Empire of Liberty: A History of the Early Republic, 1789-1815 (71 page)

Thus it is understandable that the irascible and abrasive Samuel Chase of Maryland, appointed to the Supreme Court in 1796, saw nothing wrong with his politicking openly on behalf of the Federalist cause while sitting on the bench. Indeed, he, along with Bushrod Washington, his colleague on the Supreme Court, even openly campaigned for the reelection of President Adams in 1800 . Chase was only doing what he thought his position as a political authority and magistrate justified.

Because many people in the 1790s continued to regard the federal judges as political magistrates, the early Congresses assigned a surprisingly large number of non-judicial responsibilities to them, including conducting the census and serving on commissions to reduce the public debt. In nearly all cases the judges willingly accepted these administrative responsibilities.
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Hamilton summed up the traditional view in 1802 by pointing out that judges were ex officio conservators of the peace and were expected to do more than merely adjudicate. Their duties were twofold,“judicial and ministerial,” and the ministerial duties were “performed out of Court and often without reference to it.”
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Almost immediately after appointing Jay as chief justice, Washington sought his diplomatic advice on the Nootka Sound crisis in 1790, and Jay had no inhibitions about giving it in writing. He had after all served simultaneously as secretary of state and chief justice of the Supreme Court while waiting for Jefferson’s return from France in 1789 . Chief Justice Jay likewise responded in writing when Secretary of the Treasury Hamilton asked him for a draft of a neutrality proclamation in April 1793 . Jay later worked his ideas about American neutrality into a grand jury charge, which was published in the newspapers and which the government sent abroad as a formal explanation of its position.
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Although Jay’s appointment as a special envoy to Britain in 1794 to prevent an impending war aroused some opposition in the Senate, most officials saw nothing inappropriate in the chief justice performing such a diplomatic mission. Later in 1799 Chief Justice Oliver Ellsworth headed the mission sent to negotiate the end of the Quasi-War with France. Indeed, throughout his tenure as chief justice, Ellsworth repeatedly offered advice to the Federalist administration on political matters and even on matters involving criminal prosecutions.
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In fact, the Federalists hoped that the federal courts might help to break down state loyalties and nationalize the society. Federal law under the Constitution, unlike that of the Confederation, would penetrate the membrane of state sovereignty and operate directly on individuals—one of the most radical features of the new national government. Senator William Paterson, later an associate justice of the Supreme Court, said during the drafting of the Judiciary Act in 1789 that he expected the federal courts to “carry law” to the people,“to their Homes, to their very Doors,” so that “we shall think, and feel,& act as one People.”
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But given the strong loyalty most Americans had to their separate states, this expansion of the authority of the federal courts had to be done carefully. Chief Justice Jay knew only too well that “the federal Courts had Enemies in all who fear their Influence on State Objects.” Thus contradictory opinions by the circuit courts, circuit-riding in general, and other problems with the federal courts “should be corrected quietly,” for, as Chief Justice Jay told New York senator Rufus King in 1793, if the “Defects were all exposed to public View in striking Colors, more Enemies would arise, and the Difficulty of mending them increased.”
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Out of fear that the state courts might undermine national authority, the Federalists drafted the Judiciary Act of 1789 in such a way as to make it more likely that the initial filing of federal cases would be done in federal trial courts rather than in state courts. This lessened the need for federal appellate review of state court decisions, particularly decisions involving suits of British creditors, which might have led to nasty conflicts between the federal and state judiciaries. Just such a British debt case,
Ware v. Hylton
, which had begun in a federal court, reached the Supreme Court in 1796 . The Court decided that the supremacy clause of the Constitution provided that treaties of the United States overrode a Virginia state law—an important precedent for establishing national authority. In that same year, 1796, the Court in
Hylton v. United States
ensured that the new federal government would have taxing power broad enough to meet its needs, again by defeating a Virginia case against a federal carriage tax. This case was an important enough precedent for the federal government’s ability to extract revenue from its citizens that Alexander Hamilton temporarily left his private law practice to argue the case before the Court on behalf of the government; this was the only time he ever appeared before the Court.

With these decisions the Federalist-dominated Court revealed its desire to declare that the United States formed a single nation of one people. In
Chisholm v. Georgia
(1793), however, the Court overreached itself. It decided that the state of Georgia was not immune from suits by citizens of another state. This decision represented such a serious assault on state sovereignty that it could not stand; even Federalists in Massachusetts were appalled by it. Many of the state legislatures called for a constitutional amendment to overturn the
Chisholm
decision and prevent states from being sued by foreigners or by citizens of another state. The result was adoption in 1798 of the Eleventh Amendment to the Constitution, which declared that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
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Although most Federalists were not bent on abolishing the states and all state sovereignty, they were eager to ensure that the national government had sufficient authority to govern. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts offered a broad
“constructive” interpretation of treason in the Constitution by contending that mere armed opposition to a statute was equivalent to the levying of war against the United States. If the object of the insurrection was “to suppress the excise offices and to prevent the execution of an act of Congress, by force and intimidation,” declared Justice Paterson in the trial of the Whiskey rebels,“the offence in legal estimation is high treason; it is an usurpation of the authority of government; it is high treason by levying of war.” It did not matter to Paterson that the prosecution had failed to produce two witnesses to the defendant’s overt acts. The Federalists meant to put down disorder. The same thinking governed the trial of the Fries rebels of 1799 . Although John Fries and a mob did rescue eighteen men from a federal marshal and his deputies, no shots were fired, and the prisoners later made their way unescorted to Philadelphia, where they gave themselves up to the law. Nevertheless, Fries was charged and twice convicted of treason for levying war against the United States. Defining riot and rescue as treason was a stretch—a “
novel experiment
,” said the defense attorneys—but in the atmosphere of 1799 the Federalists were frightened.
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Equally important in strengthening the authority of the federal government were the Federalists’ efforts to create a bankruptcy law for the nation. The main purpose behind the uniform national bankruptcy law of 1799 was the Federalist desire, as Congressman James Bayard of Delaware put it, to “unite and naturalize the United States, and . . . cement together the different parts of the Union, and connect more closely the nation with the Federal Government.”
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Perhaps most important of the Federalists’ attempts to bolster national authority in the 1790s was their claim that the federal courts had jurisdiction over common law crimes. The Federalists contended that the federal courts could use something called an American common law—a body of precedents and practices drawn from the unwritten English common law and adapted to American conditions—to punish crimes against the United States and its government even in the absence of specific federal criminal statutes.

Chief Justice John Jay’s first charge to a grand jury in the spring of 1790 staked out a large area of national common law jurisdiction. He told the jurors that their duty extended “to the enquiry and presentment of all offences of every kind, committed against the United States,” by which he seems to have meant virtually any example of wrongdoing against the nation or its government whether proscribed by a federal criminal statute or not.
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In 1793 Justice James Wilson in a grand jury charge went even further in expanding the federal courts’ jurisdiction by claiming that the law of nations was part of what he called the “common law” of the United States.

In the 1790s most Federalist judges scarcely doubted the existence of a federal common law of crimes adapted to American circumstance. In fact, they assumed that no national government could rightly call itself a real government if it lacked the legal means of protecting itself by judicial proceedings alone. As Chief Justice Ellsworth declared in 1799, acts that were “clearly destructive of a government or its powers, which the people have ordained to
exist
, must be criminal.” It was not necessary to particularize these criminal acts by legislative statute, said Ellsworth,“because they are readily perceived, and are ascertained by known and established rules; I mean the maxims and principles of the common law of our land.”
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Probably no Federalist conception in the 1790s seemed to the Republicans more threatening in its implications than this notion that the common law of crimes ran in the federal courts. The common law, as the Republicans pointed out,“was a complete system for the management of all the affairs of a country. It . . . went to all things for which laws are necessary.” Common law jurisdiction relating to crimes, said Madison,“would confer on the judicial department a discretion little short of legislative power.” If the federal courts could use the “vast and multifarious” body of the common law to control American behavior, then, concluded Madison in his famous report of January 1800 to the Virginia assembly, the courts alone might “new model the whole political fabric of the country.”
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Although the federal judges denied that they were newly modeling the whole political fabric of the country, they did attempt to use the common law to expand national authority in a variety of ways. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts used the
federal common law to justify the federal government’s trying and punishing the rebels’ violations of state law and state practices.“Although, in ordinary cases, it would be well to accommodate our practice with that of the state,” declared District Judge Richard Peters in the trial of the Whiskey rebels,“yet the judiciary of the United States should not be fettered and controlled in its operations, by a strict adherence to state regulations and practice.”
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When some of the Federalists began claiming that the federal courts could use the criminal common law to punish seditious libel even without a sedition act, the Republicans became truly alarmed. The claim that the federal judiciary could use the common law to punish crimes, Jefferson declared in 1799, was the “most formidable” doctrine that the Federalists had ever set forth. He told Edmund Randolph that all that the Federalist monocrats and aristocrats had done to tyrannize over the people—creating the Bank, Jay’s Treaty, even the Sedition Act of 1798—were “solitary, inconsequential timid things in comparison with the audacious, barefaced and sweeping pretension to a system of law for the US without the adoption of their legislature, and so infinitely beyond their power to adopt.”
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If the Federalists were ever able to establish this doctrine, Jefferson believed that the state courts would be put out of business. As far as he was concerned, there could be no law that existed apart from the popular will of the nation. And since that will had never established the common law for the United States, and indeed had no right to do so anyway for such a limited government, the federal government contained no such common law.
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W
ITH GOOD REASON
, the Jeffersonian Republicans had become convinced by 1800 that the national judiciary had become little more than an agent for the promotion of the Federalist cause. Some Federalists in 1798–1799 had thought that the army might be used to put down the states, but shrewder Federalists knew better.“It is impossible, in this country, to render an army an engine of government,” Secretary of the Treasury Oliver Wolcott Jr. told Fisher Ames in December 1799; “there is no way to combat the state opposition but by an efficient and extended organization of judges, magistrates, and other civil offices.”
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Nothing seemed to give pause to the Federalist plans to control the judiciary—not even the election of Republicans to the presidency and
the Congress in 1800; indeed, the election results only made the Federalists more desperate to hold on to the courts. If a free government could not tolerate a standing army to hold itself together, then, said the Federalists, the only thing left was “a firm, independent, and extensive Judiciary.”
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