Gabriel Duvall served for many years as an able ally to John Marshall in the Chief Justice's efforts to define and expand the power of the young federal government in general, and its Supreme Court in particular. This commitment by the Maryland Republican-Democrat to nationalism and a strong judiciary perhaps surprised his political patrons. President James Madison nominated Gabriel Duvall for the Court on the same day in 1811 that he nominated Joseph Story. The following Term, they took seats recently vacated by retiring Justices Chase and Cushing. Control of the Court thus passed from jurists nominated and confirmed by Federalists to a new majority, installed by the party of Thomas Jefferson. This was the first such shift of advantage in the Court to adherents of what had been so recently the party of opposition. It turned out to be less momentous than could have been expected, in part because a higher loyalty could be commanded from his brethren by the Chief Justice, loyalty to the Court itself. In the great cases of the Marshall era enhancing national governmental power and confirming the Supreme Court's authority to conduct constitutional review, Justices Duvall and Story consistently voted with Chief Justice Marshall. These include Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1807); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) and Gibbons v. Ogden, 22 U.S. (9 Wheat.)1 (1824).
If his vote was vital, Justice Duvall's service to the Supreme Court was otherwise unobtrusive. He penned opinions for the Court in only seventeen cases, none of them of constitutional moment. In part, his reticence reflected John Marshall's success in establishing as Supreme Court procedure the promulgation of one opinion by the Court or its majority speaking collectively. According to the Court's prior practice, each justice had rendered an opinion speaking for himself alone, as was the practice in other courts of appeal. In part, Gabriel Duvall's reticence may simply have reflected his own inclination to speak sparingly, especially in dissent. In only two cases did Justice Duvall dissent from the view taken by Chief Justice Marshall. In Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), he did so alone and without opinion. As the report of that case makes clear, there was little or nothing Duvall might have added. In Queen v. Hepburn, 11 U.S. (7 Cranch) 290 (1813), Duvall wrote only briefly but compellingly in dissent from the Court's refusal to allow, in trials in the District of Columbia, hearsay evidence in support of a claim to free status on the part of a person alleged to be a slave.
Queen v. Hepburn aptly illustrates that the business of the Marshall Court was much more than the occasional resolution of a constitutional controversy. As the highest court in the federal system, the Supreme Court also supplies the final say as to the meaning of Acts of Congress, the warp and woof of the common law of the United States, and the reach and content of national maritime law. Thomas Jefferson had named Gabriel Duvall the first Comptroller of the Currency. When Duvall afterwards joined the Supreme Court, he naturally wrote for the Court in cases involving the public finance of the young republic. In addition, he spoke regularly for the Court in matters of commercial law and debt. He is the architect of the federal rule that the ordinary practice of permitting first the debtor and alternatively the creditor to choose to which among competing obligations a payment should be applied did not pertain when different sureties, under distinct obligations, were interested. United States v. January, 11 U.S. (7 Cranch) 572 (1813). His opinion for the Court in Prince v. Bartlett, 12 U.S. (8 Cranch) 431 (1814), is still cited regularly for the distinction first articulated in that case between bankruptcy and mere insolvency.
For six years before joining the Supreme Court of the United States, Gabriel Duvall served as the Chief Judge of the Maryland General Court and as Recorder of the Mayor's Court. Until Justice Smith Thompson joined the Court in 1823, no other Justice could claim more judicial experience than Justice Duvall. He was therefore an apt choice to write for the Supreme Court in matters of trial practice and appellate procedure. In Walton v. United States, 22 U.S. (9 Wheat.) 651 (1824), for example, he wrote for the Court that an appeal could not be heard in a case in which a bill of exceptions was not prepared at or promptly after trial in the court below.
Only a few days short of his sixtieth birthday when he first took his seat in the Supreme Court, Gabriel Duvall served the Court for nearly twenty-four years. In the last decade of that tenure, Justice Duvall's hearing was gone, so that oral argument made little impression. Carl Swisher, the biographer of Chief Justice Roger Brooke Taney, suggests that Justice Duvall clung to his seat until satisfied that a suitable nominee would replace him, and that he was satisfied with the nomination by Andrew Jackson of fellow Marylander Taney. After leaving the Supreme Court, Gabriel Duvall returned to his ancestral home in Maryland, where he lived quietly until dying in 1844, at the age of ninety-two.
Irving Dillard, "Gabriel Duvall" in Leon Friedman & Fred L. Israel, eds., 1 The Justices of the United States Supreme Court, Their Lives and Major Opinions, 1789-1978, (1980), 419.
James O'Hara, "Gabriel Duvall" in Clare Cushman, ed., The Supreme Court Justices: Illustrated Biographies, 1789-1993 (1993), 81.
John Paul Jones, "Gabriel Duvall" in Melvin I. Urofsky, ed., The Supreme Court Justices, A Biographical Dictionary (1994), 153.
Robert G. Seddig, "John Marshall and the Origins of Supreme Court Leadership," 1991 Journal of Supreme Court History, 63.
G. Edward White, The Marshall Court and Cultural Change, 1815-35 (1988), 321-27.
Professor John Paul Jones, University of Richmond Law School, authored this sketch. He has kindly granted permission for his work to be posted to The OYEZ Project.