include any notice of an that Chandler's motion was brought to carry out appearance before the Court on February IS, the Congress's 1793 directive to the Attorney General original draft of the minutes contains the following and Secretary of War. We do know that after entry: "The Court - on motion of Mr. Hillhouse Attorney General Randolph's unsuccessful motion adjourn until monday nextat II. to take into further for mandamus in August, 1793, Randolph dis­ consideration the case of the invalid pensioners of covered that a veteran had been in the courtroom. the Distr. of Connect." Hillhouse was one of Todd's See supra note 23 and accompanying text. We also attorneys. See Original Minutes of the Supreme know that Randolph urged Secretary of War Knox Court, Feb. IS, 1794, in Marcus & Perry, supra note to encourage veterans to seek judicial help. Id. We 22, at 379-80. can speculate from this that Chandler might have )5 See copy of papers submitted in UnitedStalesv. been encouraged, by Randolph and/or by Knox, to Todd appended to file of Uniled Siates v. Ferreira, bring his action. However, we have no real evidence RG 267, National Archives. that Randolph or Knox or Bradford did any of this. )6 /d. On the contrary,judging from the fact that Bradford )7 /d. was present in the Supreme Court on the days that )8 Id. Chandler's motion was argued and decided (see )9 Jd. Marcus & Perry, supra note 22, at 379) but never 40 Minutesofthe Supreme Court, Feb. 17, 1794, in mentions it in his case against Yale Todd or in his Marcus & Perry, supra note 22, at 228. correspondence regarding the pension litigation 4 1 Letter from William Bradford to Henry Knox (see letter from William Bradford to Knox, supra (Feb. 17, 1794), I AMERICAN STATE PAPERS, MIS­ note 4[), it seems likely that Chandler's motion was CELLANEOUS, at 78 (Washington 1834). unrelated to the government's efforts to get a 42 Letter from Henry Knox to the Senate and Supreme Court adjudication pursuant to Con­ House of Representatives of the United States gress's 1793 direct ive. (February 21, 1794), 1 AMERICAN STATE PAPERS , Marshall's failure to cite the precedent by name, MISCELLANEOUS, at 78 (Washington 1834). despite the fact that Marbury'S counsel specifically 4 ) SUS. (I Cranch) at IS4. mentioned Chandler during oral argument, sug­ 44 Id. at 162, 168. gests that Marshall may have known he was 45 Id. at 168. portraying more than simply the Chandler case. 46 S US. (I Cranch) at 171-72. 52 SUS. (I Cranch) at 172. 47 Jd. at 172. 53 See Marcus & Perry, supra notes 27-29 and 48 It is therefore not surprising that the few accompanying text. scholars who have focused on the issue have 54 Chandler might have had no legal right be­ assumed, as Professor Currie did, that the case cause the judges' report had no legal significance at Marshall was describing is Chandler'S motion. all, either because the 1792 Act was unconstitu­ Currie, The Constitution in the Supreme Court: tional or because thejudges' seIf-characterization as 1789-1801, 48 CHI. L. REV. 819, 827 n.S7 (1981) commissioners had no legal effect. See Currie I, [hereinafter cited as Currie I] . Professor Currie also supra note 48, at 826-27; Sherman, Case oj John asserted that Chandler'S case is known only from a ChandlerY. The Secretary oJ War, 14 YALEL.J.431, speech in Congress and from a discussion in 437 (l90S). Alternatively, the Court might have Marbury v. Madison. Currie I at 821 n.11. However, concluded that Chandler had no legal right because as discussed supra at note 23, the case is also the judges' report was merely a recommendation recorded in the minutes of the Supreme Court. and the Secretary of War had total, or at least Professors Dionisopoulos and Peterson, in an unreviewable, discretion to decide whether to place article marred by inaccuracies both legal and a recommended applicant on the pension list. This historical, also asserted that Marshall must have reading of the Chandler ruling conforms to the been referring to the Chandler case. Dionisopoulos initial circuit judges' concerns regarding the consti­ and Peterson, Rediscovering the American Origins oj tutionality of the 1792 Act; namely that the circuit Judicial Review: A Rebuttal to the Views Stated by court was not conferring a legal right and was only Currie and Other Scholars, 18 J. MAR. L. REV. 49, 73 giving a recommendation. Under any of these n.174. [n a much older article, Professor Coxe theories, the Supreme Court's denial of Chandler'S questioned whether Marshall had a real case in motion for a writ of mandamus would suggest that mind, but Coxe appeared to be totally unaware of all applicants in Chandler's position would have to the Chandler case. COXE, AN ESSAY ON JUDICIAL proceed under the 1793 Act to get onto the pension POWER AND UNCONSTITUTIONAL LEGISLATION 14 list. (1893). 55 The Secretary might have refused to put 49 See supra note 22 and accompanying text. Chandler's name on the pension list for several 50 I AMERICAN STATE PAPERS , MISCEL­ reasons. There is evidence that Chandler may have LANEOUS, at 47 (Washington 1834). been unable to substantiate his claim that his 100 YEARBOOK 1987 injuries were service-related. See letter from Henry I HISTORY OF THE SUPREME COURT OF THE Knox to House of Representatives (Dec. 14, 1792), I UNITED STATES 564-65, n.57 (1971); United Stales v. AMERICAN STATE PAPERS, CLAIMS, at 56-67 Ferreira, 54 US. (13 How.) at 53 (In Chief Justice (Washington 1834); documents in Chandler'S file, Taney's view, Yale Todd had determined that the RG21, Federal Records Center (Waltham, MA). It is statute could not be construed to authorize the also possible thatChandler's entitlement was uncer­ judges to act out of court as commissioners). tain because he was a commissioned officer who Applying the Yale Todd decision to the claims apparently possessed a commutation certificate. based upon recommendations of the district judge MIse. REVOLUTIONARY WAR Docs., National of Maine gives us some idea of the contemporary Archives. The en ti tlement of such officers under the interpretation of Yale Todd and suggests that Con­ 1792 and 1793 Acts was the subject of considerable gress and Bradford adopted the statutory rationale. debate and uncertainty. See letters in I AMERICAN According to the Judiciary Act of 1789, the district STATE PAPERS, CLAIMS , 75, 78, 83-84, 129-134 judge of Maine could exercise all the powers of a (Washington 1834) (Ambiguity regarding the rights circuit judge. The Invalid Pensions Act of 1792 of commissioned officers who had received com­ required circuit judges to hear the claims of mutations of half-pay arose from the fact that while wounded veterans, so the district judge in Maine earlier pension acts had permitted officers to return performed this duty. But he seems to have under­ their commutations and thereby qualify for pen­ taken it as a judge; he never declared that he was sions, the 1792 Act excluded from eligibility officers acting as a commissioner. The Secretary of War, in who had received commmutations, with no men­ sending his lists to Congress, distinguished those tion of any option to return the money, and the 1793 claims processed by the judges acting as commis­ Act repealed the references in the 1792 Act to sioners and those handled by the district judge of officers who had received commutations.) Maine. See I AMERICAN STATE PAPERS, CLAIMS , The Court may have reviewed the merits of supra note 55, at 67. Thus if the Court had held the Chandler's claim and denied the motion on one of entire Invalid Pensions Act of 1792 unconstitu­ these narrower grounds. First, the Court says it tional, claims based on the Maine judge's report examined the two Acts of Congress and from that would have little legal significance. If, however, the determined no writ should issue, arguably suggest­ Court had merely held that the commissioners had ing that the Court was troubled by the aforemen­ no authority, claims based on the Maine judge's tioned uncertainty regarding the entitlement of recommendation might still have validity. commissioned officers who possessed commuta­ Both the Attorney General and Congress appear tions. Second, the fact that Attorney General to have adopted the latter view. I n a letter to the Bradford went forward with the Yale Todd case the Secretary of War, Attorney General Bradford wrote: day after Chandler's motion was denied and never "The adjudication of the Supreme Court in last mentioned it suggests, although not conclusively, February term respecting the claims of certain that he did not find the denial of Chandler's motion invalids does not comprehend or in any degree very significant. In theory, the Attorney General affect such claims as are founded on the adjudica­ could have believed that Chandler decided the tions of the Judge of the district of Maine, 'who claims of veterans recommended but not placed on appears to have conformed himself to the act of23 the list and that he still wanted to test the legality of MAR. 1792.'" See letter from William Bradford to the claims of the class of veterans who actually got Secretary of War (June 2, 1794),JOHNW. WALLACE onto the list. However, existing evidence lends no COLLECTION, VOL. III, Pennsylvania Historical support to such a theory. Neither Bradford nor the Society. Congress, responding to the Yale Todd Court ever mentioned the Chandler case. Moreover, decision, directed the Secretary of War to send to the correspondence exchanged among Knox, Brad­ district judges lists of the invalid pensioners re­ ford, and members of Congress after the February, turned by the judges acti ng as comissioners wi th the 1794 litigation never mentioned the Chandler mo­ order that these invalids not be placed on the tion. See infra text following note 57. pension list and that this information be published 56 See supra note 41 and accompanying text. That in newspapers in the judges' districts. The names of is also how Chief Justice Taney characterized the invalids whose claims had been adjudicated by the result in Yale Todd. See Uniled Stales v. Ferreira , 54 district judge of Maine do not appear on these lists, US. (13 How.) 40, 52-3 (1851). As suggested earlier in leading to the conclusion that they remained on the the discussion of Chandler's motion, see supra note pension list of the United States. See, e.g. , Dunlap 54, there are at least two theories which could and Claypoole's American Daily Advertiser (Phila­ support a finding of no legal right. Yale Todd may delphia), July 21 , 1794. have had no right to the pension money because the 57 See supra note 41. 1792 Act was unconstitutional. W. J. Ritz seems to 58 5 US. (l Cranch) at 172. hold this view. See Ritz, Uniled Stales. v. Yale Todd, 59 5 U.S. (I Cranch) at 171-72. Congress had 15 WASH. & LEE L. REV. 220 (1958). Alternatively, explicitly preserved "to all persons, all and singular Todd may have had no right because, as a matter of their rights founded upon legal adjudications under statutory construction, the judges were not author­ the [ 1792] act," and directed the Attorney General ized by Congress to sit as commissioners and thus to obtain an adjudication on "the validity of any their actions were coram non judice. See 1. GOEBEL, such rights claimed under the [1792] act aforesaid, JOHN MARSHALL 101 by the determination of certain persons styling of his case to prescribe what the law would be in a themselves commissioners." 1793 Act §3. See supra moot case not before the Court "[was] very note 19. irregular and very censurable," and that in the 60 5 U.S. (I Cranch) at 172. Marbury Case "the Court determined at once 61 See supra note 24. that, being an original process, they had no 62 II ANNALS OF CONGo 903-05 (1802). cognizance of it; and therefore, the question 63 Cushing, however, was not present for the before them was ended. But the Chief Justice argument or the decision in Marbur)i See Minutes went on to lay down what the law would be, had of the Supreme Court, Feb. 10, II, & 24, 1803, they jurisdiction of the case, to wit: that they National Archives. should command the delivery. The object was 64 See 2 A. BEVERIDGE , THE LIFE OF JOHN clearly to instruct any other Court having the MARSHALL 77-121 (1916). jurisdiction what they should do if Marbury 65 As noted supra note 51 , Marshall's failure to should apply to them. Besides the impropriety of mention the Chandler motion by name suggests he this gratuitous interference, could anything ex­ may have known he was describi ng more than just ceed the perversion of the law? ... Yet this case of the Chandler case. Marbury v. Madison is continually cited by 66 See supra note 51. Bench and Bar as if it were settled law, without 67 See supra notes 54-55 and accompanying text. any animadversion on its being merely an obiter 68 It is interesting that there was another man- disssertation of the Chief Justice." damus case that Marshall could have used without C WARREN, supra note 2, at 244-45, citing JEFFER­ alterations. See United States v. Hopkins, discussed SON, 10, 12 WORKS OF THOMAS JEFFERSON (A. G. infra note 77 and accompanying text. Lipscomb ed. 1903) (letters of Jefferson to William 69 See 3 A. BEVERIDGE, supra note 2, at 126-27; Johnson (June 12, 1823) and to William Jarvis R. MCCLOSKEY, supra note 6, at 40-44; Corwin, (Sept. 28, 1820». supra note 2, at 540-43; Currie II, supra note 2, at Republican newspapers were equally outraged. 661 ("We ... see in Marbury the work ofa masterful The Virginia Argus published a series of letters tactician . ..."); Frankfurter, supra note 2, at 221 ; signed by Littleton and addressed to Chief Justice Nelson, supra note 2, at 894-95; Van Alstyne, supra Marshall: note 2, at 30-33. To decide upon the merits of a cause without 70 The President and the public paid less atten­ jurisdiction to entertain it, I affirm to be contrary tion to the Court's assertion of power over the to aJi law, precedent and principle.... Could it legislature; the principal concern and, in fact, accord with impartiality, policy,justice or dignity outcry, focused on the Court's asserted power over to reverse the principle, and encourage a litiga­ the executive. See C WARREN, supra note 2, at tion by prejudging a member of the Government 243-55. The outcry was based in part on the on a question that the very act of adjudication assertion of power and in part on the fact that it was advised the applicant to bring before you in your unnecessary in view ofthe Court's ultimate holding appellate character? of no jurisdiction. Both the claim that the judiciary Republished in the Aurora (Philadelphia), Apr. 23, could issue a wri t of mandamus to the executive and 26, 30, May 2, 3, 1803; Republican Watchtower the finding that Marbury had a right to the (New York) May 19, 25, June 25, 1803; see generally, commission arguably constituted advisory opin­ C WARREN, supra note 2, at 250-53. ions which the Justices only eight years earlier had Not surprisingly, Federalist newspapers were not suggested were inappropriate and perhaps uncon­ troubled by Marshall's selection and ordering of the stitutional. See letter from John Jay et al. to George issues. SeeC WARREN, supra note 2, at245-48. For Washington (Aug. 8, 1793) (responding to letter to more modern defenses of Marshall's ordering of Justices from Secretary of State Jefferson (July 18, issues, see 3 A. BEVERIDGE, supra note 2, at 133-42; 1793», reprinted in P. BATOR , P. MISHKIN, D. HASKINS &JOHNSON, supra note 2, at 193; Nelson, SHAPIRO and H. WECHSLER, HART & WECHSLER'S supra note 2, at 900; Van Alstyne, supra note 2 at THE FEDERAL COURTS AND THE FEDERAL SYS­ 6-14. TEM 64-66 (1973); 1. THAYER, supra note 7, at 62-63. 7 1 See supra note 69. President Jefferson was outraged by Marshall's 72 Section 13, in relevant part, provided: opinion. Writing four years after Marbur){ Jefferson The Supreme Court shall also have appellate noted that he had "long wished for a proper jurisdiction from the circuit courts and courts of occasion to have the gratuitous opinion in Marbury the several states, in the cases herein after v. Madison brought before the public and de­ specifically provided for; and shall have power to nounced as not law." C WARREN, supra note 2, at issue writs of prohibition to the district courts, 244, citing JEFFERSON, 10 WORKS OF THOMAS when proceeding as courts of admiralty and JEFFERSON (A. G. Lipscomb ed. 1903) (letter from maritime jurisdiction, and writs of mandamus, Thomas Jefferson to George Hay (June 2, 1807». in cases warranted by the principles and usages of According to Charles Warren, Jefferson was still law, to any courts appointed, or persons holding angry years later when he wrote several letters office, under the authority of the United States. complaining about Marbury: I STAT. 81 (1789) (emphasis added). 11 would have [T]he practice of Judge Marshall in travelling out been easy to read § 13 in such a way as to avoid any 102 YEARBOOK 1987 constitutional question. As Professor Currie noted, might have intended their designation to be the Justice Marshall neglected to quote all of§ 13 in his presumed initial distribution with Congress au­ opinion; read in context, § 13 "strongly suggests that thl)rized to modify it , if and when it chose. See mandamus against officers was to be issued only in Corwin II, supra note 2, at 540-43 ; HASKINS & appellate form or ancillary to the exercise of JOHNSON, supra note 2, at 199; Currie ll, supra note jurisdiction independently existing." Currie II , 2, at 654 ; Van Alstyne, supra note 2, at 31. Marshall's supra note 2, at 653. Such an interpretation would reading of article III left theCourt more vulnerable have presented no difficulties under article III. to congressional checks on the Court's jurisdiction Moreover, this interpretation accorded with the than he may have realized or intended. See Currie traditional use of mandamus. As Professor Corwin II , supra note 2, at 660-61; Van Alstyne, supra note observed: 2, at 32-33. Indeed , Marshall retreated from some of [I)n Common Law practices, in the light of which his broader statements soon after Marbury See § 13 was framed , the writ of mandamus was not, Cohens v. Virginia, 19 US. (6 Wheat.) 264,398-402 ordinarily at least, an instrument of obtaining (1821). jurisdiction by a court, even upon appeal, but like 74 The group of men who served both in the the writs of habeas corpus and injunction, was a Constitutional Convention and then in Congress remedyavailable from acourt in the exercise of its during the enactment of the Judiciary Act of 1789 standing jurisdiction. was not unimpressive. It included Oliver Ellsworth, Corwin, supra note 2, at 541 (emphasis in original). an influential member of the Constitutional Con­ Further, construing statutes to avoid constitutional vention, one ofthedraftersoftheJudiciary Act, and difficulties was not an unusual technique of stat­ Marshall's predecessor as Chief Justice of the utory construction at that time. See, e.g ., Mossman Supreme Court; William Paterson, member of the v. Higginson. 4 U.S. (4 Dall.) 12, 14 (1800)[discussed Convention, member of the Senate committee that inji-a note 95) ; see generall){ HASKINS & JOHNSON, reported the judiciary Act of 1789, and associate supra note 2, at 199; Nelson, supra note 2, at 942-47; Justice on the Supreme Court with Marshall; Van Alstyne, supra note 2, at 15. Senators William S. Johnson, Robert Morris, Wil­ 7J Article III provides that the Supreme Court liam Few, George Read, and Representatives James shall have "original jurisdiction" in "cases affecting Madison , Abraham Baldwin, and Roger Sherman, Ambassadors, other public Ministers and Consuls, all of whom participated in the Constitutional and those in which a State shall be Party." US. Convention and supported the Judiciary Act in CON ST. art. Ill, §2, cl. 2. Article 1II further provides Congress. As Beveridge observed , there were at least that, in all other cases within the judicial power of "twelve men, many of them highly learned in the the United States, the Court is to have "appellate law, makers of the Constitution, draftsmen or Jurisdiction, both as to Law and Fact, with such advocates and supporters of the Ellsworth Judiciary exceptions . . . as the Congress shall make." Id. Act of 1789, not oneof whom had ever dreamed that Marbury's action did not fit within the appellate an important section of that law was unconstitu­ juriSdiction of the Supreme Court because it did tional." 3 A. BEVERIDGE, supra note 2, at 129. See not seek to "revise ... and correct . . . the proceed- also, DOUGHERTY, POWER OF THE FEDERAL JUDI­ ings in a cause already instituted .. . ." 5 US. (I CIARY OVER LEGISLATION 82 (1912). As will be Cranch) at 175. Instead he was seeking to "create discussed inji-a text accompanying notes 114-18, that cause," id., and thus was seeking to invoke the interpretations adopted by the First Congress were original jurisdiction of the Court. But his action did generally accorded substantial deference. See e.g., not fit within the two categories article I II specified Marlin v. Humer's Lessee, 14 US. (I Wheat.) 304, for original jurisdiction. If § 13 gave the Supreme 351-52 (1816) (Story, 1.) (upholding the constitu­ Court original jurisdiction in this case, and Mar­ tionality of another section of the Judiciary Act of shall had just held that it did, it could only be 1789, §25, which gave the Supreme Court appellate constitutional if the Constitution permitted Con­ jurisdiction of state court judgments): gress to add to the two specified categories of It is an historical fact , that at the time when the originaljurisdiction. Marshall concluded that Con­ Judiciary Act was submitted to the deliberations gress could not. As he stated : "If congress remains at of the first congress, composed, as it was, not only liberty to give this court appellate jurisdiction, of men of great learning and abilit y, but of men where the constitution has declared their jurisdic­ who had acted a principal part in framing, tion shall be original; and original jurisdiction supporting, or opposing that constitution, the where the constitution has declared it shall be same exposition was explicitly declared and appellate; the distribution of jurisdiction, made in admitted by the friends and by the opponents of the constitution, is form without substance." 5 US. that system. It is an historical fact , that the (I Cranch) at 174. supreme court of the United States has, from But, as other commentators have noted , this time to ti me, sustained this appellate jurisdiction conclusion was hard Iy inevitable. The framers could in a great variety of cases, brought from the have intended that the two specified categories were tribunals of many of the most important States in to be minimum definitions of the Court's original the Union, and that no state tribunal has ever jurisdiction, with Congress empowered to enlarge breathed a judicial doubt on the subject, or but not to restrict it. Alternatively, the framers declined to obey the mandate of the supreme JOHN MARSHALL 103

court, until the present occasion. This weight of gressional Powers, 1801-1835, 49 U. CHI. L. REV. 887, contemporaneous exposition by all parties, this 972 (1982) [hereinafter cited as Currie III]. See also, acquiescence of enlightened state courts, and JOHN MARSHALL: COMPLETE CONSTITUTIONAL these judicial decisions of the supreme court DECISIONS iv-v (1. Dillon ed. 1903) ("Many of the through so long a period , do, as we think, place greatest and most luminous of his constitutional the doctrine upon a foundation of authority opinions contain scarcely a reference to adjudged which cannot be shaken, without delivering over cases or to the authority of precedents ...."). the subject to perpetual and irremediable doubts. 89 White, The Working Life o/the Marshall Court, See also, Calder v. Bull, 3 U.S. (3 Dall.) 386, 395 1815-1835,70 VA. L. REV. I, 18 (1984), Marshall is (1798) (Chase, 1.); id. at 399 (Iredell, 1.); Hylton v. not noted to have been a great historian. On the United States, 3 U.S. (3 Dall.) 171, 173-75 (1976) contrary, as Professor Klinkhamer observed, Mar­ (Chase, 1.). shall has been "charged with plagiarism and histor­ 75 See ir?!ra notes 113-17 and accompanying text. ical inaccuracy of the most serious kind in his 76 The case of United States v. Yale Todd also capacity as the historian or biographer of George raised troubling jurisdictional questions. See ir?!ra Washington ...." KJinkhamer, John Marshall's Use notes 102-03 and accompanying text. 0/ History, 6 CATH. U. L. REV. 78 (1956). See also 77 United States v. Hopkins was unreported but is Foran, John Marshall as a Historian, AMER . HIST. described in both the Supreme Court docket and REV. XLIII 51 (Oct. 1937); 1. THAYER , supra note 7, minutes. See Marcus & Perry, supra note 22, at 494, at 41-43. Even Marshall was not happy with his 226-28. biography of Washington . According to Beveridge, 78 Marcus & Perry, supra note 22, at 226-28. Marshall said: "It is one of [my] most desirable 79 It seems fitting that Lee argued on behalf of objects ... to publish a corrected edition .... I Marbury. Lee had been appointed one of the new would not on any terms . .. consent that one other circuit court judges under the Judiciary Act of 1801, set of the first edition ... be published." 3 A. the other last minute effort by the outgoing Feder­ BEVERIDGE, supra note 2, at 272. Contrast Charles alist Party to enlarge and fill the judiciary before Beard's comments on Marshall as an "authority, Republican President Jefferson was sworn in . Lee whose knowledge of the period and whose powers declined the appointment, however, and returned ofjudgment and exposition will hardly be denied by to private practice. I SEN. EXEC. 1. 385 (Feb. 25, the most critical;" "A historian of great acumen," 1801). whose "masterly" Life 0/ Geroge Washington is a 80 5 U.S. (I Cranch) at 148-49. "great" work. C. BEARD , ECONOM IC ORIGINS OF 81 There were several other mandamus and pro­ JEFFERSONIAN DEMOCRACY I, 109, 159,237.1f.. 242 hibition cases before 1803. See infra notes 101-04 (1915) ; c. BEARD, AN ECONOMIC INTERPRETATION and accompanying text. OF THE CONSTITUTION 296.1f. (1936). 82 5 U.S. (I Cranch) at 149. 90 Currie II, supra note 88, at 972 . 83 7 U.S. (3 Cranch) 159 (1805). 91 As several scholars have observed, the Su­ 84 fd. at 172. In More, Marshall questioned, sua preme Court itself had previously reviewed the sponte. whether the Supreme Court had appellate constitutionality of federal statutes, but had found jurisdiction over criminal cases from the circuit them valid . See e.g. , Hylton v. United Slates. 3 U.S. (3 court of the District of Columbia. 7 U.S. (3 Cranch) Dall .) 171 (1796) (an unapportioned tax on carriages at 172. The Court concluded that, notwithstanding not a "direct" tax and therefore not unconstitu­ contrary precedent in United States v. Simms, 5 U.S. tional ; Van Horne's Lessee v. Dorrance, Pa. Cir.. (I Cranch) 252 (1803), the Court had no jurisdic­ reported in 2 U.S. (2 Dall.) 304 (1795); Hayburn's tion. 7 U.S. (3 Cranch) at 173. On the other hand, Case, 2 U.S. (2 Dall.) 408 (1792); see generally A. when Marshall fou nd favorable precedent, he would MASON, THE SUPREME COURT: PALLADIUM OF rely on it even if the relevant issue had not been FREEDOM 73 -76 (1962); Currie Il, supra note 2, at argued or explicitly adjudicated. See e.g. , Ex Parte 655; Van Alstyne, supra note 2, at 44. Moreover, Bollman, 8 U.S. (4 Cranch) 75 (1807), where there were numerous instances where state courts Marshall held that the Court had appellatejurisdic­ had held state statutes void under state constitu­ tion to issue a writ of habeas corpus to an inferior tions, both before 1789 as well as before 1803. See 1. court, citing two cases in which the Court had GOEBEL, supra note 56, at 50-95; HASIUNS & issued a writ of habeas corpus under similar JOHNSON, supra note 2, at 190. Finally, Marshall circumstances but had not explicitly considered the could have found support in numbers 78 and 81 of jurisdictional issue. fd at 100-01. Justice Johnson, the Federalist. TH E FEDERALIST 489-96, 505-14 (B. dissenting, pointed out this defect in Marshall's Wright ed. 1966). See generally 3 A. BEVERIDGE, precedents and cited Marshall's own statement in supra note 2, Appendix C; Van Alstyne, supra note More. fd. at 104. 2, at 38-39; C. WARREN, supra note 2, at 262. 8; 5 U.S. (I Cranch) at 175. 92 3 A. BEVERIDGE, supra note 2, at 119. ~6 See, e.g .. Ex Parte Bollman, 8 U.S. (4 Cranch) 93 In Trustees 0/ Dartmouth College v. Woodward, 75 (1807). 17 U.S. (4 Wheat.) 518 (1819), Marshall failed to cite 87 See infra note 100. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), ~8 Currie II, supra note 2, at 656, 661; Currie, Th e notwithstanding its potential usefulness in estab­ Constitution in the Supreme Court: State and Con- lishing that a state charter could be a contract. His 104 YEARBOOK 1987

colleagues, Justices Washington and Story, wrote Currie suggested, Marshall may have omitted a unexpectedly long separate concurrences that Pro­ reference to Mossman because the legal point in fessorCurrie suggests might have been prompted by Hodgson was obvious and "Marshall's resolution Marshall's failure to cite Fletcher. Currie Ill, supra extemporaneous." Id. Marshall's failure to cite note 88, at 908 n.l43. Fisher in McCulloch is harder to attribute to lack of 94 In the landmark case of McCullough v. Mary­ awareness since Marshall wrote Fishel: However, it land, 17 U.S. (4 Wheat.) 316 (1819), Marshall may be that no one mentioned Fisher and that even explored the incidental powers conferred on Con­ Marshall had forgotten it. Accord Currie III, supra gress by the "necessary and proper clause." He note 88, at 931. wrote as if the question were one offirst impression 99 Marshall had recused himself in Martin v. and never mentioned his own earlier opinion in Hunter's Lessee, when the Court first upheld the Uniled Stales v. Fisher. 6 U.S. (2 Cranch) 358, 396 constitutionality of§25 of the judiciary Act of 1789. (1804), where the Court had already rejected the Cohens v. Virginia gave Marshall his first oppor­ contention that the clause required indispensable tunity to address the constitutionality of§25, and he necessity. may have been eager to propound his own analysis 95 In Hodgson v. Bowerbank, 9 U.S. (5 Cranch) without being constrained by Story's opinion in 303 (1809), the question was whether federal courts Martin v. Hunler's Lessee. Marshall may have failed hadjurisdiction whenever one party wasan alien, as to cite Fletcher in the Dartmouth College case thejurisdictional statute seemed to indicate, oronly because the state in the Dartmouth College case did when the other party was a state or citizen of a state, not argue that charters could never be contracts. See as article III seemed to require. Marshall held that Trustees ofDartmouth College v. Jrf/oodward, 17 U.S. the statu te could not extend the jurisdiction beyond (4 WheaL) 518, 600-15 (1819); Tl1lSlees ofDartmouth article III, and therefore that the failure to allege that College v. Woodward, I N. H. III, 132 (1817); see also one party was a citizen ofa state was fatal. 9 U.S. (5 Currie III, supra note 80, at 908 n. 143. Cranch) at 304. Marshall nowhere mentioned the 100 In addition to the More case discussed supra, same holding eight years earlier in Mossman v. see also Governor ofGeorgia v. Madrazo, 26 U.S. (I Higginson, 4 U.S. (4 Dall.) 12 (1800). Scholars Pet.) 110 (1828), in which Marshall distinguished disagree as to whether Hodgson held the jurisdic­ Osborn v. Bank of the Un/led States, 22 U.S. (9 tional statute to be unconstitutional, see HART & Wheat.) 738 (1824) and Uniled States v. Peters, 9 U.S. WECHSLER, supra note 70, at 417 and C. WRIGHT, (5 Cranch) 115, 139-41 (1809)(eleventh amendment supra note 4, at 93 & n.lO, or whether Marshall ju risd ictional issue). Si mi larly, in Bank ofthe Uniled simply construed the jurisdictional provision nar­ Slates v. Planter's Bank of Georgia, 22 u.s. (9 rowly to avoid the constitutional issue, see Ma­ Wheat.) 904 (1824), and Osborn. 22 U.S. (9 Wheat.) honey, A Historical Note on Hodgson v. Bowerbank, at 817 -18 (1824), Marshall distinguished Bank ofthe 49 U. CHI. L. REV. 725 (1982). Mossman was clearly United StaleS v. Deveaux, 9 U.S. (5 Cranch) 61, 86 a statutory construction case. See id., at 734-35. (1809), on the question of the power of the Bank of 96 1n Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 the United States to sue and be sued. The distinc­ (1821), Marshall established the constitutionality of tions did not always convince Justice Johnson who §25 of the First Judiciary Act without noting until dissented in both instances; however, at least Chief the last paragraph that the Court, only five years Justice Marshall attempted to find distinctions and earlier in an elaborate opinion by Justice Story, had did not simply ignore prior conflicting cases. already upheld its constitutionality. Only after his 101 See supra notes 25-30 and 77-78 and accom­ own long dissertation that essentially retraced panying text. Justice Story's reasoning did Marshall indicate that 102 One of these petitions to mandamus a lower further discussion was unnecessary "because the court also involved the pension acts. In 1792, subject was fully discussed and exhausted in the Attorney General Randolph tried to get the Su­ case of Marlin v. Hunter's Lessee [14 U.S. (l Wheat.) preme Court to order the circuit court for the 304, 323-52 (1816]." 19 U.S. (6 Wheat.) at 432. district of Pennsylvania to hear veterans' petitions. 97 In /·1!ayman v. Southard, 23 U.S. (10 Wheat.) I, The Court questioned the Attorney General's au­ 43 (1825) Marshall asserted that "Congress may thority to make such a motion ex officio, and he was certainly delegate to others, powers which the not allowed to proceed. Hayburn's Case, 2 U.S. (2 legislative may rightfully exercise itself," without Dall .) 409 (1792). Undeterred, Randolph got a citing the arguably helpful precedent of Cargo ofthe veteran, William Hayburn, to hire him as private Brig Aurora v. United Stales, I I U.S. (7 Cranch) 382 counsel and on behalf of Hayburn, Mr. Randolph (1813). moved for a writ of mandamus to direct the circuit 98 Thus, Marshall's failure to cite Mossman in court to hear Hayburn's petition. Id The Court, Hodgson v. Bowerbank, supra note 95, may have however, never ruled on the motion, apparently been because he was unaware of }\1ossman, not because Congress was about to modify the Pension having been on the Court when it was decided. Act. Id. at 409-10. See supra note 13. In another Accord Currie II, supra note 2, at 680. Another mandamus action, United Stales v. Lawrence, 3 U.S. possible reason Marshall may have cited no prece­ (3 Dall.) 42 (1795), Attorney General Bradford dent in Hodgson is that Hodgson is simply a one line sought to get the Supreme Court to issue a writ of opinion on a relatively easy point. As Professor mandamus ordering District Judge Lawrence to JOHN MARSHALL 105 issue an arrest warrant against Captain Barre, Justices' letter to George Washington and Washing­ accused by the French of being a deserter. The ton's original request for their views on thejudiciary Court denied the writ because "the district judge generally are reprinted in 3 1. STORY, COMMEN­ was acting in a judicial capacity, when he deter­ TARIES ON THE CONSTITUTION OF THE UNITED mined that the evidence was not sufficient to STATES, 436-38 (Boston 1858). No proof exists that authorize his issuing a warrant for apprehending the Justices' letter was ever sent. Justice Chase's Captain Barre; and, whatever might be the dif­ 1802 letter is reprinted in HASKINS & JOHNSON, ference of sentiment entertained by this court, we supra note 2, at 172-77 n.182). We disagree. The have no power to compel a judge to decide accord­ Justices' 1790 letter, while pertinent, does not ing to the dictates of any judgment but his own." 3 appear to address the question of whether Congress US. (3 Dall.) at 53. The Court appears never to have can enlarge the Supreme Court's original jurisdic­ questioned its jurisdiction. In Fitzbonne & Allard v. tion. The Justices argued that article III gives the Judge 0/ the District Court for the District 0/ New Supreme Court "original jurisdiction in only two York, an unreported case, the plaintiffs sought a cases, but in all the others vests it with appellate writ of mandamus from the Supreme Court direct­ jurisdiction" because, the Justices said, the framers ing the district court to proceed tojudgment in a beJieved it inappropriate for the "ulti mate appellate naturalization proceeding. The Supreme Court jurisdiction" to be combined with originaljurisdic­ granted a motion to show cause on August 12, 1800. tion. From this premise, they argued that it was See Marcus & Perry, supra note 22, at 328. There­ unconstitutional to make Supreme Court Justices after, there are no further entries on this matter in exercise original jurisdiction in cases that might the Supreme Court. Accord 1. GOEBEL, supra note later be heard as appellate cases in the Supreme 56, at 785 n.77. Court. Id. Without regard to the persuasiveness of 10) As was suggested in Marbury, and confirmed their argument, it does not address the question of in later cases, it is constitutional for the Supreme whether Congress can move a matter from the Court to issue writs of mandamus to inferior courts Supreme Court's appellate jurisdiction to its orig­ to protect its appellate jurisdiction. See 5 US. (I inal jurisdiction, especially if the Supreme Court Cranch) at 175; see also Ex Parte United States, 287 continues to be the ultimate judicial authority in US. 241 (1932) (a case virtually identical to United the matter and will not be called upon to review its States v. Lawrence, supra note 102, in which the own decision at a later ti me. The Justices' 1790 letter Court issued the writ, holding that the mere was concerned with the impropriety of having possibility that the case might ultimately come to members of the Supreme Court review, on appeal, the Court for review meant that the case was within their own decisions or decisions of their colleagues its appellate jurisdiction). sitting as trial judges. Nothing ofthe sort is involved 104 In addition to the six mandamus actions - in Congress's moving cases from appellate to orig­ Randolph's motion (supra notes 21-25 and accom­ inaljurisdiction and we can gain no insight into the panying text), Chandler (supra notes 25-30 and Justices' view of that question from their 1790 letter. accompanying text), Hopkins (supra notes 77-78 Justice Chase's 1802 letter to Chief Justice Mar­ and accompanying text), Hayburn (supra note 102, shall argued that repeal of the Judiciary Act of 1801 Lawrence (supra note 102), Fitzbonne and Allard and the consequent reimposition of the Justices' (supra note 102)-there were also three petitions in circuit riding duties was unconstitutional. As one the Supreme Court for writs of prohibition, the step ina complicated argu men t, Chase asserted that other extraordinary writ authorized by § 13 of the Congress could not move cases from the Supreme Judiciary Act of 1789. See United States v. Peters, 3 Court's appellate jurisdiction to its original juris­ US. (3 Dall.) 121 (1795); United States v. Judge 0/ diction. His view was premised on his belief, never District Court o/United States/or District o/Virginia, accepted by the Supreme Court, that Congress was unrepOited, cited in Marcus & Perry, supra note 22, constitutionally required to establish inferior courts at 272; United States v. Bache, unreported case, and vest them with original jurisdiction of all described in id. at 309. All three writs were to be matters not assigned by the Constitution to the directed to inferior courts. The Supreme Court Supreme Court's original jurisdiction. Thus, ac­ granted the requested writs in the first two cases, see cording to Chase, enlarging the Supreme Court's 3 US. (3 Dall.) at 129-32; the third case was abated original jurisdiction would entail diminishing the in 1799 when the respondent died. See Docket of original jurisdiction of the inferior courts and the Supreme Court, in id. at 522. In none of the would mean that "the citizen would be deprived of cases did jurisdiction appear to be an issue. the benefit of a hearing in the inferior Tribunals." 105 3 A. BEVERIDGE, supra note 2, at 128. HASKINS & JOHNSON, supra note 2, at 173 n.182. 106 Professor Currie claimed that Marshall's con­ Justice Chase concluded that Congress could not tention that the originaljurisdiction of the Supreme constitutionally require Supreme Court Justices to Court could not be expanded was not a new theory, sit on Circuit Courts because they might have to citing the Supreme Court Justices' 1790 letter to hear and decide, as original matters, cases that President Washington objecting to circuit duty and article III had defined to be in the Supreme Court's, Justice Chase's 1802 letter to Marshall claiming that as well as the individual Justice's, appellatejurisdic­ the repeal of the Judiciary Act of 1801 was uncon­ tion. Id. at 176. Without regard to the persuasiveness stitutional. Currie II, supra note 2, at 655 n.58. (The of Chase's convoluted logic, it was given in 1802- 106 YEARBOOK 1987 after Marbury was first instituted and shortly before fended the bill on the floor of the House. 10ANNALS it was decided - and thus does not undermine our OF CONGo 646 (1800). opinion that the prevailing view of article III in the 112 Indeed, it is interesting that Marshall did not 1790's was that the Supreme Court's original juris­ try to use the earlier mandamus cases to strengthen diction could be enlarged. See also, Nelson, supra his argument. Arguably, he could have cited them to note 2, at 941 (distinguishing question of constitu­ show not only that the Court had apparently not tionality of riding circuit from question in Marb­ issued any writs of mandamus in the past, but also ury). that considering the merits first was an acceptable 107 See supra note 73. I n fact, Yale Todd presented mode of analysis. His failure to do so tends to another potentially troubling jurisdictional ques­ confirm our belief that Marshall knew they could tion. The statutory basis for Supreme Court juris­ not fairly be cited to support his jurisdictional diction of the case was not obvious. Nothing in the argument and that ignoring them was the better Judiciary Act of 1789 seemed to fit. The most likely approach. statutory candidate was Congress's 1793 directive to 11 3 As Professor Currie noted, issues of federal the Attorney General and Secretary of War to seek jurisdiction constituted a significant portion of the an adjudication from the Supreme Court. See supra Court's docket during this period. See Currie I, note 19. That would be an oblique, but not supra note 47, at 822-53; Currie II, supra note 2, at necessarily ineffective, way to define jurisdiction 650. Thus, for example, the Court confronted and and, in fact, the Supreme Court later read the 1793 decided questions regarding Congress's power to Act to provide such jurisdiction. See Florida v. limit the Court's appellate jurisdiction in Wiscart V. Georgia, 58 U.S. (17 How.) 478 (1854). DAuchy, 3 US. (3 Dall.) 321 (1796) and to restrict 108 United States v. Ferreira, 54 US. (13 How.) 40, diversity jurisdiction in Turner v. Bank of North 53 (1851). America, 4 US. (4 Dall.) 8 (1799). Similarly, in 109 ''A Bill to Provide for the Better Establishment Chisholm V. Georgia, 2 US. (2 Dall.) 419, 450-51 and Regulation of the Courts of the United States," (1793), the Court held that article Ill's provision for 6th Cong., 1st Sess., introduced Mar. II, 1800, jurisdiction over a "controversy between a State and CONGRESSIONAL COLLECTION, Rare Book Room, citizen of another State" included those in which Library of Congress. Section 5 provided in its the state was the defendant. In addition, when entirety: Attorney General Randolph tried on two separate And be it further enacted, that where any state, occasions to petition the Court for a writ of body politic or corporate, company, or person, mandamus in the pension cases, the Court, sua shall have any demand against the United States, sponte, questioned his authority to make such a for or on account of any debt, contract, or motion and ultimately refused to allow him to damages whatsoever; or shall claim the right of proceed. See Hayburn's Case, 2 US. (2 Dall.) 409 soil in, of, or to any land held or possessed by the (1792); letter from Edmund Randolph to Henry United States; it shall be lawful for such state, Knox (Aug. 9, 1793), printed in I AMERICAN STATE body politic or corporate, company, or persons, PAPERS, MISCELLANEOUS , at 78 (Washington to file a petition in the Supreme Court of the 1834). Finally, in Mossman v. Higginson, 4 US. (4 United States, setting forth , fully and particularly Dall.) 12 (1800), the Court strained to read a the matter and grounds of such demand or claim, jurisdictional statute narrowly to avoid a broader and praying redress; and also to serve the at­ reading that was more likely to have violated article torney general of the United States with a copy of III, a technique of statutory construction Marshall such petition; whose duty it shall be thereupon, failed to use in Marbury. to appear in the said court, on the part of the 114 5 US. (I Cranch) at 148-49; see supra note 82. United States and defend such demand or claim 115 19 US. (6 Wheat.) 264, 418, 420-21 (1821). and that the said court shall be, and hereby is, Marshall also relied on the early interpretation of authorized and empowered to hear such petition, Congress coupled with judicial acquiescence in and to inquire into the matter and grounds McCulloch V. Maryland, 17 US. (4 Wheat.) 316 thereof, and to decree therein, according, to the (1819). Regarding Congress's powerto create a bank, rules and principles received and practiced in Marshall noted that Congress had done so as early courts of equity; which decree, so rendered, shall as 1791 and said: be, to all intents and purposes, binding on the The principle now contested was introduced at a United States, the faith of which is hereby pledged very early period of our history, has been recog­ to stand to and perform the same. nized by many successive legislatures, and has 11 0 Mr. Gallatin apparently moved to strike the been acted upon by the judicial department, in provision on March 25, 1800, after which a "lengthy cases of peculiar delicacy, as a law of undoubted debate then ensued." 10 ANNALS OF CONG o 645 obligation .... An exposition of the constitution, (1800). The provision was struck on March 26. Id. deliberately established by legislative acts, on the No debate or vote was recorded. Turner, Federalisl faith of which an immense property had been Policy and the Judiciary Acl of 1801, 22 WM. AND advanced, ought not to be lightly disregarded. MARY Q. 3, 11-13 (1965). 17 US. (4 Wheat.) at 401. III Haskins & JOHNSON, supra note 2, at 124; 11 6 See, e.g., Martin V. Hunler's Lessee discussed Turner, supra note 110, at 12 n.48. Marshall de- supra note 74. 117 5 US. (I Cranch) 299 (1803). reel 2), Library of Congress. 118 5 US. (I Cranch) at 309 (emphasis added.) 128 See Judiciary Act of 1801, 2 STAT. 89 (l80l); The Justices upheld the constitutionality of the JUDICIARY ACTOF 1802, 2 STAT. 156(1802); see also practice of riding circuit, notwithstanding its bur­ supra note 123. densomeness, their intense hatred for the practice, 129 See letter from Abner Mott to John Rutledge and their prior opinion that it was unconstitutional. (Feb. 20, 1802), JOHN RUTLEDGE PAPERS , South­ See draft letter from John Jay et at. to President ern Hist. CoIl., Univ. of N.C; letter from Roger Washington reprinted in 3 1. STORY, COMMEN­ Griswold to ? (Feb. 26, 1802), WILLIAM GRISWOLD TARIES ON THE CONSTITUTION OF THE UNITED LANE MEM . COLL. , Yale Univ. STATES , 436-38. See also text accompanying note 130 As explained supra note 122, an 1802 act 106. postponed a meeting of the Court until February, The opinion in Laird was delivered by Justice 1803, but the repeal act went into effect in July 1802 Paterson. According to Cranch's Report, Marshall and the Justices were required to conduct the fall "having tried the cause in the court below, declined circuits. giving an opinion." 5 US. (I Cranch) at 308. The 131 The story of how the Supreme Court Justices Court's decision affirmed thejudgment of the court made their decision on whether to acquiesce in the below, which had been rendered on the technical repeal and to ride circuit is long and interesting but insufficiency in form of the defendant's plea. C is not germane to this Article. For a complete WARREN, supra note 2, at 273 n.1. account, see HASKINS & JOHNSON, supra note 2, at 119 Unanimity was important to the Chief Jus­ 168-81. tice. See White, supra note 3, at 34-38. 132 See HASKINS & JOHNSON, supra note 2, at 120 Letter from Samuel Sewall to William Cush­ 406; Nedelsky, Confining Democratic Politics.· Anti­ ing (Feb. 25, 1800), WILLIAM CUSHING PAPERS, Federalists, Federalists, and the ConSlitUlion (Book Mass. Historical Society; see also supra note 74 and Review), 96 HARV. L. REV. 355, 359 (1982); Nelson, accompanying text. supra note 2, at 932-42; see also Goldwaler v. Carler, 121 See supra note 106 and accompanying text. 444 US. 996 (1979); Powef{ v. McCormack, 395 US. 122 Section 1,2 STAT. 156 (1802). Congress, in this 486 (1969) ; Baker v. Can; 369 US. 186 (1962). April, 1802 Judiciary Act that followed the repeal of 133 Arguably, the Court's decision to ignore the the Judiciary Act of 1801, see infra note 128, revised past rather than distinguish it was vindicated by the the Supreme Court's term to insure that the Court contemporary reaction to the decision. As Charles would not have the opportunity to rule on the Warren noted, see supra note 70, the focus of constitutionality of the Repeal Act before the attention was principally on the Court's assertion of Justices, as individuals, had to decide whether to power over the executive and the fact that the acquiesce in the repeal by riding circuit. See assertion was unnecessary given the Court's hold­ HASKINS & JOHNSON, supra note 2, at 167-68. ing of no jurisdiction. Little atttention was directed 123 The Judiciary Act of 1801 had significantly to the Court's decision that it had no jurisdiction, extended federal jurisdiction and enlarged the and there was no apparent recognition of any federaljudiciary. It established an entirely new set of inconsistency with prior practice and understand­ circuit courts staffed with its own judges (and filled ing. Thus, one can contend that, by ignoring any with appointments by outgoing President Adams). potential conflict with precedent and not trying to Supreme Court Justices were no longer required to distinguish prior practice, the Court avoided scru­ ride circuit. 2 STAT. 89 (1801). tiny ofthat part of its opinion. On the other hand, it 124 Salem Register, Jan. 28, 1802, as quoted in C is certainly plausible that no matter how the Court WARREN, supra note 2, at 205. had structured its jurisdictional argument and no 125 Aurora, Dec. 30, 1801. matter how openly it had ack nowledged prior cases, 126 Letter from Breckinridge to James Monroe the focus of attention would have remained on the (Dec. 24, 1801) JAMES MONROE PAPERS (microfilm Court's asserted power to examine the lawfulness of series I, reel 2) Library of Congress. executive action. 127 Letter from Mason to James Monroe (Dec. 21, 134 See supra notes 102-04 and accompanying 1801), JAMES MONROE PAPERS (microfilm series I, text. The Judicial Bookshelf by D. Grier Stephenson, Jr}

Few students of the Supreme Court and the opinions of mankind. Such a princi ple being once Constitution read very far before encounter­ established, no man can pretend to anticipate what 2 shape the constitution of the United States ... is ing McCulloch v. Maryland. In this decision, destined to take.' the Court held that Congress could charter a national bank even without express authoriza­ For Legare, the Supreme Court had re­ tion in the Constitution and that the states nounced a responsibility. "We venture to could not tax it. The ruling formally recog­ predict that no act of the federal government nized both a deep reservoir oflegislative power . .. will ever be pronounced unconstitutional within the Constitution and a subordinate in that court, for the simple reason that the place for the states in the federal system. principle of McCulloch's case covers the whole Moreover, the Supreme Court, as expounder ground of political sovereignty, and con­ of the Constitution, would correspondingly secrates usurpation in advance." In the short have a narrow but nonetheless essential role, run, Legare was right. From 1803 until the protecting national interests from improper unusual circumstances of the Dred SCO/l case inroads by the states. Yet as important as the in 1857, the Supreme Court refrained from ruling was in cementing the foundations of declaring any act of Congress unconstitu­ national supremacy, Chief Justice Marshall's tional. Still, the real significance of Legare's opinion of the Court was vigorously criticized assessment went further than dissatisfaction in some quarters at the time. Marshall even felt with the holding in the bank case. Legare compelled to resort to the newspapers in explicitly accepted the Court's role as guardian anonymously written defenses of his posi­ of the Constitution, expecting the Court to tion. 3 protect state interests against inroads by Con­ Nearly a decade later the controversy over gress. Legare's critique, therefore, was no McCulloch had not subsided. In a review of attack on judicial review, but a pointed repri­ Kent's Commenl£lries, Hugh Swinton Legare, mand. The Court had read national powers so later Attorney General and Secretary of State broadly as to make its future exercise against in President Tyler's administration, declared Congress highly unlikely. McCulloch threat­ that the decision of 1819 "gave the government ened state prerogatives. an unbounded discretion in the choice of Skirmishes over McCulloch of course did ' means' to effect its constitutional ob­ not conclude the debate. The political heirs of jects.... [T]here is no end to the consequences Marshall and Legare continue the dialogue on that may and will be deduced from the the nature of constitutional limitations and doctrine in McCulloch's case," he declared. the role of the Supreme Court in giving them meaning. The subject guarantees that the The amount of it really is, that the enumeration of powers in the constitution was a vain attempt to Supreme Court will not soon suffer from confine what is necessarily illimitable-that such an inattention in political and legal literature, as instrument never can ascertain its objects with any recent volumes attest. sort of precision - that it can, at most, hint a vague purpose and sketch a sweeping outline, which is to be filled up at discretion - in short, that it is not the plan of a government formed and settled, and The Justices circumscribed from the first, .. . but a mere nucleus around which a government is LO be formed , John Marshall's leadership in decisions according to the circumstances of the times, and the such as McCulloch during some 34 years as JUDICIAL BOOKSHELF 109 head of the Supreme Court earned him the trative Office of the United States Courts as acclamation of "the great Chief Justice." Lead­ well as to handle other administrative chores, ership is the subject of Robert 1. Steamer's to lobby for legislation to improve the ad minis­ Chief Justice.5 He observes correctly that in a tration of justice, to defend the judiciary from few instances "the presidential choice of a political assaults from without, to communi­ chief justice has been the president's most cate wi th the organized bar and law schools on enduring contribution to the nation's political matters of common interest, and to fulfill a culture."6 This is certainly true with President ceremonial component in the public's eye. All John Adams' appointment of Marshall in the of these, says Steamer, require "an uneven waning days of his administration in 1801. It is amalgam of managerial dexterity, social probably true with respect to President adroitness, and intellectual powers," and, one Hoover's nomination of Charles Evans should add, political acumen. 7 Hughes in 1930, President Grant's choice of Steamer attempts to answer a series of Morrison Remick Waite in 1874, and Presi­ questions: What has been a particular chief's dent Harding's selection of William Howard impact on constitutional development? What Taft in 1921. It may even be true of President are the qualities which have made some chief Eisenhower's naming of Earl Warren in 1953. justices great leaders? Why has prior political Surely few of Eisenhower's decisions and success or legal accomplishment not pre­ policies have had a more lasting impact on the vented mediocrity in the office? What connec­ nation. tion appears between judicial statesmanship Rather than undertaking a chronological and legal craftsmanship? From answers to study of the chief justices from Jay through these and related questions, Steamer generates Burger, Steamer has instead adopted a com­ not a quantitative measure ofleadership but a parative approach, examining chiefs in the characterization of those who excelled and various ways in which leadership has man­ why. Noting Charles Evans Hughes' observa­ ifested itsel( Coverage is uneven, as one would tion that "the ways in which the Court does its expect. Jay, Rutledge, and Ellsworth, the first work give [the chief justice] a special oppor­ three chief justices, served for very short tunity for leadership," Steamer attempts to periods (Rutledge for only six months), and provide a look at how fifteen chiefs have used with a relative scarcity of cases, the oppor­ that "special opportunity." tunity for measurable impact was small. Additionally,judicial greatness requires that Moreover, attention given to Chief Justice "the incumbent be ajudge whose views of the Burger is less than to, say, Warren or Fuller Constitution and of the law must be because Steamer completed his writing prior thoughtfully formulated and expounded in a to Burger's retirement in 1986 - before the written opinion . . .." The Chief must be able record for the fifteenth Chief Justice had fully "to carry his intellectual weight" in order to run its course. build and to maintain respect with colleagues Part of the context of judicial leadership is and with the Court's constituencies in the legal the change the office has experienced since profession, the academy, and the public at 1789, especially in arenas outside the Supreme large. Potentially, in the right hands the office Court. This makes comparisons more diffi­ of Chief Justice in power, prestige and au­ cult. Public expectations for a Warren Burger thority can be, and sometimes has been, were vastly different from those for a John "second only to the presidency." Marshall or a Roger Taney. Aside from work­ Steamer's conclusions confirm widely held ing one's influence on public policy through impressions. There are few surprises. In over­ cases decided by the Court (the internal all performance, the nation has been well dimension ofieadership), today's Chief Justice served by holders of an office the Constitution confronts demands outside the Court that are mentions but does not describe. Excepting far removed from those of the nineteenth John Rutledge who hardly had a chance, century. The external dimension of the chief Steamer believes that "all have left a personal justiceship now requires the occupant to imprint on the Court's work and in greater or preside over the Judicial Conference of the less degree on American constitutional devel­ United States and to supervise the Adminis- opment." Marshall, Hughes, and Warren re- 110 YEARBOOK 1987

.~ .1t i; i; ~ ~

~ ~ '"" '"" .~ t ~ ~ !? ~ 'C''" '-<>. ~ ~ ~ '-' ~ .g "" According to Robert Steamer's ChiefJustice, some of the success enjoyed by Chief Justices John Marshall (left) and Charles Evans Hughes (right) was attributable to both men's political acumen. ceive the highest ratings, yet the author is the case of Chief Justice Warren's "Chief quick to add that they necessarily had neither Justice Marshall: Expounder of the Constitu­ "the most imaginative minds" nor were they tion," necessarily "the most deft managers." Espe­ Choper has divided the volume into seven cially for Marshall and Hughes, they suc­ sections, six of which contain two or more ceeded because they were "very skillful politi­ essays: (I) Establishment of the Power of Judi­ cians" in the internal and external dimensions cial Review, (2) Portraits of Past Justices, of judicial life.9 (3) Qualities, Characteristics and Activities of Past Justices, (4) The Court as a Center of During the years of his incumbency Warren never faced a president bent on limiting institutional Controversy, (5) Internal Operation of the power as did Marshall with Jefferson or Hughes Court, (6) Appointment of New Justices, and with Roosevelt. Nor were the Warren Court's deci­ (7) Lawyering Before the Court. While most sionsever without considerable support throughout the country. The buckshot approach taken by of the essays are recent in origin, several are Congress [in Warren's years], while harassing and not. "Roger Brooke Taney: A Great Chief not to be discounted, was never as formidable a Justice" by Charles Evans Hughes appeared political threat as the bigcannon aimed by President Roosevelt. 10 originally in 1931 and contributed to the restoration of Chief Justice Taney's reputation Contributing to leadership is the combina­ in scholarly circles. Harry C. Shriver's "Oliver tion of personalities on the bench at a particu­ Wendell Holmes: The Lawyer" was first pub­ lar time. While the chief's character and lished in 1938 and is one of two essays in the demeanor are surely factors, so are the book on the Olympian. Robert H. Jackson character, demeanor, and attitudes of each of assessed "The Judicial Career of Chief Justice the associate justices. Insights into seventeen Charles Evans Hughes" while he was Attorney present and former justices appear in The General, just before his own appointment to Supreme Court and Its Justices, 11 a collection of the Court following Harlan Stone's move to essays on the Supreme Court and its members. the center chair in \941. And Justice Harold H. Edited by Jesse H. Choper, the volume re­ Burton's classic "Marbury v. Madison: The prints twenty-six articles from the ABA Jour­ Cornerstone of Constitutional Law" was fea­ nal, including eleven by, and twelve about, tured in a 1950 issue of the Journal. individual justices. In a few instances, an essay Among the most recent entries are two by about one justice is authored by another, as in Justice Lewis F. Powell, Jr., who retired from JUDICIAL BOOKSHELF III

the Supreme Court in June 1987, after fifteen scattered among dozens of dusty bound peri­ and a half years of service. "Myths and odicals on library shelves or wound on reels of Misconceptions About the Supreme Court" microfilm. And in many libraries they are and "What Really Goes on at the Supreme unavailable in any medium. Students of the Court" are instructive not only about the Court can be pleased that so many contribu­ Court but about Justice Powell as well. Im­ tions have been given new life in a new form. plicit in each is deep institutional loyalty and affection, a hope for public appreciation of the nature of the Court's work, and a belief in The Court At Work civility and collegiality if the Justices are to do their work well. "If! seem partisan on behalf Because the Supreme Court is a collegial of the Court, it is because I am," says Powell. 12 body, understanding interactions among the Myths Justice Powell debunksinclude "long Justices and between the Court and the larger 'vacations,''' "the mysteriously light work­ political system is therefore essential to under­ load" (where he takes issue with the late standing the institution. This is the objective Justice Douglas' contention that the Court is of David M. O'Brien in Storm Center I? Explor­ "vastly underworked"), "law clerks' influ­ ing judicial tempest and calm alike, O'Brien ence," the impropriety of five-four decisions has written one of the most useful and most (where he notes that the kinds of issues the thoroughly researched volumes on the Court Court faces guarantee a large number of such to appear in a long time. For example, he splits each term), and the prevalence of "dis­ examined the private papers of 55 justices cords" and "blocs." Journalists who interpret (including the papers of Justice Brennan and the Court's work to the public fail "to under­ the late Justice Douglas), over half the number stand that judges, like lawyers, may disagree of all who have ever served on the High Court. strongly without personal rancor or ill will. Moreover, he had correspondence or discus­ The fact is that a genuine cordiality exists sions with former Chief Justice Burger as well among the justices... . [U]se of the word bloc as Chief Justice Rehnquist and Justices Bren­ reflects a serious misconception of the way the nan, O'Connor, Powel\, Stevens, Blackmun, Court functions and suggests some invidious Marshall, and White, as weIl as the late Justice degree of collaboration in the decisional proc­ Stewart. ess."1 3 Because the Supreme Court's role in Amer­ Written after publication of The Brethren, 14 ican government is at once both anti-demo­ his second essay argues that "the extent of our cratic and countermajoritarian, O'Brien secrecy is greatly exaggerated." 15 Engaging in agrees with Chief Justice Edward White that what Holmes once called "the elucidation of its power rests "solely upon the approval of a the obvious," Powell reminds readers that free people." 18 The operation of the Court secrecy for deliberations is essential. 'The accordingly becomes a topic worthy of study integrity ofjudicial decision making would be beyond reasons of scholastic curiosity. How impaired seriously if we had to reach our the Court decides cases - the institutional judgments in the atmosphere of an ongoing dynamics that are at work - may wel\ affect town meeting." Similarly, Justice Powell de­ public attitudes toward the Court and there­ fends the Court against charges in the media fore the way its decisions are received. that the institution has become "rudderless." Storm Center flashes a caution light on how The absence of a dominant "judicial or ide­ the Court performs its tasks. Looking at the ological philosophy" is a sign of strength, he Burger Court, O'Brien believes that it became writes. It is evidence that "justices recognize "increasingly bureaucratic in response to no obligation to reflect the views of the growing caseloads." The result · has been, president who appointed them," an indication O'Brien finds, a Court now functioning " more of "a long tradition at the Court of in depend­ like a legislative body," with a decision typ­ ent decision making." 16 ically being more like an event than a process. Enhancing the value of these and other The danger is that such trends "in turn lead to selections is their accessibility. So often essays less certainty, stability, and predictability in of similar meri t from across the years remain the law."1 9 112 YEARBOOK 1987

By "bureaucratization" O'Brien presum­ all a science, but applied politics ...."23 More­ ably means the addition of staff at the Court, over, greater workloads leave less time for including clerks for individual Justices, hired resolving differences. 'There is less of this than for specific duties because of their expertise, one would like," admits Justice Powell, "pri­ who operate in a hierarchy of authority. More marily because of our heavy case load and the work is therefore done by persons other than logistical difficulties of talking individually to the Justices themselves, casting a shadow over eight other justices."24 O'Brien believes that Justice Brandeis' observation that "the reason Justices may be "less willing to withdraw the public thinks so much of the Justices of the concurring or dissenting opinions because of Supreme Court is that they are almost the only the time their clerks devoted to them."25 people in Washington who do their own Finally, the more individualized stands that work."2o Evidence for a shift toward legislative­ are taken publicly, the more Justices feel like behavior is a decrease in collegiality and constrained from compromising their views in socializing among the Justices necessitated by the future for fear of seeming inconsistent. an increased caseload and a marked increase SLOrm CenIRr also portrays the Court at in the number of highly politicized cases the work in the context of deciding particular Court now chooses to hear. cases. Especially instructive are the accounts The press oftime in turn leads to the filing of of decision making in UniIRd StaIRs v. Nixon more dissents and concurrences, a task made and Griswold v. ConneclicUi. Readers learn easier with the advent of word processing. more than has been made available in any Differences among the Justices become fixed other source. 26 In the Connecticut birth con­ rather than compromised. In the years of the trol case, for example, an early draft of Justice Burger Court at least, O'Brien found a rein­ Douglas' majority opinion rested on a First forcing of "ideological and personal dif­ Amendment right of associational privacy, as ferences."21 By contrast, until the end of Chief in NA.A.CP v. Alabaman In a three-page Justice Hughes' time on the Court, the dif­ memorandum to Douglas, Justice Brennan ference between the number of opinions for suggested instead the penumbral approach the the Court (majority opinions) and the total published opinion of the Court contains. For number of opinions (including majority and Brennan, the change in grounding "would be separate opinions) was very small. During most attractive to me because it would require Chief Justice Warren's tenure, however, the less departure from the specific guarantees latter figure became more than twice the and because I think there is a better chance it former figure, meaning that individual dis­ will command a Court."28 senting and concurring opinions now sub­ Despite such examples of collegiality, stantially outnumber majority opinions. O'Brien believes that the recent trends he has Opinions are also longer on average than they highlighted are "likely to continue regardless were fifty years ago, a significant development of future appointments and attempts to curb since there are now so many more opinions. the Court." Both the nature of the Court's The trend, which O'Brien terms "legislative," docket and its internal procedures have com­ is for Justices to "stake out" rather than to bined to give "the Supreme Court a new, more compromise positions. One recalls the situa­ difficult role to play in American political tion which generally prevailed prior to Chief life."29 Justice Marshall's appointment when Justices If O'Brien's book presents a "macro" view routinely filed serialim opinions, making "the of the Court, Bernard Schwartz in Swann's Court's" position more difficult to ascertain. J#zy 30 provides a "micro" look at one of the Partly responsible for this phenomenon are Burger Court's most far-reaching decisions: the kinds ofcases the Court hears today: major Swann v. CharlollR-Mecklenburg Board ofEdu­ questions of constitutional and statutory in­ calion. 31 This was the first decision by the terpretation. "These are areas in which the Supreme Court explicitly approving busing as justices are most likely to disagree and to be a remedy for racial segregation in urban areas. least inclined to compromise."22 In Frank­ While its focus was southern, it was nonethe­ furter's words, "constitutional law ... is not at less a precursor of decisions affecting other JUDICIAL BOOKSHELF 113

David O'Brien's Storm Center includes many inside glances of the Supreme Court at work. Among these is an instance in which Justice William Brennan (left) prevailed upon Justice William o. Douglas (right) to change the foundation upon which he based the Court's majority opinion in Griswold v. Connecticut. parts of the nation. Throughout his account, named to the Court until eight months after Schwartz offers ample corroboration ofJustice Swann came down. Justice Stevens did not Clark's observation that "differences of opin­ join the Court until after Justice Douglas' ion must be expected on legal questions as on retirement in 1975.) Questions regarding pro­ other subjects .... The history of progress is priety naturally arise when memoranda pre­ filled with many pages of disagreement. Why, pared in confidence reach the public's eye therefore, ... expect 'the most i nf! uential men while Justices concerned are still sitting. The ... on the bench ... trained in different same question applies in some places to philosophy and matured ina different climate' O'Brien's Storm Center. to have the same thoughts and views? They Fifteen years, however, separate thedecision don't and they won't."32 in the case and publication of Schwartz's book. Schwartz presents what is probably the Less time than that had elapsed when Alpheus most detailed account in the literature of the Mason's ground-breaking biography of Chief Supreme Court's decision-making process in Justice Stone appeared in 1956, just eleven a single case. To accomplish this task he drew years after Stone's death.33 Moreover, several from several manuscript collections, inter­ members of the Stone Court were therefore views wi th several presen t and former Justices, still sitting when heretofore secret details of as well as customary primary and secondary judicial deliberations saw the light of day. And sources. When Swann's U1Jyappeared in 1986, parts of the Stone biograpy had already been five Justices (Brennan, White, Marshall, pu blished as articles in law reviews. Controver­ Blackmun, and Burger) who participated in sial in some quarters at the time, intervening Swann were still on the Court. (Chief Justice decades have accustomed almost all scholars Burger retired at the end of the term in 1986, and Court publicists to the acceptability of and Justices Powell and Rehnquist were not Mason's timing. Certainly when the cases have 114 YEARBOOK 1987 been long decided, the materials made avail­ The blending of dissent and agreement able by the Justices themselves or their estates, which Schwartz observed in Swann is the and full documentation provided by the au­ subject of Sheldon Goldman and Charles thor, the public gains and the Court benefits Lamb's Judicial Conflict and Consensus,38 a from scholarly scru ti ny. 34 volume of twelve original essays on appellate In Swann, each member of the Court recog­ court decision-making in the United States. nized the case's importance. Not only was the Four concern the United States Supreme question raised a significant one, but the Court, four the United States Courts of Ap­ Court had its own record of unanimity in peals, and four the state supreme courts. Focus school segregation cases to protect. Moreover, is on judicial behavior. not the reasoning put Warren Burger was in one of his first terms as forth in the opinions themselves. Chief Justice, with the need to establish The editors' reasons for commissioning the leadership on the bench. Finally, all were aware studies include, first, increased "understand­ of the much-publicized promises ofthe Nixon ing of American collegial courts as legal administration, growing out of the presiden­ policy-making institutions." Second, because tial campaign of 1968, to restrict the effects of appellate courts have substantial power in Brown v. Board ofEducation 35 and its progeny. American government, "examination of con­ Schwartz's account demonstrates the flict on courts may tell us about a variety of lengths to which a new chiefjustice might go to ways in which that power is or can be exer­ retain the appearance of leadership. Accord­ cised." Third, students of the judicial process ing to Schwartz, Burger's views on the case will learn more about the internal operations were not shared by a majority of the Justices. of courts. This suggests a fourth reason: Burger was inclined to curtail the broad pro­ enhancing one's knowledge of " the individual busing order issued by United States District attitudes and values of judges." Consideration Judge McMillan in Charlotte. Justice Black as of the concept of "judicial role" is offered as a well believed the remedy went beyond what fifth basis, with the sixth being an improved the Constitution required. This division re­ ability "to draw inferences about the exercise sulted in a judicial tug-of-war. Through six of leadership on courts."39 drafts the majority pulled Burger toward their Sidney Ulmer's "Exploring the Dissent Pat­ understanding of the case, while several mem­ terns of the Chief Justices: John Marshall to bers of the Court became sensitized to his Warren Burger,"40 the second essay in the objections. Justice Black went so far as to collection, is of particular interest. Noting the prepare a draft dissent which he circulated, obvious incentives for a chief justice not to perhaps as a bargai ni ng ploy, wi thi n days of the dissent, Ulmer first surveys the number of day Swann was actually announced. Schwartz dissenting votes cast by individual chief jus­ explains how Black's position placed Burger in tices as recorded in the Reports. Despite the the middle between a more restrictive position essay's title, complete comparative data in the and that of Justices like Brennan who wanted a study include the Warren Court, but not the resounding affirmation of the steps Judge Burger Court since the research had been McMillan had taken in the case. "Even Bren­ completed well before Chief Justice Burger's nan could conclude," Schwartz says, "that the retirement. Since the dissen t rates vary sharply Burger draft joined by all was still preferable, by chief justice, Ulmer then attempts to with all its imperfections, to a further refining account for the differences. Overall, the per­ process that would produce the sharp Black centage of nonunanimous cases ranged from a dissent."36 The opinion thus brought the low of 7 percent in the Marshall Court to a Court together in a statement which perfectly high of 75 percent in the Vinson Court. The reflected no Justice's views. rate for the Warren Court was 69 percent. After the decision had been announced, Moreover, with only two exceptions, each Fifth Circuit Appeals Judge Griffin Bell con­ succeeding court has shown a higher percent­ fessed to a reporter, "It's almost as ifthere were age of 5-4 cases (or their equivalent) than its two sets of views laid side by side."3? Schwartz predecessor. This fact, Ulmer notes, is consist­ shows how this came about. ent with the proposition that cases decided by JUDICIAL BOOKSHELF 115 the Supreme Court have become more com­ which many recognize as a problem. "There is plex and that disunity has increased as the a limit to human endurance," Justice Brennan Justices have gained a greater say in selecting has said, and the present number of cases cases for review. argued and decided "taxes that endurance to Within the pool of all cases decided (from a its limi tS."44 low of704 during the Stone years to a high of Identifying a problem, however, is not the 4866 in the Fuller years), the chiefs dissent same as finding or agreeing on a solution. percentage ranged from a low of less than I Proposals to "do something" about the ex­ (Marshall) to a high of 13 (Stone). Warren's and pandingdocket began in earnest early in Chief Vinson's were slightly over 12 percent each. Justice Burger's tenure, with recommenda­ Furthermore, the mean rate of dissent for chief tions for a National Court of Appeals. This justices prior to Stone was only I. 9 percent. 41 institution would review the Supreme Court To account for these variations, Ulmer statis­ docket, referring only the most important tically tests several hypotheses. He discovers cases to the justices and disposing of the rest that the dissent rate among chief justices does itself.45 A commission headed by Nebraska not decrease for chiefs appointed in their later Senator Roman L. Hruska recommended years or who serve for a longer time. It is not creation of an intermediate court to decide explained by prior experience as a legislator or about 150 cases a year referred to it either by a judge. Nor is it a function of congressional the Supreme Court or existing courts of pressure on the Court. It does correlate in appeals. 46 In the 1980s discussion turned to most instances if one considers both complex­ establishment of an Intercircuit Tribunal ity of cases and turnover on the Court. Ulmer (lCT) that would occupy a position just below equates "complexity" with the dissent rate in the Supreme Court, deciding only cases re­ cases in which the chiefjustice did not dissent. ferred to it by that body, especially those His "turnover index" results from conbining involving conflicts among the circuits.47 the average number of appointing presidents Estreicher and Sexton believe that adding a per Court with the average number of appoint­ new court will only marginally increase the ments per Court. number of cases in which nationally binding Ulmer is careful not to draw firm con­ law can be rendered. Instead, what is needed is clusions on the basis of his study. His dissent­ a redefined role for the Supreme Court, one predicting model for chief justices, he cau­ that does not call for the Court to be a tions, "is strictly exploratory." Indeed, when "su preme cou rt of errors." I f the Cou rt is seen tested against Chief Justice Burger's dissents as the strategic leader ofthe federallawmaki ng between 1969 and 1980, the model greatly process and not as a super court of appeals, the under-predicted the former chiefs dissents. justices can meet the expectations placed Perhaps "complexity of cases and turnover are upon them. Otherwise there will be "the having a greater impact on Burger than on inevitable, paralyzing frustration that must earlier chiefs. The COFrect explanation, how­ seize them if they take seriously their obliga­ ever, can be found only after additional re­ tion to satisfy the current level of expecta­ search."42 Even with respect to earlier chiefs, it tions" of universal availability.48 is entirely possible that other considerations, Accordingly, the Court's "principal objec­ not tested in the Ulmer study, could account tives in selecting cases for plenary considera­ for the varying dissent rates observed. tion should be to establish clearly and defini­ Complexity of litigation in the Supreme tively the contours of national legal doctrine Court underlies the analysis and recommen­ once the issues have fully 'percolated' in the dations in Redefining the Supreme Court 5 Role lower courts, to settle fundamental inter­ by Samuel Estreicher and John Sexton.43 Both branch and state-federal conflicts, and to authors are former clerks at the Court, Es­ encourage the state and federal appellate treicher having served with Justice Powell in courts to engage in thoughtful decision-mak­ 1977 and Sexton with Chief Justice Burger in ing, mindful of their own responsibility in the 1980. Partly because of this experience, both national lawmaking process."49 Their find­ became concerned with the Court's workload, ings, based on the 1982 term, show (I) that 116 YEARBOOK 1987 nearly one-fourth of the cases in which the tive is a way in which the Justices can employ Court granted review "had no legitimate claim their scarce resources to perform essential on the Court's time and resources;" (2) that functions. only 48 percent of the cases heard by the Court in 1982 had to be heard, meaning that "over The Work Of The Court half of the Court's docket was discretionary;" and (3) that "less than 1 percent of the cases As the number of volumes surveyed in the denied review ... were cases that should have article attests, the Supreme Court is a much­ been heard by the Court ...." studied institution. Yet, in almost any book Under a regimen ofa newly defined role, the about the Court and its Justices, it is com­ Court's docket would be divided into three monplace to find comparatively little on the categories: the priority docket, the discretion­ pre-Marshall period. Even the first volume of ary docket, and the "improvident grant seg­ the Holmes Devise History53 reserves only ment." The first would include "intolerable" three chapters to the Supreme Court. This intercourt conflicts, conflict with Supreme relative inattention is due to the smaller Court precedent where a lower court has number of cases, rapid turnover in personnel, "disregarded authoritative Supreme Court and an unformed institutional identity. After precedent squarely on point," resolution of 1800 the Court faced a docket that had "profound vertical federalism disputes," reso­ increased in both volume and significance, lution of interbranch disputes, and resolution enjoyed more stable membership, and had a of interstate disputes. The discretionary developing identity. docket would include cases where a state court A major step toward rectifying much oftms sustained state action in the face of a federal pre- versus post-1800 imbalance has occurred constitutional or statutory challenge, other with publication in two parts of the first considerations of "vertical federalism" where volume of The Documentary History of the federal courts have invalidated "nonstatutory Supreme Court of the United States, 1789-1800, state action on federal constitutional or stat­ edited principally by Maeva Marcus and utory grounds (excluding federal habeas)," a James R. Perry, as assisted in this monumental "significant interference with federal execu­ project by seven associate, assistant, and tive responsibility," occasional interventions illustrations editors. Sponsored by the Su­ to correct "egregious error in order to ensure preme Court Historical Society and the responsible actions by lower courts," resolu­ United States Supreme Court, the project will tion of national emergencies, and "vehicles for eventually encompass seven volumes, provid­ advances in the development of federal law." ing the first record of all cases heard by the The third category of cases in which the Court Supreme Court between 1790 and 1800. In would not intervene include most intercourt addition, the series will contain documents conflicts between only two courts, most issues relating to the justices and the business of the of "nonconstitutional law" in the absence of Court, plus a compilation of official records, one of the other cri teria, issues ofstate law, and private papers, and other primary sources. most situations where a state court has invali­ To date, searches by the editors have turned dated state action on federal grounds. 51 up over 18,000 documents. If volume one is an These of course are not precise or clearly accurate predictor of what is to come, the defined categories. The authors, however, have series will more than fulfill the editors' prom­ outlined an imaginative solution of the work­ ise that the set "will constitute a collection of load problem in terms of altered role, rather materials that no individual scholar could than more institutions or ever enlarging bu­ hope to duplicate."54 Indeed, the value of this reaucracies. Their recommendations even call collection is two fold: some materials are being for achange in the way the Court decides cases. published for the first time, and for the first Once the proper ones have been chosen, the time so many valuable sources are together in Court would routinely call upon expert help, one place. rather than relying mainly on the talents of Volume one serves as an introduction and counsel involved in the litigation. 52 The objec- resource for the installments to come, but JUDICIAL BOOKSHELF 117 standing alone, it is of major value. There are, for example, 156 pages of documents and other materials relating to the appointment of each justice during the Court's first decade. This section is followed by nearly 400 pages of minutes, drafts of court proceedings, and docket head notes. Notes on bar admissions conclude Part One. Part Two consists of what the editors call "Commentaries." These are some 560 items, including letters, newspaper articles, diary and journal entries, and similar things relating to the appointment of justices and clerks and to the work of the Court. One finds, for example, ample material relating to John Rutledge's appointment as Chief Justice on July I, 1795 and his subsequent rejection by the Senate on December 15. It seems safe to say that no other single publication contains so many items relating to this series of events. The South Carolina State-Gazette account of Among the many important contributions of Volume One of The Documentary History of the Supreme Court Rutledge's speech in Charleston against the ofthe United States, 1789-1800 is an extensive collection Jay Treaty during the month of his nomina­ of documents relating to the appointment and subse­ tion appears in full, with the editors' notations quent rejection by the Senate of Chief Justice John on versions that were reprinted in at least Rutledge (above). twelve other newspapers up and down the coast before the middle of August as well as I set out, tho' in ill Health ... for Raleigh, in No. Carolina, but was so indisposed on the Road, as to references to the speech published in several be incapable of reaching it & as ultimately obliged to more. 55 The press may have been no less a return to this Place, convinced by Experience, that it force in American politics in Rutledge's day requires a Constitution less broken than mine, to discharge with Punctuality & Satisfaction, the than in our own, but given the horseback and Duties of so important an Office57 sailing-ship pace of the news, nationwide impact was almost always delayed. Rutledge was neither the first nor the last Also present is Secretary of State Edmund justice to reel from the onerous pressures Randolph's letter of July 25 to President occasioned by the travel which duty on circuit Washington, containing Henry De Saussure's entailed. Since the Senate did not reject report that Rutledge was "believed in Rutledge until December 15, it seems entirely Charleston to be deranged in his mind." This is possible that Rutledge wrote this letter before followed by Randolph's plainly exasperated he knew the outcome of the vote. letter to Washington on July 29: While the fruits of the first volume of The Documentary History were not available to The newspapers present all the intelligence, which has reached me, relative to the treaty. Dunlap's of David P. Currie, The Constitution in the Su­ yesterday morning conveys the proceedings of preme Court: The First Hundred Years Charleston. The conduct of the 'intended Chief 1789-1888 58 stands as a substantial scholarly Justice is so extraordinary, that Mr. Wolcott and Col. Pickering conceive it to be a proof of the imputation achievement. His book, however, is neither a of insanity. By calculating dates, it would seem to history of the Court nor a straight legal have taken place, after my letter, tendering the office analysis of all its decisions. Rather, Currie has to him was received; tho' he has not acknowledged it. 56 attempted "to provide a critical history, ana­ lyzing from a lawyer's standpoint the entire Rutledge's letter of resignation as Chief, constitutional work of the Court's first hun­ written December 28, 1795, offered mainly his dred years."59 The product is an evaluation of declining health as reason: the Court in terms of the method of inter- 118 YEARBOOK 1987 pretation and the style of opinion wntlOg were to be construed if possible in a manner displayed in each of the Court's decisions on consistent with the Constitution."68 Moreover, constitutional issues. The author therefore basic tools of constitutional interpretation in omits discussion of the broader political and use before 1801 are still employed today. "The social contexts, but recognizes their impor­ first Justices looked to the text of the governing tance obliquely through references in the constitutional provision, to inferences that footnotes. 6o could be drawn from other provisions to Currie's evaluation of judicial peformance contemporary usage, to the intentions or rests on the Constitution itself - a kind of purposes of the Framers, and to their own constitutional objectivism. It is "a law binding conceptions of sound policy."69 Words seemed the judges no less than the other officials decisive in Chisholm, legal tradition in Calder, whose actions the court undertakes to review." and policy in Hylton v. United Slates. Then as Accordingly, "judges have no more right to now, opinions were flawed . invent limitations not found in the Constitu­ In Chisholm, the Justices paid insufficient heed to tion than to disregard those put there by the tradition and to the statements of the Framers. In Framers. In short, when a judge swears to HylLOI1. they relied too heavily on policy before uphold the Constitution, he promises obe­ making a serious effort to explain the text. In Caldel; they failed to explain why judicial action was not dience to a set of rules laid down by someone forbidden by the ex post facto clause, to acknowl­ else."61 edge usage contrary to that which they invoked , and Not surprisingly, Currie is usually more to make clear precisely on which ground they relied. 70 impressed by right reason than correct results. Thus, Harlan's dissent in the Civil Rights Perhaps the most surprising conclusion Cases62 is regarded as "a substantial effort by arisi ng from Cu rrie's analysis is "the enormous any standard but one in which he seems to latitude the Constitution has left to judicial have let his heart run away with his head."63 judgment." That was illustrated by the first But Currie's judgments are tempered by un­ decade's work. Already appearing were symp­ derstanding. "Especially from the smug ad­ toms of free-wheeling judicial discretion. In vantage of a century or two of hindsight, it is Currie's view, Paterson and Iredell were the easier to find fault than to write a good most impressive in their constitutional juris­ opinion .... Add that the opinions were often prudence. Chase could be "thorough and prepared by overburdened generalists in as persuasive" but wandered into issues not little as a few days, in a time ofinferior research presented and seemed to be "no respecter of tools and an immature tradition of judicial the written Constitution." While Wilson ex­ exposition, under the pressure of carrying hibited "erudition," his opinions also "seemed colleagues with varying views; and it is per­ pretentious and disorganized." Jay was "long­ haps inspiring that the Justices did so well."64 winded and off the point," while Blair and Because of the reference already made in Cushing added little. "[N]ot a time of giant this survey to the pre-Marshall years, Currie's Justices or of great decisions," Currie nonethe­ findings for thatdecade are ofsome interest. In less finds the Court under Jay, Rutledge, and terms of published opinions, the Court's deci­ Ellsworth anything but uninteresting and sions were explained by only seven justices: insignificant. It set "a pattern ofconstitutional Jay, Cushing, Wilson, Blair, Iredell, Paterson, adjudication that was to endure."71 and Chase.65 While there were only three Just as Currie's volume purposefully over­ constitutional cases resolved by full-scale looked the political and social contexts of opinions (Chisholm v. Georgia, Hylton v. United litigation to focus on the reasoning the Justices Slates, and Calder v. Bu1166 ) an additional employed, John A. Garraty's Quarrels That twelve cases such as Iifilre v. Hylton 67 had Have Shaped the Constitution 72 is a collection of constitutional overtones. studies that highlights the origins and develop­ These decisions, Currie concludes, estab­ ment of constitutional cases in their political lished two lasting principles of construction: mileu. Originally published in 1962, the book that "doubtful cases were to be resolved in has been reissued with five new essays, for a favor of constitutionality" and that "statutes total now of twenty. Don E. Fehrenbacher's on JUDICIAL BOOKSHELF 119

"The Dred Scott Case" replaces Bruce Cat­ respect to his votes in Morehead and ):#st ton's. Appearing for the first ti me are articles Coast Hotel. 80 In an explanation to which 73 on Near Y. Minnesota ("The Case of the Leuchtenburg only briefly alludes,s I Roberts Miscreat Purveyor of Scandal" by Paul L. recounted that he had favored granting review Murphy), Gideon v. vvainwright74 ("The Case in Morehead only if the Justices were prepared of the Florida Drifter" by Anthony Lewis), to overrule Adkins. Since only three preferred Roe v. Wade 75 ("The Abortion Case" by that route (Hughes wanted only to distinguish Rosalind Rosenberg), and ):#st Coast Hotel Co. that case from Adkins since the state of New Y. Parrish 76 ("The Case of the Wenatchee York had not challenged the older case di­ Chambermaid" by William E. Leuchten­ rectly), he went along with the Sutherland burg). wing of the Court in striking down law. By Garraty's title sums up the nature of Amer­ contrast, ):#st Coast Hotel squarely presented ican constitutional interpretation. It is a proc­ the opportunity of interring Adkins. "Thus, for ess of resolving "quarrels" which appear in the the first time," Roberts maintained, "I was guise ofcases, posing questions to be answered confronted with the necessity of facing the by judges. Constitutional principle is fre­ soundness of the Adkins case."82 And at quently the by-product of the pursuit of conference on December 19, Roberts voted to personal gain, as people seek to retain or uphold the law. The Court was evenly divided recover something they believe (or hope) is at that point because of Justice Stone's absence rightfully theirs. Decisions that emerge from due to illness. When he returned in February, cases continue to shape the document by Stone also cast his vote to uphold the law. which all the nation lives. Roberts' position had therefore been made So, as William E. Leuchtenburg explains, it clear well before announcement of the court­ was Elsie Parrish (the "Wenatchee Chamber­ packing plan.s3 maid") who initiated the litigation in which While the Roberts memorandum explains the Supreme Court in 1937 upheld, five votes the timing of his vote in the second case to four, the Washington State minimum wage relative to the impending executive-judicial law. The decision helped to launch a constitu­ confrontation, the record is clear that Roberts tional revolution in favor of expanded govern­ could have made the difference on the fate of mental regulation of the economy and helped the New York statute in 1936. Perhaps Roberts to dampen another: President Franklin Roo­ was simply unsettled in his own thinking sevelt's "court-packing" plan. 77 The landmark regarding the enormity of the constitutional decision of Adkins v. Children's Hospitaf1 s was issues which were at stake. He had voted with overruled, and with it the very recent holding the majority in upholding the moratorium law in Morehead v. New York ex reI. Tipaldo79 in Home Building & Loan Association v. In 1937, Court-watchers expected the Wash­ Blaisdell, and had authored the ground-break­ ington statute to fall. On June I, 1936, More­ ing majority opinion on minimum milk prices head had invalidated a New York minimum in Nebbia v. New York. Yet, he spoke for the wage law, wi th Justices Sutherland, Bu tier, Van Court in United States v. Butlet; striking down Devanter, McReynolds, and Roberts in the the Agricultural Adjustment Act, and was part majority, and with Justices Brandeis, Cardozo, of the majority in the Carter Coal case and Stone and ChiefJustice Hughes in dissent. invalidating the Bituminous Coal Conserva­ Now in ):#st Coast Hotel, announced on tion Act in 1936. S4 March 29, 1937, Roberts voted to sustain a Because of the outcome of this constitu­ nearly identical statute. Intervening was the tional "quarrel," Elsie Parrish finally received unveiling on February 5 of President Roose­ her back pay of $216.19. Interviewed some velt's statutory assault on the Court. thirty-five years later, writes Leuchtenburg, To defend Roberts against accusations that "she indicated ... that she had accomplished the President's plan drove him to the other side something of historic significance - less for of the economic regulation question, Justice herself than for the thousands of women . .. Frankfurter published in 1955 a memoran­ who needed to know that, however belatedly, dum which Roberts had given him a decade they could summon the law to their side." 85 earlier outlining the sequence of events with While the Garraty volume enlivens a series 120 YEARBOOK 1987 of constitutional disputes spanning J70 years, costs to themselves. Clark, a state senator, took A "Scottsboro" Case in Mississippi by Richard the appeal to the Supreme Court of Mis­ C. Cortner86 is a detailed account of the events sissippi, but then suffered a mental and phys­ and personalities involved in a single case: ical collapse as well as the loss of a political Brown v. Mississippi.87 Brown was the Supreme future in his home state. Brewer was a former Court's first decision invalidating a state con­ governor of Mississippi who conducted the viction because of the use at trial of coerced Brown appeal to the United States Supreme confessions. Court. Without persistence by first Clark and Indeed, as late as the 1920s, the Due Process then Brewer, with shoestring funding (total Clause ofthe Fourteenth Amendment had not contributions were $1925) from local people been held to impose significant restrictions on and from groups such as the Commission on the states in the administration of their crimi­ Interracial Cooperation and National Asso­ nal laws. In terms of the Court's subsequent ciation for the Advancement of Colored Peo­ and gradual assumption of supervisory ple, the case of the Kemper County trio powers over state criminal justice, therefore, doubtless would have ended very differently. Brown is a companion to Powell v. Alabama, 88 Particularly influential in the appeal was the the Scottsboro case where the Court four years opinion by dissenting Justice William Ander­ earlier had overturned convictions because of son of the Mississippi Supreme Court which inadequate counsel. highlighted graphically the gruesome details The connection between Powell and Brown of the "interrogation." The state court major­ goes beyond their similar settings in adjacent ity .had upheld the convictions not because states during the 1930s with poor black males tKey approved of the methods the police on trial for their lives. Cortner shows how the employed but because counsel did not object Court in the latter case could have used the to the use of the confessions until after they former decision as a basis for reversing the had been introduced at trial. To this Anderson Mississippi convictions, because counsel at responded: "The court had staring it in the trial was inadequate. 89 That would have served face this incompetent testimony without the defendants just as well, but Brown would which there could be no conviction. Must the have had no measurable influence on consti­ lives ... be taken by law because their counsel tutional law. By focusing on the introduction failed to bring to the attention of the court this of coerced confessions at trial, however, the incompetent evidence? Are they without rem­ Court expanded the scope of its review of state edy?"90 proceedings by attributing more procedural According to Chief Justice Hughes for a content to the Fourteenth Amendment. The unanimous Supreme Court, they were not. results have been far-reaching. Interrogations "[T]he freedom of the State in establishing its and counsel have been troublesome issues for policy is the freedom of constitutional govern­ the justices in nearly every succeeding term. ment. ... Because a State may dispense with a Throughout Cortner provides an engaging jury trial, it does not follow that it may account which captures the drama and hu­ su bstitute trial by ordeal. The rack and torture manity of the case, all the while he effectively chamber may not be substituted for the shows how Brown became one of those "quar­ witness stand."9J As it happened, Brown came rels that shaped the Constitution." There was down on February 17, the same day the Court the murder of Raymond Stuart, a Kemper announced its decision in Ashwander v. County, Mississippi, planter. Ed Brown, TVA.92 Understandably, much press attention Henry Shields, and Yank Ellington were black focused on the latter which upheld the validity sharecroppers who were arrested, indicted, of the Tennessee Valley Authority. Com­ tried for murder, and sentenced to be hanged, mented one news magazine, "Even the deep­ all within a week of Stuart's death. The est-eyed Liberal hardly gave a hoot that day District Attorney was John Stennis, later about Brown el al. v. State of Mississippi - United States Senator. Key to the direction the three Negroes convicted of murder, whose case took after the trial were the efforts by local statements, claimed to have been made when attorneys John A. Clark and Earl Leroy they were brutally whipped by deputy sheriffs, Brewer at substantial emotional and financial were admitted in evidence. . .."93 JUDICIAL BOOKSHELF 121

Afterwards, District Attorney Stennis insis­ acceptable. Yet the problem of clarity does not ted on a retrial. Eventually a plea bargain was arise because all the justices keep changing arranged whereby the Kemper County trio their minds. The record demonstrates consis­ could please nolo contendere to manslaughter. tency among most members of the Court. For With time already spent in jail, sentences ran instance, into 1986 before Chief Justice Bur­ seven and a half years for Brown, two and one­ ger's retirement, three were reluctant to ap­ half for Shields, and six months for Ellington. prove almost any form of aid, and three found The three were persuaded that a retrial might most forms of aid to be constitutionally again result in a death sentence. "On 28 unobjectionable. It was the thinking of the November 1936, . .. the hard-fought battle on middle group of Justices that effectively deter­ their behalf came, rather unsatisfactorily, to an mined the outcome in individual cases, with end."94 two or more sometimes leaning one way and Rather than mold a book around a single sometimes another. The result was a crazy­ case, Francis Graham Lee in !#ill 0/ Contro­ quilt pattern of decisions which the public versy has chosen a single issue: the church­ must have considered muddled, or at best state constitutional conflict. 95 Combining his unclear. own observations with ajudicious selection of The church-state conflict is also com­ documents, Lee has compiled a valuable and pounded by the evolving nature of the ques­ concise resource for anyone interested in this tions that arise. Interactions between govern­ continuing issue. The body of the book con­ ment and religion are hardly fixed or static, a tains excerpts from the opinions of nine fact made immeasurably more complex once Justices, the earliest bei ng Justice Frank­ the Supreme Cou rt applied the religion clauses furter's dissent in the second flag-salute case96 to the states through the Fourteenth Amend­ and Justice Black's majority opinion in Ever­ ment in the 1940s. One year finds questions of son v. Board a/Education. 97 Most recent are the bus transportation and loans of textbooks on opinions of the Court in Mueller v. Allen and the docket, wh i Ie another year finds tax ded uc­ Lynch v. Donnelly, written by Justice Rehn­ tions for school expenses and "shared time" quist and Chief Justice Burger respectively.98 arrangements up for decision. Moreover, Altogether, excerpted opinions come from church and state interact in literally hundreds thirteen cases. of ways, since religious bodies are part of Lee's chief concern is the Court's difficulty society and since citizens have religious as well in resolving disputes under the First Amend­ as political interests. Consistent application of ment's religion clauses. He believes that an "clear" principles might not be entirely per­ inability to remove conflicts from the political suasive, therefore, given the conflicting views agenda - or worse still, an exacerbation of that exist throughout the population. At pres­ political conflict-is a sign of failure. Because ent, what consensus there is might best be the church-state controversy is largely a consti­ described as "uncertain."loo tutional controversy, the Court bears much of Were he given five votes on the Court, Lee the responsibility, he concludes, for the issue's would cast them in favor of the "Livermore continuing presence in the crucible of conflict. principle." New Hampshire's Judge Samuel He notes by contrast that political dissent and Livermore was a mem ber of the First Congress obscenity, while not entirely in remission as that proposed the First Amendment and the issues, are no longer the burning questions rest of the Bill of Rights to the states. His they were in the 1950s and 1960s. 99 wording for the religion clauses stipulated that Accordi ng to Lee, the core ofthe problem is "Congress shall make no laws touching re­ the Court's failure to enunciate clear and ligion or to infringe the rights of Conscience." convincing principles in the church-state The House adopted Livermore's motion, and arena which would end the debate. By lack of Lee believes it "to be as good a representation clarity, he presumably means an absence of as Madison'S of the feeling in that cham­ predictability. With the Establishment Clause, ber.... " 101 for instance, it is difficult to know in advance What would the Livermore principle re­ whether particular forms of state aid to sec­ quire today? According to Lee, "religion and tarian schools will be judged constitutionally the state must be absolutely separate.... 122 YEARBOOK 1987

[GJovernment ... should eschew any action Few should therefore be amazed when the that benefits religion or any laws that injure Court's responses on church-state questions religion." Banned would be all aid to sectarian reflect the conflicting answers voiced by the schools, books as well as buses. Also highly nation itself. suspect would be any laws regulating religious institutions. Lee believes the best contempo­ Judicial Review rary statement of the Livermore principle is Progress toward Lee's goal of clearer and found in Justice Brennan's "sadly neglected more persuasive opinions interpreting the standard" from his concurring opinion in religion clauses involves exercise of the power Abington School District v. Schempp: of judicial review. This authority of courts in Neither can Government give, either directly or the context of cases to refuse to apply laws indirectly, any aid, money, services, or support to judges find in conflict with the Constitution any religion or any religious organization nor can Government impose, directly or indirectly any today distinguishes American courts from burden, tax, or regulation on any religion, religious those of most nations in the world. And organization, or individual in the practice of his/her distinguishing American courts from every religion, unless such burden is required by a com­ pelling state interest that can be achieved by no other system is the significance of questions other mean s. 10 2 those cases involve. This development is the subject of The Rise The church-state controversy remains un­ of Modern Judicial Review by Christopher settled, of course. But Lee's volume is evidence Wol fe. 104 "Modern" is the key word in the ti tIe, that the task of resolving it- removing it from for Wolfe's survey of thinking about judicial the political agenda - requires more than the review from the Federalist to the last years of Court can do alone. Of course the justices sit the Burger Court forms the basis of his partly as teachers in American society, a role conclusion that the "very nature of judicial that has been evident ever since early justices review has changed."105 This transformation extolled the virtues of constitutional govern­ in turn creates a need to explore both the ment as they traveled on circuit. But the Court origins of judicial power and a consideration can teach only so much and lead only so far. of the alternatives to judicial review as it is Also needed is sufficient consensus among currently practiced. Wolfe is very much a opinion leaders across the land. That has yet to believer in "truth in judging": Americans take shape. Constitutional decision making in should be fully aware of what their judges do. the church-state arena is hampered by divided Wolfe divides the history of judicial review opinion among the people at large. It is into three stages: the "traditional" era of probably enough to expect the Court to be a constitutional interpretation (1789-1890), the consensus contributor, and too much to ask "transitional" era (1890-1937), and the "mod­ that the Court be the consensus builder. As ern" era (1937 -present). The first Attorney General Robert Jackson percep­ was characterized by its assumption that the Consti­ tively obeserved before his own appointment tution was both intelligible - it had a real or true to the Court, meaning that could be known if one read it properly - and substantive - it established principles that . However well the Court and its bar may discharge were definite and clear enough to beenrorced as legal their tasks, the destiny of this Court is inseparably rules, rather than merely proclaiming vague gener­ linked. to the fate of our democratic system of ali ties. 106 representative government. Judicial functions, as we have evolved them, can be discharged only in that The second era transformed judicial review kind of society which is willing to submit its into a device to defend property by reading conflicts to adjudication and to subordinate power to reason. The future of the Court may depend more certain natural rights into constitutional pas­ upon the competence of the executive and legis­ sages most susceptible to interpretation. The lative branches . .. to solve their problems ade­ magnitude of this change was obscured at the quately and in time than upon the merit which is its own. There seems no likelihood that the tensions time by several factors. First, expanded consti­ and conflicts of our society are to decrease .... I see tutional protection was justified as a plausible no reason to doubt that the problems of the next half construction of the Commerce Clause and the century will test the wisdom and courage of this Court as severely as any half century or its exist­ Fifth and Fourteenth Amendments. Second, ence. 'O ] the founders themselves had placed high value JUDICIAL BOOKSHELF 123

on property, making it easy to fasten a "laissez­ of judicial activism after 1937 "seems to have faire" economic theory onto the Constitution, been virtually inevitable." Driving this evolu­ especially in view of the increased scope of tion in the third stage as in the second has been government regulation of business after the "dissatisfaction with the Constitution -either Civil War. Third, legal realism which arose because its prescriptions are wrong, or around the turn of the twentieth century more often, because they do not go far argued that all jUdging was inherently legis­ enough .. . ." III lative. That is, deciding cases entailed judges SO in evaluating the Warren Court's inter­ writing values into law. Taken together, Amer­ pretation of the religion clauses, for example, ican judges in the transition era could argue Wolfe notes the same confusion Lee and that they were doing nothing more than judges others have found. from an earlier day had done. Even opponents of the Court's new use of judicial review The inability of the Coun to provide an interpreta­ accepted the idea that the Constitution em­ tion that harmonized the two religion clauses was bodied protection for property rights, says the result of its desire to expand the meaning of each Wolfe. They argued instead that the Constitu­ beyond its original intent. Its willingness to tolerate the contradictions that arose .. . was simply another tion merely had to be adapted to new condi­ manifestation of its subordination of constitutional tions. This attitude cut the words in the intent to what it thought were the best constitutional document loose from their foundations, re­ policies. Better that we have incoherent constitu­ tional interpretation, it seemed to say, than that we sulting in an accordion-like text - one which have interpretation that tolerates public suppon for could eventually take on almost any meaning. religion or fails to protect religious minorities Spanni ng the division between the transi­ sufficiently. 112 tional and modern eras, Robert H. Jackson But recall that Lee's solution to the present described this process. confusion in interpretation of the religion During its early days (the Coun) had the aid of clauses was also a recourse to "intent." Lee's counsel who expounded the Constitution from understanding of that intent, however, would intimate and personal experience in its making .. .. The passing of John Marshall marked the passing of produce strong separationist decisions identi­ that phase of the Court's experience. Thereafter the cal to those Wolfe believes depart from intent. Constitution became less a living and contempo­ "Theories ofjuidicial review," writes Wolfe, rary thing- more and more a tradition. The work of the Coun became less an exposition of its text and "either confine judges to exercisingjudgment, .. . more largely a study of what later men had said or they encourage them to exercise will." 11 3 about it. The Constitution was less resorted to for The former was dominant in the "traditional" deciding cases, and cases were more resorted to for deciding about the Constitution. 101 stage, the latter in the "modern." A return to judicial review in its earliest form involves The modern era has reflected "the victory of more than a rejection of deeply ensconced a distinctly modern understanding of judicial ways of thinking. It raises a more fundamental power as fundamentally legislative in question: "is the Constitution itself an ade­ character."1 08 As Jackson said, "This was the quate basis for modern government?" 114 Judi­ inevitable consequence of accumulating a cial review properly considered, believes body ofjudicial experience and opinion which Wolfe, exposes one's deepest thinking on the the legal profession would regard as prece­ nation's needs. If the Constitution without dents." 109 Scholars transposed an understand­ judicial re-making does not do the things we ing of the common law judge at work into the want, then a judiciary on the modern model realm of constitutional interpretation, with may be institutionally desirable. Yet Wolfe "the nearly total victory within the legal prefers that an explicit and knowing choice be profession of the view that judges - i ncludi ng made. Supreme Court justices exercising the power Are the demonstrated and potential benefits of of judicial review - are inevitably legis­ modern judicial review outweighed by its demon­ lators." 110 This applied as much to a Jerome strated and potential harms? Is a legislative form of Frank as it did to a Felix Frankfurter. With this judicial review, on the whole, an improvement over the founders' attempt to provide for both majority understanding of the role of judges in the rule and minority rights, or is it indeed too "pre­ political system firmly implanted, resurgence carious" a security?115 124 YEARBOOK 1987

There may be too many with an interest in true in the time of Hugh Swinton Legare keeping the Constitution the way it has be­ remains true today. The history of the nation come for a reappraisal to occur that would lies in the cases the Court decides. Values clash satisfy Wolfe, even if the Court soon begins a in the courtroom as they do in the electoral fourth stage ofjudicial review. But studies like arena. Controversy surroundingjudicial deci­ his and the others surveyed here stimulate sions fairly reflects the American people's healthy debate about the Court's evolving strong attachment to, yet suspicion of, the place in American government and help to judiciary's role in the democratic experiment. determine what that place will be. What was

Footnotes

I The volumes surveyed in this article are listed Judge-Made Law(New York: Basic Books, 1986). alphabetically by author below. Pp. x, 392. CHOPER , JESSE. H., ed., The Supreme Court and lIS 2 17 U.S. (4 Wheaton) 316 (1819). Justices (Chicago: American Bar Association, 3 G. Gunther, John Marshalls Defense of Mc- 1987). Pp. 269. Culloch v. Maryland (1969). CORTNER, RICHARD C, A "Scollsboro " Case in 42 H. Legare, Writings 130 (1845). Mississippi: The Supreme Court and Brown I~ 5 Supra n. I. Mississippi (Jackson: University Press of Mis­ 6 Id., 293. sissippi, 1986). Pp. xiv, 174. 7 Id., xi. CURRIE , DAVID P., The Constitution in the Supreme 8 Id., 301. Court: The First Hundred Years 1789-1888 (Chi­ 9 Id. , 296. cago: University of Chicago Press, 1985). Pp. xiii, 10 Id. , 298. 504. II Supra n. I. ESTREICHER, SAMUEL, and JOHN SEXTON, Re­ 12 Id., 213. defining the Supreme Court S Role: A Theory of 13 Id., 207. Managing Ihe Federal Judicial Process (New 14 B. Woodward and S. Armstrong, The Brethren Haven, Conn.: Yale University Press, 1986). Pp. (New York: Simon and Schuster, 1979. The book x, 201. purported to reveal the inside scoop on the Court GARRATY, JOHN A., Quarrels Thai Have Shaped the from 1969 to 1976. Controversial in its sources of Constitution, rev. ed. (New York: Harper & Row, information and absence of documentation, the 1987). Pp. viii, 391. volume was otherwise unremarkable in its findings. GOLDMAN, SHELDON, and CHARLES M. LAMB, 15 Choper, supra n. 1,209. eds., Judicial Conflict and Consensus: Behavioral 16 Id. , 210-213. Studies of American Appellale Courls (Lex­ 17 Supra n. I. ington: University Press of Kentucky, 1986). Pp. 181d., 15. ix, 305. 191d., 14 . LEE , FRANCIS GRAHAM , Wall of Controversy: 20 Quoted in C Wyzanski, Jr. , Whereas - A Church-Stale Conflict in America - The Juslices Judge's Premises 61 (1944). and Their Opinions (Malabar, Fla.: Krieger, 21 O'Brien, supra n. I, 231. 1986). Pp. 124. 22 Id., 274. MARCUS, MAEVA , and JAMES R. PERRY, eds., The 23 "The Zeitgeist and the Judiciary," in A. Mac­ Documenta ry H iSlor y ofthe Supreme Cou rt ofthe Leish and E. Prichard, Jr., eds., Law and Politics, p. United States, 1789-1800, vol. 1 (in 2 parts) (New 6 (1939). York: Columbia University Press, 1985). Pp. 24 Choper, supra n. I, 210. lxxii , 999. 25 O'Brien, supra n. 1,275. O'BRIEN, DAVID M., Storm Center: The Supreme 26 418 U.S. 683 (1974); 381 U.S. 479 (1965). From Court in American Politics (New York: W. W. O'Brien's perspective, Nixon and Griswold are Norton, 1986). Pp. 384. presumably atypical in that both reflect considera­ SCHWARTZ, BERNARD, Swanns Way: The School ble cooperation as weJl as give-and-take in the Busing Case and the Supreme Courl (New York: course of writing opinions, although Griswold is Oxford University Press, 1986). Pp. 245. typical in that several separate opinions accom­ STEAMER , ROBERT 1., ChiefJustice: Leadership and panied the opinion of the Court. the Supreme Court (Columbia: University of 27 357 U.S. 449 (1958). South Carolina Press, 1986). Pp. xiv, 321. 28 O'Brien, supra n. I, 257, quoting from the WOLFE, CHRISTOPHER, The Rise of Modern Judi­ Brennan Papers in the Library of Congress. cial Review: From Constilutional Imelpretation 10 29 Id., 42-43. JUDICIAL BOOKSHELF 125

30 Supra n. I. River Bridge case, 36 US. (11 Peters) 240 (1837). 31 402 US. I (1971). 61 Currie, supra n. I, xii . 32 Tom C. Clark, "Internal Operation of the 62 109 US. 3 (1883). United States Supreme Court," 43 American Judi­ 63 Currie, supra n. 1, 451. cature Society Journal 51 (1959). Justice Clark was 64 Id. . 455. quoting in part E. Smyth Gambrell. 65 Currie notes that the others played "no visible 33 A. Mason, Harlan Fiske Stone: Pillar ofthe Law part" in the decisions he considered. As Associate (1956). Justice and as Chief Justice, Rutledge did only 34 In Justice Frankfurter's words, "That the Su­ circuit duty. Johnson wrote no significant opinions, preme Court should not be amenable to the forces and Ellsworth was not a participant in the major of publicity to which the Executive and the Con­ decisions. Currie assigns Washington and Moore to gress are subjected is essential to the effective the Marshall period for study. Currie does not functioning of the Court. But the passage of time include the Justices' circuit work as part of his may enervate the reasons for this restriction, partic­ analysis. ularly if disclosure rests not on tittle-tattle or self­ 66 2 US. (2 Dallas) 419 (1793), 3 US. (3 Dallas) 171 serving declarations." Frankfurter, "Mr. Justice (1796), and 3 US. (3 Dallas) 386 (1798). Roberts," 104 University of Pennsylvania Law Re­ 67 3 US. (3 Dallas) 199 (1796). view 311 , 313-314 (1955). It is therefore unsettling to 68 Currie, supra n. I, 55. see a citation as authority on a pointto The Brethren 69 Id., 56. in a scholarly work, because most infonnation in 70 Id. , 57. The Brethren is itself undocumented. Schwartz, 71 Id. , 56, 58. supra n. 1, 203. See the comment on The Brethren in 72 Garraty, supra n. I. n. 14, supra. 73 283 US. 697 (1931). 35 347 US. 483 (1954). 74 372 US. 335 (1963). 36 Schwartz, supra n. I, 179. Appendix "A" con­ 75 410 US. 113 (1973). tains Chief Justice Burger's first draft of his Swann 76 300 US. 379 (1937). opinion, and Appendix "B" contains the final draft 77 J#st Coast Hotel of course dealt with state as published in the United States Reports. power. Further evidence of a judicial turnaround 37 Newsweek, May 3, 1971, p. 27. came on April 12, 1937, when the Court upheld 38 Supra n. I. sweeping congressional power under the National 39 !d, 2-5. Labor Relations Act by the narrowest of margins, in 40 Id. , 50-67. National Labor Relations Board v. Jones & Laughlin 42 Id., 62, 64. Steel Corp. . 301 US. I (1937). 43 Supra n. I. The book is based on a 1253-page 78 261 US. 525 (1923). study the authors published as "A Managerial 79 298 US. 587 (1936). Theory of the Supreme Court's Responsibilities," 80 Frankfurter, supra n. 34. 59 New York University Law Review 681 (1984). 81 Garraty, supra n. 1, 282. 44 Brennan, "Some Thoughts on the Supreme 82 Frankfurter, supra n. 34, 315. Court's Workload," 66 Judicature 230, 231 (1983). 83 The evidence for a politically-based "switch" is 45 Report ofth e Study Group on the Caseload ofthe more compelling in the Jones & Laughlin case. The Supreme Court (1972). constitutionality of the National Law Relations Act 46 Structure and Internal Procedures: Recommen­ was argued on February 10-11, 1937, with a five-to­ dations for Change (1975). four decision forthcoming on April 12. 47 Burger, "Annual Report on the State of the 84290 US. 398 (1934), 291 US. 502 (1934), 297 JUdiciary," 69 A.B.A Journal 42 (1983); Burger, "The US. I (1936),298 US. 238 (1936). Time is Now for an Intercircuit Panel," 71 A.B.A . 85 Garraty, supra n. I, 284. Journal 86 (April 1985). 86 Cortner, supra n. I. 48 Estreicher and Sexton, supra n. I, 130. 87297 US. 278 (1936). Cortner is the author of 49 Estreicher and Sexton, supra n. 1, 4-5. other books on individual cases: The Apportion­ 50 Id. , 6. ment Cases (1970); The Arizona Train Limit Case 5 1 Id. . 52-65. (1970) ; The Jones & Laughlin Case (1970). A more 52 1d. . 128-136. general study by Cortner is The Supreme Court and 53 1. Goebel, Antecedents and Beginnings to 1801 the Second Bill ofRi ghts (1981). (New York: Macmillan, 1971). 88 287 US. 56 (1932). 54 Marcus and Perry, eds., supra n. J, xliii. 89 Gortner, supra n. I, 132. 55 Id.. 765-770. 90 Brown v. State, 173 Miss. 542, 561-562 (1935) 56 Id. , 772-773. (dissenting opinion). 57 Id. . 100. 91 297 US. at 287. 58 Currie, supra n. I. Several chapters appeared as 92 297 US. 288 (1936). law review articles between 1981 and 1984. 93 Time, February 24, 1936, p. 6. 59 Id., xi . 94 Cortner, supra n. I, 153. 60 E.g. id. , 209, n. 51, in discussing the Charles 95 Lee, supra n. I. 96 J#st Virginia SlIlte Board of Education v. 104 Wolfe, supra n. I. Barnelle. 319 US. 624 (1943). 105 Id. . ix . 91 330 US. I (1947). 106 Id. . 3. 98 463 US. 388 (1983); 52 US.L.W 4317 (1984). 101 Jackson, supra n. 103, 1428-1429. 99 Lee, supra n. 1, 4-5. 108 Wolfe, supra n. 1, 6. 100 Stephenson, "Religion and the Constitution: 109 Jackson, supra n. 103, 1429. An Uncertain Consensus," 86 South Atlantic Quar­ 11 0 Wolfe, supra n. I, 7. terly 95 (1987). III Id. . 205. 101 Lee, supra n. 1, 117-118. 112 Id. . 286. 102 374 US. 203 (1963) (concurring opinion), 113 Id. . 352. quoted in Lee, supra n. I, 119. 114 Id. . 354. 103 Jackson, "Address," Appendix XV, 84 L.ed . 115 Id. . 356. 1428, 1429 (1940). Contributors

Susan Low Bloch is an Associate Professor at Historical Publications and Records Commission. Georgetown University Law Center and a member Dr. Marcus is also a member of the Society. of the Society. Dr. Bloch served as a law clerk for Associate Justice Thurgood Marshal I (1976-77). She Bernard G. Segal is a Trustee and Sustaining is also a summa cum laude graduate of the Member of the Society. He has served as President University of Michigan Law School. She is the of the American Bar Association (1969-70), the author of "Orphaned Rules in the Administrative American Bar Foundation (1976-78) and the Amer­ State: The Fairness Doctrine and Other Orphaned ican College ofTrial Lawyers (1964-65). He has also Progeny of Interactive Deregulation" (Georgetown served as Chairman of the Board of the American Law Journal. 1987) as well as a number of other Judicature Society (1958-61) and various offices in articles in law-related publications. other law-related organizations.

Warren E. Burger is the Chairman of the Commis­ Kenneth W. Starr is a judge on the US. Court of sion on the Bicentennial of the US. Constitution Appeals for the District of Columbia Circuit and is a and served as ChiefJustice of the United States from member of the Society. He served as the Society's 1971 through 1986. He is also a Life Member of the 1986 Annual Lecturer, and also as a counselor to the Society and serves as its Honorary Chairman in Attorney General, US. Department of Justice addition to holding office in numerous other civic (1981-83) and as a law clerk to Chief Justice Warren organizations. Burger (1975-77).

George Clemon Freeman, Jr. is a partner in the law D. Grier Stephenson, Jr. is a Professor of Govern­ firm of Hunton & Williams in Richmond, Virginia ment at Franklin and Marshall College, a co-author and a member of the Society. M r. Freeman served as of the text, American Conslilulional Law, and the a law clerk for Associate Justice Hugo L. Black, Jr. author of numerous other works on that subject. (1956-57) and was a law partner of Lewis F. Powell, Professor Stephenson is a regular contributor to the Jr. (later Associate Justice Powell) from 1957 thor­ Society's Yearbook and a member of the Society. ugh 1971. Mr. Freeman has also served in numerous offices within the American Bar Association and David L. Westin is a partner of Wilmer, Cutler & other law-related organizations. Pickering in Washington, D.c. and is a member of the Society. He is also a member of the American David Grimsted is a Professor of History at the Bar Association, American Bar Foundation and University of Maryland, College Park. His pub­ American Society for International Law, and served lished works include Melodrama Unveiled. Ameri­ as a law clerk to Associate Justice Lewis F. Powell, Jr. can Theater and CulLUre. 1800-1850. NOlions of lhe (1977-78). Americans. 1820-1860 and numerous other works. Byron R. White is an Associate Justice of the Maeva Marcus is the Director of the Documentary Supreme Court of the United States, a former History Project of the Supreme Court of the United Deputy Attorney General of the United States States, 1789-1800 which is co-sponsored by the (1961-62), and a Rhodes Scholar. Supreme Court, the Society and the National Other Society Publications

Equal Justice Under the Law: The Supreme Court in sents a fascinating study of King John' and his Arnerican Life. Fifth Edition. This 160-page intro­ nobles at Runnymede, and the enduring influence ductory study to the history of the Supreme Court, of Magna Carta as both an important source of illustrated in full color, traces the Court's influence Constitutional law and a treasured symbol of upon the development of our country from the liberty. Non-members $2.00; Members $1.60. appointment in 1789 of Chief Justice John Jay through the recent appointment of Associate Jus­ The Documentary History of the Supreme Court of tice Anthony M. Kennedy, treating in some detail the United States, 1789-1800. The eagerly awaited the Court's most important cases. $4.95 (non­ first volume of the Documentary History Project is members); $3.96 (members). now available. An introduction to the planned seven-volume history, Volume I, (which is in two A Teacher's Guide is available for use with Equal parts) establishes the structure of the Supreme Justice Under the Law Theguide is suitable for use in Court and the official records of its activities from a ring binder notebook. Written by Isodore Starr 1789-1800. The volume is comprised of primary and several staff members from the A merican Bar source materials including manuscripts, corre­ Association's Public Education Division, the 87- spondence, private papers, newspaper articles and page book provides 16 topics for lesson plan official records of the period. This volume is ofgreat development covering major issues and time peri­ importance to scholars and any other persons ods in the Court's history. In the appendix material seriously interested in the Supreme Court. Mem­ it provides a glossary of terms, guidelines for bers $75.00; Non-members $95.00. conducting moot courts, and materials on the Supreme Court. $3.00 (nonmembers); $2.40 The !//ustrated History of the Supreme Court of the (members). United States by Robert Shnayerson. Published in association with the Supreme Court History So­ The Supreme Courl of the United Stales. This 32- ciety and Abrams Publishing Company, this book page booklet contains a wealth of useful informa­ combines portraits and engravings, hand-colored tion about the Court. In addition, it contains maps and rare archival items, sketches by Cass numerous photographs, including individual pho­ Gilbert, the architect of the Supreme Court build­ tographs of each of the current Justices and the ing, as well as illustrations of people, places and most recent formal and informal photographs of events associated with the history of the Supreme the entire Court. $.50 (non-members); $.40 (mem­ Court. This 304-page book contains a bibliography, bers). a chart of Justices, a copy of the Constitution and 377 illustrations, including 86 in full color. $60.00 Supreme Court Historical Society Yearbook. Pub­ (Non-members); $48.00 Members. lished annually by the Society, these collections of articles about the Court and its history cover a wide Supreme Court of the United States, 1789-1980: An variety of topics and subject matter, and provide an Index to Opinions Arranged by Justice. Blandford, important addition to other literature on the Court. Linda A. and Patricia Russell Evans(eds). Foreword 1976-1979 $2.00 each (members and non-mem­ by Warren E. Burger. Sponsored by the Supreme bers); 1980-1987 $10.00 each for non-mem­ Court Historical Society, this two-volume index bers/$4.00 each for members. eliminates the need for exhaustive searches through existing information sources, which are generally Magna Carta and the Tradition ofLib ert y. Published organized by subject matter or case title, by provid­ in 1976 as part of the national commemoration of ing a list of all opinions and statements by individ­ the American Bicentennial, this 65-page history of ual Justices. Members $65.00; Non-members the "Great Charter," illustrated in full color, pre- $85.00.