HISTORY OF THE SUPREME COURT
OF THE UNITED STATES
FROM JAYS RESIGNATION TO MARSHALLS ACCESSION
To the puzzled astonishment of the general public, Chief Justice Jay, after presiding over the Supreme Court of the United States for five years, stepped down from that office to go to England, as the plenipotentiary of the United States, and execute a new treaty.
This happened in April, 1794. . . . No appointment, wrote Jay on April 17 of that year to his wife, referring to his selection as special envoy, ever operated more unpleasantly upon me ; but the public considerations which were urged, and the manner in which it was pressed, strongly impressed me with a conviction that to refuse it would be to desert my duty for the sake of domestic concerns and comforts.1
Jay Quits the Chief Justiceship.
As the sequel proved, Jays quitting the Chief Justiceship amounted to a de facto resignation, although he did not formally resign until June 29, 1795, after his return from England. Jay did not again sit on the Supreme Court ; and indeed it would seem that President Washington did not expect his return to that office, for in a secret and confidential letter, Washington, on April 29, 1794, asked Jay whether he would not consent to become the resident Minister of the United States at London after his mission as envoy was concluded.2 Washingtons intermediary on this occasion was Jays former law partner, Robert R. Livingston, to whom the post was also offered. Both Jay and Livingston declined it. Washingtons aim was to get rid of Gouverneur Morris, as United States Minister to Paris. Morris, as Justin McCarthy tells in his French Revolution, was scandalously promoting the sale in Paris of his American lands. Morris removed, it was Washingtons intention to transfer Pinckney from London to Paris, and put Jay in Pinckneys place.
That Washington should have taken Jay away from the Chief Justiceship argued powerful motives behind the mission to England. Of all the Governmental departments Washington fully recognized the supreme importance of the judicial department, of which, of course, the Supreme Court of the United States was the cardinal and head factor. When, on October 17, 1789, Washington had originally appointed Jay Chief Justice, he had, in enclosing Jays commission, strongly urged him to accept. Washington in that letter had expressed the hope that Jay would not hesitate a moment to bring into action the talents, knowledge, and integrity which are necessary to be exercised at the head of that department which must be considered as the keystone of our political fabric.3 Washington, then, considered the judiciary as the chief bulwark of the political state, and at the apex of this judiciary was John Jay. Important as was the Chief Justiceship, it is evident that Washington in selecting Jay regarded the mission to England as of more importance at that juncture.
Already Jay had expressed his desire to retire to his estate and live in leisure with his family and his books. The life of a Supreme Court Justice was nomadic enough ; it was the practice of the Supreme Court members, often two together, to preside over the Circuit Courts in different cities a great part of the year. They traveled over the country extensively, and it need hardly be explained that travel was then slow, rough, primitive and arduous.4 Few leisure-loving lawyers cared for this onerous duty, and the only reason Jay had accepted was, in his own words, to place the judiciary on a proper footing. In accepting the mission to London, Jay was further away than ever from his contemplated life of retirement. What were the deep actuating reasons ? Except the small, exclusive group cognizant of the secret reasons, no one could fathom why it was that Jay, after having himself selected the post of Chief Justice, should voluntarily quit it in order to draw up a treaty which any able, unattached politician could, it was supposed, do as well. Intelligent observers of events knew that, in addition to the nominal purposes, there must be at bottom potent aims prompting this extraordinary move, but precisely what were those aims was, for a time, a matter of some mystification.
As a landholder himself, and allied by descent, marriage and interest with many of the old manorial families of New York, Jay had chosen the highest judicial position in the land as one in which he could be of the most vital service to his class, as well, perhaps, as securing the memorable honor of being the first to fill that exalted seat.5 Was there a still stronger and more pressing service that he could render to the great landowners by his departing to frame a new treaty with the British Government ? If so, what was the nature of that service ?
Its nature was not at all political, as conventional writers would have it ; the motive actuating Jay was one involving a twofold purpose, springing from the most acute sense of self-preservation on the part of the landed class and its adjuncts.
The French revolution Terrifies the Landed Class.
As the French Revolution progressed, battering to ruin the old feudal conditions, and, amid portentous upheavals of the French artisans and peasants, overthrowing the aristocracy, the American landowning aristocracy was filled with terror. Great estates in France were confiscated, divided and sold ; the governing monarchy and aristocracy of ages were supplanted by revolutionary committees ; and the very suspicion of being an aristocrat was a sufficient warrant for the guillotine. The frightful conditions long prevailing in France by which the laborer was, in law and in fact, treated worse than a beast of burden were swept away, at least for the time. The march of the French Revolution was hailed with joy by the workers of America, and hardly less so by the small merchants, who instinctively grasped its real purport in assuring the advent of bourgeois power and rule over the grave of the feudal regime.
But the American aristocracy, like the aristocracies of all other countries, shuddered at the news of the successive convulsions, and well realized that the French Revolution was not one of mere phrases but was striking down to the depths. The feudal conditions, somewhat analogous to those in Europe, long prevailing in America, were the very conditions which the American landowners were bent upon maintaining, and had maintained. Some of the most powerful leaders of the American Revolution, such as John Adams, Hamilton, Jay and others had preferred a monarchical form of government, or, if not that, at any rate a mode as nearly as possible imitative. The American Revolution, as contemplated and molded by these men, was a rebellion for liberty of trade and colonial autonomy ; had that right been granted at the outset, they would have remained steadfast monarchist loyalists.6 They so admired the British form of government that they patterned the American form of government as closely after it as they dared.
These astute leaders of the American aristocracy closely followed the developments of the French Revolution, and knew that the portentous character of those events not merely affected France but were destined to have a world-wide influence on the thought and condition of peoples.
Jay had bitterly assailed the progress of the French Revolution. Even when acting as envoy in London he continued this denunciation. In a private letter to Washington written from London, March 6, 1795, he said that, The French Jacobins have greatly injured the cause of rational liberty, and then proceeded to rejoice over their recent suppression, meaning the execution of Robespierre, St. Just and the Jacobin group.7 In a letter from New York, January 19, 1796, Jay wrote to Robert Goodloe Harper that he had favored the overthrow of despotism and the establishment of a limited monarchy, but was terrified by the later revolutionary movement which executed Louis XVI.8 The counter-revolution planned by the royalists with its inevitable train of butcheries, had it been successful ; the carefully-planned slaughter of the people by the Swiss mercenaries on August 10 ; the immense loss of life caused by the wars of the allies upon the French, these did not impress Jay with the slightest feelings of horror. His class instincts and interests were entirely with the counter-revolution.
With England leading the reactionary nations of Europe against the France of the French Revolution, the American aristocracy saw that the self-interest of all aristocracies demanded that every possible help be given to the British Government. This assistance could not be proferred in the form of regiments and warships. Had the Federalists, the party of property, then in power, attempted a serious prosecution of the war against France, a national insurrection would have resulted.
But help could be extended in another way of so indirect and subtle, yet withal so fundamental a kind, as not to seem suspicious on its face. Better, perhaps, at this juncture than armaments was an economic assistance to England, the foremost of manufacturing countries. With the gold from British trade, the English government was busy subsidizing other European nations in the coalition against France in a colossal effort to crush the French Revolution, and to restore the ancient regime. A tariff favorable to England, it was thought, could be arranged without having to run the gauntlet of effective opposition in the Senate ; not until twenty years later did the manufacturers of cotton, woolen and other goods begin to acquire power sufficient to command legislation. In the United States of 1795 the large landholding class occupied and swayed virtually every branch of government.
This was one of the impelling reasons for Jays mission ; this was partly why he, who was secure for life in the lofty office of Chief Justice of the Supreme Court of the United States, voluntarily relinquished it for the brief and rather arduous business of arranging a new pact with Great Britain. As the most conspicuous representative of the American landed class, he could be trusted, every fiber and instinct of him. But there was another reason, which, added to the first, decided Jay to undertake the mission a reason (considering popular feeling) of so delicate and dangerous a nature that none, at that critical period, had such strong motives as he for transforming the plan into a fact accomplished.
Manipulation of Confiscated Estates.
We have seen how, before the Revolution, vast areas of land in the colonies were owned by absentee British nobles, merchants and lawyers, and how prominent colonial personages were associated with them in companies, or as agents. These estates, as well as those of native Tories, were confiscated by general acts during the Revolution.
But such measures of confiscation, while seemingly effective, were, in many instances, only nominally so. To evade the confiscatory acts, estates were fraudulently conveyed to safe parties, while act after act was slid through legislatures during the Revolution, altering or emasculating the provisions of former acts, each successive law being more in favor of the absentee or expatriated landowners. The claims t0 a number of these confiscated estates, also, were bought by astute lawyers, or by capitalists for whom the lawyers were acting. These attorneys would never have purchased the claims had they not known of certain technical deficiencies in the laws by reason of which they had good hopes of recovering the estates, or their equivalent, in the courts.
As for the courts, they were filled with judges who had been attorneys for, or who were relatives of, families whose estates had been confiscated. The large estates, too, of a number of Jays relatives or personal friends, such as William Bayard, the Van Schaak family and others, had been confiscated ; and what was true of Jays circle was true of that of almost all other judges and high Government officials.
Finally, British lords and merchants held claims for large sums due them from settlers or from other purchasers of lands, or from merchants. These claims had been outlawed by statutes passed during the Revolution, and had been bought up for almost nothing by speculators.
The plan under way contemplated nothing less than a series of stealthy articles and acts by which the courts would be able to find specious grounds for gradually restoring certain confiscated estates, or for validating the purchases of claims by American politicians. This plan was certain to provoke the wildest outburst of popular resentment and anger. But Jay affected, and really felt, a contempt for the people whom he despised as much as they hated him.
A number of important cases involving the recovery of confiscated British debts or British or Tory estates had come before the Supreme Court of the United States when Jay was Chief Justice. Chief Justice Jay and Justice Iredell and Judge Griffin had held that the debts were obligatory. But on one point they disagreed : the question whether specific payments of such debts already made to the various States by American debtors were barred from recovery or not. Chief Justice Jay had held in favor of the British creditors, and his associates for the American debtors.9
The noted and much discussed case of Ware, Administrator vs. Hylton and others,10 was one of such cases. This suit had originally been instituted in 1791. The reason why it commanded so much public attention and aroused such acrimony was because it embodied the question of the rights of British creditors to recover debts contracted before the Revolution and sequestered by act of the Legislature.
The United States Circuit Court in Virginia decided in favor of the American debtors, Hylton and others. But when the case came up on appeal before the full Supreme Court of the United States in 1795-1796, that decision was reversed, and it was held that British creditors had the right to recover debts. Justices Chase, Paterson, Wilson, and Cushing each wrote opinions to this effect, and Justice Iredells opinion was a qualified one, partly favoring both sides on different points. As one of the attorneys for the American debtors in this case, John Marshall had the opportunity of learning at first hand what the settled court law on the subject was a knowledge which, as we shall see, he was not slow in applying to his own personal benefit.
The mass of the people were intensely stirred over the pertinacious efforts of British or Tory claimants to recover possession of confiscated estates. The historic case of Chisholm vs. Georgia arose over the efforts of two executors in South Carolina to regain certain confiscated property in Georgia. The question at issue was whether, under the Constitution, the citizens of another State could sue a State. Chief Justice Jay and Justices Cushing, Wilson and Blair held that they could ; Iredell dissented.11 Great opposition was excited by this decision not only in Georgia (where the Grand Jury presented it as a grievance) but in Massachusetts, Pennsylvania and other States where the resentment over the efforts to recover confiscated estates was acute. Considerable popular disturbances followed this decision, which was reversed in 1798 by the adoption of the Eleventh Amendment to the Constitution of the United States.
Jays solicitude for the interests of his close friends, particularly Nicholas Cruger and Herman Le Roy and William Bayard, may be learned from a significant letter written by him from London, on September 11, 1794, to Cruger. This last-named personage was Alexander Hamiltons foremost rich patron. LeRoy and Bayard were among the leading men of wealth in New York City. As we have seen in Chapter I, they were associated in getting fraudulent titles for large areas of land validated.12 The judge confirming those titles was Judge Benson, another intimate friend of Jay.13 The Bayard estates were confiscated during the Revolution but were later regained under the provisions of Jays treaty.
A Golden Plan for Millions Sterling.
A gentleman in Holland, wrote Jay to Cruger, has been so obliging as to send me a plan to make my fortune, even to the extent of many millions sterling. Pleading with many expressions of regret that he unfortunately had no mercantile knowledge necessary for the execution of the plan, Jay then went on : You will find this golden plan enclosed. If the extensive concerns in which you are already engaged should render its magnitude inconvenient, it might be well to let our friends LeRoy and Bayard share in it. . .14
The nature of this golden plan is not stated in the published letter, but we note that it was of a mercantile character, which is to say one pertaining to international commerce in which LeRoy and Bayard were engaged. Those who may hold to the theory that Jay when in London was still Chief Justice of the Supreme Court of the United States, may well give this letter consideration. While acting as special envoy in England negotiating a treaty dealing extensively with questions of commerce, Jay receives and forwards to his friends a plan for reaping millions of sterling profit. That it was not an airy, conjectural proposal is seen by his use of the words golden plan ; Jay was habituated to great restraint in talking and writing.
One other fact is certain, which fact bears the greatest relevance and importance to decisions of the Supreme Court under Chief Justice Marshall, and, as will be seen, to Marshalls own covert interests.
When Jay was arranging the treaty in London, the matter of confiscated estates was one of the questions considered by him. On September 13, 1794, Jay wrote in a private letter to Washington that . . . I learn that Virginia is escheating British property and I hear of other occurrences which I regret. . . .15 Three days later Jay wrote to Hamilton similarly.16 In a private letter, dated December 18, 1794, Washington wrote to Jay : The Virginia escheats of British property do not, I am informed, stand upon the ground as related to you ; but as I am not accurately enough read in the law respecting these escheats to be precise in my recital of it, I will request the Secretary of State to give you the principles thereof.17
Jays Treaty Denounced.
Jay carried on his negotiations in England with Lord Grenville, Secretary of Foreign Affairs, a personal friend. It is not necessary here to dwell upon all the various phases of the treaty of 1794 agreed upon by Jay and Grenville ; only one part of that treaty is of vital consequence to this work, and to the results of this part we shall have occasion to revert in Chapters VI and VII. By the provisions of Jays treaty, British creditors were to be compensated for losses caused by laws of any of the States obstructing the collection of debts contracted prior to the Revolutionary war ; the citizens of each country were to enjoy the right to hold and convey land in the territories of the other ; and debts contracted, or engagements made, by the citizens of the one, with the other, country, were not to be impaired in case of national differences.
The ultimate purport of these clauses the generality of the American people did not clearly perceive. They could not foresee the remarkable extent to which the Supreme Court of the United States would go in using those clauses as a lever for a construction by which confiscated estates could be recovered.
But they did see enough to infuriate them. Even the commercial class and the Southern plantation owners were exasperated ; in return for a few paltry, insignificant concessions granted by England for a period of twelve years, the United States, under Jays treaty, agreed not to export molasses, sugar, coffee, cocoa or cotton to any part of the world. An other grievance of the Southern slaveholders was that the treaty contained no provision for indemnification for negroes carried away by the British during the Revolutionary war. The West India trade, for which merchants of Boston, Salem and other parts were so desirous, was granted only on condition that it should be carried on in vessels of less than seventy tons burden. No promise was exacted from England to desist from searching American merchantmen, or to refrain from the seizure of British-born sailors. In Philadelphia and elsewhere Jay was burned in effigy ; in more than one instance an effigy of Jay was labeled in this wise or similar language ; Come up to my price and I will sell you my country. A copy of the obnoxious treaty was consigned to the flames by a crowd in front of Jays own house.
The opposition of the planters and commercial interests finally had its effect in the Senate which rejected the West Indies and the export clauses, but the popular opposition to the treaty, as a whole, was ignored. With the exception of those clauses, the treaty was ratified. No doubt the charge that Jay had sold out for a price was a calumny, although it revealed what the people were ready to believe of him, and the repute in which he was held. A much more dominating incentive than a venal one influenced Jay, mercenary as he was ; every instinct, interest, prejudice and creed of his class was concentrated in him ; his conduct, as a whole, proceeded from class motives, and was uniformly determined by them. Instances were not lacking, however, in which his acts seemed to justify grave suspicions that he was personally profiting.
Livingstons Change Policies Overnight.
Meanwhile a great change affecting the status of both political parties had happened in New York State. Most of the immensely powerful Livingston family had abruptly shifted from the Federalist to the Republican party.
According to Hammond, this transference had taken place as early as the year 1790, when Chancellor Robert R. Livingston, carrying with him his immediate connections, known as the Livingston family, went over to the Republican camp, in opposition to Hamilton. The real cause, as ascribed by Hamiltons friends, was (Hammond wrote) Chancellor Livingstons disappointment at not being appointed Chief Justice of the Supreme Court of the United States. Hammond relates that he was informed that the family one evening had a meeting for the purpose of deliberating on the subject, and that the result of their deliberations was such, that the next morning every member of it took a position in the ranks of the Republican party, except some Livingstons in Columbia County.18
If this explanation is correct it again reveals the inordinate appetite of the Livingstons for self-advantageous positions of power ; since they had already had two representatives on the Supreme Court bench (composed of five members in all), in the persons of John Jay and William Paterson. Perhaps what Hammond means is that the Livingstons expected Chancellor Robert R. Livingston to be appointed Chief Justice when Jay resigned ; it was about that time that distinct political party alignments began to form, developing in Washingtons second administration into the Federalist and the Republican parties. Although there might have been some rankling feeling of disgruntlement over Chancellor Livingstons non-appointment, yet the extreme political sagacity of the Livingstons argued a much broader and keener outlook as a cause for their change of front. As events moved on, shrewd observers could descry signs that, while the Federalists might still hold some years more of power, defeat was foreshadowed. Exercising their traditional political shrewdness, the Livingstons always took care to array themselves on the victorious side. What was still more to their purpose, they did not neglect to have their able representatives and connections on both sides, so that, whichever party won, the family would be in a position to draw benefit.
Between the large landholders and politico-capitalists of both political parties there was, in action, only a fine exoteric difference of purpose. In words they might take violent issue with each other, but in deed they stood staunchly together. Both indiscriminately joined in granting the other great tracts of public land, and bank, canal, turnpike, insurance and other charters. In political creed, as affecting their own economic interests, or those of their particular or sectional constituencies, they often had cause to differ, out of which differences grew what seemed to be overshadowing issues involving the very fate of mankind. But while such of the working class as were enfranchised were duped into supporting one side or the other, the leaders of both political parties obstinately refused to pass any laws ameliorating the condition of the workers, at the same time using legislation to manufacture laws vesting in themselves enormous and perpetual powers and privileges.19
Jay and the Livingston Steamboat Monopoly.
Whatever might have been Chancellor Livingstons sense of disappointment from failure to appoint him Chief Justice, he and Jay, Hamiltons close friend, not only kept on very good terms, but Jay, when Governor of New York State, largely helped to put through an extraordinary act for the benefit of Chancellor Livingston, his former law partner.
To describe adequately this fact and other pertinent facts dealing with the further career of Jay and various other personages, a digression is necessary here from the consecutive narrative of the Supreme Court of the United States. It is an integral part of this work to portray individualities only in so far as they represent forces. To illumine the nature of those forces, and the enlarging or changing classes embodied in them, it is also necessary to describe the measures by which those ruling forces acquired more power, and the means by which successive divisions of the capitalist class became dominant.
Jay was nominated for Governor of New York State, and Stephen Van Rensselaer for Lieutenant-Governor, in 1795 ; thus two of the most powerful landed families in the State, and, in fact, in the whole country, composed the heads of the Federalist ticket. Hammond says that Jay did not want to be a candidate, but that probably Hamilton, Schuyler and others persuaded him to change his resolution.20 Defeated in the year 1792, Jay was elected Governor in the next election, in 1795.21 As Governor, Jay was the President, ex-officio, of a body called the Council of Revision, which had the power of approving or vetoing all laws.
Now it happened that on March 19, 1787, the New York Legislature had passed an act granting to John Fitch the sole and exclusive right of navigating craft, propelled by steam, in the waters of New York. Ten years later, Chancellor Robert R. Livingston came forward with the claim that he was the possessor of a mode of propelling boats by steam. Starting with the remarkable assumption that Fitch was dead, although there was no legal proof to that effect, the New York Legislature, on March 27, 1798, passed an act repealing the exclusive powers given to Fitch, and conferring similar privileges, for a term of twenty years, on Robert R. Livingston. The act was subject to final action by the Council of Revision, which, at the time, was composed of Governor Jay, Chief Justice Lansing of the State Supreme Court, Judge Lewis and Judge Benson22 of the same court, and Chancellor Robert R. Livingston himself.
When the bill came before the Council of Revision, Livingston, not caring to hazard the chance of impeachment for taking part in voting for a bill benefiting himself exclusively, kept away. But his associates attended satisfactorily to the business. After making a show of objection to the bill because the facts as to the grounds from which Fitchs forfeiture was to arise, had not been found by some due process of law, the Council of Revision then sustained both the act itself and its constitutionality.23 This finding was made the basis for further laws in favor of Livingston, after Jay ceased to be Governor. We shall proceed to tell what those laws were.
More Remarkable Laws for Livingston.
Robert R. Livingston was not an inventor ; he had never been anything but a rich man and politician. Did he cause this bill to be passed so as to have a means of compelling Robert Fulton to come to terms ? This does not appear. At any rate, on April 5, 1803, the Legislature of New York passed another act by which it was declared that the rights and privileges granted to Robert R. Livingston, by the act of 1798, should be extended to him and Robert Fulton for a period of twenty years from the passage of the act of 1803. Five years later, on April 11, 1808, an even more decisive law was enacted. It extended the Livingston and Fulton monopoly still further, and it forbade all persons to navigate any steamboat or vessel without securing a special license from the firm of Livingston and Fulton.24 If such a license was not obtained, the offending boat or vessel was to be forfeited.25 These provisions were extraordinary enough, but even more extraordinary were those of the succeeding act of April 9, 1811. This act provided that if the provisions of the former act were violated, Livingston and Fulton, in case any other steamboat navigated their territory, should have an action at law for such boat as if they themselves had been dispossessed by force. The act further declared that they could immediately get an injunction.26
These cumulative acts raised an immense commotion in the mercantile world. Everywhere the great landowners, with the revenues from land obtained by fraud, were breaking out of the bounds of being mainly landowners, and were becoming transformed into owners of banks, turnpikes, bridges, navigation companies and insurance companies. Just as in the old days their sphere was one of part landowner, part seignorial trader, so now they hastened to avail themselves of each freshly discovered resource, each new invention, each newly-developed economic institution.27 But Livingston and Fulton, in getting the steamboat monopoly in New York waters (which meant the profitable Hudson River, Long Island Sound and other navigable water trade), came gradually into conflict with nascent capitalists, not nearly as rich as they, but equally determined and aggressive. The whole mercantile class looked with alarm upon acts by which this great new method of transportation was monopolized by two men, with probably influential others covertly sharing the profits.
Prevailing Legislative Corruption.
The legislative acts were denounced as unconstitutional. The owners of the monopoly fell back in triumph upon that famous constitutional clause inserted by Justice James Wilson that no legislature could pass laws impairing the obligation of a contract. But if this claim was true of Livingston and Fultons monopoly, why did it not apply with equal force to Fitchs ? Livingston and Fulton also pointed out, as though the argument were invincible ; that no less a jurist than John Jay, the first Chief Justice of the Supreme Court of the United States, had in the Council of Revision pronounced the original act constitutional, and that those great authorities, Judges Lansing, Lewis and Benson, had agreed with him.
To give an insight into the real methods by which legislatures were induced to pass such acts, a few facts will be given as to certain other charters granted by the New York Legislature during that period.
The bill chartering the Manhattan Bank, in which Aaron Burr and De Witt Clinton28 were prominently interested, was passed in 1799 under the philanthropic guise of being a measure to incorporate a company to supply pure water to New York City with the plausible pretext of diminishing future ravages by yellow fever. As we have seen, members of the legislature, including Senator (later judge) Spencer, were openly charged with taking bribes. Jay, as president of the Council of Revision, signed that bill, probably, we may conjecture, in return for the help of Burr and Clinton in passing the act granting the steamboat monopoly to Livingston. Reciprocal exchanges were usual among politicians.
Six years after the passage of the Manhattan Company act, the Mercantile Bank received a thirteen years charter. It was publicly charged by various members of the Assembly that this charter was secured by bribery charges substantially proved before the legislative investigating committee.29 And who, it may be asked, was the organizer and the president of the Merchants Bank, founded and chartered under similar circumstances at this time ? No less a personage than Oliver Wolcott, friend and admirer of Hamilton ; the successor of Hamilton as United States Secretary of the Treasury, in 1795 ; and the intimate friend of Oliver Ellsworth, who followed Jay as Chief Justice of the Supreme Court of the United States.
In 1811, the New York Legislature chartered the Mechanics Bank, with a time limit, under peculiar circumstances indicating bribery. Charges of corruption were so continuous that the Legislature, in 1812, in a fine outburst of ostentatious virtue, passed a resolution compelling each member to pledge himself that he had neither taken nor would take, any reward or profit, direct or indirect, for any vote or any measure.30 After this rhetorical effusion, intended to salve the public, the Legislature proceeded, in that very year, to charter the Bank of America. Flagrant charges of corruption were made, and an investigation was held. One Assemblyman testified that he had been offered the sum of $500 besides a handsome present for his vote.31 Oliver Wolcott was the chief organizer of this bank also, and remained its president for two years.32 The chartering of the Chemical Bank, in 1824, was accomplished by bribery, according to the testimony before a legislative investigating committee ; the promoters of the Chemical Bank set aside a considerable sum of money, and $50,000 in stock for the bribery fund.33 The charter of the notorious Seventh Ward Bank was later likewise obtained by bribery.
These parallel circumstances of the securing of other charters may tend to explain why Livingston and Fulton were able to get such amazing laws. The final outcome of the long litigation growing out of the Livingston and Fulton steamboat monopoly is described later in this work, comprehending, as it does, one of the most noted of Chief Justice Marshalls decisions.
Suffice to say here that it was generally believed that high jurists and politicians were indirect beneficiaries of that monopoly ; for politicians to be stockholders in companies to which they, as legislators, had granted charters, was not uncommon, nor was it unusual for judges to hold stock.
At Jays death in 1829, Daniel Webster said of him, in the customary high-flown rhetoric of the day : When the spotless ermine of the judicial robe fell on John Jay, it touched nothing less spotless than itself. The facts, however, tell otherwise. Webster would have liked that generation and future generations to believe his encomium of Jay. The decisions of Jay were useful as precedents to Webster, the most active corporation lawyer of his day, the attorney for schemes and projects some of which Jay himself had helped to put through, and the ally by marriage and interest, of Jays class.34
The Senate Rejects Rutledge.
When Jay resigned the Chief Justiceship of the Supreme Court, John Rutledge of South Carolina was appointed to succeed him. Rutledges appointment was what might be termed an untimely anticipation of a period not yet arrived. So staunchly did Rutledge represent the interests of the large Southern slaveholders that in the Federal Constitutional Convention, he had to quote the words of a eulogist stood firm and unyielding to what he esteemed the substantial interests of his section of the country.35 He had been one of the delegates refusing to concede to the proposal for the immediate prohibition of the importation of negro slaves. The people of North Carolina, South Carolina and Georgia, he had then declared, will never agree to the proposed Constitution, unless their right to import slaves be untouched. He had finally acceded in the Convention, however, to the proposal that the importation of slaves should not be prohibited prior to the year 1808.36
But although representing the great slave-owning landed proprietors of the South, Rutledge was not, at this juncture, viewed with approval by the great landowners of the North, who by force of more numerical representation in the Senate, dominated the Government.
Already, the great economic struggle between the two conflicting capitalist systems that of so-called free white labor in the North, and that in the South of negro slavery had begun. While the Southern capitalists were demanding that the right to import slaves be continued, the Northern capitalists were, as we have seen, as early as 1775, deliberately and with the most careful calculation, setting out to utilize woman and child labor in factories, as a system, knowing it to be cheaper than slave labor.
The conflict between these divergent systems had not, at the time of Rutledges appointment, widened into the threatening stage that it did later, when it became so acute that the Southern slaveholders exerted every influence to dominate the Government, especially the Supreme Court of the United States. Rutledge, moreover, had made himself obnoxious to the majority of the United States Senate by denouncing the Jay treaty. This he opposed because it contained no provision indemnifying slaveholders for negroes appropriated by the British, and because that treaty would stop the exportation of cotton.
The Senate rejected Rutledges appointment.37 For some years his mind had showed symptoms of impairment ; when the news of his rejection reached Rutledge, it totally gave way, and he soon died.
Ellsworth Succeeds Jay as Chief Justice.
The appointment of Oliver Ellsworth, of Connecticut, as Chief Justice of the Supreme Court of the United States, was wholly satisfactory to both the landowning class, and to its auxiliary outgrowth, the banking interest. The same Senate rejecting Rutledges appointment hastened to confirm Ellsworths. He was commissioned Chief Justice on March 4, 1796.
Beginning as a rather obscure lawyer, Ellsworth had ingratiated himself into the favor of the Wolcotts, the Trumbulls and other powerful Connecticut families. Constituting the coterie owning great landed estates in Connecticut, these families had governed that Colony and State for generations as though it were their private preserve. Like the Livingstons in New York, they knew how to appropriate the highest official positions for themselves, and retain them in the family circle. As for Ellsworth, he had married into the Wolcott family, and became a man of notable fortune.
As a member of the Continental Congress, Ellsworth had been one of the group promoting the chartering of Morris Bank of Pennsylvania. Serving as the chairman of the committee of the Continental Congress reporting in the matter, Ellsworth was, according to his eulogist Van Santvoord, one of Morris most ardent and efficient coadjutors. Conspicuous in the Continental Congress in pushing the original charter of the Bank of North America, Ellsworth was not unaware of the quick-following frauds ; and when James Wilson proposed that ingenious constitutional clause of his, Ellsworth knew to an accuracy what it really meant and how it would be applied, not less so than Wilson, Clymer, Fitzsimmons, Gouverneur Morris and his partner Robert Morris, four of whom, as we have seen, were openly associated with that bank, and one indirectly. In that convention Ellsworth, be it said to his credit, made no effort to disguise his real attitude ; he was one of the boldest in implying his contempt for the people, and in urging the policy of deluding the people with a sop. He favored a yearly election for members of the House of Representatives ; the people, he said, were fond of frequent elections, and might safely be indulged in one branch of Congress.38
In the Connecticut Convention, called to decide upon the Constitution, Ellsworth argued strenuously for its adoption. He and Oliver Wolcott (whose later Merchants Bank and Bank of America charters were obtained by bribery, as already noted) served together on the Commission to settle the claims of Connecticut against the Federal Government. Both were concerned, too, in that fraudulent disposition by Connecticut of its great area of land in Ohio.
Ellsworth had long been one of the most powerful politicians in Connecticut, as well at the same time as in the National Government. He had been an Attorney-General of Connecticut. From 1780 to 1784 he had been a member of the Governors Council, and from 1784 to 1789 one of the judges of the Supreme Court of Connecticut. As a United States Senator he was a member of the select committee to which Hamiltons refunding plan was referred, and was one of the most active supporters of that scandalous scheme. He, also, was on the select committee which reported favorably on Hamilton and Morris plan for the incorporation of the Bank of the United States. When the question came up in Congress as to the proper title for the President of the United States, Ellsworth was a member of a committee of three of the Senate reporting that the President ought to be addressed as, His Highness, the President of the United States and Protector of Their Liberties.39 This proposed title, so strongly smacking of monarchism, was rejected by the House of Representatives. It is written of Ellsworth that he acquired a degree of wealth at that time rare in Connecticut.
Ellsworth remained Chief Justice for a few years only and were it not that he handed down opinions deciding that debts due to British subjects were recoverable, hardly anything that he otherwise did was considered worthy of citation. In the annals of legal lore he occupies an obscure position, possibly, for one strong reason, because of the overshadowing vital contrast afforded by his successors masterful ability, performances and long reign.
Bushrod Washingtons Appointment.
Adams was an extremely rich man ; his private income was reputed to be $25,000 a year, which, at that time, was regarded as something enormous. In his reverence for wealth, and his class distrust of the lower orders, Adams was outspoken to a point approaching what his enemies viewed as the very extreme of bigotry.
But this charge was not well founded. Adams simply voiced with honest belief the views held by his whole class, and demanded by their interests ; where Hamilton in Adams position would have cautiously and unctuously cajoled the public, Adams threw calculating tact aside. Appointing corrupt men to office, conniving at the most colossal frauds and thefts when committed by members of his class, Adams was an ideal head for a government run by capitalists for capitalists. In the dull chronicles of the usual historical weaving, Adams has had to bear the odium of the disgraceful Alien and Sedition law, the real purpose of which was to stifle liberty of speech and of press. But the actual authors of this law were the landholders and other associated politico-capitalists obtaining huge areas of public land by fraud, and scheming either to have confiscated estates vested in themselves or in their immediate connections.
These men naturally objected to the caustic diatribes against their meditated alliance with the British governing class with the object of putting down the French Revolution. They were savagely upset by the biting exposure of their great frauds, either accomplished or projected. In these frauds nearly every member of the Cabinet and Senate had a hand as also many members of the House of Representatives. The claim for more than 11,000,000 acres of the 35,000,000 acres obtained by that grant bribed through the Georgia Legislature in 1795, was held by Adams Massachusetts friends ; and, as we shall see, Adams son, John Quincy Adams, was one of the attorneys who later successfully argued that claim to a validation through the Supreme Court of the United States. This validation (to repeat) was based upon the plea that the Georgia rescinding act was in violation of the Constitutional clause forbidding any State to pass laws impairing the obligation of a contract.
As we have seen in Chapter IV, Wilson supplied by far the greater part of the funds for the securing of the bribed grant of 35,000,000 acres of land. At Justice Wilsons death, President Adams appointed Bushrod Washington, an Associate Justice of the Supreme Court. Bushrod Washington, as we have told, had been placed by his uncle, George Washington, in Wilsons office to study law, and had been associated in that capacity with Wilson during the very period when Wilson was engineering his Bank of North America transaction. He had inherited George Washingtons Mount Vernon estate. All of the other Justices of the Supreme Court of the United States were well advanced in years, but Bushrod Washington was only thirty-six years old at the time of his being commissioned Associate Justice.40 The Supreme Courts obituary on his life, published in 1830 as a preface to the third volume of Peters Reports, narrates the fact that Bushrod Washington had been placed by General Washington in the office of James Wilson to study law, and it further relates that Bushrod Washington was a great friend of John Marshall and had commenced his intimacy and friendship with Mr. Chief Justice Marshall when he (Bushrod Washington) was a student at William and Mary College. What exact and intimate connection these facts had in view of subsequent memorable decisions of the Supreme Court of the United States, we do not profess to judge ; but these are the facts, and their significance is self-evident.
The Federalists Go Out of Power.
With the election of Jefferson, in 1800, the Federalists seemed swept out of power. Many causes conspired to bring about this great political change. The small merchants and petty shopkeepers, aiming at an unrestricted field for their own economic advancement, revolted against government by the large landholding families. Instead of the old hereditary aristocracy, based upon large possessions of land, the time was ripening for a newer aristocracy of money derived from industrial establishments and transportation as well as from land. On the other hand, the time was not propitious for the carrying out of the Federalist doctrine of concentration of powers in the National Government ; the country was vast, communication was difficult and slow, and the two great conflicting economic systems of North and South were silently but more intensely clashing.
Such portions of the working class as had the right to vote enthusiastically supported the Republicans or Anti-Federalists, believing that the defeat of the Federalists meant a death blow to aristocracy. They did not see that a vastly more powerful industrial and transportation aristocracy would take the place of the old feudal aristocracy. Lastly there were dissensions within the ranks of the Federalists themselves. The great landholders, bent upon annihilating both the influence and results of the French Revolution, were determined upon a bitter war with France, and an alliance with England. But President John Adams, whose interests and traditions lay more with the shippers than with the landholders, wanted no war ; this attitude caused a wide breach between the Adams and the Hamilton factions.
Pack the Courts Before Going.
The Republicans41 believed they now had a clear field of power. The Federalists, however, proceeded to execute into law a piece of strategy by which they were able to outgeneral their opponents, and retain practical power. The Republicans had the administrative offices, and a majority of the Legislators, but the crucial question was as to which side would control the judiciary.
This fact both parties thoroughly appreciated. They knew that the courts before, and during, the Revolution had gone to lawless lengths in doing as they willed. They knew that the courts had already, unquestioned, set aside acts of legislatures as null and void, and that they would and could do so again with acts of both legislatures and Congress. They knew that the courts were the prime instruments for sanctioning the acts of the ruling class, and that with judicial precedents already built up, and more that could be added, theories of law could be devised to suit any exigency. Theoretically, the three departments of governments each held coordinate jurisdiction, but this was merely a pleasant fiction. The courts were the real masters of destinies.
In the last days of their power, the Federalists passed a new judiciary act, creating a series of new courts, and nearly three-score new judges. The most important post in the whole government, however, was that of Chief Justice of the Supreme Court of the United States. The President lasted for four, perhaps eight, years in office ; the Chief Justice held office for life. The President could recommend laws ; the Chief Justice could arrogate the sovereign power (two members of the Supreme Court agreeing with him) of abolishing laws with a stroke of the pen, or virtually making laws far more binding than legislative law.
But the straining of both political parties for the control of the judiciary was, judging by fundamentals, merely a shallow conflict. This was later lucidly proved when Justices of both political stripes stood together in validating immense land frauds and the fraudulent recovery of confiscated estates, and in the twisting and kneading of the Constitution to accord with particular or general interests of each succeeding dominant division of the capitalist class, in the declaration of perpetual vested private and corporate rights, and in the continuation of chattel slavery. Quite true, differences were revealed among various Justices over the question of States rights versus consolidation of power in the National Government. But those differences exactly reflected the contentions prevailing at the particular time between capitalists of different sections.
All of the Justices, to whichever political parties they belonged, to whatever source they owed their appointment, believed in the domination of government by property for property, although while most of them believed that this rule should be of the large propertied interests, a few there came who held that the middle-class property element should hold the power. But all were agreed upon the main point of straining every interpretation and construction for the benefit of property, even though there came times when a minority Justice, or perhaps others with him, refused to concur in some notorious decision handed forth by the majority. All, by their consistent actions, evinced irrefutable bias in favor of established conditions, so far as they applied to the general repression of the workers, and all were class prejudiced against any attempt of the working class to improve its conditions, and shake off the yoke of the oppression of numberless centuries.
A little while before leaving office, President Adams, on January 31, 1801, appointed John Marshall to be Chief Justice of the Supreme Court of the United States. Jefferson, who came from the same State as Marshall, and who was thoroughly conversant with his career and mentality, deplored the appointment as a public calamity. Toward Adams and others, Jefferson entertained a bitter enough hatred, but when Jefferson was extremely old and after he had forgiven all of his other foes, Marshall was the one man whom he could not bring himself to forgive.
All of Jeffersons political ideas, ideals and plans were upset and uprooted by Marshalls decisions, which forced into practice the very opposite of Jeffersons doctrines. We who have the advantage of retrospection may look back and, understanding the course of industrial progress, may see that in that particular respect, Jefferson was in error. For the next thirty-four years, Marshall was, in point of actual sovereignty, the ruler of the United States, and by force of decisions handed down by him, has, it may be safely said, ruled the courts (which rule the United States) ever since. Marshalls appointment signified the unrestricted development of private corporate institutions and power, which was an inevitable stage in the progress of society.
1 Correspondence and Public Papers of John Jay, Vol, IV: 5.
2 Ibid., 9-10.
3 Correspondence and Public Papers of John Jay, Vol. III: 378.
4 The Supreme Court of the United States was not then a distinct institution or entity, as it is now, separate from the Circuit Courts. It was, to a large extent, the whole Federal judicial system of the country, and its members decided criminal, as well as civil, cases. The supereminence of the Supreme Court was recognized by Washington. On July 18, 1793, Washington, through Thomas Jefferson, then Secretary of State, asked the Supreme Court for an opinion on the lines of separation between the different departments as drawn by the Constitution. This the Supreme Court declined to give, excusing itself on the ground of its being a court of last resort, and hence the impropriety of extrajudicially deciding questions.
Those who may be inclined to think that the Supreme Court was of n0 great importance because of the comparatively few civil cases decided may also consider this explanation in Dallas Reports referring to the proceedings in 1793, of the Supreme Court of the United States then holding its session in Philadelphia : The Malignant Fever which, during this year raged in Philadelphia, dispersed the great body of its inhabitants, and proved fatal to thousands, interrupted, likewise, the business of the Courts ; and I cannot trace that any important cause was agitated during the present Term.II Dallas : 480.
5 The manner in which the office of Chief Justice was held is shown by the deference in the address of the Lansingburgh (Federalist) Committee to Jay on June 30, 1792, in which it spoke of Our respect for your character, in the dignified office of Chief Justice of the United States, etc. Correspondence and Public Letters of John Jay, Vol. III : 436.
6 Thus, profiting from her experience with the American colonies, Great Britain gave the traders of Canada the full right to make whatever goods they wanted, and sell them where they pleased. The Canadian ruling classes have remained stanch monarchists.
7 Correspondence and Public Papers of John Jay, Vol. IV: 166.
8 Ibid., 201. As illustrative of the opinions of Jays intimate set, the instance can be cited of General Phillip Schuyler (Hamiltons father-in-law) writing to Jay, May 17, 1800, deploring recent anti-Federalist successes, and calling for measures to save the nation from the misrule of a Man [Jefferson] who . . . is in fact pervaded with the mad French philosophy.Ibid., 273.
The French Revolution, as led by Robespierre and his group, really represented not the proletariat, but the aims of nascent capitalist class to overthrow feudal rule and develop capitalism. This is admirably explained in Kropotkins recent Great French Revolution. While Jay was denouncing the French Revolution, his political opponents at home recognized what the Revolution was actually accomplishing. Thus, the Society of St. Tammany, of New York, largely a middle-class organization, gave this toast at its dinner on May 12, 1793 : Success to the armies of France, and Wisdom, Concord and Firmness to the Convention. The first sentence was hardly articulated, said the New York Journal and Patriotic Register, May 15, 1793, when as one the whole company arose and gave three cheers, continued by roars of applause for several minutes ; the toast was then given in whole and the applause reiterated. The Philadelphia Society likewise proclaimed its support of the French Revolution, as did other societies.
9 Correspondence, etc., of John Jay, Vol. III: 486.
10 Dallas Reports, Vol. III: 195-285.
11 Ibid., Vol. II : 419-480.
12 William Bayard, born in 1729, entered mercantile life, and became one of the richest merchants of New York. He was the owner of all the land on which the present city of Hoboken is built. During the Revolution he went to England, and his estates were confiscated and sold. Two of his sons, John and Samuel, entered the British army and attained high rank. His third son, William (born in 1764), remained in New York, succeeded to his fathers business, became one of the largest ship owners in New York, was President of the Chamber of Commerce from 1810 to 1827, and a director of the Bank of America, and other banks. His daughter, Elizabeth, married Stephen Van Rensselaer (the younger). It was to William Bayards country seat on Greenwich Street that Hamilton was taken after his duel with Burr. The Livingstons, Van Rensselaers, Bayards, Schuylers, Patersons and other powerful landed families were, as we have said, closely related by marriage.
13 See, Correspondence and Public Papers of John Jay, Vol. IV.
14 Ibid., Vol. IV: 57.
15 Correspondence and Public Papers of John Jay, Vol. IV: 59.
16 Ibid., 115. Jays treaty was concluded on Nov. 19, 1794, and ratified by the United States on Aug. 18, 1795.
17 Correspondence and Public Papers of John Jay, Vol. IV: 151.
18 Hammonds Political History of the State of New York, Vol. I 106-107.
19 The rush to get charters of all descriptions from the various Legislatures was indescribable. Already, in 1791, the Legislature of Pennsylvania, for example, was driven into complaining that most of its time was consumed in enacting laws to incorporate private associations. Carey and Biorens Pa. Laws, Vol. IV: 28.
20 Political History of the State of New York, Vol. I : 55.
21 It was after being elected Governor that Jay formally resigned as Chief Justice.
22 In Chapter I we have given a remarkable decision made by Judge Benson at about this time in a noted case by which he justified title to land avowedly obtained by fraud. As for Judge Lewis, he had studied law with John Jay, and was related to the Livingston family by marriage.
23 For the full history, see Wheatons Reports, Supreme Court of the United States, Vol. IX: 1-240.
24 In 1806 Robert Fulton married Harriet Livingston, a niece of Chancellor Livingston. By her he had four children.Houghtons Kings of Fortune, 284. Their descendants are among the richest families of New York.
25 Wheatons Reports, Supreme Court of the United States, Vol. IX: 1-240.
27 Thus, to give one example of a large number of instances, Nicholas Cruger was one of the richest landholders in New York. His will, made in February, 1791, revealed that his estate amounted to $644,814.15. Of this amount, $122,905.62 was in real estate exclusive of the land bought by Cruger after making his will. The dower estate was valued at $71,713. Cruger held $141,779.69 in stocks, including shares in the United Insurance Company, the Bank of the United States, Hamiltons Bank of New York, the Bank of Albany and Aaron Burrs Manhattan Company. Various other properties made up the total inventory. Johnsons Reports, Court of Errors [N.Y.], Vol. VII: 568.
28 It was De Witt Clinton who, some years afterward, drew the charter of John Jacob Astors American Fur Company, and it was through De Witt Clintons exertions that it became a law. For an extended description of the long-continued debauching, swindling and murdering of Indians, done upon the strength of this charter, see Vol. I, History of the Great American Fortunes. De Witt Clinton was a Nephew of Governor, later United States Senator, George Clinton. After serving as Mayor of New York City, De Witt Clinton repeatedly became Governor of New York State.
29 Journal of the (New York) Senate and Assembly, 1805 : 351 and 399.
30 Ibid., 1812 : 134.
31 Ibid., 259-260.
32 The Wolcott family was one of the large landed interests in Connecticut and elsewhere. It was one of the oligarchy that had almost hereditarily ruled Connecticut politically for decades. Oliver Wolcott returned to Connecticut, and engaged in the manufacture of woolens in Litchfield. He became Governor of Connecticut, 1818-1827.
33 Journal of the [N.Y.] Senate, 1824 : 1317-1350.
34 After the death of his first wife, Webster married Catherine, daughter of Herman Le Roy. This was the same Le Roy who, as described in Chapter I, was one of those dispossessing settlers by securing, in virtue of court decisions, great tracts of New York land obtained by fraud and corruption before the Revolution. Le Roy was the founder of the great commercial firm of Le Roy, Bayard and Company, trading with many parts of North and South America. He was one of fifteen men in New York City who, in 1815, could boast of owning a carriage. As we have seen, Le Roy and Bayard were Jays intimate business associates as well as his friends, and we have quoted previously from Jays letter asking Cruger to let them share in a certain golden plan for making mullions sterling profits.
35 Van Santvoords Chief Justices, 194.
36 Madison Papers, Vol. III : 1536.
37 The appointment of Rutledge was a recess appointment. The note in III Dallas Reports, 121, reads : A commission bearing the date 1st July, 1795, was read by which, during the recess of Congress, John Rutledge, Esq., was appointed Chief Justice, till the end of the next session of the Senate. Before the rejection of his nomination, Rutledge presided as Chief Justice in the determination of at least one case that of Talbot vs. Jackson.
38 Madison Papers, Vol. II: 846 and 929.
39 Van Santvoord, p. 226.
40 By reason of excessive study, Bushrod Washington became blind in one eye. In stature he was insignificant, and he was negligent in dress. He was immoderately addicted to snuff taking. Withal, he was the most punctilious stickler for forms and etiquette. He was said to have remained, on one occasion, sixteen hours at a stretch on the Supreme Court Bench.
41 Again it should be pointed out that the Republican Party of that time is not the Republican Party of the present. The Republican Party of Jeffersons day developed into the Democratic Party. Thus, Tammany Hall still flaunts its campaign inscription : Democratic-Republican Candidates. The Republican Party of these times is the descendant of the Federalist Party.