Another occasion, however, gave Marshall a better opportunity to state his views more directly, and to charge them with the whole force of the concurrence of all his associates on the Supreme Bench. This occasion was the resistance of the Legislature and Governor of Pennsylvania to a decree of Richard Peters, Judge of the United States Court for that district, rendered in the notable and dramatic case of Gideon Olmstead. During the Revolution, Olmstead and three other American sailors captured the British sloop Active and sailed for Egg Harbor, New Jersey. Upon nearing their destination, they were overhauled by an armed vessel belonging to the State of Pennsylvania and by an American privateer. The Active was taken to Philadelphia and claimed as a prize of war. The court awarded Olmstead and his comrades only one fourth of the proceeds of the sale of the vessel, the other three fourths going to the State of Pennsylvania, to the officers and crew of the State ship, and to those of the privateer. The Continental Prize Court reversed the decision and ordered the whole amount received for sloop and cargo to be paid to Olmstead and his associates.
This the State court refused to do, and a litigation began which lasted for thirty years. The funds were invested in United States loan certificates, and these were delivered by the State Judge to the State Treasurer, David Rittenhouse, upon a bond saving the Judge harmless in case he, thereafter, should be compelled to pay the amount in controversy to Olmstead. Rittenhouse kept the securities in his personal possession, and after his death they were found among his effects with a note in his handwriting that they would become the property of Pennsylvania when the State released him from his bond to the Judge.
In 1803, Olmstead secured from Judge Peters an order to the daughters of Rittenhouse who, as his executrixes, had possession of the securities, to deliver them to Olmstead and his associates. This proceeding of the National court was promptly met by an act of the State Legislature which declared that the National court had "usurped" jurisdiction, and directed the Governor to "protect the just rights of the state ... from any process whatever issued out of any federal court."[64]
Peters, a good lawyer and an upright judge, but a timorous man, was cowed by this sharp defiance and did nothing. The executrixes held on to the securities. At last, on March 5, 1808, Olmstead applied to the Supreme Court of the United States for a rule directed to Judge Peters to show cause why a mandamus should not issue compelling him to execute his decree. Peters made return that the act of the State Legislature had caused him "from prudential ... motives ... to avoid embroiling the government of the United States and that of Pennsylvania."[65]
Thus the matter came before Marshall. On February 20, 1809, just when threats of resistance to the "Force Act" were sounding loudest, when riots were in progress along the New England seaboard, and a storm of debate over the Embargo and Non-Intercourse laws was raging in Congress, the Chief Justice delivered his opinion in the case of the United States vs. Peters.[66] The court had, began Marshall, considered the return of Judge Peters "with great attention, and with serious concern." The act of the Pennsylvania Legislature challenged the very life of the National Government, for, "if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."
These clear, strong words were addressed to Massachusetts and Connecticut no less than to Pennsylvania. They were meant for Marshall's Federalist comrades and friends—for Pickering, and Gore, and Morris, and Otis—as much as for the State officials in Lancaster. His opinion was not confined to the case before him; it was meant for the whole country and especially for those localities where National laws were being denounced and violated, and National authority defied and flouted. Considering the depth and fervor of Marshall's feelings on the whole policy of the Republican régime, his opinion in United States vs. Judge Peters was signally brave and noble.
Forcible resistance by a State to National authority! "So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves." Marshall then states the facts of the controversy and concludes that "the state of Pennsylvania can possess no constitutional right" to resist the authority of the National courts. His decision, he says, "is not made without extreme regret at the necessity which has induced the application." But, because "it is a solemn duty" to do so, the "mandamus must be awarded."[67]
Marshall's opinion deeply angered the Legislature and officials of Pennsylvania.[68] When Judge Peters, in obedience to the order of the Supreme Court, directed the United States Marshal to enforce the decree in Olmstead's favor, that official found the militia under command of General Bright drawn up around the house of the two executrixes. The dispute was at last composed, largely because President Madison rebuked Pennsylvania and upheld the National courts.[69]
A week after the delivery of Marshall's opinion, the most oppressive provisions of the Embargo Acts were repealed and a curious non-intercourse law enacted.[70] One section directed the suspension of all commercial restrictions against France or Great Britain in case either belligerent revoked its orders or decrees against the United States; and this the President was to announce by proclamation. The new British Minister, David M. Erskine, now tendered apology and reparation for the attack on the Chesapeake and positively assured the Administration that, if the United States would renew intercourse with Great Britain, the British Orders in Council would be withdrawn on June 10, 1809. Immediately President Madison issued his proclamation stating this fact and announcing that after that happy June day, Americans might renew their long and ruinously suspended trade with all the world not subject to French control.[71]
The Federalists were jubilant.[72] But their joy was quickly turned to wrath—against the Administration. Great Britain repudiated the agreement of her Minister, recalled him, and sent another charged with rigid and impossible instructions.[73] In deep humiliation, Madison issued a second proclamation reciting the facts and restoring to full operation against Great Britain all the restrictive commercial and maritime laws remaining on the statute books.[74] At a banquet in Richmond, Jefferson proposed a toast: "The freedom of the seas!"[75]