47

  Three other significant developments filled out the story of 1816. One concerned the hitherto relatively obscure third branch of the Federal Government, the federal courts. By a fluke of luck, the U.S. Supreme Court on March 20, 1816 decided authoritatively for the first time the question of the relationship between federal and state courts when it came to interpretation of federal law—specifically, when it came to appeals of questions of federal law from state supreme courts to the U.S. Supreme Court.1

  The case, Martin v. Hunter’s Lessee, concerned land titles in Virginia’s Northern Neck—a part of the Commonwealth that had once belonged to Thomas, Lord Fairfax. Fairfax’s estate comprised “about a third of the populated area of Virginia,” including the Northern Neck, and not wanting to have his principality seized, Fairfax remained essentially neutral during the Revolution. As he died intestate and without an heir in Virginia, some Virginians assumed his land would simply escheat to the Commonwealth. The Treaty of Paris, however, provided protection for British property in the United States, and Antifederalists, including their leader Patrick Henry, made an issue of the likely attitude of federal courts toward this provision in case the Constitution were ratified.

  Fairfax’s British heir, Denny Martin Fairfax, retained as his counsel the brothers James and John Marshall. The two of them anticipated being at the front of the line of potential buyers in case Denny Fairfax decided to divest himself of his Virginian landholdings. John Marshall took point in the legislative process giving effect to Denny Martin Fairfax’s offer to deed his undeveloped land in western Virginia to the Commonwealth in return for clear title to his plantations in the settled part of the state. As the historian of the litigation put it, the Marshall brothers’ haul from this set of maneuvers amounted to “some of the choicest plantations in northern Virginia.” James Marshall tried to resuscitate the rents the lord had formerly collected and lost in state court. The Marshalls won on appeal in 1805, however, with one caveat. Judge Spencer Roane, Patrick Henry’s son-in-law and a devout Old Republican, pointed out in dissent that John Marshall had pledged to the Virginia Ratification Convention of 1788 that Fairfax quitrents would no longer be collected. Here the Marshalls themselves were collecting them. To Roane, as to Jeffersonians generally, the meaning of the Constitution depended on the explanation Federalists had provided to the ratification conventions—that is, on the Ratifiers’ understanding of the document when they ratified it. Roane said the quitrents, or whatever they were now called, should be defunct. Learning of this passage of Roane’s opinion, tenants on the Marshalls’ lands remained recalcitrant in paying the Marshalls. This entailed years of additional litigation for the Marshalls.2

  It was the Marshalls who kept what came to be known as Martin v. Hunter’s Lessee (1816) going. In 1813 Justice Joseph Story for the Supreme Court said in Fairfax’s Devisee v. Hunter’s Lessee that the Marshall syndicate had had title to all of the Fairfax lands, thus, as the historian of Early Republic Virginia’s legal system F. Thornton Miller notes, vindicating Patrick Henry’s assertion that the federal courts contemplated by Article III of the Constitution would reestablish the entire Fairfax estate. (Yes, the Marshalls had surrendered some of it by 1813, but they had owned it in the first place.) Roane and his court called upon the Virginia bar to argue the question whether the Virginia Court of Appeals (now known as the Virginia Supreme Court) should respect the authority of the U.S. Supreme Court to overturn the Virginia court’s decision in Hunter v. Faifax’s Devisee. In other words, was Section 25 of the Judiciary Act of 1789, which granted the U.S. Supreme Court power to hear appeals from state supreme courts, constitutional? Did Congress have constitutional authority to make the highest federal court the ultimate appellate court not only in regard to cases arising in federal courts, but also in regard to matters of federal law arising in state courts?

  Roane concluded for his court that though the Supremacy Clause required all American officials, federal and state, to treat the U.S. Constitution, besides treaties and statutes made in conformance with it, as the supreme law of the land, the First Congress, again in Miller’s words, “had erred in establishing [a] procedure” “allowing the Supreme Court to act as the final court of appeals for each state.” State and federal governments had parallel judicial systems, Roane insisted for Virginia’s highest court.

  Because the parties to the case included Chief Justice John Marshall, the Supreme Court’s opinion in the case was said (though we may have our suspicions) to have been the work of Justice Joseph Story. Story, recall, had been appointed to the Supreme Court by President Madison over Thomas Jefferson’s vehement opposition. In calling Story a “Tory” Jefferson had had in mind the congressman’s role in the repeal of the Embargo Act, the centerpiece of the Virginian’s foreign policy.

  Jefferson likely would have opposed him even more strongly had he foreseen the justice’s opinion in Martin. As Story’s biographer R. Kent Newmyer put it, “Martin would be not only his first but his most important constitutional opinion. What Marshall did for judicial review in Marbury, Story would now do for the appellate power of the Court. The result was hardly less important.” Perhaps overheatedly, Newmyer calls Martin “Virginia’s Hartford Convention,” adding that “The issue was … the constitutional foundations of the government itself.” “The denial of the Court’s jurisdiction under section 25 was the calculated decision by the states’ rights forces of Virginia, not just Spencer Roane and the court of appeals but Thomas Ritchie of the Richmond Enquirer, the leaders of the Richmond Junto that controlled the state legislature, and Thomas Jefferson himself.”3

  As Story reasoned, since the Constitution left original jurisdiction over most suits in state courts, omission by Congress to adopt such legislation as Section 25, and thus to empower the Supreme Court to review state courts’ decisions of federal questions, would mean that many questions of federal law could not be reached by the Supreme Court. Different states would resolve those questions differently. This must over time result in different regimes of federal law in different states. As Story reasoned, “From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere.…”

  Story claimed, contrary to Article VII of the Constitution (the ratification article), that “[t]he Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declared, by ‘the people of the United States.’” Story insisted that “where a power is expressly given in general terms, it is not to be restrained in particular cases,” and Congress has the right “from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and public interest should require.” Newmyer translates this as meaning that in regard to implied Article III powers, “the benefit of the doubt went to the national government.”

  Not only that, but for the Court Story claimed that this supervisory power “must therefore be vested in some court, by Congress: and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omitted or declined, is to suppose that, under the sanction of the constitution they might defeat the constitution itself; a construction which would lead to such a result cannot be sound.” However much the Congress or the people might dislike the Supreme Court’s conclusion in Martin, in other words, passage of such a law as Section 25 was obligatory upon Congress. It could not be repealed.

  Justice William Johnson, a Jefferson appointee, wrote a concurring opinion to say both that he lamented the heat of the Virginia court’s opinion and that he did not think the Supreme Court was in Martin claiming any compulsory power over state supreme courts. In light of that fact, he said, he hoped a spirit of “comity” might come more clearly to mark the Old Dominion’s judges’ attitude toward the federal courts.4 He must have been disappointed, then, that Judge Roane and company never responded to the Supreme Court’s request that they forward the record of the case to Washington, D.C. In other words, though Martin v. Hunter’s Lessee supposedly stands for the Supreme Court’s power to review questions of federal law decided in state supreme courts, no such review occurred in that case.

  The second remaining significant development of that year resulted from a volcanic eruption on the other side of the world—specifically, of Tambora in the Dutch East Indies (today’s Indonesia).5 That volcano’s 1815 eruption was, one historian says, “ten times as powerful as the better-known Krakatoa in 1883, one hundred times the force of Mount St. Helens in 1980.” This eruption released a huge amount of sulfur dioxide into the atmosphere of the Northern Hemisphere, and the effects on the United States were massive.

  A summary of the Tambora eruption’s effects on the United States must include the resulting European famine that spurred rapid migration from settled parts of the United States into the new territories of today’s Midwest, where migrants purchased farmland on credit in hopes of capitalizing on significantly higher food prices in European markets resulting from food shortages.

  Both Europe and the United States experienced extreme cold in 1816, a year New Englanders dubbed “eighteen hundred and froze to death.” Americans who had lived through it generally called 1816 “the year without a summer.” Boston had snow in the second week of June; New York City had a twenty-four-degree day that month; Pennsylvania’s fruit was “chiefly destroyed by the late frosts”; Kentucky had freezing temperatures in August; Petersburg, Virginia, had frost that month; and Washington, D.C., that month had “a temperature, such as is generally experienced in the latter end of October.” Similar reports exist from North Carolina. The problem did not end then. The Richmond Enquirer said in summer 1817 that the James River was lower than it had ever been since Jamestown’s establishment in 1607, and the American Beacon said the Mississippi River stopped rising at New Orleans lower than anyone had ever seen there. At Pittsburgh the Ohio River—normally twenty-seven to thirty feet deep—was only three feet deep in 1819.

  A result, predictably, was food shortage. The corn crop in New England for 1816 was very scant, and a bushel of wheat in New York rose in price from $1.41 in May 1816 to $2.50 by December. People responded by moving west and growing wheat on land they bought on credit. Western towns’ populations grew quickly too—to some extent due to immigration from Europe.

  Predictably, when the weather changed as time passed, production of foodstuffs rebounded in the older areas. Britain, which had put its Corn Laws (bans on importation of some crops) in abeyance in response to the poor domestic harvests resulting from the eruption, returned to enforcing them in autumn of 1818. As a result, recent migrants to the American West found that prices of their produce fell. This left them unable to service their land purchases. The BUS returned to enforcing its loans, and credit contracted throughout the economy. As one newspaper put it, “The [Bank of the] United States’ branches are drawing the cord tighter and tighter; they are limiting the number of banks whose notes are receivable for lands.” Besides that, Treasury Secretary William Crawford reported that “In the early part of 1819, the prices of all articles produced in the Western States fell so low as scarcely to defray the expense of transportation to the ports from whence they were usually exported to foreign markets.”

  The author of the most recent account of the Panic of 1819 says, “Three times before the Civil War the volume of public land sales reached its greatest heights: just before the Panics of 1819, 1837, and 1857. Each peak followed a rapid rise in commodity prices, and each downturn began soon after those prices fell.” A faraway volcano caused a poor harvest in 1816, which led to a spike in grain prices and to a boom in land purchases. “More than seven million acres had been bought in the Northwest; most of it had been planted in wheat, corn, or rye, and by 1818 there was a glut.” The bust was sure to follow.

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  The presidential contest of 1816 turned out to be no contest at all. The Federalists nominated for president Senator Rufus King of New York (by way of Massachusetts) to run against the Republicans’ James Monroe. King, a Philadelphia Convention delegate who had been Monroe’s friend in Congress, looked for his candidacy to help revivify his party in the Empire State. It was not to be: of 125,000 votes cast there, Monroe received 67,000. Perhaps, as King put it, the president-elect “had the zealous support of nobody,” but being “exempt from the hostility of Everybody” proved sufficient—in New York and throughout the country. The Electoral College chose Monroe by 183 votes to 34, with only Massachusetts, Connecticut, and Delaware for the senator.1

  Madison’s Eighth Annual Message to Congress came before that body on December 3, 1816.2 It was quite a lengthy one. Madison noted that while the peace between America and Britain and the cessation of the world war between France and her enemies had resulted in “a general invigoration of industry among us, and in the extension of our commerce,” “particular branches of our manufactures” had suffered since importation of British goods became more or less free. Congress, he said, would want to remember that “manufacturing establishments, if suffered to sink too low or languish too long, may not revive” and take whatever steps might appear necessary to prevent recurrence of a situation “in which a dependence on foreign sources, for indispensable supplies, may be among the most serious embarrassments.” So too would Congress want to consider establishing “navigation laws” reciprocating the exclusion from British ports of American ships carrying goods from British colonies. “The reasonableness of the rule of reciprocity” had been advocated by American diplomats to their British counterparts, but to no avail.

  The president next discussed difficulties that had arisen in relations with Spain and Algiers, neither of which seemed apt to develop into full-blown hostilities. “With the other Barbary States,” he concluded, “our affairs have undergone no change.” Indian affairs struck him as developing in a desirable way, as land purchases had smoothed the situation of frontier American citizens, and in some instances conflicting land claims among Indian tribes whose land the United States had wanted to purchase had been resolved by paying both tribes the going rate for the land. Here Madison invoked “the benevolent policy of the United States preferring the augmented expence, to the hazard of doing injustice; or to the enforcement of injustice, against a feeble and untutored people, by means involving or threatening an effusion of blood.” Having restored peace among tribes and between Indians and Americans, he continued, “will favor the resumption of the work of civilization, which had made an encouraging progress among some.…” When America succeeded in “extending that divided and individual ownership, which exists now in moveable property only, to the Soil itself,” he forecast, “the true foundation for a transit from the habits of the Savage, to the arts and comforts of social life” would have been laid.

  Madison next recommended several types of legislation to Congress’s attention. It ought to reorganize the militia in light of the experience of the recent war; it ought to establish “uniformity of Weights and measures”; it ought to create a national university within the District of Columbia; it ought “to effectuate a comprehensive system of roads and Canals; such as will have the effect of drawing more closely together every part of our Country”; and it should revise the federal criminal law. “The United States having been the first to abolish, within the extent of their authority, the transportation of the natives of Africa into slavery, by prohibiting the introduction of slaves, and by punishing their Citizens participating in the traffic, cannot but be gratified at the progress made by concurrent efforts of other nations, towards a general suppression of so great an evil.” Congress, he suggested, ought to take steps “to give the fullest efficacy to their own regulations,” whether by stopping American citizens who “mingle[d] in the slave trade under foreign flags” or by interdicting those who brought slaves into America through adjoining territories.

  Madison called too for Congress to relieve Supreme Court justices of the rigors of riding circuit, which under the Federalists’ hated Judiciary Act of 1801 had been abolished, but which Republicans’ Judiciary Act of 1802 had restored. Congress did not act on this recommendation. Madison’s recommendation that the office of attorney general be given “the usual appurtenances to a public office” also went unheeded. He next projected that the Federal Government’s revenue for the coming fiscal year would exceed expenditures by nearly 24 percent. In the management of the government’s finances, he said, the new Bank of the United States would be quite helpful. Without naming him, Madison closed this portion of his address by saying that Gallatin deserved the credit for the healthy state of the government’s finances.

  “The period of my retiring from the public service being at a little distance,” he said, he happily beheld America “blessed with tranquility and prosperity at home; and with peace and respect abroad.” The success of its constitution pleased him. The Constitution’s principles and operation struck him as right and proper. “These contemplations,” he concluded, “sweetening the remnant of my days, will animate my prayers for the happiness of my beloved Country, and a perpetuity of the Institutions, under which it is enjoyed.”

  Madison’s congressional allies, led by Henry Clay and John C. Calhoun, worked hard as his term drew to a close to smooth his way out of office with one last achievement: the Bonus Bill. Congress passed this legislation providing that the “bonus” the Federal Government reaped from its shares in the Second Bank of the United States would be spent on a national network of roads, canals, and bridges. As Calhoun’s authorized 1843 campaign biography (of which he was a co-author) explains, the bill was thought to be consistent with the suggestion in Madison’s Annual Message for 1815, which not only had called for such a program, but had said that in case “whatever constitutional power [Congress] might possess over the subject” should “prove inadequate,” Congress ought to “apply for an amendment to the Constitution granting such additional powers as would be sufficient.”3 Calhoun thought a bill providing that the government’s “share of its dividends” should be “set apart and pledge[d] … as a fund for internal improvement” and “ma[king] no appropriation” pending “the decision of Congress, in conformity with the president’s views” would meet Madison’s requirements. “He had not the least suspicion, in reporting and supporting the bill, that he went beyond the President’s recommendation, or that he would have any difficulty approving it, till the bill had passed both Houses, and was sent to him for his signature.”