The interbellum constitu.., p.16
The Interbellum Constitution, page 16
With this initial construction of the act of 1803, Marshall began to call into question Tucker’s decree of forfeiture for the Wilson. But the final six paragraphs of the opinion demonstrated the Möbius-strip complexity of the intertwined set of federal and state statutes at issue in the case. This section of Marshall’s analysis also suggests that by 1820, the federal enforcement mechanism set forth in the congressional act of 1803 was aiding a different set of policies from some of those that had motivated the 1803 act.
The third section of the 1803 act, Marshall reminded his audience, enjoined “the officers of the United States, in the states having laws containing such prohibition, ‘to notice and be governed by the provisions of the laws, now existing, of the several states, prohibiting the admission or importation of any negro, mulatto, or any person of colour.” Federal officials were thus to follow state law. But observers in 1820 should not mistakenly think that the 1803 act was Congress’s way of “inflicting a penalty for the violation of a state law,” Marshall cautioned. In so warning, Marshall implied that a federal penalty for the violation of a state law might raise constitutional problems. Instead, he stated, Congress in the 1803 act was “limiting the operation of the penal law of the United States, by a temporary demarcation given in the Constitution.” Given the background fact of the 1808 Clause, the 1803 act was “proper” insofar as it made “the prohibitory act of the state, the limit of its own operation.”95
Marshall’s analysis is difficult to penetrate here. What he appears to have been suggesting, however, was that prior to 1808, the “penal law of the United States,” which he implied might otherwise prohibit the importation of slaves, was temporarily suspended by operation of the 1808 Clause. During that time, however, the states were free to prohibit such importation, and Congress could direct federal officers to be governed by those state laws, as it did in the 1803 act. By so directing, Congress was not aggrandizing its power; on the contrary, it was acting in an appropriately constrained manner, given the constitutional limits on the operation of its “penal law.” Presumably, had the penal law of the United States been unlimited, Congress could have passed its own legislation prohibiting the migration or importation of persons, rather than merely bolstering states’ prohibitions. (Recall that the source of the limitation was the 1808 Clause, which was specifically addressed to prohibitions on migration or importation.) Marshall therefore appears to have viewed the 1803 act as primarily motivated by hostility to the slave trade. Congress was doing through additive regulation what it could not do outright: supporting states that sought to prevent the migration or importation of slaves. Furthermore, this trade might have included domestic as well as international trafficking in enslaved people.96
But the Virginia act of 1793 was, as we have seen, motivated by different concerns. Its aim was not to halt the international slave trade using the means available to it while the 1808 Clause was in effect. Rather, as its title made clear, its goal was to prevent “free negroes and mulattoes” from migrating into the state. Virginia’s policy tended to maintain slavery by stopping free persons of color from entering the state, further entrenching slavery and creating a presumption that all persons of apparent African descent were enslaved.
The chief justice owned enslaved people on a large scale.97 Whatever Marshall’s views on the merits of the Virginia law of 1793, his decision in The Brig Wilson put federal power in the service of state law—up to a point. Marshall deemed it “proper” that “the act of congress should make the prohibitory act of the state, the limit of its own operation.” The 1803 act of Congress was not coextensive with state law—it “does not, necessarily, extend to every object comprehended in the state law, but neither its terms, nor the Constitution, will permit it to be extended farther than the state law.”98 The federal government was not simply carrying out the will of the states. Nor was it acting as an unfettered leviathan, despite the broad commerce power that Marshall held that it wielded. In this domain, state law set the substantive limits of federal enforcement. The relationships among levels of government were complex and overlapping, and they did not operate according to a neat dichotomy between federal and state power.
What did these analytical arabesques mean for the brig Wilson? Having determined that the act of Congress made state law “the limit of its own operation,” Marshall held that the facts of the case did not support finding a violation of Virginia law. “The act of assembly [of 1793] prohibits the admission of free negroes and mulattos only, not of other persons of colour,” Marshall found. Indeed, “[o]ther persons of colour were admissible into Virginia.” To be sure, the act of Congress of 1803 applied to “persons of colour.” But given that the Virginia statute did not bar such individuals from migrating into the state, there was no basis for federal action. State law was the measure of federal law’s operation. No state prohibition had been violated, and therefore the forfeiture procedures of the 1803 act of Congress had not been triggered.
Marshall ended his opinion by referring again to the testimony of the U.S. customs inspector and the clerk of the Wilson, respectively:
If, under this libel, it were allowable to prove, that the sailors landed, were, in fact, negroes or mulattos, it is not proved. Mr. Bush does not prove, that any were landed, but says, that those discharged were “of different colours and nations.” Andrew Johnson says, “that on the 29th of October, the people of colour received their prize tickets, went on shore, and, of course, took their own discharge. There is, then, no evidence, that these people were negroes or mulattos.”99
In the end, then, the derivative nature of the federal law of 1803 meant that the forfeiture of the brig could not stand. The relevant terms were to be supplied by state law, and state law did not clearly bar the category of persons to which the record showed the three discharged crew members belonged. The record described them as “persons of colour”; the statute’s bar applied to “negroes or mulattos.” The category denominated by the facts of the case was broader than the category covered by the statute. The narrowness of the state law’s category—a law whose entire purpose was to prevent free Black individuals from entering the state—ultimately led to the brig’s release.
Discharged from federal custody, the brig Wilson promptly resumed its depredations—a fact Tucker dryly observed in the notebook entry following his own, overruled, opinion: “This Decree was reversed by Judge Marshal, in toto. & the Brigantine released & restored.—She has since been cruizing off our Coast, from Virginia to South Carolina & Georgia, as appears by the papers.—I am not inform’d of the Grounds upon which the Decree was revers’d, as none are assigned in the record.”100
The Wilson, now occasionally operating under the name Bolivar in a patriotic tribute to the hero of Venezuela’s independence movement, continued to figure in the columns of U.S. newspapers. Baltimore’s Niles’ Weekly Register carried the following report of the brig’s pursuits—again involving privateering, revolution, and the slave trade:
The brig Wilson, alias Bolivar, &c. commanded by capt. Almeida, et alias, and apparently having several flags, Buenos Ayrean, Artigan, Venezuelian, et alias—by which a Spanish ship bound to Baltimore was recently captured on our coast, was lately off Charleston waiting for men. Information of the fact being given, lieutenant McClunie, of the United States schooner Revenge, happily arrested a sloop load of her intended crew, and they were lodged in jail.101
The next edition of Hezekiah Niles’s magazine provided additional details about the Wilson’s activities. The “Spanish ship bound to Baltimore” that the Wilson had captured was the Santiago, lately from Cuba, and reportedly on its way to Baltimore “to be fitted to proceed to the coast of Africa for slaves, from whence she had just returned with 450 human beings.” The editor noted that this account of the Wilson’s conduct made “a very different story of the matter; and, if true, rendering the capture estimable in our eyes.”102 Despite the paper’s general opposition to privateering, the Wilson’s seizure of a ship that was unlawfully engaged in the international slave trade redeemed Almeida somewhat in Niles’s eyes.
Within weeks of Marshall’s decision, the Wilson’s activities brought it back before Tucker and the chief justice on charges that “a number of persons had been unlawfully enlisted and taken onboard.” Tucker issued a warrant for the arrest of approximately thirty persons, some of whom escaped, and others of whom were brought to Richmond for examination before Marshall. A grand jury of the U.S. circuit court indicted a handful of the crew; all were eventually acquitted.103 Niles’ Weekly Register applauded Marshall’s “nobleness of mind and character” in his handling of the case. The chief justice “dispensed with all unessential formality on this occasion, and held his court for the examination of the prisoners on board the steam boat, which lay at Rockets [Landing], and to which place he repaired on foot, a distance of about two miles from his residence.”104
Cross-Circuit Commerce Conversations
Two of Marshall’s colleagues on the Supreme Court clearly regarded the chief justice’s reasoning in The Brig Wilson as a sword that could be wielded against both the international slave trade and state restrictions on free Black sailors. Within three years of the Wilson decision, when each was riding circuit, Justices Joseph Story and William Johnson invoked the Commerce Clause as the source of federal power in these domains. United States v. La Jeune Eugenie (1822) arose when the U.S. schooner Alligator apprehended La Jeune Eugenie, a schooner flying the French flag, off the western coast of Africa on suspicion that it was in fact an American ship unlawfully engaged in the slave trade. Adjudicating the libel on circuit in Boston in the fall of 1821, Story wrote that “the power over slaves was referred to the authority which congress had, to regulate commerce.” He also found that the slave trade violated the law of nations.105
In Elkison v. Deliesseline (1823), Justice Johnson held that South Carolina’s Negro Seamen Act of 1822 (also known as the South Carolina Police Bill), which mandated that free Black sailors be jailed while their vessels lay in port, violated Congress’s commerce power. In Elkison, unlike the case of the Wilson, federal power stood in opposition to state law. “[T]he right of the general government to regulate commerce with the sister states and foreign nations is a paramount and exclusive right,” Johnson held.106 The justice, who was a Charlestonian and a slaveholder, was vilified in the South Carolina press, and the decision—as well as the executive branch’s endorsement of it, via the opinion of U.S. attorney general William Wirt—were condemned in the state house at Columbia.
Elkison and its context will be explored more fully in Chapter 4. For now, the important point about the case is that it prompted Marshall to further reflections on his decision in the case of the Wilson three years earlier. In a letter to Story in 1823, Marshall drew a line connecting his 1820 decision in The Brig Wilson to “our brother” Johnson’s recent decision in Elkison and the controversy it had unleashed. Marshall also offered some insight into his own reasoning:
Thus you see fuel is continually adding to the fire at which the exaltées are about to roast the judicial department. You have, it is said, some law in Massachusetts not very unlike in principle to that which our brother has declared unconstit[utional]. We have its twin brother in Virginia, and a ca[se was] brought before me in which I might have considered its constitutionality had I chosen to do so; but it was not absolutely necessary, &, as I am not fond of butting against a wall in sport, I escaped on the construction of the act.107
The “twin brother” of the South Carolina Police Bill was, of course, Virginia’s 1793 Act to Prevent the Migration of Free Negroes and Mulattoes. The case in which Marshall “might have considered” the constitutionality of the Virginia law was The Brig Wilson.
As we have seen, in The Brig Wilson, Marshall had plunged directly into one constitutional issue: the validity of Congress’s act of 1803. That question was his opportunity to adumbrate the scope of the federal commerce power. But he had chosen not to take up the other constitutional issue presented by the case: the validity of Virginia’s ban on migration into the state by “free negroes and mulattoes.” Marshall’s letter to Story three years later makes clear that Marshall deliberately chose not to address the question of the Virginia law. The case could be disposed of, and the forfeiture of the brig lifted, by means of statutory construction alone. Marshall thus consciously avoided finding a conflict between state law and the Constitution.
Nonetheless, Marshall’s opinion in The Brig Wilson contains some hints that he might have doubted the constitutionality of the state’s restrictions on the migration of free Black people. The reason for this doubt was the commerce power. Commerce included navigation, Marshall wrote in The Brig Wilson, and navigation included vessels. Congress clearly possessed “an unlimited power over the cargoes.” Moreover, Marshall observed, “No man has been wild enough to maintain” that “while the whole power of commerce is vested in congress, the state legislatures may confiscate every vessel which enters their ports, and congress is unable to prevent their entry.”108
In Marshall’s view, Congress possessed the entire power to regulate commerce among the states and with other nations. The exclusive nature of that authority necessarily limited the states’ powers in that realm. A federal commerce power would be meaningless if a state could confiscate vessels for violating state laws. A similar argument underpinned Johnson’s decision in Elkison: the South Carolina Police Bill was a regulation of commerce, but the regulation of commerce was a “paramount and exclusive right” of the federal government. Finally, Marshall suggested that even this expansive federal power over commerce could not support a ban on the movement of persons, as opposed to the movement of vessels. “Let it be admitted, for the sake of argument, that a law, forbidding a free man of any colour, to come into the United States, would be void, and that no penalty, imposed on him by Congress, could be enforced: still, the vessel, which should bring him into the United States, might be forfeited,” Marshall wrote.109
A Federalism of Commerce and Migration
Marshall’s earliest decision on the Commerce Clause brought together several vital issues of interbellum constitutional debate: the definition of “commerce”; federal enforcement of state law; international relations; and migration. The case also concerned the status of persons of color—not slaves, on the particular facts of The Brig Wilson, but free individuals who might well have been of African descent, and thus the target of the Virginia law. Tucker and Marshall—two slaveowners—both upheld the constitutionality of the congressional act of 1803, and in so doing, enacted and expanded federal power. But both judges read the federal law as merely additive to state law, which in turn gave controlling power to the words of the Virginia statute. Interlocking layers of law were at work, and Tucker and Marshall each took it as his duty to pick them apart. The federalism at work in The Brig Wilson, like so many other regulatory schemes of the era, was one of overlap, not separately demarcated state and federal spheres.
The difference between Tucker’s and Marshall’s approaches lay in their respective interpretations of the state law. Tucker read the Virginia act’s “free negroes and mulattoes” language expansively, so that it included these “persons of colour.” Tucker’s construction put Congress more firmly in the position of enforcing Virginia’s increasingly entrenched protections for slavery and racial hierarchy. Marshall read the state law narrowly, concluding that the statute’s specification of “free negroes and mulattoes” meant that “persons of colour” were not clearly covered, and therefore were not barred.
It is too simple a reading of the case to say that it stood for a notion of federal power as humanitarian and liberating, in contrast to state power as necessarily protecting slavery. Such a view is unduly blunt and projects the dynamics of the twentieth and twenty-first centuries back onto the early nineteenth century. To be sure, federal power in the interbellum period sometimes stood against slavery and racial subordination, and contemporaries—both critics and supporters of slavery—often attributed this stance to it.
Nevertheless, as the outcome in The Brig Wilson demonstrates, federal power was also employed during the period to uphold restrictions on the movement and liberty of Black individuals, both free and enslaved. The result of the case ultimately reinforced the regime of slavery, insofar as Marshall interpreted the commerce power to permit Congress to bolster state laws regarding persons of color aboard ships. This outcome was the effect of Marshall’s capacious interpretation of the federal commerce power. Had the text of the Virginia statute referred to “persons of colour,” or had the testimony of the customs officers or the brig’s clerk included further detail on the origins and appearances of the three crew members, the outcome of the case would likely have been very different. The crew members still would have been able to melt into the Norfolk waterfront if they so chose, but Captain Huntress and his privateering chief, Almeida, would have lost their brig as forfeit to the U.S. government.
Yet Marshall’s approach to the complex case also cabined the effect of the Virginia law, the undoubted purpose of which was to stop free Black people from migrating into the state. The Virginia law was not before the Court, as Marshall noted with relief in his letter to Story. Nevertheless, the chief justice managed to construe it. And in that construction, he limited its reach. Marshall’s roomy interpretation of the 1803 act of Congress sat atop his narrow, text-bound reading of the 1793 Virginia law. Because the scope of the federal law depended upon the specific terms of the state law, the result of Marshall’s analysis was that the brig escaped federal forfeiture, just as its onetime crew members were held to have eluded the state’s prohibition on their entry. Both levels of law were necessary to the interpretive machinery of the court’s opinion.110 The result was thus not amenable to simple description—it stood for neither broad nor narrow federal power, neither broad nor narrow state control. It contained all these strands.
