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diff --git a/40389-0.txt b/40389-0.txt new file mode 100644 index 0000000..d0bd8c2 --- /dev/null +++ b/40389-0.txt @@ -0,0 +1,19873 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 40389 *** + + THE LIFE OF JOHN MARSHALL + + Standard Library Edition + + + IN FOUR VOLUMES + + VOLUME II + + + + + [Illustration: JOHN MARSHALL AS CHIEF JUSTICE + From the portrait by Jarvis] + + + + + THE LIFE + OF + JOHN MARSHALL + + BY + ALBERT J. BEVERIDGE + + VOLUME II + + POLITICIAN, DIPLOMATIST + STATESMAN + + 1789-1801 + + [Illustration] + + BOSTON AND NEW YORK + HOUGHTON MIFFLIN COMPANY + The Riverside Press Cambridge + + + + + COPYRIGHT, 1916, BY ALBERT J. BEVERIDGE + COPYRIGHT, 1919, BY HOUGHTON MIFFLIN COMPANY + + ALL RIGHTS RESERVED + + + + +CONTENTS + + + I. INFLUENCE OF THE FRENCH REVOLUTION ON AMERICA 1 + + The effort of the French King to injure Great Britain by + assisting the revolt of the colonists hastens the upheaval in + France--The French Revolution and American Government under the + Constitution begins at the same time--The vital influence of + the French convulsion on Americans--Impossible to understand + American history without considering this fact--All Americans, + at first, favor the French upheaval which they think a reform + movement--Marshall's statement--American newspapers--Gouverneur + Morris's description of the French people--Lafayette's + infatuated reports--Marshall gets black and one-sided accounts + through personal channels--The effect upon him--The fall of the + Bastille--Lafayette sends Washington the key of the prison-- + The reign of blood in Paris applauded in America--American + conservatives begin to doubt the wisdom of the French + Revolution--Burke writes his "Reflections"--Paine answers with + his "Rights of Man"--The younger Adams replies in the + "Publicola" essays--He connects Jefferson with Paine's + doctrines--"Publicola" is viciously assailed in the press-- + Jefferson writes Paine--The insurrection of the blacks in + St. Domingo--Marshall's account--Jefferson writes his daughter: + "I wish we could distribute the white exiles among the + Indians"--Marshall's statement of effect of the French + Revolution in America--Jefferson writes to Short: + "I would rather see half the earth desolated"--Louis XVI + guillotined--Genêt arrives in America--The people greet him + frantically--His outrageous conduct--The Republican newspapers + suppress the news of or defend the atrocities of the + revolutionists--The people of Philadelphia guillotine Louis XVI + in effigy--Marie Antoinette is beheaded--American rejoicing at + her execution--Absurd exaggeration by both radicals and + conservatives in America--The French expel Lafayette--Washington + sends Marshall's brother to secure his release from the + Allies--He fails--Effect upon Marshall--Ridiculous conduct of + the people in America--All titles are denounced: "Honorable," + "Reverend," even "Sir" or "Mr." considered "aristocratic"--The + "democratic societies" appear--Washington denounces them--Their + activities--Marshall's account of their decline--The influence + on America of the French Revolution summarized--Marshall and + Jefferson. + + II. A VIRGINIA NATIONALIST 45 + + The National Government under the Constitution begins--Popular + antagonism to it is widespread--Virginia leads this general + hostility--Madison has fears--Jefferson returns from France-- + He is neutral at first--Madison is humiliatingly defeated for + Senator of the United States because of his Nationalism--The + Legislature of Virginia passes ominous Anti-Nationalist + resolutions--The Republicans attack everything done or + omitted by Washington's Administration--Virginia leads the + opposition--Washington appoints Marshall to be United States + District Attorney--Marshall declines the office--He seeks and + secures election to the Legislature--Is given his old committees + in the House of Delegates--Is active in the general business of + the House--The amendments to the Constitution laid before the + House of Delegates--They are intended only to quiet opposition + to the National Government--Hamilton presents his financial + plan--"The First Report on the Public Credit"--It is furiously + assailed--Hamilton and Jefferson make the famous + Assumption-Capitol "deal"--Jefferson's letters--The Virginia + Legislature strikes Assumption--Virginia writes the Magna + Charta of State Rights--Marshall desperately resists these + Anti-Nationalist resolutions and is badly beaten--Jefferson + finally agrees to the attitude of Virginia--He therefore opposes + the act to charter the Bank of the United States--He and + Hamilton give contrary opinions--The contest over "implied + powers" begins--Political parties appear, divided by Nationalism + and localism--Political parties not contemplated by the + Constitution--The word "party" a term of reproach to our early + statesmen. + + III. LEADING THE VIRGINIA FEDERALISTS 77 + + Marshall, in Richmond, is aggressive for the unpopular measures + of Washington's Administration--danger of such conduct in + Virginia--Jefferson takes Madison on their celebrated northern + tour--Madison is completely changed--Jefferson fears Marshall-- + Wishes to get rid of him: "Make Marshall a judge"--Jefferson's + unwarranted suspicions--He savagely assails the Administration + of which he is a member--He comes to blows with Hamilton--The + Republican Party grows--The causes for its increased strength-- + Pennsylvania resists the tax on whiskey--The Whiskey Rebellion-- + Washington denounces and Jefferson defends it--Militia ordered + to suppress it--Marshall, as brigadier-general of militia, + prepares to take the field--War breaks out between England and + France--Washington proclaims American Neutrality--Outburst + of popular wrath against him--Jefferson resigns from the + Cabinet--Marshall supports Washington--At the head of the + military forces he suppresses the riot at Smithfield and + takes a French privateer--The Republicans in Richmond attack + Marshall savagely--Marshall answers his assailants--They make + insinuations against his character: the Fairfax purchase, the + story of Marshall's heavy drinking--The Republicans win on their + opposition to Neutrality--Great Britain becomes more hostile + than ever--Washington resolves to try for a treaty in order + to prevent war--Jay negotiates the famous compact bearing his + name--Terrific popular resentment follows: Washington abused, + Hamilton stoned, Jay burned in effigy, many of Washington's + friends desert him--Toast drank in Virginia "to the speedy death + of General Washington"--Jefferson assails the treaty--Hamilton + writes "Camillus"--Marshall stands by Washington--Jefferson + names him as the leading Federalist in Virginia. + + IV. WASHINGTON'S DEFENDER 122 + + Marshall becomes the chief defender of Washington in + Virginia--The President urges him to accept the office of + Attorney-General--He declines--Washington depends upon + Marshall's judgment in Virginia politics--Vicious opposition + to the Jay Treaty in Virginia--John Thompson's brilliant + speech expresses popular sentiment--He couples the Jay + Treaty with Neutrality: "a sullen neutrality between + freemen and despots"--The Federalists elect Marshall to the + Legislature--Washington is anxious over its proceedings-- + Carrington makes absurdly optimistic forecast--The Republicans + in the Legislature attack the Jay Treaty--Marshall defends it + with great adroitness--Must the new House of Representatives be + consulted about treaties?--Carrington writes Washington that + Marshall's argument was a demonstration--Randolph reports to + Jefferson that Marshall's speech was tricky and ineffectual-- + Marshall defeated--Amazing attack on Washington and stout + defense of him led by Marshall--Washington's friends beaten-- + Legislature refuses to vote that Washington has "wisdom"-- + Jefferson denounces Marshall: "His lax, lounging manners and + profound hypocrisy"--Washington recalls Monroe from France and + tenders the French mission to Marshall, who declines--The + Fauchet dispatch is intercepted and Randolph is disgraced-- + Washington forces him to resign as Secretary of State--The + President considers Marshall for the head of his Cabinet-- + The opposition to the Jay Treaty grows in intensity--Marshall + arranges a public meeting in Richmond--The debate lasts + all day--The reports as to the effect of his speeches + contradictory--Marshall describes situation--The Republicans + make charges and Marshall makes counter-charges--The national + Federalist leaders depend on Marshall--They commission him to + sound Henry on the Presidency as the successor of Washington-- + Washington's second Administration closes--He is savagely abused + by the Republicans--The fight in the Legislature over the + address to him--Marshall leads the Administration forces and is + beaten--The House of Delegates refuse to vote that Washington + is wise, brave, or even patriotic--Washington goes out of the + Presidency amid storms of popular hatred--The "Aurora's" + denunciation of him--His own description of the abuse: "indecent + terms that could scarcely be applied to a Nero, a defaulter, or + a common pickpocket"--Jefferson is now the popular hero--All + this makes a deep and permanent impression on Marshall. + + V. THE MAN AND THE LAWYER 166 + + An old planter refuses to employ Marshall as his lawyer because + of his shabby and unimpressive appearance--He changes his mind + after hearing Marshall address the court--Marshall is conscious + of his superiority over other men--Wirt describes Marshall's + physical appearance--He practices law as steadily as his + political activities permit--He builds a fine house adjacent + to those of his powerful brothers-in-law--Richmond becomes a + flourishing town--Marshall is childishly negligent of his + personal concerns: the Beaumarchais mortgage; but he is extreme + in his solicitude for the welfare of his relatives: the letter + on the love-affair of his sister; and he is very careful of the + business entrusted to him by others--He is an enthusiastic Free + Mason and becomes Grand Master of that order in Virginia--He + has peculiar methods at the bar: cites few authorities, always + closes in argument, and is notably honest with the court: "The + law is correctly stated by opposing counsel"--Gustavus Schmidt + describes Marshall--He is employed in the historic case of Ware + _vs._ Hylton--His argument in the lower court so satisfactory to + his clients that they select him to conduct their case in the + Supreme Court of the United States--Marshall makes a tremendous + and lasting impression by his effort in Philadelphia--Rufus King + pays him high tribute--After twenty-four years William Wirt + remembers Marshall's address and describes it--Wirt advises his + son-in-law to imitate Marshall--Francis Walker Gilmer writes, + from personal observation, a brilliant and accurate analysis of + Marshall as lawyer and orator--The Federalist leaders at the + Capital court Marshall--He has business dealings with Robert + Morris--The Marshall syndicate purchases the Fairfax estate-- + Marshall's brother marries Hester Morris--The old financier + makes desperate efforts to raise money for the Fairfax + purchase--Marshall compromises with the Legislature of + Virginia--His brother finally negotiates a loan in Antwerp on + Morris's real estate and pays half of the contract price-- + Robert Morris becomes bankrupt and the burden of the Fairfax + debt falls on Marshall--He is in desperate financial + embarrassment--President Adams asks him to go to France as a + member of the mission to that country--The offer a "God-send" to + Marshall, who accepts it in order to save the Fairfax estate. + + VI. ENVOY TO FRANCE 214 + + Marshall starts for France--Letters to his wife--Is bored + by the social life of Philadelphia--His opinion of Adams--The + President's opinion of Marshall--The "Aurora's" sarcasm--The + reason for sending the mission--Monroe's conduct in Paris--The + Republicans a French party--The French resent the Jay Treaty + and retaliate by depredations on American Commerce--Pinckney, + as Monroe's successor, expelled from France--President Adams's + address to Congress--Marshall, Pinckney, and Gerry are + sent to adjust differences between France and America--Gerry's + appointment is opposed by entire Cabinet and all Federalist + leaders because of their distrust of him--Adams cautions Gerry + and Jefferson flatters him--Marshall arrives at The Hague-- + Conditions in France--Marshall's letter to his wife--His long, + careful and important letter to Washington--His letter to + Lee from Antwerp--Marshall and Pinckney arrive at Paris--The + city--The corruption of the Government--Gerry arrives--The + envoys meet Talleyrand--Description of the Foreign Minister--His + opinion of America and his estimate of the envoys--Mysterious + intimations. + + VII. FACING TALLEYRAND 257 + + Marshall urges formal representation of American grievances + to French Government--Gerry opposes action--The intrigue + begins--Hottenguer appears--The Directory must be "soothed" by + money "placed at the disposal of M. Talleyrand"--The French + demands: "pay debts due from France to American citizens, + pay for French spoliations of American Commerce, and make a + considerable loan and something for the pocket" (a bribe of + two hundred and fifty thousand dollars)--Marshall indignantly + opposes and insists on formally presenting the American + case--Gerry will not agree--Bellamy comes forward and proposes + still harder terms: "_you must pay money, you must pay a + great deal of money_"--The envoys consult--Marshall and Gerry + disagree--Hottenguer and Bellamy breakfast with Gerry--They + again urge loan and bribe--Marshall writes Washington--His + letter an able review of the state of the country--News of + Bonaparte's diplomatic success at Campo Formio reaches + Paris--Talleyrand's agents again descend on the envoys and + demand money--"No! not a sixpence"--Marshall's bold but moderate + statement--Hauteval joins Hottenguer and Bellamy--Gerry calls + on Talleyrand: is not received--Talleyrand's agents hint at + war--They threaten the envoys with "the French party in + America"--Marshall and Pinckney declare it "degrading to carry + on indirect intercourse"--Marshall again insists on written + statement to Talleyrand--Gerry again objects--Marshall's letter + to his wife--His letter in cipher to Lee--Bonaparte appears in + Paris--His consummate acting--The fête at the Luxemburg to the + Conqueror--Effect on Marshall. + + VIII. THE AMERICAN MEMORIAL 290 + + Madame de Villette--Her friendship with Marshall--Her proposals + to Pinckney--Beaumarchais enters the plot--Marshall his attorney + in Virginia--Bellamy suggests an arrangement between Marshall + and Beaumarchais--Marshall rejects it--Gerry asks Talleyrand + to dine with him--The dinner--Hottenguer in Talleyrand's + presence again proposes the loan and bribe--Marshall once + more insists on written statement of the American case--Gerry + reluctantly consents--Marshall writes the American memorial-- + That great state paper--The French decrees against American + commerce become harsher--Gerry holds secret conferences with + Talleyrand--Marshall rebukes Gerry--Talleyrand at last receives + the envoys formally--The fruitless discussion--Altercation + between Marshall and Gerry--Beaumarchais comes with alarming + news--Marshall again writes Washington--Washington's answer-- + The French Foreign Minister answers Marshall's memorial--He + proposes to treat with Gerry alone--Marshall writes reply to + Talleyrand--Beaumarchais makes final appeal to Marshall-- + Marshall replies with spirit--He sails for America. + + IX. THE TRIUMPHANT RETURN 335 + + Anxiety in America--Jefferson is eager for news--Skipwith writes + Jefferson from Paris--Dispatches of envoys, written by Marshall, + are received by the President--Adams makes alarming speech to + Congress--The strength of the Republican Party increases-- + Republicans in House demand that dispatches be made public-- + Adams transmits them to Congress--Republicans are thrown into + consternation and now oppose publication--Federalist Senate + orders publication--Effect on Republicans in Congress--Effect + on the country--Outburst of patriotism: "Hail, Columbia!" is + written--Marshall arrives, unexpectedly, at New York--His + dramatic welcome at Philadelphia--The Federalist banquet: + Millions "for defense but not one cent for tribute"--Adams + wishes to appoint Marshall Associate Justice of the Supreme + Court--He declines--He is enthusiastically received at + Richmond--Marshall's speech--He is insulted at the theater in + Fredericksburg--Congress takes decisive action: Navy Department + is created and provisional army raised--Washington accepts + command--His opinions of the French--His letter to Marshall's + brother--Jefferson attacks X. Y. Z. dispatches and defends + Talleyrand--Alien and Sedition Laws are enacted--Gerry's + predicament in France--His return--Marshall disputes Gerry's + statements--Marshall's letter to his wife--He is hard pressed + for money--Compensation for services as envoy saves the Fairfax + estate--Resolves to devote himself henceforth exclusively to + his profession. + + X. CANDIDATE FOR CONGRESS 374 + + Plight of the Federalists in Richmond--They implore Marshall + to be their candidate for Congress--He refuses--Washington + personally appeals to him--Marshall finally yields--Violence of + the campaign--Republicans viciously attack Marshall--the Alien + and Sedition Laws the central issue--"Freeholder's" questions to + Marshall--His answers--Federalists disgusted with Marshall--"The + Letters of Curtius"--The Kentucky and Virginia Resolutions--The + philosophy of secession--Madison writes address of majority of + Virginia Legislature to their constituents--Marshall writes + address of the minority which Federalists circulate as campaign + document--Republicans ridicule its length and verbosity-- + Federalists believe Republicans determined to destroy the + National Government--Campaign charges against Marshall-- + Marshall's disgust with politics: "Nothing more debases or + pollutes the human mind"--Despondent letter to his brother-- + On the brink of defeat--Patrick Henry saves Marshall--Riotous + scenes on election day--Marshall wins by a small majority-- + Washington rejoices--Federalist politicians not sure of + Marshall--Jefferson irritated at Marshall's election--Marshall + visits his father--Jefferson thinks it a political journey: + "the visit of apostle Marshall to Kentucky excites anxiety"-- + Naval war with France in progress--Adams sends the second + mission to France--Anger of the Federalists--Republican + rejoicing--Marshall supports President's policy--Adams + pardons Fries--Federalists enraged, Republicans jubilant-- + State of parties when Marshall takes his seat in Congress. + + XI. INDEPENDENCE IN CONGRESS 432 + + Speaker Sedgwick's estimate of Marshall--Cabot's opinion-- + Marshall a leader in Congress from the first--Prepares answer + of House to President's speech--It satisfies nobody--Wolcott + describes Marshall--Presidential politics--Marshall writes his + brother analysis of situation--Announces death of Washington, + presents resolutions, and addresses House: "first in war, first + in peace and first in the hearts of his countrymen"--Marshall's + activity in the House--He clashes with John Randolph of + Roanoke--Debate on Slavery and Marshall's vote--He votes against + his party on Sedition Law--Opposes his party's favorite measure, + the Disputed Elections Bill--Forces amendment and kills the + bill--Federalist resentment of his action: Speaker Sedgwick's + comment on Marshall--The celebrated case of Jonathan + Robins--Republicans make it principal ground of attack on + Administration--The Livingston Resolution--Marshall's great + speech on Executive power--Gallatin admits it to be + "unanswerable"--It defeats the Republicans--Jefferson's faint + praise--the "Aurora's" amusing comment--Marshall defends the + army and the policy of preparing for war--His speech the ablest + on the Army Bill--His letter to Dabney describing conditions-- + Marshall helps draw the first Bankruptcy Law and, in the + opinion of the Federalists, spoils it--Speaker Sedgwick + vividly portrays Marshall as he appeared to the Federalist + politicians at the close of the session. + + XII. CHIEF JUSTICE OF THE UNITED STATES 485 + + The shattering of Adams's Cabinet--Marshall declines office of + Secretary of War--Offered that of Secretary of State--Adams's + difficult party situation--The feud with Hamilton--Marshall + finally, and with reluctance, accepts portfolio of Secretary + of State--Republican comment--Federalist politicians approve: + "Marshall a state conservator"--Adams leaves Marshall in charge + at Washington--Examples of his routine work--His retort to the + British Minister--His strong letter to Great Britain on the + British debts--Controversy with Great Britain over contraband, + treatment of neutrals, and impressment--Marshall's notable + letter on these subjects--His harsh language to Great Britain-- + Federalist disintegration begins--Republicans overwhelmingly + victorious in Marshall's home district--Marshall's despondent + letter to Otis: "The tide of real Americanism is on the ebb"-- + Federalist leaders quarrel; rank and file confused and + angered--Hamilton's faction plots against Adams--Adams's inept + retaliation: Hamilton and his friends "a British faction"-- + Republican strength increases--Jefferson's platform--The + second mission to France succeeds in negotiating a treaty-- + Chagrin of Federalists and rejoicing of Republicans--Marshall + dissatisfied but favors ratification--Hamilton's amazing + personal attack on Adams--The Federalists dumbfounded, the + Republicans in glee--The terrible campaign of 1800--Marshall + writes the President's address to Congress--The Republicans + carry the election by a narrow margin--Tie between Jefferson and + Burr--Federalists in House determine to elect Burr--Hamilton's + frantic efforts against Burr: "The _Catiline_ of America"-- + Hamilton appeals to Marshall, who favors Burr--Marshall refuses + to aid Jefferson, but agrees to keep hands off--Ellsworth + resigns as Chief Justice--Adams reappoints Jay, who declines-- + Adams then appoints Marshall, who, with hesitation, accepts-- + The appointment unexpected and arouses no interest--Marshall + continues as Secretary of State--The dramatic contest in the + House over Burr and Jefferson--Marshall accused of advising + Federalists that Congress could provide for Presidency by law + in case of deadlock--Federalists consider Marshall for the + Presidency--Hay assails Marshall--Burr refuses Federalist + proposals--The Federalist bargain with Jefferson--He is + elected--The "midnight judges"--The power over the Supreme + Court which Marshall was to exercise totally unsuspected by + anybody--Failure of friend and foe to estimate properly his + courage and determination. + + APPENDIX 565 + I. LIST OF CASES 567 + II. GENERAL MARSHALL'S ANSWER TO AN ADDRESS OF THE CITIZENS OF + RICHMOND, VIRGINIA 571 + III. FREEHOLDER'S QUESTIONS TO GENERAL MARSHALL 574 + + WORKS CITED IN THIS VOLUME 579 + + + +ILLUSTRATIONS + + + JOHN MARSHALL AS CHIEF JUSTICE _Colored Frontispiece_ + + From the portrait by John Wesley Jarvis in the possession of Mr. + Roland Gray, of Boston. It represents Marshall as he was during + his early years as Chief Justice and as he appeared when + Representative in Congress and Secretary of State. The Jarvis + portrait is by far the best likeness of Marshall during this + period of his life. + + JOHN MARSHALL 48 + + From a painting by E. F. Petticolas, presented by the artist to + John Marshall and now in the possession of Mr. Malcolm G. Bruce, + of South Boston, Va. + + JOHN MARSHALL 124 + + From a painting by Rembrandt Peale in the rooms of the Long Island + Historical Society. + + JOHN MARSHALL'S HOUSE, RICHMOND 172 + + From a photograph taken especially for this book. The house was + built by Marshall between 1789 and 1793. It was his second home in + Richmond and the one in which he lived for more than forty years. + + THE LARGE ROOM WHERE THE FAMOUS "LAWYERS' DINNERS" WERE GIVEN 172 + + From a photograph taken especially for this book. The woodwork of + the room, which is somewhat indistinct in the reproduction, is + exceedingly well done. + + WILLIAM WIRT 192 + + From an engraving by A. B. Walter, from a portrait by Charles B. + King, in "Memoirs of William Wirt," by John P. Kennedy, published + by Lea & Blanchard, Philadelphia, 1849. Autograph from the + Chamberlain collection, Boston Public Library. + + ROBERT MORRIS 202 + + From an original painting by Gilbert Stuart through kind + permission of the owner, C. F. M. Stark, Esq., of Winchester, + Mass. Autograph from the Declaration of Independence. + + FACSIMILE OF A PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT + MORRIS, HIS FATHER-IN-LAW 210 + + From the original in the possession of James M. Marshall, of Front + Royal, Virginia. This page shows £7700 sterling furnished by + Robert Morris to the Marshall brothers for the purchase of the + Fairfax estate. This documentary evidence of the source of the + money with which the Marshalls purchased this holding has not + hitherto been known to exist. + + FACSIMILE OF THE FIRST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS + WIFE, JULY 2, 1797 214 + + From the original in the possession of Miss Emily Harvie, of + Richmond. The letter was written from Philadelphia immediately + after Marshall's arrival at the capital when starting on his + journey to France on the X. Y. Z. Mission. It is characteristic + of Marshall in the fervid expressions of tender affection for his + wife, whom he calls his "dearest life." It is also historically + important as describing his first impression of President Adams. + + FACSIMILE OF PART OF LETTER OF JULY 17, 1797, FROM JOHN ADAMS TO + ELBRIDGE GERRY DESCRIBING JOHN MARSHALL 228 + + From the original in the Adams Manuscripts. President Adams + writes of Marshall as he appeared to him just before he sailed + for France. + + CHARLES MAURICE DE TALLEYRAND-PÉRIGORD 252 + + From an engraving by Bocourt after a drawing by Mullard, + reproduced through the kindness of Mr. Charles E. Goodspeed. + This portrait represents Talleyrand as he was some time after + the X. Y. Z. Mission. + + GENERAL CHARLES COTESWORTH PINCKNEY 274 + + From an engraving by E. Wellmore after the miniature by Edward + Greene Malbone. + + ELBRIDGE GERRY 310 + + From an engraving by J. B. Longacre after a drawing made from life + by Vanderlyn in 1798, when Gerry was in Paris. + + FACSIMILE OF PART OF A LETTER FROM JOHN MARSHALL TO HIS BROTHER, + DATED APRIL 3, 1799, REFERRING TO THE VIRULENCE OF THE CAMPAIGN + IN WHICH MARSHALL WAS A CANDIDATE FOR CONGRESS 410 + + The word "faction" in this excerpt meant "party" in the vernacular + of the period. + + STATUE OF JOHN MARSHALL, BY RANDOLPH ROGERS 456 + + This is one of six statues at the base of the Washington monument + in Richmond, Va., the other figures being Jefferson, Henry, Mason, + Nelson, and Lewis. The Washington Monument was designed by Thomas + Crawford, who died before completing the work, and was finished by + Rogers. From a photograph. + + STATUE OF MARSHALL, BY W. W. STORY 530 + + At the Capitol, Washington, D.C. From a photograph. + + + + +LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED + + _All references here are to the List of Authorities at the end of + this volume._ + + +_Am. St. Prs._ _See_ American State Papers. + +Beard: _Econ. I. C._ _See_ Beard, Charles A. Economic Interpretation of +the Constitution of the United States. + +Beard: _Econ. O. J. D._ _See_ Beard, Charles A. Economic Origins of +Jeffersonian Democracy. + +_Cor. Rev._: Sparks. _See_ Sparks, Jared. Correspondence of the +Revolution. + +_Cunningham Letters._ _See_ Adams, John. Correspondence with William +Cunningham. + +_Letters_: Ford. _See_ Vans Murray, William. Letters to John Quincy +Adams. Edited by Worthington Chauncey Ford. + +Monroe's _Writings_: Hamilton. _See_ Monroe, James. Writings. Edited by +Stanislaus Murray Hamilton. + +_Old Family Letters._ _See_ Adams, John. Old Family Letters. Edited by +Alexander Biddle. + +_Works_: Adams. _See_ Adams, John. Works. Edited by Charles Francis +Adams. + +_Works_: Ames. _See_ Ames, Fisher. Works. Edited by Seth Ames. + +_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited +by Paul Leicester Ford. + +_Works_: Hamilton. _See_ Hamilton, Alexander. Works. Edited by John C. +Hamilton. + +_Works_: Lodge. _See_ Hamilton, Alexander. Works. Federal Edition. +Edited by Henry Cabot Lodge. + +_Writings_: Conway. _See_ Paine, Thomas. Writings. Edited by Moncure +Daniel Conway. + +_Writings_: Ford. _See_ Washington, George. Writings. Edited by +Worthington Chauncey Ford. + +_Writings_: Hunt. _See_ Madison, James. Writings. Edited by Gaillard +Hunt. + +_Writings, J. Q. A._: Ford. _See_ Adams, John Quincy. Writings. Edited +by Worthington Chauncey Ford. + +_Writings_: Smyth. _See_ Franklin, Benjamin. Writings. Edited by Albert +Henry Smyth. + +_Writings_: Sparks. _See_ Washington, George. Writings. Edited by Jared +Sparks. + + + + +THE LIFE OF JOHN MARSHALL + + + + +THE LIFE OF JOHN MARSHALL + + + + +CHAPTER I + +INFLUENCE OF THE FRENCH REVOLUTION ON AMERICA + + Were there but an Adam and an Eve left in every country, and left + free, it would be better than it now is. (Jefferson.) + + That malignant philosophy which can coolly and deliberately + pursue, through oceans of blood, abstract systems for the + attainment of some fancied untried good. (Marshall.) + + The only genuine liberty consists in a mean equally distant from + the despotism of an individual and a million. ("Publicola": J. Q. + Adams, 1792.) + + +The decision of the French King, Louis XVI, on the advice of his +Ministers, to weaken Great Britain by aiding the Americans in their War +for Independence, while it accomplished its purpose, was fatal to +himself and to the Monarchy of France. As a result, Great Britain lost +America, but Louis lost his head. Had not the Bourbon Government sent +troops, fleets, munitions, and money to the support of the failing and +desperate American fortunes, it is probable that Washington would not +have prevailed; and the fires of the French holocaust which flamed +throughout the world surely would not have been lit so soon. + +The success of the American patriots in their armed resistance to the +rule of George III, although brought about by the aid of the French +Crown, was, nevertheless, the shining and dramatic example which +Frenchmen imitated in beginning that vast and elemental upheaval called +the French Revolution.[1] Thus the unnatural alliance in 1778 between +French Autocracy and American Liberty was one of the great and decisive +events of human history. + +In the same year, 1789, that the American Republic began its career +under the forms of a National Government, the curtain rose in France on +that tremendous drama which will forever engage the interest of mankind. +And just as the American Revolution vitally influenced French opinion, +so the French Revolution profoundly affected American thought; and, +definitely, helped to shape those contending forces in American life +that are still waging their conflict. + +While the economic issue, so sharp in the adoption of the Constitution, +became still keener, as will appear, after the National Government was +established, it was given a higher temper in the forge of the French +Revolution. American history, especially of the period now under +consideration, can be read correctly only by the lights that shine from +that titanic smithy; can be understood only by considering the effect +upon the people, the thinkers, and the statesmen of America, of the +deeds done and words spoken in France during those inspiring if +monstrous years. + +The naturally conservative or radical temperaments of men in America +were hardened by every episode of the French convulsion. The events in +France, at this time, operated upon men like Hamilton on the one hand, +and Jefferson on the other hand, in a fashion as deep and lasting as it +was antagonistic and antipodal; and the intellectual and moral +phenomena, manifested in picturesque guise among the people in America, +impressed those who already were, and those who were to become, the +leaders of American opinion, as much as the events of the Gallic +cataclysm itself. + +George Washington at the summit of his fame, and John Marshall just +beginning his ascent, were alike confirmed in that non-popular tendency +of thought and feeling which both avowed in the dark years between our +War for Independence and the adoption of our Constitution.[2] In +reviewing all the situations, not otherwise to be fully understood, that +arose from the time Washington became President until Marshall took his +seat as Chief Justice, we must have always before our eyes the +extraordinary scenes and consider the delirious emotions which the +French Revolution produced in America. It must be constantly borne in +mind that Americans of the period now under discussion did not and could +not look upon it with present-day knowledge, perspective, or calmness. +What is here set down is, therefore, an attempt to portray the effects +of that volcanic eruption of human forces upon the minds and hearts of +those who witnessed, from across the ocean, its flames mounting to the +heavens and its lava pouring over the whole earth. + +Unless this portrayal is given, a blank must be left in a recital of the +development of American radical and conservative sentiment and of the +formation of the first of American political parties. Certainly for the +purposes of the present work, an outline, at least, of the effect of the +French Revolution on American thought and feeling is indispensable. Just +as the careers of Marshall and Jefferson are inseparably intertwined, +and as neither can be fully understood without considering the other, so +the American by-products of the French Revolution must be examined if we +would comprehend either of these great protagonists of hostile theories +of democratic government. + +At first everybody in America heartily approved the French reform +movement. Marshall describes for us this unanimous approbation. "A great +revolution had commenced in that country," he writes, "the first stage +of which was completed by limiting the powers of the monarch, and by the +establishment of a popular assembly. In no part of the globe was this +revolution hailed with more joy than in America. The influence it would +have on the affairs of the world was not then distinctly foreseen; and +the philanthropist, without becoming a political partisan, rejoiced in +the event. On this subject, therefore, but one sentiment existed."[3] + +Jefferson had written from Paris, a short time before leaving for +America: "A complete revolution in this [French] government, has been +effected merely by the force of public opinion; ... and this revolution +has not cost a single life."[4] So little did his glowing mind then +understand the forces which he had helped set in motion. A little later +he advises Madison of the danger threatening the reformed French +Government, but adds, reassuringly, that though "the lees ... of the +patriotic party [the French radical party] of wicked principles & +desperate fortunes" led by Mirabeau who "is the chief ... may produce a +temporary confusion ... they cannot have success ultimately. The King, +the mass of the substantial people of the whole country, the army, and +the influential part of the clergy, form a firm phalanx which must +prevail."[5] + +So, in the beginning, all American newspapers, now more numerous, were +exultant. "Liberty will have another feather in her cap.... The ensuing +winter [1789] will be the commencement of a Golden Age,"[6] was the +glowing prophecy of an enthusiastic Boston journal. Those two sentences +of the New England editor accurately stated the expectation and belief +of all America. + +But in France itself one American had grave misgivings as to the +outcome. "The materials for a revolution in this country are very +indifferent. Everybody agrees that there is an utter prostration of +morals; but this general position can never convey to an American mind +the degree of depravity.... A hundred thousand examples are required to +show the extreme rottenness.... The virtuous ... stand forward from a +background deeply and darkly shaded.... From such crumbling matter ... +the great edifice of freedom is to be erected here [in France].... +[There is] a perfect indifference to the violation of engagements.... +Inconstancy is mingled in the blood, marrow, and very essence of this +people.... Consistency is a phenomenon.... The great mass of the common +people have ... no morals but their interest. These are the creatures +who, led by drunken curates, are now in the high road _à la +liberté_."[7] Such was the report sent to Washington by Gouverneur +Morris, the first American Minister to France under the Constitution. + +Three months later Morris, writing officially, declares that "this +country is ... as near to anarchy as society can approach without +dissolution."[8] And yet, a year earlier, Lafayette had lamented the +French public's indifference to much needed reforms; "The people ... +have been so dull that it has made me sick" was Lafayette's doleful +account of popular enthusiasm for liberty in the France of 1788.[9] + +Gouverneur Morris wrote Robert Morris that a French owner of a quarry +demanded damages because so many bodies had been dumped into the quarry +that they "choked it up so that he could not get men to work at it." +These victims, declared the American Minister, had been "the best +people," killed "without form of trial, and their bodies thrown like +dead dogs into the first hole that offered."[10] Gouverneur Morris's +diary abounds in such entries as "[Sept. 2, 1792] the murder of the +priests, ... murder of prisoners,... [Sept. 3] The murdering continues +all day.... [Sept. 4th].... And still the murders continue."[11] + +John Marshall was now the attorney of Robert Morris; was closely +connected with him in business transactions; and, as will appear, was +soon to become his relative by the marriage of Marshall's brother to the +daughter of the Philadelphia financier. Gouverneur Morris, while not +related to Robert Morris, was "entirely devoted" to and closely +associated with him in business; and both were in perfect agreement of +opinions.[12] Thus the reports of the scarlet and revolting phases of +the French Revolution that came to the Virginia lawyer were carried +through channels peculiarly personal and intimate. + +They came, too, from an observer who was thoroughly aristocratic in +temperament and conviction.[13] Little of appreciation or understanding +of the basic causes and high purposes of the French Revolution appears +in Gouverneur Morris's accounts and comments, while he portrays the +horrible in unrelieved ghastliness.[14] + +Such, then, were the direct and first-hand accounts that Marshall +received; and the impression made upon him was correspondingly dark, and +as lasting as it was somber. Of this, Marshall himself leaves us in no +doubt. Writing more than a decade later he gives his estimate of +Gouverneur Morris and of his accounts of the French Revolution. + +"The private correspondence of Mr. Morris with the president [and, of +course, much more so with Robert Morris] exhibits a faithful picture, +drawn by the hand of a master, of the shifting revolutionary scenes +which with unparalleled rapidity succeeded each other in Paris. With the +eye of an intelligent, and of an unimpassioned observer, he marked all +passing events, and communicated them with fidelity. He did not mistake +despotism for freedom, because it was sanguinary, because it was +exercised by those who denominated themselves the people, or because it +assumed the name of liberty. Sincerely wishing happiness and a really +free government to France, he could not be blind to the obvious truth +that the road to those blessings had been mistaken."[15] + +Everybody in America echoed the shouts of the Parisian populace when the +Bastille fell. Was it not the prison where kings thrust their subjects +to perish of starvation and torture?[16] Lafayette, "as a missionary of +liberty to its patriarch," hastened to present Washington with "the main +key of the fortress of despotism."[17] Washington responded that he +accepted the key of the Bastille as "a token of the victory gained by +liberty."[18] Thomas Paine wrote of his delight at having been chosen by +Lafayette to "convey ... the first ripe fruits of American principles, +transplanted into Europe, to his master and patron."[19] Mutual +congratulations were carried back and forth by every ship. + +Soon the mob in Paris took more sanguinary action and blood flowed more +freely, but not in sufficient quantity to quench American enthusiasm for +the cause of liberty in France. We had had plenty of mobs ourselves and +much crimson experience. Had not mobs been the precursors of our own +Revolution? + +The next developments of the French uprising and the appearance of the +Jacobin Clubs, however, alarmed some and gave pause to all of the +cautious friends of freedom in America and other countries. + +Edmund Burke hysterically sounded the alarm. On account of his +championship of the cause of American Independence, Burke had enjoyed +much credit with all Americans who had heard of him. "In the last age," +exclaimed Burke in Parliament, February 9, 1790, "we were in danger of +being entangled by the example of France in the net of a relentless +despotism.... Our present danger from the example of a people whose +character knows no medium, is, with regard to government, a danger from +anarchy; a danger of being led, through an admiration of successful +fraud and violence, to an imitation of the excesses of an irrational, +unprincipled, proscribing, confiscating, plundering, ferocious, bloody, +and tyrannical democracy."[20] + +Of the French declaration of human rights Burke declared: "They made and +recorded a sort of _institute_ and _digest_ of anarchy, called the +rights of man, in such a pedantic abuse of elementary principles as +would have disgraced boys at school.... They systematically destroyed +every hold of authority by opinion, religious or civil, on the minds of +the people.[21]... On the scheme of this barbarous philosophy, which is +the offspring of cold hearts and muddy understandings," exclaimed the +great English liberal, "laws are to be supported only by their own +terrours.... In the groves of _their_ academy, at the end of every +vista, you see nothing but the gallows."[22] + +Burke's extravagant rhetoric, although reprinted in America, was little +heeded. It would have been better if his pen had remained idle. For +Burke's wild language, not yet justified by the orgy of blood in which +French liberty was, later, to be baptized, caused a voice to speak to +which America did listen, a page to be written that America did read. +Thomas Paine, whose "Common Sense" had made his name better known to all +people in the United States than that of any other man of his time +except Washington, Franklin, Jefferson, and Henry, was then in France. +This stormy petrel of revolution seems always to have been drawn by +instinct to every part of the human ocean where hurricanes were +brooding.[23] + +Paine answered Burke with that ferocious indictment of monarchy entitled +"The Rights of Man," in which he went as far to one extreme as the +English political philosopher had gone to the other; for while Paine +annihilated Burke's Brahminic laudation of rank, title, and custom, he +also penned a doctrine of paralysis to all government. As was the case +with his "Common Sense," Paine's "Rights of Man" abounded in attractive +epigrams and striking sentences which quickly caught the popular ear and +were easily retained by the shallowest memory. + +"The cause of the French people is that of ... the whole world," +declared Paine in the preface of his flaming essay;[24] and then, the +sparks beginning to fly from his pen, he wrote: "Great part of that +order which reigns among mankind is not the effect of government.... It +existed prior to government, and would exist if the formality of +government was abolished.... The instant formal government is +abolished," said he, "society begins to act; ... and common interest +produces common security." And again: "The more perfect civilization is, +the less occasion has it for government.... It is but few general laws +that civilised life requires." + +Holding up our own struggle for liberty as an illustration, Paine +declared: "The American Revolution ... laid open the imposition of +governments"; and, using our newly formed and untried National +Government as an example, he asserted with grotesque inaccuracy: "In +America ... all the parts are brought into cordial unison. There the +poor are not oppressed, the rich are not privileged.... Their taxes are +few, because their government is just."[25] + +Proceeding thence to his assault upon all other established governments, +especially that of England, the great iconoclast exclaimed: "It is +impossible that such governments as have hitherto [1790] existed in the +world, could have commenced by any other means than a violation of every +principle sacred and moral." + +Striking at the foundations of all permanent authority, Paine declared +that "Every age and generation must be ... free to act for itself _in +all cases_.... The vanity and presumption of governing beyond the grave +is the most ridiculous and insolent of all tyrannies." The people of +yesterday have "no right ... to bind or to control ... the people of the +present day ... _in any shape whatever_.... Every generation is, and +must be, competent to all the purposes which its occasions require."[26] +So wrote the incomparable pamphleteer of radicalism. + +Paine's essay, issued in two parts, was a torch successively applied to +the inflammable emotions of the American masses. Most newspapers printed +in each issue short and appealing excerpts from it. For example, the +following sentence from Paine's "Rights of Man" was reproduced in the +"Columbian Centinel" of Boston on June 6, 1792: "Can we possibly suppose +that if government had originated in right principles and had not an +interest in pursuing a wrong one, that the world could have been in the +wretched and quarrelsome condition it is?" Such quotations from Paine +appeared in all radical and in some conservative American publications; +and they were repeated from mouth to mouth until even the backwoodsmen +knew of them--and believed them. + +"Our people ... love what you write and read it with delight" ran the +message which Jefferson sent across the ocean to Paine. "The printers," +continued Jefferson, "season every newspaper with extracts from your +last, as they did before from your first part of the _Rights of Man_. +They have both served here to separate the wheat from the chaff.... +Would you believe it possible that in this country there should be high +& important characters[27] who need your lessons in republicanism & who +do not heed them. It is but too true that we have a sect preaching up & +pouting after an English constitution of king, lords, & commons, & +whose heads are itching for crowns, coronets & mitres.... + +"Go on then," Jefferson urged Paine, "in doing with your pen what in +other times was done with the sword, ... and be assured that it has not +a more sincere votary nor you a more ardent well-wisher than ... Tho^s. +Jefferson."[28] + +And the wheat was being separated from the chaff, as Jefferson declared. +Shocked not more by the increasing violence in France than by the +principles which Paine announced, men of moderate mind and conservative +temperament in America came to have misgivings about the French +Revolution, and began to speak out against its doings and its doctrines. + +A series of closely reasoned and well-written articles were printed in +the "Columbian Centinel" of Boston in the summer of 1791, over the _nom +de guerre_ "Publicola"; and these were widely copied. They were ascribed +to the pen of John Adams, but were the work of his brilliant son.[29] + +The American edition of Paine's "Rights of Man" was headed by a letter +from Secretary of State Jefferson to the printer, stating his pleasure +that the essay was to be printed in this country and "that something is +at length to be publickly said against the political heresies which have +sprung up among us."[30] Publicola called attention to this and thus, +more conspicuously, displayed Jefferson as an advocate of Paine's +doctrines.[31] + +All Americans had "seen with pleasure the temples of despotism levelled +with the ground," wrote the keen young Boston law student.[32] There was +"but one sentiment...--that of exultation." But what did Jefferson mean +by "heresies"? asked Publicola. Was Paine's pamphlet "the canonical book +of scripture?" If so, what were its doctrines? "That which a whole +nation chooses to do, it has a right to do" was one of them. + +Was that "principle" sound? No! avowed Publicola, for "the eternal and +immutable laws of justice and of morality are paramount to all human +legislation." A nation might have the power but never the right to +violate these. Even majorities have no right to do as they please; if +so, what security has the individual citizen? Under the unrestrained +rule of the majority "the principles of liberty must still be the sport +of arbitrary power, and the hideous form of despotism must lay aside the +diadem and the scepter, only to assume the party-colored garments of +democracy." + +"The only genuine liberty consists in a mean equally distant from the +despotism of an individual and of a million," asserted Publicola. "Mr. +Paine seems to think it as easy for a nation to change its government as +for a man to change his coat." But "the extreme difficulty which impeded +the progress of its [the American Constitution's] adoption ... exhibits +the fullest evidence of what a more than Herculean task it is to unite +the opinions of a free people on any system of government whatever." + +The "mob" which Paine exalted as the common people, but which Publicola +thought was really only the rabble of the cities, "can be brought to act +in concert" only by "a frantic enthusiasm and ungovernable fury; their +profound ignorance and deplorable credulity make them proper tools for +any man who can inflame their passions; ... and," warned Publicola, "as +they have nothing to lose by the total dissolution of civil society, +their rage may be easily directed against any victim which may be +pointed out to them.... To set in motion this inert mass, the eccentric +vivacity of a madman is infinitely better calculated than the sober +coolness of phlegmatic reason." + +"Where," asked Publicola, "is the power that should control them +[Congress]?" if they violate the letter of the Constitution. Replying to +his own question, he asserted that the real check on Congress "is the +spirit of the people."[33] John Marshall had said the same thing in the +Virginia Constitutional Convention; but even at that early period the +Richmond attorney went further and flatly declared that the temporary +"spirit of the people" was not infallible and that the Supreme Court +could and would declare void an unconstitutional act of Congress--a +truth which he was, unguessed at that time by himself or anybody else, +to announce with conclusive power within a few years and at an hour when +dissolution confronted the forming Nation. + +Such is a rapid _précis_ of the conservative essays written by the +younger Adams. Taken together, they were a rallying cry to those who +dared to brave the rising hurricane of American sympathy with the French +Revolution; but they also strengthened the force of that growing storm. +Multitudes of writers attacked Publicola as the advocate of +"aristocracy" and "monarchy." "The papers under the signature of +PUBLICOLA have called forth a torrent of abuse," declared the final +essay of the series. + +Brown's "Federal Gazette" of Philadelphia branded Publicola's doctrines +as "abominable heresies"; and hoped that they would "not procure many +proselytes either to _monarchy_ or _aristocracy_."[34] The "Independent +Chronicle" of Boston asserted that Publicola was trying to build up a +"system of MONARCHY AND ARISTOCRACY ... on the ruins both of the +REPUTATION and LIBERTIES of the PEOPLE."[35] Madison reported to +Jefferson that because of John Adams's reputed authorship of these +unpopular letters, the supporters of the Massachusetts statesman had +become "perfectly insignificant in ... number" and that "in Boston he +is ... distinguished for his unpopularity."[36] + +In such fashion the controversy began in America over the French +Revolution. + +But whatever the misgivings of the conservative, whatever the alarm of +the timid, the overwhelming majority of Americans were for the French +Revolution and its doctrines;[37] and men of the highest ability and +station gave dignity to the voice of the people. + +In most parts of the country politicians who sought election to public +office conformed, as usual, to the popular view. It would appear that +the prevailing sentiment was influential even with so strong a +conservative and extreme a Nationalist as Madison, in bringing about his +amazing reversal of views which occurred soon after the Constitution was +adopted.[38] But those who, like Marshall, were not shaken, were made +firmer in their opinions by the very strength of the ideas thus making +headway among the masses. + +An incident of the French Revolution almost within sight of the American +coast gave to the dogma of equality a new and intimate meaning in the +eyes of those who had begun to look with disfavor upon the results of +Gallic radical thought. Marshall and Jefferson best set forth the +opposite impressions made by this dramatic event. + +"Early and bitter fruits of that malignant philosophy," writes Marshall, +"which ... can coolly and deliberately pursue, through oceans of blood, +abstract systems for the attainment of some fancied untried good, were +gathered in the French West Indies.... The revolutionists of France +formed the mad and wicked project of spreading their doctrines of +equality among persons [negroes and white people] between whom +distinctions and prejudices exist to be subdued only by the grave. The +rage excited by the pursuit of this visionary and baneful theory, after +many threatening symptoms, burst forth on the 23d day of August 1791, +with a fury alike destructive and general. + +"In one night, a preconcerted insurrection of the blacks took place +throughout the colony of St. Domingo; and the white inhabitants of the +country, while sleeping in their beds, were involved in one +indiscriminate massacre, from which neither age nor sex could afford an +exemption. Only a few females, reserved for a fate more cruel than +death, were intentionally spared; and not many were fortunate enough to +escape into the fortified cities. The insurgents then assembled in vast +numbers, and a bloody war commenced between them and the whites +inhabiting the towns."[39] + +After the African disciples of French liberty had overthrown white +supremacy in St. Domingo, Jefferson wrote his daughter that he had been +informed "that the Patriotic party [St. Domingo revolutionists] had +taken possession of 600 aristocrats & monocrats, had sent 200 of them to +France, & were sending 400 here.... I wish," avowed Jefferson, in this +intimate family letter, "we could distribute our 400 [white French +exiles] among the Indians, who would teach them lessons of liberty & +equality."[40] + +Events in France marched swiftly from one bloody climax to another still +more scarlet. All were faithfully reflected in the views of the people +of the United States. John Marshall records for us "the fervour of +democracy" as it then appeared in our infant Republic. He repeats that, +at first, every American wished success to the French reformers. But the +later steps of the movement "impaired this ... unanimity of opinion.... +A few who had thought deeply on the science of government ... believed +that ... the influence of the galleries over the legislature, and of +mobs over the executive; ... the tumultuous assemblages of the people +and their licentious excesses ... did not appear to be the symptoms of a +healthy constitution, or of genuine freedom.... They doubted, and they +feared for the future." + +Of the body of American public opinion, however, Marshall chronicles +that: "In total opposition to this sentiment was that of the public. +There seems to be something infectious in the example of a powerful and +enlightened nation verging towards democracy, which imposes on the human +mind, and leads human reason in fetters.... Long settled opinions yield +to the overwhelming weight of such dazzling authority. It wears the +semblance of being the sense of mankind, breaking loose from the +shackles which had been imposed by artifice, and asserting the freedom, +and the dignity, of his nature." + +American conservative writers, says Marshall, "were branded as the +advocates of royalty, and of aristocracy. To question the duration of +the present order of things [in France] was thought to evidence an +attachment to unlimited monarchy, or a blind prejudice in favour of +British institutions.... The war in which the several potentates of +Europe were engaged against France, although in almost every instance +declared by that power, was pronounced to be a war for the extirpation +of human liberty, and for the banishment of free government from the +face of the earth. The preservation of the constitution of the United +States was supposed to depend on its issue; and the coalition against +France was treated as a coalition against America also."[41] + +Marshall states, more clearly, perhaps, than any one else, American +conservative opinion of the time: "The circumstances under which the +abolition of royalty was declared, the massacres which preceded it, the +scenes of turbulence and violence which were acted in every part of the +nation, appeared to them [American conservatives] to present an awful +and doubtful state of things.... The idea that a republic was to be +introduced and supported by force, was, to them, a paradox in politics." + +Thus it was, he declares, that "the French revolution will be found to +have had great influence on the strength of parties, and on the +subsequent political transactions of the United States."[42] + +As the French storm increased, its winds blew ever stronger over the +responsive waters of American opinion. Jefferson, that accurate +barometer of public weather, thus registers the popular feeling: "The +sensations it [the French Revolution] has produced here, and the +indications of them in the public papers, have shown that the form our +own government was to take depended much more on the events of France +than anybody had before imagined."[43] Thus both Marshall and Jefferson +bear testimony as to the determining effect produced in America by the +violent change of systems in France. + +William Short, whom Jefferson had taken to France as his secretary, when +he was the American Minister to France, and who, when Jefferson returned +to the United States, remained as _chargé d'affaires_,[44] had written +both officially and privately of what was going on in France and of the +increasing dominance of the Jacobin Clubs.[45] Perhaps no more +trustworthy statement exists of the prevailing American view of the +French cataclysm than that given in Jefferson's fatherly letter to his +protégé:-- + +"The tone of your letters had for some time given me pain," wrote +Jefferson, "on account of the extreme warmth with which they censured +the proceedings of the Jacobins of France.[46]... Many guilty persons +[aristocrats] fell without the forms of trial, and with them some +innocent:... It was necessary to use the arm of the people, a machine +not quite so blind as balls and bombs, but blind to a certain degree.... + +"The liberty of the whole earth," continued Jefferson, "was depending on +the issue of the contest, and was ever such a prize won with so little +innocent blood? My own affections have been deeply wounded by some of +the martyrs to this cause, but rather than it should have failed, I +would have seen half the earth desolated. + +"Were there but an Adam & an Eve left in every country, & left free, it +would be better than as it now is," declared Jefferson; and "my +sentiments ... are really those of 99 in an hundred of our citizens," +was that careful political observer's estimate of American public +opinion. "Your temper of mind," Jefferson cautions Short, "would be +extremely disrelished if known to your countrymen. + +"There are in the U.S. some characters of opposite principles.... +Excepting them, this country is entirely republican, friends to the +constitution.... The little party above mentioned have espoused it only +as a stepping stone to monarchy.... The successes of republicanism in +France have given the coup de grace to their prospects, and I hope to +their projects. + +"I have developed to you faithfully the sentiments of your country," +Jefferson admonishes Short, "that you may govern yourself +accordingly."[47] + +Jefferson's count of the public pulse was accurate. "The people of this +country [Virginia] ... are unanimous & explicit in their sympathy with +the Revolution" was the weather-wise Madison's report.[48] And the fever +was almost as high in other States. + +When, after many executions of persons who had been "denounced" on mere +suspicion of unfriendliness to the new order of things, the neck of +Louis XVI was finally laid beneath the knife of the guillotine and the +royal head rolled into the executioner's basket, even Thomas Paine was +shocked. In a judicious letter to Danton he said:-- + +"I now despair of seeing the great object of European liberty +accomplished" because of "the tumultuous misconduct" of "the present +revolution" which "injure[s its] character ... and discourage[s] the +progress of liberty all over the world.... There ought to be some +regulation with respect to the spirit of denunciation that now +prevails."[49] + +So it was that Thomas Paine, in France, came to speak privately the +language which, in America, at that very hour, was considered by his +disciples to be the speech of "aristocracy," "monarchy," and +"despotism"; for the red fountains which drenched the fires of even +Thomas Paine's enthusiasm did not extinguish the flames his burning +words had lighted among the people of the United States. Indeed Paine, +himself, was attacked for regretting the execution of the King.[50] + +Three months after the execution of the French King, the new Minister of +the French Republic, "Citizen" Genêt, arrived upon our shores. He +landed, not at Philadelphia, then our seat of government, but at +Charleston, South Carolina. The youthful[51] representative of +Revolutionary France was received by public officials with obsequious +flattery and by the populace with a frenzy of enthusiasm almost +indescribable in its intensity. + +He acted on the welcome. He fitted out privateers, engaged seamen, +issued letters of marque and reprisal, administered to American citizens +oaths of "allegiance" to the authority then reigning in Paris. All this +was done long before he presented his credentials to the American +Government. His progress to our Capital was an unbroken festival of +triumph. Washington's dignified restraint was interpreted as hostility, +not only to Genêt, but also to "liberty." But if Washington's heart was +ice, the people's heart was fire. + +"We expect Mr. Genest here within a few days," wrote Jefferson, just +previous to the appearance of the French Minister in Philadelphia and +before our ignored and offended President had even an opportunity to +receive him. "It seems," Jefferson continued, "as if his arrival would +furnish occasion for the _people_ to testify their affections without +respect to the cold caution of their government."[52] + +Again Jefferson measured popular sentiment accurately. Genêt was made an +idol by the people. Banquets were given in his honor and extravagant +toasts were drunk to the Republic and the guillotine. Showers of fiery +"poems" filled the literary air.[53] "What hugging and tugging! What +addressing and caressing! What mountebanking and chanting! with liberty +caps and other wretched trumpery of _sans culotte_ foolery!" exclaimed a +disgusted conservative.[54] + +While all this was going on in America, Robespierre, as the incarnation +of liberty, equality, and fraternity in France, achieved the summit of +power and "The Terror" reached high tide. Marie Antoinette met the fate +of her royal husband, and the executioners, overworked, could not +satisfy the lust of the Parisian populace for human life. All this, +however, did not extinguish American enthusiasm for French liberty. + +Responding to the wishes of their subscribers, who at that period were +the only support of the press, the Republican newspapers suppressed such +atrocities as they could, but when concealment was impossible, they +defended the deeds they chronicled.[55] It was a losing game to do +otherwise, as one of the few journalistic supporters of the American +Government discovered to his sorrow. Fenno, the editor of the "Gazette +of the United States," found opposition to French revolutionary ideas, +in addition to his support of Hamilton's popularly detested financial +measures,[56] too much for him. The latter was load enough; but the +former was the straw that broke the conservative editor's back. + +"I am ... incapacitate[d] ... from printing another paper without the +aid of a considerable loan," wrote the bankrupt newspaper opponent of +French doctrines and advocate of Washington's Administration. "Since the +18th September, [1793] I have rec'd only 35-1/4 dollars," Fenno +lamented. "Four years & an half of my life is gone for nothing; & worse +(for I have a Debt of 2500 Dollars on my Shoulders), if at this crisis +the hand of benevolence & _patriotism_ is not extended."[57] + +Forgotten by the majority of Americans was the assistance which the +demolished French Monarchy and the decapitated French King had given the +American army when, but for that assistance, our cause had been lost. +The effigy of Louis XVI was guillotined by the people, many times every +day in Philadelphia, on the same spot where, ten years before, as a +monument of their gratitude, these same patriots had erected a triumphal +arch, decorated with the royal lilies of France bearing the motto, "They +exceed in glory," surmounted by a bust of Louis inscribed, "His merit +makes us remember him."[58] + +At a dinner in Philadelphia upon the anniversary of the French King's +execution, the dead monarch was represented by a roasted pig. Its head +was cut off at the table, and each guest, donning the liberty cap, +shouted "tyrant" as with his knife he chopped the sundered head of the +dead swine.[59] The news of the beheading of Louis's royal consort met +with a like reception. "I have heard more than one young woman under the +age of twenty declare," testifies Cobbett, "that they would willingly +have dipped their hands in the blood of the queen of France."[60] + +But if the host of American radicals whom Jefferson led and whose spirit +he so truly interpreted were forgetful of the practical friendship of +French Royalty in our hour of need, American conservatives, among whom +Marshall was developing leadership, were also unmindful of the dark +crimes against the people which, at an earlier period, had stained the +Monarchy of France and gradually cast up the account that brought on the +inevitable settlement of the Revolution. The streams of blood that +flowed were waters of Lethe to both sides. + +Yet to both they were draughts which produced in one an obsession of +reckless unrestraint and in the other a terror of popular rule no less +exaggerated.[61] Of the latter class, Marshall was, by far, the most +moderate and balanced, although the tragic aspect of the convulsion in +which French liberty was born, came to him in an especially direct +fashion, as we have seen from the Morris correspondence already cited. + +Another similar influence on Marshall was the case of Lafayette. The +American partisans of the French Revolution accused this man, who had +fought for us in our War for Independence, of deserting the cause of +liberty because he had striven to hold the Gallic uprising within +orderly bounds. When, for this, he had been driven from his native land +and thrown into a foreign dungeon, Freneau thus sang the conviction of +the American majority:-- + + "Here, bold in arms, and firm in heart, + He help'd to gain our cause, + Yet could not from a tyrant part, + But, turn'd to embrace his laws!"[62] + +Lafayette's expulsion by his fellow Republicans and his imprisonment by +the allied monarchs, was brought home to John Marshall in a very direct +and human fashion. His brother, James M. Marshall, was sent by +Washington[63] as his personal representative, to plead unofficially for +Lafayette's release. Marshall tells us of the strong and tender personal +friendship between Washington and Lafayette and of the former's anxiety +for the latter. But, writes Marshall: "The extreme jealousy with which +the persons who administered the government of France, as well as a +large party in America, watched his [Washington's] deportment towards +all those whom the ferocious despotism of the jacobins had exiled from +their country" rendered "a formal interposition in favour of the +virtuous and unfortunate victim [Lafayette] of their furious +passions ... unavailing." + +Washington instructed our ministers to do all they could "unofficially" +to help Lafayette, says Marshall; and "a confidential person [Marshall's +brother James] had been sent to Berlin to solicit his discharge: but +before this messenger had reached his destination, the King of Prussia +had delivered over his illustrious prisoner to the Emperor of +Germany."[64] Washington tried "to obtain the powerful mediation of +Britain" and hoped "that the cabinet of St. James would take an interest +in the case; but this hope was soon dissipated." Great Britain would do +nothing to secure from her allies Lafayette's release.[65] + +Thus Marshall, in an uncommonly personal way, was brought face to face +with what appeared to him to be the injustice of the French +revolutionists. Lafayette, under whom John Marshall had served at +Brandywine and Monmouth; Lafayette, leader of the movement in France for +a free government like our own; Lafayette, hated by kings and +aristocrats because he loved genuine liberty, and yet exiled from his +own country by his own countrymen for the same reason[66]--this picture, +which was the one Marshall saw, influenced him profoundly and +permanently. + +Humor as well as horror contributed to the repugnance which Marshall and +men of his type felt ever more strongly for what they considered to be +mere popular caprice. The American passion for equality had its comic +side. The public hatred of all rank did not stop with French royalty +and nobility. Because of his impassioned plea in Parliament for the +American cause, a statue of Lord Chatham had been erected at Charleston, +South Carolina; the people now suspended it by the neck in the air until +the sculptured head was severed from the body. But Chatham was dead and +knew only from the spirit world of this recognition of his bold words in +behalf of the American people in their hour of trial and of need. In +Virginia the statue of Lord Botetourt was beheaded.[67] This nobleman +was also long since deceased, guilty of no fault but an effort to help +the colonists, more earnest than some other royal governors had +displayed. Still, in life, he had been called a "lord"; so off with the +head of his statue! + +In the cities, streets were renamed. "Royal Exchange Alley" in Boston +became "Equality Lane"; and "Liberty Stump" was the name now given to +the base of a tree that formerly had been called "Royal." In New York, +"_Queen Street_ became _Pearl Street_; and _King Street_, Liberty +Street."[68] The liberty cap was the popular headgear and everybody wore +the French cockade. Even the children, thus decorated, marched in +processions,[69] singing, in a mixture of French and English words, the +meaning of which they did not in the least understand, the glories of +"liberté, égalité, fraternité." + +At a town meeting in Boston resolutions asking that a city charter be +granted were denounced as an effort to "destroy the liberties of the +people; ... a link in the chain of aristocratic influence."[70] Titles +were the especial aversion of the masses. Even before the formation of +our government, the people had shown their distaste for all formalities, +and especially for terms denoting official rank; and, after the +Constitution was adopted, one of the first things Congress did was to +decide against any form of address to the President. Adams and Lee had +favored some kind of respectful designation of public officials. This +all-important subject had attracted the serious thought of the people +more than had the form of government, foreign policy, or even taxes. + +Scarcely had Washington taken his oath of office when David Stuart +warned him that "nothing could equal the ferment and disquietude +occasioned by the proposition respecting titles. As it is believed to +have originated from Mr. Adams and Mr. Lee, they are not only unpopular +to an extreme, but highly odious.... It has given me much pleasure to +hear every part of your conduct spoken of with high approbation, and +particularly your dispensing with ceremony, occasionally walking the +streets; while Adams is never seen but in his carriage and six. As +trivial as this may appear," writes Stuart, "it appears to be more +captivating to the generality, than matters of more importance. Indeed, +I believe the great herd of mankind form their judgments of characters, +more from such slight occurrences, than those of greater magnitude."[71] + +This early hostility to ostentation and rank now broke forth in rabid +virulence. In the opinion of the people, as influenced by the French +Revolution, a Governor or President ought not to be referred to as "His +Excellency"; nor a minister of the gospel as "Reverend." Even "sir" or +"esquire" were, plainly, "monarchical." The title "Honorable" or "His +Honor," when applied to any official, even a judge, was base pandering +to aristocracy. "Mr." and "Mrs." were heretical to the new religion of +equality. Nothing but "citizen"[72] would do--citizen judge, citizen +governor, citizen clergyman, citizen colonel, major, or general, citizen +baker, shoemaker, banker, merchant, and farmer,--citizen everybody. + +To address the master of ceremonies at a dinner or banquet or other +public gathering as "Mr. Chairman" or "Mr. Toastmaster" was +aristocratic: only "citizen chairman" or "citizen toastmaster" was the +true speech of genuine liberty.[73] And the name of the _Greek_ letter +college fraternity, Phi Beta Kappa, was the trick of kings to ensnare +our unsuspecting youth. Even "[Greek: Ph.B.K.]" was declared to be "an +infringement of the natural rights of society." A college fraternity was +destructive of the spirit of equality in American colleges.[74] +"_Lèse-républicanisme_" was the term applied to good manners and +politeness.[75] + +Such were the surface and harmless evidences of the effect of the French +Revolution on the great mass of American opinion. But a serious and +practical result developed. Starting with the mother organization at +Philadelphia, secret societies sprang up all over the Union in imitation +of the Jacobin Clubs of France. Each society had its corresponding +committee; and thus these organizations were welded into an unbroken +chain. Their avowed purpose was to cherish the principles of human +freedom and to spread the doctrine of true republicanism. But they soon +became practical political agencies; and then, like their French +prototype, the sowers of disorder and the instigators of +insurrection.[76] + +The practical activities of these organizations aroused, at last, the +open wrath of Washington. They "are spreading mischief far and wide," he +wrote;[77] and he declared to Randolph that "if these self-created +societies cannot be discountenanced, they will destroy the government of +this country."[78] + +Conservative apprehensions were thus voiced by George Cabot: "We have +seen ... the ... representatives of the people butchered, and a band of +relentless murderers ruling in their stead with rods of iron. Will not +this, or something like it, be the wretched fate of our country?... Is +not this hostility and distrust [to just opinions and right sentiments] +chiefly produced by the slanders and falsehoods which the anarchists +incessantly inculcate?"[79] + +Young men like John Quincy Adams of Massachusetts and John Marshall of +Virginia thought that "the rabble that followed on the heels of Jack +Cade could not have devised greater absurdities than" the French +Revolution had inspired in America;[80] but they were greatly +outnumbered by those for whom Jefferson spoke when he said that "I feel +that the permanence of our own [Government] leans" on the success of the +French Revolution.[81] + +The American democratic societies, like their French originals, declared +that theirs was the voice of "the people," and popular clamor justified +the claim.[82] Everybody who dissented from the edicts of the clubs was +denounced as a public robber or monarchist. "What a continual yelping +and barking are our Swindlers, Aristocrats, Refugees, and British Agents +making at the Constitutional Societies" which were "like a noble +mastiff ... with ... impotent and noisy puppies at his heels," cried the +indignant editor of the "Independent Chronicle" of Boston,[83] to whom +the democratic societies were "guardians of liberty." + +While these organizations strengthened radical opinion and fashioned +American sympathizers of the French Revolution into disciplined ranks, +they also solidified the conservative elements of the United States. +Most viciously did the latter hate these "Jacobin Clubs," the principles +they advocated, and their interference with public affairs. "They were +born in sin, the impure offspring of Genêt," wrote Fisher Ames. + +"They are the few against the many; the sons of darkness (for their +meetings are secret) against those of the light; and above all, it is a +_town_ cabal, attempting to rule the _country_."[84] This testy New +Englander thus expressed the extreme conservative feeling against the +"insanity which is epidemic":[85] "This French mania," said Ames, "is +the bane of our politics, the mortal poison that makes our peace so +sickly."[86] "They have, like toads, sucked poison from the earth. They +thirst for vengeance."[87] "The spirit of mischief is as active as the +element of fire and as destructive."[88] Ames describes the activities +of the Boston Society and the aversion of the "better classes" for it: +"The club is despised here by men of right heads," he writes. "But ... +they [the members of the Club] poison every spring; they whisper lies to +every gale; they are everywhere, always acting like Old Nick and his +imps.... They will be as busy as Macbeth's witches at the +election."[89] + +In Virginia the French Revolution and the American "Jacobins" helped to +effect that change in Patrick Henry's political sentiments which his +increasing wealth had begun. "If my Country," wrote Henry to Washington, +"is destined in my day to encounter the horrors of anarchy, every power +of mind or body which I possess will be exerted in support of the +government under which I live."[90] As to France itself, Henry predicted +that "anarchy will be succeeded by despotism" and Bonaparte, +"Caesar-like, subvert the liberties of his country."[91] + +Marshall was as much opposed to the democratic societies as was +Washington, or Cabot, or Ames, but he was calmer in his opposition, +although vitriolic enough. When writing even ten years later, after time +had restored perspective and cooled feeling, Marshall says that these +"pernicious societies"[92] were "the resolute champions of all the +encroachments attempted by the agents of the French republic on the +government of the United States, and the steady defamers of the views +and measures of the American executive."[93] He thus describes their +decline:-- + +"The colossean power of the [French] clubs, which had been abused to an +excess that gives to faithful history the appearance of fiction, fell +with that of their favourite member, and they sunk into long merited +disgrace. The means by which their political influence had been +maintained were wrested from them; and, in a short time, their meetings +were prohibited. Not more certain is it that the boldest streams must +disappear, if the fountains which fed them be emptied, than was the +dissolution of the democratic societies of America, when the Jacobin +clubs were denounced by France. As if their destinies depended on the +same thread, the political death of the former was the unerring signal +for that of the latter."[94] + +Such was the effect of the French Revolution on American thought at the +critical period of our new Government's first trials. To measure justly +the speech and conduct of men during the years we are now to review, +this influence must always be borne in mind. It was woven into every +great issue that arose in the United States. Generally speaking, the +debtor classes and the poorer people were partisans of French +revolutionary principles; and the creditor classes, the mercantile and +financial interests, were the enemies of what they called "Jacobin +philosophy." In a broad sense, those who opposed taxes, levied to +support a strong National Government, sympathized with the French +Revolution and believed in its ideas; those who advocated taxes for that +purpose, abhorred that convulsion and feared its doctrines. + +Those who had disliked government before the Constitution was +established and who now hated National control, heard in the preachings +of the French revolutionary theorists the voice of their hearts; while +those who believed that government is essential to society and +absolutely indispensable to the building of the American Nation, heard +in the language and saw in the deeds of the French Revolution the forces +that would wreck the foundations of the state even while they were but +being laid and, in the end, dissolve society itself. Thus were the ideas +of Nationality and localism in America brought into sharper conflict by +the mob and guillotine in France. + +All the passion for irresponsible liberty which the French Revolution +increased in America, as well as all the resentment aroused by the +financial measures and foreign policy of the "Federal Administrations," +were combined in the opposition to and attacks upon a strong National +Government. Thus provincialism in the form of States' Rights was given a +fresh impulse and a new vitality. Through nearly all the important +legislation and diplomacy of those stirring and interpretative years +ran, with ever increasing clearness, the dividing line of Nationalism as +against localism. + +Such are the curious turns of human history. Those whom Jefferson led +profoundly believed that they were fighting for human rights; and in +their view and as a practical matter at that particular time this sacred +cause meant State Rights. For everything which they felt to be +oppressive, unjust, and antagonistic to liberty, came from the National +Government. By natural contrast in their own minds, as well as by +assertions of their leaders, the State Governments were the sources of +justice and the protectors of the genuine rights of man. + +In the development of John Marshall as well as of his great ultimate +antagonist, Thomas Jefferson, during the formative decade which we are +now to consider, the influence of the French Revolution must never be +forgotten. Not a circumstance of the public lives of these two men and +scarcely an incident of their private experience but was shaped and +colored by this vast series of human events. Bearing in mind the +influence of the French Revolution on American opinion, and hence, on +Marshall and Jefferson, let us examine the succeeding years in the light +of this determining fact. + + +FOOTNOTES: + +[1] "That the principles of America opened the Bastille is not to be +doubted." (Thomas Paine to Washington, May 1, 1790; _Cor. Rev.^2_: +Sparks, iv, 328.) "The principles of it [the French Revolution] were +copied from America." (Paine to Citizens of the United States, Nov. 15, +1802; _Writings_: Conway, iii, 381.) + +"Did not the American Revolution produce the French Revolution? And did +not the French Revolution produce all the Calamities and Desolations to +the human Race and the whole Globe ever since?" (Adams to Rush, Aug. 28, +1811; _Old Family Letters_, 352.) + +"Many of ... the leaders [of the French Revolution] have imbibed their +principles in America, and all have been fired by our example." +(Gouverneur Morris to Washington, Paris, April 29, 1789; _Cor. Rev._: +Sparks, iv, 256.) + +"All the friends of freedom on this side the Atlantic are now rejoicing +for an event which ... has been accelerated by the American +Revolution.... You have been the means of raising that spirit in Europe +which ... will ... extinguish every remain of that barbarous servitude +under which all the European nations, in a less ... degree, have so long +been subject." (Catharine M. Graham to Washington, Berks (England), Oct. +1789; _ib._, 284; and see Cobbett, i, 97.) + +[2] See vol. I, chap. VIII, of this work. + +[3] Marshall, ii, 155. "The mad harangues of the [French] National +Convention were all translated and circulated through the States. The +enthusiasm they excited it is impossible for me to describe." (Cobbett +in "Summary View"; Cobbett, i, 98.) + +[4] Jefferson to Humphreys, March 18, 1789; _Works_: Ford, v, 467. + +[5] Jefferson to Madison, Aug. 28, 1789; _ib._, 490. + +[6] _Boston Gazette_, Sept. 7 and Nov. 30, 1789; as quoted in Hazen; and +see Hazen, 142-43. + +[7] Gouverneur Morris to Washington, Paris, April 29, 1789; _Cor. Rev._: +Sparks, iv, 256. Even Jefferson had doubted French capacity for +self-government because of what he described as French light-mindedness. +(Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 263; also see +vol. I, chap. VIII, of this work.) + +[8] Morris to Washington, July 31, 1789; _Cor. Rev._: Sparks, iv, 270. + +[9] Lafayette to Washington, May 25, 1788; _Cor. Rev._: Sparks, iv, 216. +Lafayette's letters to Washington, from the beginning of the French +Revolution down to his humiliating expulsion from France, constitute a +thermometer of French temperature, all the more trustworthy because his +letters are so naïve. For example, in March, 1790: "Our revolution is +getting on as well as it can, with a nation that has swallowed liberty +at once, and is still liable to mistake licentiousness for freedom." Or, +in August of the same year: "I have lately lost some of my favor with +the mob, and displeased the frantic lovers of licentiousness, as I am +bent on establishing a legal subordination." Or, six months later: "I +still am tossed about in the ocean of factions and commotions of every +kind." Or, two months afterwards: "There appears a kind of phenomenon in +my situation; all parties against me, and a national popularity which, +in spite of every effort, has been unshakable." (Lafayette to +Washington, March 17, 1790; _ib._, 321; Aug. 28, _ib._, 345; March 7, +1791, _ib._, 361; May 3, 1791, _ib._, 372.) + +[10] G. Morris to R. Morris, Dec. 24, 1792; Morris, ii, 15. + +[11] _Ib._, i, 582-84. + +[12] Louis Otto to De Montmorin, March 10, 1792; _Writings_: Conway, +iii, 153. + +[13] _Ib._, 154-56. + +[14] Morris associated with the nobility in France and accepted the +aristocratic view. (_Ib._; and see A. Esmein, Membre de l'Institut: +_Gouverneur Morris, un témoin américain de la révolution française_, +Paris, 1906.) + +[15] Marshall, ii, note xvi, p. 17. + +[16] Recent investigation establishes the fact that the inmates of the +Bastille generally found themselves very well off indeed. The records of +this celebrated prison show that even prisoners of mean station, when +incarcerated for so grave a crime as conspiracy against the King's life, +had, in addition to remarkably abundant meals, an astonishing amount of +extra viands and refreshments including comfortable quantities of wine, +brandy, and beer. Prisoners of higher station fared still more +generously, of course. (Funck-Brentano: _Legends of the Bastille_, +85-113; see also _ib._, introduction.) It should be said, however, that +the _lettres de cachet_ were a chief cause of complaint, although the +stories, generally exaggerated, concerning the cruel treatment of +prisoners came to be the principal count of the public indictment of the +Bastille. + +[17] Lafayette to Washington, March 17, 1790; _Cor. Rev._: Sparks, iv, +322. + +[18] Washington to Lafayette, August 11, 1790; _Writings:_ Ford, xi, +493. + +[19] Paine to Washington, May 1, 1790; _Cor. Rev._: Sparks, iv, 328. +Paine did not, personally, bring the key, but forwarded it from London. + +[20] Burke in the House of Commons; _Works_: Burke, i, 451-53. + +[21] _Ib._ + +[22] _Reflections on the Revolution in France_; _ib._, i, 489. Jefferson +well stated the American radical opinion of Burke: "The Revolution of +France does not astonish me so much as the Revolution of Mr. Burke.... +How mortifying that this evidence of the rottenness of his mind must +oblige us now to ascribe to wicked motives those actions of his life +which were the mark of virtue & patriotism." (Jefferson to Vaughan, May +11, 1791; _Works_: Ford, vi, 260.) + +[23] Paine had not yet lost his immense popularity in the United States. +While, later, he came to be looked upon with horror by great numbers of +people, he enjoyed the regard and admiration of nearly everybody in +America at the time his _Rights of Man_ appeared. + +[24] _Writings_: Conway, ii, 272. + +[25] _Writings_: Conway, ii, 406. At this very moment the sympathizers +with the French Revolution in America were saying exactly the reverse. + +[26] _Writings_: Conway, ii, 278-79, 407, 408, 413, 910. + +[27] Compare with Jefferson's celebrated letter to Mazzei (_infra_, +chap. VII). Jefferson was now, however, in Washington's Cabinet. + +[28] Jefferson to Paine, June 19, 1792; _Works_: Ford, vii, 121-22; and +see Hazen, 157-60. Jefferson had, two years before, expressed precisely +the views set forth in Paine's _Rights of Man_. Indeed, he stated them +in even more startling terms. (See Jefferson to Madison, Sept. 6, 1789; +_ib._, vi, 1-11.) + +[29] _Writings, J. Q. A._: Ford, i, 65-110. John Quincy Adams wrote +these admirable essays when he was twenty-four years old. Their logic, +wit, and style suggest the writer's incomparable mother. Madison, who +remarked their quality, wrote to Jefferson: "There is more of method ... +in the arguments, and much less of clumsiness & heaviness in the style, +than characterizes his [John Adams's] writings." (Madison to Jefferson, +July 13, 1791; _Writings_: Hunt, vi, 56.) + +The sagacious industry of Mr. Worthington C. Ford has made these and all +the other invaluable papers of the younger Adams accessible, in his +_Writings of John Quincy Adams_ now issuing. + +[30] Jefferson to Adams, July 17, 1791; _Works_: Ford, vi, 283, and +footnote; also see Jefferson to Washington, May 8, 1791; _ib._, 255-56. + +Jefferson wrote Washington and the elder Adams, trying to evade his +patronage of Paine's pamphlet; but, as Mr. Ford moderately remarks, +"the explanation was somewhat lame." (_Writings, J. Q. A._: Ford, i, 65; +and see Hazen, 156-57.) Later Jefferson avowed that "Mr. Paine's +principles ... were the principles of the citizens of the U. S." +(Jefferson to Adams, Aug. 30, 1791; _Works_: Ford, vi, 314.) To his +intimate friend, Monroe, Jefferson wrote that "Publicola, in attacking +all Paine's principles, is very desirous of involving me in the same +censure with the author. I certainly merit the same, for I profess the +same principles." (Jefferson to Monroe, July 10, 1791; _ib._, 280.) + +Jefferson at this time was just on the threshold of his discovery of and +campaign against the "deep-laid plans" of Hamilton and the Nationalists +to transform the newborn Republic into a monarchy and to deliver the +hard-won "liberties" of the people into the rapacious hands of +"monocrats," "stockjobbers," and other "plunderers" of the public. (See +next chapter.) + +[31] _Writings, J. Q. A._: Ford, i, 65-66. + +[32] Although John Quincy Adams had just been admitted to the bar, he +was still a student in the law office of Theophilus Parsons at the time +he wrote the Publicola papers. + +[33] _Writings, J. Q. A._: Ford, i, 65-110. + +[34] _Writings, J. Q. A._: Ford, i, footnote to 107. + +"As soon as Publicola attacked Paine, swarms appeared in his defense.... +Instantly a host of writers attacked Publicola in support of those +[Paine's] principles." (Jefferson to Adams, Aug. 30, 1791; _Works_: +Ford, vi, 314; and see Jefferson to Madison, July 10, 1791; _ib._, 279.) + +[35] _Writings, J. Q. A._: Ford, i, 110. + +[36] Madison to Jefferson, July 13, 1791; _Writings_; Hunt, vi, 56; and +see Monroe to Jefferson, July 25, 1791; Monroe's _Writings_: Hamilton, +i, 225-26. + +[37] A verse of a song by French Revolutionary enthusiasts at a Boston +"CIVIC FESTIVAL in commemoration of the SUCCESSES of their French +brethren in their glorious enterprise for the ESTABLISHMENT of EQUAL +LIBERTY," as a newspaper describes the meeting, expresses in reserved +and moderate fashion the popular feeling:-- + + "See the bright flame arise, + In yonder Eastern skies + Spreading in veins; + 'T is pure Democracy + Setting all Nations free + Melting their chains." + +At this celebration an ox with gilded horns, one bearing the French flag +and the other the American; carts of bread and two or three hogsheads of +rum; and other devices of fancy and provisions for good cheer were the +material evidence of the radical spirit. (See _Columbian Centinel_, Jan. +26, 1793.) + +[38] It is certain that Madison could not possibly have continued in +public life if he had remained a conservative and a Nationalist. (See +next chapter.) + +[39] Marshall, ii, 239. + +[40] Jefferson to Martha Jefferson Randolph, May 26, 1793; _Works_: +Ford, vii, 345. + +[41] Marshall, ii, 249-51. + +[42] Marshall, ii, 251-52. + +[43] Jefferson to T. M. Randolph, Jan. 7, 1793; _Works_: Ford, vii, 207. + +[44] Mass. Hist. Collections (7th Series), i, 138. + +[45] Typical excerpts from Short's reports to Jefferson are: July 20, +1792: "Those mad & corrupted people in France who under the name of +liberty have destroyed their own government [French Constitution of +1791] & disgusted all ... men of honesty & property.... All the rights +of humanity ... are daily violated with impunity ... universal anarchy +prevails.... There is no succour ... against mobs & factions which have +assumed despotic power." + +July 31: "The factions which have lately determined the system ... for +violating all the bonds of civil society ... have disgusted all, except +the _sans culottes_ ... with the present order of things ... the most +perfect & universal disorder that ever reigned in any country. Those who +from the beginning took part in the revolution ... have been disgusted, +by the follies, injustice, & atrocities of the Jacobins.... All power +[is] in the hands of the most mad, wicked & atrocious assembly that ever +was collected in any country." + +August 15: "The Swiss guards have been massacred by the people & ... +streets literally are red with blood." + +October 12: "Their [French] successes abroad are unquestionably evils +for humanity. The spirit which they will propagate is so destructive of +all order ... so subversive of all ideas of justice--the system they aim +at so absolutely visionary & impracticable--that their efforts can end +in nothing but despotism after having bewildered the unfortunate people, +whom they render free in their way, in violence & crimes, & wearied them +with sacrifices of blood, which alone they consider worthy of the furies +whom they worship under the names of _Liberté_ & _Egalité_!" + +August 24: "I sh^d. not be at all surprized to hear of the present +leaders being hung by the people. Such has been the moral of this +revolution from the beginning. The people have gone farther than their +leaders.... We may expect ... to hear of such proceedings, under the +cloak of liberty, _égalité_ & patriotism as would disgrace any _chambre +ardente_ that has ever created in humanity shudders at the idea." (Short +MSS., Lib. Cong.) + +These are examples of the statements to which Jefferson's letter, quoted +in the text following, was the reply. Short's most valuable letters are +from The Hague, to which he had been transferred. They are all the more +important, as coming from a young radical whom events in France had +changed into a conservative. And Jefferson's letter is conclusive of +American popular sentiment, which he seldom opposed. + +[46] Almost at the same time Thomas Paine was writing to Jefferson from +Paris of "the Jacobins who act without either prudence or morality." +(Paine to Jefferson, April 20, 1793; _Writings_: Conway, iii, 132.) + +[47] Jefferson to Short, Jan. 3, 1793; _Works_: Ford, vii, 202-05. Short +had written Jefferson that Morris, then in Paris, would inform him of +French conditions. Morris had done so. For instance, he wrote officially +to Jefferson, nearly four months before the latter's letter to Short +quoted in the text, that: "We have had one week of unchecked murders, in +which some thousands have perished in this city [Paris]. It began with +between two and three hundred of the clergy, who would not take the oath +prescribed by law. Thence these _executors of speedy justice_ went to +the Abbaye, where the prisoners were confined who were at Court on the +10th. Madame de Lamballe ... was beheaded and disembowelled; the head +and entrails paraded on pikes through the street, and the body dragged +after them," etc., etc. (Morris to Jefferson, Sept. 10, 1792; Morris, i, +583-84.) + +[48] Madison to Jefferson, June 17, 1793; _Writings_: Hunt, vi, 133. + +[49] Paine to Danton, May 6, 1793; _Writings_: Conway, iii, 135-38. + +[50] "Truth," in the _General Advertiser_ (Philadelphia), May 8, 1793. +"Truth" denied that Louis XVI had aided us in our Revolution and +insisted that it was the French Nation that had come to our assistance. +Such was the disregard of the times for even the greatest of historic +facts, and facts within the personal knowledge of nine tenths of the +people then living. + +[51] See _Writings, J. Q. A._: Ford, i, 151. + +[52] Jefferson to Madison, April 28, 1793; _Works_: Ford, vii, 301. + +[53] For examples of these, see Hazen, 220-45. + +[54] Graydon, 363. + +[55] Freneau's _National Gazette_ defended the execution of the King and +the excesses of the Terror. (Hazen, 256; and see Cobbett, iii, 4.) While +Cobbett, an Englishman, was a fanatic against the whole democratic +movement, and while his opinions are violently prejudiced, his +statements of fact are generally trustworthy. "I have seen a bundle of +Gazettes published all by the same man, wherein Mirabeau, Fayette, +Brissot, Danton, Robespierre, and Barras, are all panegyrized and +execrated in due succession." (_Ib._, i, 116.) Cobbett did his best to +turn the radical tide, but to no purpose. "Alas!" he exclaimed, "what +can a straggling pamphlet ... do against a hundred thousand volumes of +miscellaneous falsehood in folio?" (_Ib._, iii, 5.) + +[56] See next chapter. + +[57] Fenno to Hamilton, Nov. 9, 1793; King, i, 501-02. "The hand of +benevolence & _patriotism_" was extended, it appears: "If you can ... +raise 1000 Dollars in New York, I will endeavor to raise another +Thousand at Philadelphia. If this cannot be done, we must lose his +[Fenno's and the _Gazette of the United States_] services & he will be +the Victim of his honest public spirit." (Hamilton to King, Nov. 11, +1793; King, i, 502.) + +[58] Cobbett, i, footnote to 114. Curiously enough Louis XVI had +believed that he was leading the French people in the reform movement. +Thomas Paine, who was then in Paris, records that "The King ... prides +himself on being the head of the revolution." (Paine to Washington, May +1, 1790; _Cor. Rev._: Sparks, iv, 328.) + +[59] Cobbett, i, 113-14; and see Hazen, 258. For other accounts of the +"feasts" in honor of _liberté, égalité, et fraternité_, in America, see +_ib._, 165-73. + +[60] Cobbett, i, 113. + +[61] For instance, the younger Adams wrote that the French Revolution +had "contributed more to ... Vandalic ignorance than whole centuries can +retrieve.... The myrmidons of Robespierre were as ready to burn +libraries as the followers of Omar; and if the principle is finally to +prevail which puts the sceptre of Sovereignty in the hands of European +Sans Culottes, they will soon reduce everything to the level of their +own ignorance." (John Quincy Adams to his father, July 27, 1795; +_Writings, J. Q. A._: Ford, i, 389.) + +And James A. Bayard wrote that: "The Barbarians who inundated the Roman +Empire and broke to pieces the institutions of the civilized world, in +my opinion innovated the state of things not more than the French +revolution." (Bayard to Bassett, Dec. 30, 1797; _Bayard Papers_: Donnan, +47.) + +[62] Freneau, iii, 86. + +[63] Marshall, ii, 387. + +[64] Austria. + +[65] Marshall, ii, 387. + +[66] "They have long considered the M^{is} de lafayette as really the +firmest supporter of the principles of liberty in France--& as they are +for the most part no friends to these principles anywhere, they cannot +conceal the pleasure they [the aristocracy at The Hague] feel at their +[principles of liberty] supporters' being thus expelled from the country +where he laboured to establish them." (Short to Jefferson, Aug. 24, +1792; Short MSS., Lib. Cong.) + +[67] Cobbett, i, 112. + +[68] _Ib._ When the corporation of New York City thus took all monarchy +out of its streets, Noah Webster suggested that, logically, the city +ought to get rid of "this vile aristocratical name New York"; and, why +not, inquired he, change the name of Kings County, Queens County, and +Orange County? "Nay," exclaimed the sarcastic savant, "what will become +of the people named King? Alas for the liberties of such people!" +(Hazen, 216.) + +[69] Hazen, 218. + +[70] J. Q. Adams, to T. B. Adams, Feb. 1, 1792; _Writings, J. Q. A._: +Ford, i, 111-13. + +[71] Stuart to Washington, July 14, 1789; _Cor. Rev._: Sparks, iv, +265-66; and see Randolph to Madison, May 19, 1789; Conway, 124. + +[72] See Hazen, 209-15. + +[73] _Ib._, 213. + +[74] See Hazen, 215. + +[75] Cobbett, i, 111. + +[76] For an impartial and comprehensive account of these clubs see +Hazen, 188-208; also, Marshall, ii, 269 _et seq._ At first many +excellent and prominent men were members; but these withdrew when the +clubs fell under the control of less unselfish and high-minded persons. + +[77] Washington to Thruston, Aug. 10, 1794; _Writings_: Ford, xii, 451. + +[78] Washington to Randolph, Oct. 16, 1794; _ib._, 475; and see +Washington to Lee, Aug. 26, 1794; _ib._, 455. + +[79] Cabot to Parsons, Aug. 12, 1794; Lodge: _Cabot_, 79. + +[80] J. Q. Adams to John Adams, Oct. 19, 1790; _Writings, J. Q. A._: +Ford, i, 64. + +[81] Jefferson to Rutledge, Aug. 29, 1791; _Works_: Ford, vi, 309. + +[82] See Hazen, 203-07. + +[83] September 18, 1794. + +[84] Ames to Dwight, Sept. 11, 1794; _Works_: Ames, i, 150. + +[85] Cabot to King, July 25, 1795; Lodge: _Cabot_, 80. + +[86] Ames to Gore, March 26, 1794; _Works_: Ames, i, 139. + +[87] Ames to Minot, Feb. 20, 1793; _ib._, 128. + +[88] Ames to Gore, Jan. 28, 1794; _ib._, 134. + +[89] Ames to Dwight, Sept. 3, 1794; _ib._, 148. + +[90] Henry to Washington, Oct. 16, 1795; Henry, ii, 559. + +[91] _Ib._, 576. + +[92] Marshall, ii, 353. + +[93] _Ib._, 269. + +[94] Marshall, ii, 353-54. + + + + +CHAPTER II + +A VIRGINIA NATIONALIST + + Lace Congress up straitly within the enumerated powers. + (Jefferson.) + + Construe the constitution liberally in advancement of the common + good. (Hamilton.) + + To organize government, to retrieve the national character, to + establish a system of revenue, to create public credit, were among + the duties imposed upon them. (Marshall.) + + I trust in that Providence which has saved us in six troubles, + yea, in seven, to rescue us again. (Washington.) + + +The Constitution's narrow escape from defeat in the State Conventions +did not end the struggle against the National principle that pervaded +it.[95] The Anti-Nationalists put forth all their strength to send to +the State Legislatures and to the National House and Senate as many +antagonists of the National idea as possible.[96] "Exertions will be +made to engage two thirds of the legislatures in the task of regularly +undermining the government" was Madison's "hint" to Hamilton.[97] + +Madison cautioned Washington to the same effect, suggesting that a still +more ominous part of the plan was "to get a Congress appointed in the +first instance that will commit suicide on their own Authority."[98] +Not yet had the timorous Madison personally felt the burly hand of the +sovereign people so soon to fall upon him. Not yet had he undergone that +familiar reversal of principles wrought in those politicians who keep an +ear to the ground. But that change was swiftly approaching. Even then +the _vox populi_ was filling the political heavens with a clamor not to +be denied by the ambitious. The sentiment of the people required only an +organizer to become formidable and finally omnipotent. + +Such an artisan of public opinion was soon to appear. Indeed, the master +political potter was even then about to start for America where the clay +for an Anti-Nationalist Party was almost kneaded for the moulder's +hands. Jefferson was preparing to leave France; and not many months +later the great politician landed on his native soil and among his +fellow citizens, who, however, welcomed him none too ardently.[99] + +No one knew just where Jefferson stood on the fundamental question of +the hour when, with his two daughters, he arrived in Virginia in 1789. +The brilliant Virginian had uttered both Nationalist and +Anti-Nationalist sentiments. "I am not of the party of the Federalists," +he protested, "but I am much farther from that of the Antifederalists." +Indeed, declared Jefferson, "If I could not go to heaven but with a +party, I would not go there at all."[100] + +His first opinions of the Constitution were, as we have seen, +unfavorable. But after he had learned that the new Government was to be +a fact, Jefferson wrote Washington: "I have seen with infinite pleasure +our new constitution accepted." Careful study had taught him, he said, +"that circumstances may arise, and probably will arise, wherein all the +resources of taxation will be necessary for the safety of the state." He +saw probability of war which "requires every resource of taxation & +credit." He thought that "the power of making war often prevents +it."[101] + +Thus Jefferson could be quoted on both sides and claimed by neither or +by both. But, because of his absence in France and of the reports he had +received from the then extreme Nationalist, Madison, he had not yet +apprehended the people's animosity to National rule. Upon his arrival in +Virginia, however, he discovered that "Antifederalism is not yet dead +in this country."[102] That much, indeed, was clear at first sight. The +Legislature of Virginia, which met three months after her Convention had +ratified the Constitution, was determined to undo that work, as Madison +had foreseen.[103] + +That body was militantly against the new Government as it stood. "The +conflict between the powers of the general and state governments was +coeval with those governments," declares Marshall. "The old line of +division was still as strongly marked as ever." The enemies of National +power thought that "liberty could be endangered only by encroachments +upon the states; and that it was the great duty of patriotism to +restrain the powers of the general government within the narrowest +possible limits." On the other hand, the Nationalists, says Marshall, +"sincerely believed that the real danger which threatened the republic +was to be looked for in the undue ascendency of the states."[104] + +[Illustration: _John Marshall From a painting by E. F. Petticolas_] + +Patrick Henry was supreme in the House of Delegates. Washington was +vastly concerned at the prospect. He feared that the enemies of +Nationalism would control the State Legislature and that it would +respond to New York's appeal for a new Federal Constitutional +Convention. He was "particularly alarmed" that the General Assembly +would elect Senators "entirely anti-Federal."[105] His apprehension was +justified. Hardly a week passed after the House convened until it passed +resolutions, drawn by Henry,[106] to answer Clinton's letter, to ask +Congress to call a new Federal Convention, and to coöperate with other +States in that business. + +In vain did the Nationalist members strive to soften this resolution. An +amendment which went so far as to request Congress to recommend to the +several States "the ratification of a bill of rights" and of the twenty +amendments proposed by the Virginia Convention, was defeated by a +majority of 46 out of a total vote of 124.[107] Swiftly and without +mercy the triumphant opposition struck its next blow. Washington had +urged Madison to stand for the Senate,[108] and the Nationalists exerted +themselves to elect him. Madison wrote cleverly in his own behalf.[109] +But he had no hope of success because it was "certain that a clear +majority of the assembly are enemies to the Gov^t."[110] Madison was +still the ultra-Nationalist, who, five years earlier, had wanted the +National Government to have an absolute veto on _every_ State law.[111] + +Henry delivered "a tremendous philippic" against Madison as soon as his +name was placed before the General Assembly.[112] Madison was badly +beaten, and Richard Henry Lee and William Grayson were chosen as the +first Senators from Virginia under the new National Government.[113] The +defeated champion of the Constitution attributed Henry's attack and his +own misfortune to his Nationalist principles: Henry's "enmity was +levelled ... ag^{st} the _whole system_; and the destruction of the +whole system, I take to be the secret wish of his heart."[114] + +In such fashion did Madison receive his first chastisement for his +Nationalist views and labors. He required no further discipline of a +kind so rough and humiliating; and he sought and secured election to the +National House of Representatives,[115] with opinions much subdued and +his whole being made pliant for the wizard who so soon was to invoke his +spell over that master mind. + +Though Marshall was not in the Virginia Legislature at that session, it +is certain that he worked with its members for Madison's election as +Senator. But even Marshall's persuasiveness was unavailing. "Nothing," +wrote Randolph to Madison, "is left undone which can tend to the +subversion of the new government."[116] + +Hard upon its defeat of Madison the Legislature adopted an ominous +address to Congress. "The sooner ... the [National] government is +possessed of the confidence of the people ... _the longer its +duration_"--such was the language and spirit of Virginia's message to +the lawmakers of the Nation, even before they had assembled.[117] The +desperate Nationalists sought to break the force of this blow. They +proposed a substitute which even suggested that the widely demanded new +Federal Convention should be called by Congress if that body thought +best. But all to no purpose. Their solemn[118] amendment was beaten by a +majority of 22 out of a total vote of 122.[119] + +Thus again was displayed that hostility to Nationalism which was to +focus upon the newborn National Government every burning ray of +discontent from the flames that sprang up all over the country during +the constructive but riotous years that followed. Were the people taxed +to pay obligations incurred in our War for Independence?--the National +Government was to blame. Was an excise laid on whiskey, "the common +drink of the nation"[120]--it was the National Government which thus +wrung tribute from the universal thirst. Were those who owed debts +compelled, at last, to pay them?--it was the National Government which +armed the creditor with power to recover his own. + +Why did we not aid French Republicans against the hordes of "despotism"? +Because the National Government, with its accursed Neutrality, would not +let us! And who but the National Government would dare make a treaty +with British Monarchy, sacrificing American rights? Speculation and +corruption, parade and ostentation,--everything that could, reasonably +or unreasonably, be complained of,--were, avowed the Anti-Nationalists, +the wretched but legitimate offspring of Nationalism. The remedy, of +course, was to weaken the power of the Nation and strengthen that of the +States. Such was the course pursued by the foes of Nationalism, that we +shall trace during the first three administrations of the Government of +the United States. + +Thus, the events that took place between 1790 and 1800, supplemented and +heated by the French Revolution, developed to their full stature those +antagonistic theories of which John Marshall and Thomas Jefferson were +to become the chief expounders. Those events also finished the +preparation of these two men for the commanding stations they were to +occupy. The radical politician and States' Rights leader on the one +hand, and the conservative politician and Nationalist jurist on the +other hand, were finally settled in their opinions during these +developing years, at the end of which one of them was to occupy the +highest executive office and the other the highest judicial office in +the Government. + +It was under such circumstances that the National Government, with +Washington at its head, began its uncertain career. If the Legislature +of Virginia had gone so far before the infant National establishment was +under way, how far might not succeeding Legislatures go? No one knew. +But it was plain to all that every act of the new Administration, even +with Washington at the helm, would be watched with keen and jealous +eyes; and that each Nationalist turn of the wheel would meet with prompt +and stern resistance in the General Assembly of the greatest of American +Commonwealths. Mutiny was already aboard. + +John Marshall, therefore, determined again to seek election to the House +of Delegates. + +Immediately upon the organization of the National Government, Washington +appointed Marshall to be United States Attorney for the District of +Virginia. The young lawyer's friends had suggested his name to the +President, intimating that he wished the place.[121] Marshall, high in +the esteem of every one, had been consulted as to appointments on the +National bench,[122] and Washington gladly named him for District +Attorney. But when notified of his appointment, Marshall declined the +honor. + +A seat in the Virginia Legislature, was, however, quite another matter. +Although his work as a legislator would interfere with his profession +much more than would his duties as United States Attorney, he could be +of practical service to the National Government in the General Assembly +of the State where, it was plain, the first battle for Nationalism must +be fought. + +The Virginia Nationalists, much alarmed, urged him to make the race. The +most popular man in Richmond, he was the only Nationalist who could be +elected by that constituency; and, if chosen, would be the ablest +supporter of the Administration in the Legislature. Although the people +of Henrico County were more strongly against a powerful National +Government than they had been when they sent Marshall to the +Constitutional Convention the previous year, they nevertheless elected +him; and in 1789 Marshall once more took his seat as a member of +Virginia's law-making and law-marring body. + +He was at once given his old place on the two principal standing +committees;[123] and on special committees to bring in various +bills,[124] among them one concerning descents, a difficult subject and +of particular concern to Virginians at that time.[125] As a member of +the Committee of Privileges and Elections, he passed on a hotly +contested election case.[126] He was made a member of the important +special committee to report upon the whole body of laws in force in +Virginia, and helped to draw the committee's report, which is +comprehensive and able.[127] The following year he was appointed a +member of the committee to revise the tangled laws of the +Commonwealth.[128] + +The irrepressible subject of paying taxes in something else than money +soon came up. Marshall voted against a proposition to pay the taxes in +hemp and tobacco, which was defeated by a majority of 37 out of a total +vote of 139; and he voted for the resolution "that the taxes of the +present year ought to be paid in specie only or in warrants equivalent +thereto," which carried.[129] He was added to the committee on a notable +divorce case.[130] + +Marshall was, of course, appointed on the special committee to bring in +a bill giving statehood to the District of Kentucky.[131] Thus he had to +do with the creation of the second State to be admitted after the +Constitution was adopted. A bill was passed authorizing a lottery to +raise money to establish an academy in Marshall's home county, +Fauquier.[132] He voted with the majority against the perennial Baptist +petition to democratize religion;[133] and for the bill to sell lands +for taxes.[134] + +Marshall was appointed on the committee to bring in bills for proceeding +against absent debtors;[135] on another to amend the penal code;[136] +and he was made chairman of the special committee to examine the James +River Company,[137] of which he was a stockholder. Such are examples of +his routine activities in the Legislature of 1789. + +The Legislature instructed the Virginia Senators in Congress "to use +their utmost endeavors to procure the admission of the citizens of the +United States to hear the debates of their House, whenever they are +sitting in their legislative capacity."[138] + +An address glowing with love, confidence, and veneration was sent to +Washington.[139] Then Jefferson came to Richmond; and the Legislature +appointed a committee to greet him with polite but coldly formal +congratulations.[140] No one then foresaw that a few short years would +turn the reverence and affection for Washington into disrespect and +hostility, and the indifference toward Jefferson into fiery enthusiasm. + +The first skirmish in the engagement between the friends and foes of a +stronger National Government soon came on. On November 30, 1789, the +House ratified the first twelve amendments to the Constitution,[141] +which the new Congress had submitted to the States; but three days later +it was proposed that the Legislature urge Congress to reconsider the +amendments recommended by Virginia which Congress had not adopted.[142] +An attempt to make this resolution stronger was defeated by the deciding +vote of the Speaker, Marshall voting against it.[143] + +The Anti-Nationalist State Senate refused to concur in the House's +ratification of the amendments proposed by Congress;[144] and Marshall +was one of the committee to hold a conference with the Senate committee +on the subject. + +After Congress had passed the laws necessary to set the National +Government in motion, Madison had reluctantly offered his summary of the +volume of amendments to the Constitution recommended by the States "in +order," as he said, "to quiet that anxiety which prevails in the public +mind."[145] The debate is illuminating. The amendments, as agreed to, +fell far short of the radical and extensive alterations which the States +had asked and were understood to be palliatives to popular +discontent.[146] + +Randolph in Richmond wrote that the amendments were "much approved by +the _strong_ federalists ... being considered as an anodyne to the +discontented. Some others ... expect to hear, ... that a real +amelioration of the Constitution was not so much intended, as a +soporific draught to the restless. I believe, indeed," declared +Randolph, "that nothing--nay, not even the abolishment of direct +taxation--would satisfy those who are most clamorous."[147] + +The amendments were used by many, who changed from advocates to +opponents of broad National powers, as a pretext for reversed views and +conduct; but such as were actually adopted were not a sufficient +justification for their action.[148] + +The great question, however, with which the First Congress had to deal, +was the vexed and vital problem of finance. It was the heart of the +whole constitutional movement.[149] Without a solution of it the +National Government was, at best, a doubtful experiment. The public debt +was a chaos of variegated obligations, including the foreign and +domestic debts contracted by the Confederation, the debts of the various +States, the heavy accumulation of interest on all.[150] Public and +private credit, which had risen when the Constitution finally became an +accomplished fact, was now declining with capital's frail timidity of +the uncertain. + +In his "First Report on the Public Credit," Hamilton showed the way out +of this maddening jungle. Pay the foreign debt, said Hamilton, assume as +a National obligation the debts of the States and fund them, together +with those of the Confederation. All had been contracted for a common +purpose in a common cause; all were "the price of liberty." Let the +owners of certificates, both State and Continental, be paid in full +with arrears of interest, without discrimination between original +holders and those who had purchased from them. And let this be done +by exchanging for the old certificates those of the new National +Government bearing interest and transferable. These latter then would +pass as specie;[151] the country would be supplied with a great volume +of sound money, so badly needed,[152] and the debt be in the process +of extinguishment.[153] + +Hamilton's entire financial system was assailed with fury both in +Congress and among the people. The funding plan, said its opponents, was +a stock-jobbing scheme, the bank a speculator's contrivance, the +National Assumption of State debts a dishonest trick. The whole was a +plot designed to array the moneyed interests in support of the National +Government.[154] Assumption of State debts was a device to increase the +National power and influence and to lessen still more the strength and +importance of the States.[155] The speculators, who had bought the +depreciated certificates of the needy, would be enriched from the +substance of the whole people. + +Without avail had Hamilton answered every objection in advance; the +careful explanations in Congress of his financial measures went for +naught; the materials for popular agitation against the National +Government were too precious to be neglected by its foes.[156] "The +first regular and systematic opposition to the principles on which the +affairs of the union were administered," writes Marshall, "originated in +the measures which were founded on it [the "First Report on the Public +Credit"]."[157] + +The Assumption of State debts was the strategic point of attack, +especially for the Virginia politicians; and upon Assumption, therefore, +they wisely concentrated their forces. Nor were they without plausible +ground of opposition; for Virginia, having given as much to the common +cause as any State and more than most of her sisters, and having +suffered greatly, had by the sale of her public lands paid off more of +her debt than had any of the rest of them. + +It seemed, therefore, unjust to Virginians to put their State on a +parity with those Commonwealths who had been less prompt. On the other +hand, the certificates of debt, State and Continental, had accumulated +in the North and East;[158] and these sections were determined that the +debt should be assumed by the Nation.[159] So the debate in Congress was +heated and prolonged, the decision doubtful. On various amendments, +sometimes one side and sometimes the other prevailed, often by a single +vote.[160] + +At the same time the question of the permanent location of the National +Capital arose.[161] On these two subjects Congress was deadlocked. Both +were disposed of finally by the famous deal between Jefferson and +Hamilton, by which the latter agreed to get enough votes to establish +the Capital on the Potomac and the former enough votes to pass the +Assumption Bill. + +Washington had made Jefferson his Secretary of State purely on merit. +For similar reasons of efficiency Hamilton had been appointed Secretary +of the Treasury, after Robert Morris, Washington's first choice, had +declined that office. + +At Jefferson's dinner table, the two Secretaries discussed the +predicament and made the bargain. Thereupon, Jefferson, with all the +zeal of his ardent temperament, threw himself into the contest to pass +Hamilton's financial measure; and not only secured the necessary votes +to make Assumption a law, but wrote letters broadcast in support of it. + +"Congress has been long embarrassed," he advised Monroe, "by two of the +most irritating questions that ever can be raised, ... the funding the +public debt and ... the fixing on a more central residence.... Unless +they can be reconciled by some plan of compromise, there will be no +funding bill agreed to, our credit ... will burst and vanish and the +states separate to take care every one of itself." Jefferson outlines +the bargain for fixing the Capital and assuming the debts, and +concludes: "If this plan of compromise does not take place, I fear one +infinitely worse."[162] To John Harvie he writes: "With respect to +Virginia the measure is ... divested of ... injustice."[163] + +Jefferson delivered three Southern votes to pass the bill for Assumption +of the State debts, and Hamilton got enough Northern votes to locate the +National Capital permanently where it now stands.[164] Thus this vital +part of Hamilton's comprehensive financial plan was squeezed through +Congress by only two votes.[165] But Virginia was not appeased and +remained the center of the opposition.[166] + +Business at once improved. "The sudden increase of monied capital," +writes Marshall, "invigorated commerce, and gave a new stimulus to +agriculture."[167] But the "immense wealth which individuals acquired" +by the instantaneous rise in the value of the certificates of debt +caused popular jealousy and discontent. The debt was looked upon, not as +the funding of obligations incurred in our War for Independence, but as +a scheme newly hatched to strengthen the National Government by "the +creation of a monied interest ... subservient to its will."[168] + +The Virginia Legislature, of which Marshall was now the foremost +Nationalist member, convened soon after Assumption had become a National +law. A smashing resolution, drawn by Henry,[169] was proposed, asserting +that Assumption "is repugnant to the constitution of the United States, +as it goes to the exercise of a power not expressly granted to the +general government."[170] Marshall was active among and, indeed, led +those who resisted to the uttermost the attack upon this thoroughly +National measure of the National Government. + +Knowing that they were outnumbered in the Legislature and that the +people were against Assumption, Marshall and his fellow Nationalists in +the House of Delegates employed the expedient of compromise. They +proposed to amend Henry's resolution by stating that Assumption would +place on Virginia a "heavy debt ... which never can be extinguished" so +long as the debt of any other State remained unpaid; that it was +"inconsistent with justice"; that it would "alienate the affections of +good citizens of this Commonwealth from the government of the United +States ... and finally tend to produce measures extremely unfavorable to +the interests of the Union."[171] + +Savage enough for any one, it would seem, was this amendment of the +Nationalists in the Virginia Legislature; but its fangs were not +sufficiently poisonous to suit the opposition. It lacked, particularly, +the supreme virtue of asserting the law's unconstitutionality. So the +Virginia Anti-Nationalists rejected it by a majority of 41 votes out of +a total of 135. + +Marshall and his determined band of Nationalists labored hard to +retrieve this crushing defeat. On Henry's original resolution, they +slightly increased their strength, but were again beaten by a majority +of 23 out of 127 voting.[172] + +Finally, the triumphant opposition reported a protest and remonstrance +to Congress. This brilliant Anti-Nationalist State paper--the Magna +Charta of States' Rights--sounded the first formal call to arms for the +doctrine that all powers not expressly given in the Constitution were +reserved to the States. It also impeached the Assumption Act as an +effort "to erect and concentrate and perpetuate a large monied interest +in opposition to the landed interests," which would prostrate +"agriculture at the feet of commerce" or result in a "change in the +present form of Federal Government, fatal to the existence of American +liberty."[173] + +But the unconstitutionality of Assumption was the main objection. The +memorial declared that "during the whole discussion of the federal +constitution by the convention of Virginia, your memorialists were +taught to believe 'that every power not expressly granted was +retained' ... and upon this positive condition" the Constitution had +been adopted. But where could anything be found in the Constitution +"authorizing Congress to express terms or to assume the debts of the +states?" Nowhere! Therefore, Congress had no such power. + +"As the guardians, then, of the rights and interests of their +constituents; as sentinels placed by them over the ministers of the +Federal Government, to shield it from their encroachments," the +Anti-Nationalists in the Virginia Legislature sounded the alarm.[174] It +was of this jealous temper of the States that Ames so accurately wrote a +year later: "The [National] government is too far off to gain the +affections of the people.... Instead of feeling as a Nation, a State is +our country. We look with indifference, often with hatred, fear, and +aversion, to the other states."[175] + +Marshall and his fellow Nationalists strove earnestly to extract from +the memorial as much venom as possible, but were able to get only three +or four lines left out;[176] and the report was adopted practically as +originally drafted.[177] Thus Marshall was in the first skirmish, after +the National Government had been established, of that constitutional +engagement in which, ultimately, Nationalism was to be challenged on the +field of battle. Sumter and Appomattox were just below the horizon. + +The remainder of Hamilton's financial plan was speedily placed upon the +statute books of the Republic, though not without determined resistance +which, more and more, took on a grim and ugly aspect both in Congress +and throughout the country. + +When Henry's resolution, on which the Virginia remonstrance was based, +reached Hamilton, he instantly saw its logical result. It was, he +thought, the major premise of the syllogism of National disintegration. +"This," exclaimed Hamilton, of the Virginia resolution, "is the first +symptom of a spirit which must either be killed or it will kill the +Constitution of the United States."[178] + +The Anti-Nationalist memorial of the Legislature of Virginia accurately +expressed the sentiment of the State. John Taylor of Caroline two years +later, in pamphlets of marked ability, attacked the Administration's +entire financial system and its management. While he exhaustively +analyzed its economic features, yet he traced all its supposed evils to +the Nationalist idea. The purpose and result of Hamilton's whole plan +and of the manner of its execution was, declared Taylor, to "Swallow +up ... the once sovereign ... states.... Hence all assumptions +and ... the enormous loans." Thus "the state governments will become +only speculative commonwealths to be read for amusement, like +Harrington's _Oceana_ or Moore's _Utopia_."[179] + +The fight apparently over, Marshall declined to become a candidate for +the Legislature in the following year. The Administration's financial +plan was now enacted into law and the vital part of the National +machinery thus set up and in motion. The country was responding with a +degree of prosperity hitherto unknown, and, for the time, all seemed +secure.[180] So Marshall did not again consent to serve in the House of +Delegates until 1795. But the years between these periods of his public +life brought forth events which were determinative of the Nation's +future. Upon the questions growing out of them, John Marshall was one of +the ever-decreasing Virginia minority which stanchly upheld the policies +of the National Government. + +Virginia's declaration of the unconstitutionality of the Assumption Act +had now thundered in Jefferson's ears. He himself was instrumental in +the enactment of this law and its unconstitutionality never occurred to +him[181] until Virginia spoke. But, faithful to the people's voice,[182] +Jefferson was already publicly opposing, through the timid but +resourceful Madison[183] and the fearless and aggressive[184] Giles, the +Nationalist statesmanship of Hamilton.[185] + +Thus it came about that when Washington asked his Cabinet's opinion upon +the bill to incorporate the Bank of the United States, Jefferson +promptly expressed with all his power the constitutional theory of the +Virginia Legislature. The opposition had reached the point when, if no +other objection could be found to any measure of the National +Government, its "unconstitutionality" was urged against it. "We hear, +incessantly, from the old foes of the Constitution 'this is +unconstitutional and that is,' and, indeed, what is not? I scarce know a +point which has not produced this cry, not excepting a motion for +adjourning."[186] Jefferson now proceeded "to produce this cry" against +the Bank Bill. + +Hamilton's plan, said Jefferson, violated the Constitution. "To take a +single step beyond the boundaries thus specially drawn around the powers +of Congress [the Twelfth Amendment][187] is to take possession of a +boundless field of power, no longer susceptible of any definition." Even +if the bank were "convenient" to carry out any power specifically +granted in the Constitution, yet it was not "_necessary_," argued +Jefferson; all powers expressly given could be exercised without the +bank. It was only indispensable powers that the Constitution permitted +to be implied from those definitely bestowed on Congress--"convenience +is not necessity."[188] + +Hamilton answered with his argument for the doctrine of implied +powers.[189] Banks, said he, are products of civilized life--all +enlightened commercial nations have them. He showed the benefits and +utility of banks; answered all the objections to these financial +agencies; and then examined the disputed constitutionality of the bill +for the incorporation of the Bank of the United States. + +All the powers of the National Government were not set down in words in +the Constitution and could not be. For instance, there are the +"resulting powers," as over conquered territory. Nobody could deny the +existence of such powers--yet they were not granted by the language of +the fundamental law. As to Jefferson's argument based on the word +"necessary," his contention meant, said Hamilton, that "no means are to +be considered _necessary_ without which the power would be +_nugatory_"--which was absurd. Jefferson's reasoning would require that +an implied power should be "_absolutely_ or _indispensably_ necessary." + +But this was not the ordinary meaning of the word and it was by this +usual and customary understanding of terms that the Constitution must be +interpreted. If Jefferson was right, Congress could act only in "a case +of extreme necessity." Such a construction of the Constitution would +prevent the National Government even from erecting lighthouses, piers, +and other conveniences of commerce which _could_ be carried on without +them. These illustrations revealed the paralysis of government concealed +in Jefferson's philosophy. + +The true test of implied powers, Hamilton showed, was the "natural +relation [of means] to the ... lawful ends of the government." +Collection of taxes, foreign and interstate trade, were, admittedly, +such ends. The National power to "_regulate_" these is "_sovereign_"; +and therefore "to employ all the means which will relate to their +regulation to the best and greatest advantage" is permissible. + +"This _general principle_ is _inherent_ in the very _definition_ of +government," declared he, "and _essential_ to every step of the progress +to be made by that of the United States, namely: That every power vested +in a government is in its nature _sovereign_ and included by _force_ of +the _term_, a right to employ all the _means_ requisite and fairly +applicable to the attainment of the _ends_ of such power, and which are +not precluded by restrictions and exceptions specified in the +Constitution or not immoral, or not contrary to the _essential_ ends of +political society.... + +"The powers of the Federal Government, as to _its objects_ are +sovereign"; the National Constitution, National laws, and treaties are +expressly declared to be "the supreme law of the land." And he added, +sarcastically: "The power which can create _the supreme law of the land_ +in _any case_ is doubtless _sovereign_ as to such case." But, said +Hamilton, "it is unquestionably incident to _sovereign power_ to erect +corporations, and consequently to _that_ of the United States, in +_relation_ to the _objects_ intrusted to the management of the +government." + +And, finally: "The powers contained in a constitution of government ... +ought to be construed liberally in advancement of the public good.... +The means by which natural exigencies are to be provided for, national +inconveniences obviated, national prosperity promoted are of such +infinite variety, extent, and complexity, that there must of necessity +be great latitude of discretion in the selection and application of +those means."[190] + +So were stated the opposing principles of liberal and narrow +interpretation of the Constitution, about which were gathering those +political parties that, says Marshall, "in their long and dubious +conflict ... have shaken the United States to their centre."[191] The +latter of these parties, under the name "Republican," was then being +shaped into a compact organization. Its strength was increasing. The +object of Republican attack was the National Government; that of +Republican praise and affection was the sovereignty of the States. + +"The hatred of the Jacobites towards the house of Hanover was never more +deadly than that ... borne by many of the partisans of State power +towards the government of the United States," testifies Ames.[192] In +the Republican view the basis of the two parties was faith as against +disbelief in the ability of the people to govern themselves; the former +favored the moneyed interests, the latter appealed to the masses.[193] +Such was the popular doctrine preached by the opponents of the National +Government; but all economic objections centered in a common assault on +Nationalism. + +Thus a clear dividing line was drawn separating the people into two +great political divisions; and political parties, in the present-day +sense of definite organizations upon fundamental and popularly +recognized principles, began to emerge. Henceforth the terms +"Federalist" and "Republican" mean opposing party groups, the one +standing for the National and the other for the provincial idea. The +various issues that arose were referred to the one or the other of these +hostile conceptions of government. + +In this rise of political parties the philosophy of the Constitution was +negatived; for our fundamental law, unlike those of other modern +democracies, was built on the non-party theory and did not contemplate +party government. Its architects did not foresee parties. Indeed, for +several years after the Constitution was adopted, the term "party" was +used as an expression of reproach. The correspondence of the period +teems with illustrations of this important fact. + +For a considerable time most of the leading men of the period looked +with dread upon the growing idea of political parties; and the favorite +rebuke to opponents was to accuse them of being a "party" or a +"faction," those designations being used interchangeably. The "Farewell +Address" is a solemn warning against political parties[194] almost as +much as against foreign alliances. + + +FOOTNOTES: + +[95] Marshall, ii, 150-51. "The agitation had been too great to be +suddenly calmed; and for the active opponents of the system +[Constitution] to become suddenly its friends, or even indifferent to +its fate, would have been a victory of reason over passion." (_Ib._; and +see Beard: _Econ. O. J. D._, 85, 101, 102-07.) + +[96] "The effort was made to fill the legislature with the declared +enemies of the government, and thus to commit it, in its infancy, to the +custody of its foes." (Marshall, ii, 151.) + +[97] Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong. +Madison adds this cryptic sentence: "This hint may not be unworthy of +your attention." + +[98] Madison to Washington, June 27, 1788; _Writings_: Hunt, v, 234. +Madison here refers to the project of calling a new Federal Convention +for the purpose of amending the Constitution or making a new one. + +Randolph was still more apprehensive. "Something is surely meditated +against the new Constitution more animated, forcible, and violent than a +simple application for calling a Convention." (Randolph to Madison, Oct. +23, 1788; Conway, 118.) + +[99] When Jefferson left Virginia for France, his political fortunes +were broken. (Eckenrode: _R. V._, chap. viii; and Dodd, 63-64; and +Ambler, 35-36.) The mission to France at the close of the American +Revolution, while "an honor," was avoided rather than sought by those +who were keen for career. (Dodd, 36-39.) + +Seldom has any man achieved such a recovery as that of Jefferson in the +period now under review. Perhaps Talleyrand's rehabilitation most nearly +approaches Jefferson's achievement. From the depths of disfavor this +genius of party management climbed to the heights of popularity and +fame. + +[100] Jefferson to Hopkinson, March 13, 1789; _Works_: Ford, v, 456. + +[101] Jefferson to Washington, Paris, Dec. 4, 1788; _Works_: Ford, v, +437-38. Compare with Jefferson's statements when the fight was on +against ratifying the Constitution. (See vol. I, chap. VIII; also +Jefferson to Humphreys, Paris, March 18, 1789; _Works_: Ford, v, 470.) + +[102] Jefferson to Short, Dec. 14, 1789; _Works_: Ford, vi, 24. + +[103] The Legislature which met on the heels of the Virginia +Constitutional Convention hastened to adjourn in order that its members +might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; +Monroe's _Writings_: Hamilton, i, 188.) But at its autumn session, it +made up for lost time in its practical display of antagonism to the +Nationalist movement. + +[104] Marshall, ii, 205-26. Throughout this chapter the terms +"Nationalist" and "Anti-Nationalist" are used instead of the customary +terms "Federalist" and "Anti-Federalist," the latter not clearly +expressing the fundamental difference between the contending political +forces at that particular time. + +[105] Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415. + +[106] _Ib._, 416-18. + +[107] Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also +see the vivid description of the debate under these resolutions in +Henry, ii, 418-23. + +[108] Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415. + +[109] Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788; +_Writings_: Hunt, v, 269-79. + +[110] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 296. + +[111] See vol. I of this work. + +[112] Henry, ii, 427; see also Scott, 172. + +[113] Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and Henry, +ii, 427-28. + +[114] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 295. + +[115] Monroe became a candidate against Madison and it was "thought that +he [would] ... carry his election." (Mason to John Mason, Dec. 18, 1788; +Rowland, ii, 304.) But so ardent were Madison's assurances of his +modified Nationalist views that he was elected. His majority, however, +was only three hundred. (Monroe to Jefferson, Feb. 15, 1789; Monroe's +_Writings_: Hamilton, i, 199.) + +[116] Randolph to Madison, Nov. 10, 1788; Conway, 121. + +[117] Journal, H.D. (Nov. 14, 1788), 42-44. Also see _Annals_, 1st +Cong., 1st Sess., 259. + +[118] The Nationalist substitute is pathetic in its apprehensive tone. +It closes with a prayer "that Almighty God in his goodness and wisdom +will direct your councils to such measures as will establish our lasting +peace and welfare and secure to our latest posterity the blessings of +freedom; and that he will always have you in his holy keeping." +(Journal, H.D. (Nov. 14, 1788), 43.) + +[119] _Ib._, 44. + +[120] Pennsylvania Resolutions: Gallatin's _Writings_: Adams, i, 3. This +was unjust to New England, where rum was "the common drink of the +nation" and played an interesting part in our tariff laws and New +England trade. + +[121] Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong. + +[122] Randolph to Madison, July 19, 1789; Conway, 127. + +[123] Journal, H.D. (Oct. 20, 1789), 4. + +[124] _Ib._, 7-16. + +[125] _Ib._, 16. Marshall probably drew the bill that finally passed. He +carried it from the House to the Senate. (_Ib._, 136.) + +[126] _Ib._ (Oct. 28, 1790), 19-22. Whether or not a voter owned land +was weighed in delicate scales. Even "treating" was examined. + +[127] Journal, H.D. (Oct. 28, 1790), 24-29. + +[128] _Ib._, 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For +extent of this revision see Conway, 130. + +[129] Journal, H.D. (1789), 57-58. + +[130] _Ib._, 78. See report of the committee in this interesting case. +(_Ib._, 103.) The bill was passed. (_Ib._, 141.) At that time divorces +in Virginia could be had only by an act of the Legislature. Contrast the +above case, where the divorce was granted for cruelty, abandonment, +waste of property, etc., with that of the Mattauer case (_ib._ (1793), +112, 126), where the divorce was refused for admitted infidelity on the +part of the wife who bore a child by the brother of her husband while +the latter was abroad. + +[131] _Ib._ (1789), 96. Kentucky was then a part of Virginia and +legislation by the latter State was necessary. It is more than probable +that Marshall drew this important statute, which passed. (_Ib._, 115, +131, 141.) + +[132] Journal, H.D. (1789), 112. At this period, lotteries were the +common and favorite methods of raising money for schools, and other +public institutions and enterprises. Even the maintenance of cemeteries +was provided for in this way. The Journals of the House of Delegates are +full of resolutions and Hening's Statutes contain many acts concerning +these enterprises. (See, for example, Journal, H.D. (1787), 16-20; +(1797), 39.) + +[133] An uncommonly able state paper was laid before the House of +Delegates at this session. It was an arraignment of the Virginia +Constitution of 1776, and mercilessly exposed, without the use of +direct terms, the dangerous political machine which that Constitution +made inevitable; it suggested "that as harmony with the Federal +Government ... is to be desired our own Constitution ought to be +compared with that of the United States and retrenched where it is +repugnant"; and it finally recommended that the people instruct their +representatives in the Legislature to take the steps for reform. The +author of this admirable petition is unknown. (Journal, H.D. (1789), +113.) + +From this previous vote for a new Constitution, it is probable that +Marshall warmly supported this resolution. But the friends of the old +and vicious system instantly proposed an amendment "that the foregoing +statement contains principles repugnant to Republican Government and +dangerous to the freedom of this country, and, therefore, ought not to +meet with the approbation of this House or be recommended to the +consideration of the people"; and so strong were they that the whole +subject was dropped by postponement, without further contest. (Journal, +H.D. (1789), 108-09.) + +[134] _Ib._ (Nov. 17, 1789), 20. + +[135] _Ib._ (Nov. 13, 1789), 12. + +[136] _Ib._ (Nov. 16, 1789), 14. + +[137] _Ib._ (Nov. 27, 1789), 49. The James River Company was formed in +1784. Washington was its first president. (Randolph to Washington, Aug. +8, 1784; Conway, 58.) Marshall's Account Book shows many payments on +stock in this company. + +[138] Journal, H.D. (1789), 117, 135. For many years after the +Constitution was adopted the United States Senate sat behind closed +doors. The Virginia Legislature continued to demand public debate in the +National Senate until that reform was accomplished. (See Journal, H.D. +(Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.) + +In 1789 the Nationalists were much stronger in the Legislatures of the +other States than they had been in the preceding year. Only three States +had answered Virginia's belated letter proposing a new Federal +Convention to amend the Constitution. Disgusted and despondent, Henry +quitted his seat in the House of Delegates in the latter part of +November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.) + +[139] Journal, H.D. (1789), 17, 19, 98. + +[140] _Ib._, 107-12. + +[141] _Ib._, 90-91. + +[142] Journal, H.D. (1789), 96. + +[143] _Ib._, 102. + +[144] _Ib._, 119. The objections were that the liberty of the press, +trial by jury, freedom of speech, the right of the people to assemble, +consult, and "to instruct their representatives," were not guaranteed; +and in general, that the amendments submitted "fall short of affording +security to personal rights." (Senate Journal, December 12, 1789; MS., +Va. St. Lib.) + +[145] _Annals_, 1st Cong., 1st Sess., 444; and see entire debate. The +amendments were offered as a measure of prudence to mollify the +disaffected. (Rives, iii, 38-39.) + +[146] The House agreed to seventeen amendments. But the Senate reduced +these to twelve, which were submitted to the States. The first of these +provided for an increase of the representation in the House; the second +provided that no law "varying" the salaries of Senators or +Representatives "shall take effect until an election of Representatives +shall have intervened." (_Annals_, 1st Cong., 1st Sess., Appendix to ii, +2033.) The States ratified only the last ten. (For good condensed +treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth +Amendment, as ratified, was the twelfth as submitted and is sometimes +referred to by the latter number in the documents and correspondence of +1790-91, as in Jefferson's "Opinion on the Constitutionality of the Bank +of the United States." (See _infra_.) New York, Virginia, Maryland, +South Carolina, North Carolina, and Rhode Island accepted the twelve +amendments as proposed. The other States rejected one or both of the +first two amendments. + +[147] Randolph to Madison, June 30, 1789; Conway, 126. + +[148] See Beard: _Econ. O. J. D._, 76. + +[149] _Ib._, 86. + +[150] _Ib._, 132-33. + +[151] Marshall, ii, 192. + +[152] Money was exceedingly scarce. Even Washington had to borrow to +travel to New York for his inauguration, and Patrick Henry could not +attend the Federal Constitutional Convention for want of cash. (Conway, +132.) + +[153] "First Report on the Public Credit"; _Works_: Lodge, ii, 227 _et +seq._ The above analysis, while not technically precise, is sufficiently +accurate to give a rough idea of Hamilton's plan. (See Marshall's +analysis; Marshall, ii, 178-80.) + +[154] This, indeed, was a portion of Hamilton's plan and he succeeded in +it as he did in other parts of his broad purpose to combine as much +strength as possible in support of the National Government. "The +northern states and the commercial and monied people are zealously +attached to ... the new government." (Wolcott to his father, Feb. 12, +1791; Gibbs, i, 62.) + +[155] This was emphatically true. From the National point of view it was +the best feature of Hamilton's plan. + +[156] In his old age, John Adams, Hamilton's most venomous and +unforgiving enemy, while unsparing in his personal abuse, paid high +tribute to the wisdom and necessity of Hamilton's financial +statesmanship. "I know not," writes Adams, "how Hamilton could have done +otherwise." (Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 75.) +"The sudden rise of public securities, after the establishment of the +funding system was no misfortune to the Public but an advantage. The +necessity of that system arose from the inconsistency of the People in +contracting debts and then refusing to pay them." (Same to same, Jan. +25, 1806; _ib._, 93.) + +Fisher Ames thus states the different interests of the sections: "The +funding system, they [Southern members of Congress] say, is in favor of +the moneyed interest--oppressive to the land; that is, favorable to us +[Northern people], hard on them. They pay tribute, they say, and the +middle and eastern people ... receive it. And here is the burden of the +song, almost all the little [certificates of State or Continental debts] +that they had and which cost them twenty shillings, for supplies or +services, has been bought up, at a low rate, and now they pay more tax +towards the interest than they received for the paper. This _tribute_, +they say, is aggravating." (Ames to Minot, Nov. 30, 1791; _Works_: Ames, +i, 104.) + +[157] Marshall, ii, 181. The attack on Hamilton's financial plan and +especially on Assumption was the beginning of the definite organization +of the Republican Party. (Washington's _Diary_: Lossing, 166.) + +[158] Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii, +22. + +[159] At one time, when it appeared that Assumption was defeated, +Sedgwick of Massachusetts intimated that his section might secede. +(_Annals_, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii, +90 _et seq._) + +[160] Marshall's statement of the debate is the best and fairest brief +account of this historic conflict. (See Marshall, ii, 181-90. See entire +debate in _Annals_, 1st Cong., i, ii, under caption "Public Debt.") + +[161] "This despicable grog-shop contest, whether the taverns of New +York or Philadelphia shall get the custom of Congress, keeps us in +discord and covers us all with disgrace." (Ames to Dwight, June 11, +1790; _Works_: Ames, i, 80.) + +[162] Jefferson to Monroe, June 20, 1790; _Works_: Ford, vi, 78-80; and +see _ib._, 76; to Gilmer, June 27, _ib._, 83; to Rutledge, July 4, +_ib._, 87-88; to Harvie, July 25, _ib._, 108. + +[163] _Ib._; and see also Jefferson to Eppes, July 25, _ib._, 106; to +Randolph, March 28, _ib._, 37; to same, April 18, _ib._, 47; to Lee, +April 26, _ib._, 53; to Mason, June 13, _ib._, 75; to Randolph, June 20, +_ib._, 76-77; to Monroe, June 20, _ib._, 79; to Dumas, June 23, _ib._, +82; to Rutledge, July 4, _ib._, 87-88; to Dumas, July 13, _ib._, 96. +Compare these letters with Jefferson's statement, February, 1793; _ib._, +vii, 224-26; and with the "Anas," _ib._, i, 171-78. Jefferson then +declared that "I was really a stranger to the whole subject." (_Ib._, +176.) + +[164] Jefferson's statement; _Works_: Ford, vii, 224-26, and i, 175-77. + +[165] Gibbs, i, 32; and see Marshall, ii, 190-91. + +[166] Henry, ii, 453. But Marshall says that more votes would have +changed had that been necessary to consummate the bargain. (See +Marshall, ii, footnote to 191.) + +[167] _Ib._, 192. + +[168] Marshall, ii, 191-92. + +[169] Henry, ii, 453-55. + +[170] Journal, H.D. (1790), 35. + +[171] Journal, H.D. (1790), 35. + +[172] _Ib._ + +[173] _Ib._, 80-81. + +[174] Journal, H.D. (1790), 80-81; and see _Am. St. Prs., Finance_, i, +90-91. The economic distinction is here clearly drawn. Jefferson, who +later made this a chief part of his attack, had not yet raised the +point. + +[175] Ames to Minot, Feb. 16, 1792; _Works_: Ames, i, 113. + +[176] This was the sentence which declared that Hamilton's reasoning +would result in "fictitious wealth through a paper medium," referring to +his plan for making the transferable certificates of the National debt +serve as currency. + +[177] Journal, H.D. (1790), 141. + +[178] Hamilton to Jay, Nov. 13, 1790; _Works_: Lodge, ix, 473-74. +Virginia was becoming very hostile to the new Government. First, there +was a report that Congress was about to emancipate the slaves. Then came +the news of the Assumption of the State debts, with the presence in +Virginia of speculators from other States buying up State securities; +and this added gall to the bitter cup which Virginians felt the National +Government was forcing them to drink. Finally the tidings that the +Senate had defeated the motion for public sessions inflamed the public +mind still more. (Stuart to Washington, June 2, 1790; _Writings_: Ford, +xi, footnote to 482.) + +Even close friends of Washington deeply deplored a "spirit so subversive +of the true principles of the constitution.... If Mr. Henry has +sufficient boldness to aim the blow at its [Constitution's] existence, +which he has threatened, I think he can never meet with a more favorable +opportunity if the assumption should take place." (_Ib._) + +Washington replied that Stuart's letter pained him. "The public mind in +Virginia ... seems to be more irritable, sour, and discontented than ... +it is in any other State in the Union except Massachusetts." (Washington +to Stuart, June 15, 1790; _ib._, 481-82.) + +Marshall's father most inaccurately reported to Washington that Kentucky +favored the measures of the Administration; and the President, thanking +him for the welcome news, asked the elder Marshall for "any information +of a public or private nature ... from your district." (Washington to +Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.) +Kentucky was at that time in strong opposition and this continued to +grow. + +[179] Taylor's "An Enquiry, etc.," as quoted in Beard: _Econ. O. J. D._, +209. (_Ib._, chap. vii.) Taylor's pamphlet was revised by Pendleton and +then sent to Madison before publication. (Monroe to Madison, May 18, +1793; Monroe's _Writings_: Hamilton, i, 254.) Taylor wanted "banks ... +demolished" and bankers "excluded from public councils." (Beard: _Econ. +O. J. D._, 209.) + +[180] Marshall, ii, 192. + +[181] In Jefferson's letters, already cited, not the faintest suggestion +appears that he thought the law unconstitutional. Not until Patrick +Henry's resolution, and the address of the Virginia Legislature to +Congress based thereon, made the point that Assumption was in violation +of this instrument, because the power to pass such a law was not +expressly given in the Constitution, did Jefferson take his stand +against implied powers. + +[182] "Whether ... right or wrong, abstractedly, more attention should +be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791; +_Works_: Ford, vi, 186.) + +[183] Monroe had advised Madison of the hostility of Virginia to +Assumption and incidentally asked for an office for his own +brother-in-law. (Monroe to Madison, July 2, 1790; Monroe's _Writings_: +Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790; _ib._, +209.) + +[184] Anderson, 21. + +[185] Jefferson himself, a year after he helped pass the Assumption Act, +had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter +answered in a formal statement to the President. These two documents are +the ablest summaries of the opposing sides of this great controversy. +(See Jefferson to President, May 23, 1792; _Works_: Ford, vi, 487-95; +and Hamilton to Washington, Aug. 18, 1792; _Works_: Lodge, ii, 426-72.) + +[186] Ames to Minot, March 8, 1792; _Works_: Ames, i, 114. + +[187] Tenth Amendment, as ratified. + +[188] "Opinion on the Constitutionality of a National Bank of the United +States"; _Works_: Ford, vi, 198; and see Madison's argument against the +constitutionality of the Bank Act in _Annals_, 1st Cong., Feb. 2, 1791, +pp. 1944-52; Feb. 8, 2008-12; also, _Writings_: Hunt, vi, 19-42. This +argument best shows Madison's sudden and radical change from an extreme +Nationalist to an advocate of the most restricted National powers. + +[189] Hamilton's "Opinion as to the Constitutionality of the Bank of the +United States"; _Works_: Lodge, iii, 445-93. Adams took the same view. +(See Adams to Rush, Dec. 27, 1810; _Old Family Letters_, 272.) + +[190] "Opinion as to the Constitutionality of the Bank of the United +States"; _Works_: Lodge, iii, 445-93. Washington was sorely perplexed by +the controversy and was on the point of vetoing the Bank Bill. (See +Rives, iii, 170-71.) + +[191] Marshall, ii, 206-07. + +[192] Ames to Dwight, Jan. 23, 1792; _Works_: Ames, i, 110-11. + +[193] "A Candid State of Parties"--_National Gazette_, Sept. 26, 1792. + +[194] "I was no party man myself and the first wish of my heart was, if +parties did exist, to reconcile them." (Washington to Jefferson, July 6, +1796; _Writings_: Ford, xiii, 230.) + + + + +CHAPTER III + +LEADING THE VIRGINIA FEDERALISTS + + I think nothing better could be done than to make him [Marshall] a + judge. (Jefferson to Madison, June 29, 1792.) + + To doubt the holiness of the French cause was the certain road to + odium and proscription. (Alexander Graydon.) + + The trouble and perplexities have worn away my mind. (Washington.) + + +In Richmond, Marshall was growing ever stronger in his belief in +Nationalism. Hamilton's immortal plea for a vital interpretation of the +fundamental law of the Nation and his demonstration of the +constitutionality of extensive implied powers was a clear, compact +statement of what Marshall himself had been thinking. The time was +coming when he would announce it in language still more lucid, +expressive of a reasoning even more convincing. Upon Hamilton's +constitutional doctrine John Marshall was to place the seal of +finality.[195] + +But Marshall did not delay until that great hour to declare his +Nationalist opinions. Not only did he fight for them in the House of +Delegates; but in his club at Farmicola's Tavern, on the street corners, +riding the circuit, he argued for the constitutionality and wisdom of +those measures of Washington's Administration which strengthened and +broadened the powers of the National Government.[196] + +Although he spoke his mind, in and out of season, for a cause +increasingly unpopular, Marshall, as yet, lost little favor with the +people. At a time when political controversy severed friendship and +interrupted social relations,[197] his personality still held sway over +his associates regardless of their political convictions. Even Mason, +the ultra-radical foe of broad National powers, wrote, at this heated +juncture, that Marshall "is an intimate friend of mine."[198] + +His winning frankness, easy manner, and warm-heartedness saved him from +that dislike which his bold views otherwise would have created. +"Independent principles, talents, and integrity are denounced [in +Virginia] as badges of aristocracy; but if you add to these good manners +and a decent appearance, his political death is decreed without the +benefit of a hearing," testifies Francis Corbin.[199] + +"Independent principles, talents, and integrity" Marshall possessed in +fullest measure, as all admitted; but his manners were far from those +which men like the modish Corbin called "good," and his appearance would +not have passed muster under the critical eye of that fastidious and +disgruntled young Federalist. We shall soon hear Jefferson denouncing +Marshall's deportment as the artifice of a cunning and hypocritical +craft. As yet, however, Jefferson saw in Marshall only an extremely +popular young man who was fast becoming the most effective supporter in +Virginia of the National Government. + +In the year of the Bank Act, Jefferson and Madison went on their +eventful "vacation," swinging up the Hudson and through New England. +During this journey Jefferson drew around Madison "the magic circle" +of his compelling charm and won entirely to the extreme Republican +cause[200] the invaluable aid of that superb intellect. In +agreement as to common warfare upon the Nationalist measures of the +Administration,[201] the two undoubtedly talked over the Virginia +Federalists.[202] + +Marshall's repeated successes at the polls with a constituency hostile +to the young lawyer's views particularly impressed them. Might not +Marshall become a candidate for Congress? If elected, here would be a +skillful, dauntless, and captivating supporter of all Nationalist +measures in the House of Representatives. What should be done to avert +this misfortune? + +Jefferson's dexterous intellect devised the idea of getting rid of +Marshall, politically, by depositing him on the innocuous heights of the +State bench. Better, far better, to make Marshall a Virginia judge than +to permit him to become a Virginia Representative in Congress. So, upon +his return, Jefferson wrote to Madison:-- + +"I learn that he [Hamilton] has expressed the strongest desire that +Marshall should come into Congress from Richmond, declaring that there +is no man in Virginia whom he wishes so much to see there; and I am told +that Marshall has expressed half a mind to come. Hence I conclude that +Hamilton has plyed him well with flattery & sollicitation and I think +nothing better could be done than to make him a judge."[203] + +Hamilton's "plying" Marshall with "flattery & solicitation" occurred +only in Jefferson's teeming, but abnormally suspicious, mind. Marshall +was in Virginia all this time, as his Account Book proves, while +Hamilton was in New York, and no letters seem to have passed between +them.[204] But Jefferson's information that his fellow Secretary wished +the Nationalist Richmond attorney in Congress was probably correct. +Accounts of Marshall's striking ability and of his fearless zeal in +support of the Administration's measures had undoubtedly reached +Hamilton, perhaps through Washington himself; and so sturdy and capable +a Federalist in Congress from Virginia would have been of great +strategic value. + +But Jefferson might have spared his pains to dispose of Marshall by +cloistering him on the State bench. Nothing could have induced the busy +lawyer to go to Congress at this period. It would have been fatal to his +law practice[205] which he had built up until it was the largest in +Richmond and upon the returns from which his increasing family depended +for support. Six years later, Washington himself labored with Marshall +for four days before he could persuade him to stand for the National +House, and Marshall then yielded to his adored leader only as a matter +of duty, at one of the Nation's most critical hours, when war was on the +horizon.[206] + +The break-up of Washington's Cabinet was now approaching. Jefferson was +keeping pace with the Anti-Nationalist sentiment of the masses--drilling +his followers into a sternly ordered political force. "The discipline of +the [Republican] party," wrote Ames, "is as severe as the +Prussian."[207] Jefferson and Madison had secured an organ in the +"National Gazette,"[208] edited by Freneau, whom Jefferson employed as +translator in the State Department. Through this paper Jefferson +attacked Hamilton without mercy. The spirited Secretary of the Treasury +keenly resented the opposition of his Cabinet associate which was at +once covert and open. + +In vain the President pathetically begged Jefferson for harmony and +peace.[209] Jefferson responded with a bitter attack on Hamilton. "I was +duped," said he, "by the Secretary of the Treasury and made a tool for +forwarding his schemes, not then sufficiently understood by me."[210] To +somewhat, but not much, better purpose did Washington ask Hamilton for +"mutual forbearances."[211] Hamilton replied with spirit, yet pledged +his honor that he would "not, directly or indirectly, say or do a thing +that shall endanger a feud."[212] + +The immense speculation, which had unavoidably grown out of the +Assumption and Funding Acts, inflamed popular resentment against the +whole financial statesmanship of the Federalists.[213] More material, +this, for the hands of the artificer who was fashioning the Republican +Party into a capacious vessel into which the people might pour all their +discontent, all their fears, all their woes and all their hopes. And +Jefferson, with practical skill, used for that purpose whatever material +he could find. + +Still more potter's earth was brought to Jefferson. The National Courts +were at work. Creditors were securing judgments for debts long due them. +In Virginia the debtors of British merchants, who for many years had +been rendered immune from payment, were brought to the bar of this +"alien" tribunal. Popular feeling ran high. A resolution was introduced +into the House of Delegates requesting the Virginia Senators and +Representatives in Congress to "adopt such measures as will tend, not +only to suspend all executions and the proceedings thereon, but prevent +any future judgments to be given by the Federal Courts in favor of +British creditors until" Great Britain surrendered the posts and runaway +negroes.[214] Thus was the practical overthrow of the National Judiciary +proposed.[215] + +Nor was this all. A State had been haled before a National Court.[216] +The Republicans saw in this the monster "consolidation." The Virginia +Legislature passed a resolution instructing her Senators and +Representatives to "unite their utmost and earliest exertions" to secure +a constitutional amendment preventing a State from being sued "in any +court of the United States."[217] The hostility to the National Bank +took the form of a resolution against a director or stockholder of the +Bank of the United States being a Senator or Representative in +Congress.[218] But apparently this trod upon the toes of too many +ambitious Virginians, for the word "stockholders" was stricken out.[219] + +The slander that the Treasury Department had misused the public funds +had been thoroughly answered;[220] but the Legislature of Virginia by a +majority of 111 out of a total vote of 124, applauded her Senators and +Representatives who had urged the inquiry.[221] Such was the developing +temper of Republicanism as revealed by the emotionless pages of the +public records; but these furnish scarcely a hint of the violence of +public opinion. + +Jefferson was now becoming tigerish in his assaults on the measures of +the Administration. Many members of Congress had been holders of +certificates which Assumption and Funding had made valuable. Most but +not all of them had voted for every feature of Hamilton's financial +plan.[222] Three or four were directors of the Bank, but no dishonesty +existed.[223] Heavy speculation went on in Philadelphia.[224] This, said +Republicans, was the fruit which Hamilton's Nationalist financial scheme +gathered from the people's industry to feed to "monocrats." + +"Here [Philadelphia]," wrote Jefferson, "_the unmonied farmer_ ... his +cattle & corps [_sic_] are no more thought of than if they did not feed +us. Script & stock are food & raiment here.... The credit & fate of the +nation seem to hang on the desperate throws & plunges of gambling +scoundrels."[225] But Jefferson comforted himself with the prophecy +that "this nefarious business" would finally "tumble its authors +headlong from their heights."[226] + +The National law taxing whiskey particularly aroused the wrath of the +multitude. Here it was at last!--a direct tax laid upon the universal +drink of the people, as the razor-edged Pennsylvania resolutions +declared.[227] Here it was, just as the patriotic foes of the abominable +National Constitution had predicted when fighting the ratification of +that "oppressive" instrument. Here was the exciseman at every man's +door, just as Henry and Mason and Grayson had foretold--and few were the +doors in the back counties of the States behind which the owner's +private still was not simmering.[228] And why was this tribute exacted? +To provide funds required by the corrupt Assumption and Funding laws, +asserted the agitators. + +Again it was the National Government that was to blame; in laying the +whiskey tax it had invaded the rights of the States, hotly declared the +Republicans. "All that powerful party," Marshall bears witness, "which +attached itself to the local [State] rather than to the general +[National] government ... considered ... a tax by Congress on any +domestic manufacture as the intrusion of a foreign power into their +particular concerns which excited serious apprehensions for state +importance and for liberty."[229] The tariff did not affect most people, +especially those in the back country, because they used few or no +imported articles; but the whiskey tax did reach them, directly and +personally.[230] + +Should such a despotic law be obeyed? Never! It was oppressive! It was +wicked! Above all, it was "unconstitutional"! But what to do! The +agencies of the detested and detestable National Government were at +work! To arms, then! That was the only thing left to outraged freemen +about to be ravaged of their liberty![231] Thus came the physical +defiance of the law in Pennsylvania; Washington's third +proclamation[232] demanding obedience to the National statutes after his +earnest pleas[233] to the disaffected to observe the laws; the march of +the troops accompanied by Hamilton[234] against the insurgents; the +forcible suppression of this first armed assault on the laws of the +United States in which men had been killed, houses burned, mails +pillaged--all in the name of the Constitution,[235] which the +Republicans now claimed as their peculiar property.[236] + +Foremost in the fight for the whiskey insurgents were the democratic +societies, which, as has been seen, were the offspring of the French +Jacobin Clubs. Washington finally became certain that these +organizations had inspired this uprising against National law and +authority. While the Whiskey Rebellion was economic in its origin, yet +it was sustained by the spirit which the French Revolution had kindled +in the popular heart. Indeed, when the troops sent to put down the +insurrection reached Harrisburg, they found the French flag flying over +the courthouse.[237] + +Marshall's old comrade in the Revolution, close personal friend, and +business partner,[238] Henry Lee, was now Governor of Virginia. He stood +militantly with Washington and it was due to Lee's efforts that the +Virginia militia responded to help suppress the Whiskey Rebellion. He +was made Commander-in-Chief of all the forces that actually took the +field.[239] To Lee, therefore, Washington wrote with unrestrained pen. + +"I consider," said the President, "this insurrection as the first +_formidable_ fruit of the Democratic Societies ... instituted by ... +_artful and designing_ members [of Congress] ... to sow the seeds of +jealousy and distrust among the people of the government.... I see, +under a display of popular and fascinating guises, the most diabolical +attempts to destroy ... the government."[240] He declared: "That they +have been the fomenters of the western disturbances admits of no +doubt."[241] + +Never was that emphatic man more decided than now; he was sure, he said, +that, unless lawlessness were overcome, republican government was at an +end, "and nothing but anarchy and confusion is to be expected +hereafter."[242] If "the daring and factious spirit" is not crushed, +"adieu to all government in this country, except mob and club +government."[243] + +Such were Washington's positive and settled opinions, and they were +adopted and maintained by Marshall, his faithful supporter. + +And not only by argument and speech did Marshall uphold the measures of +Washington's Administration. In 1793 he had been commissioned as +Brigadier-General of Militia, and when the President's requisition came +for Virginia troops to enforce the National revenue law against those +who were violently resisting the execution of it, he was placed in +command of one of the detachments to be raised for that purpose.[244] +Although it is not established that his brigade was ordered to +Pennsylvania, the probabilities are that it was and that Marshall, in +command of it, was on the scene of the first armed opposition to the +National Government. And it is certain that Marshall was busy and +effective in the work of raising and properly equipping the troops for +duty. He suggested practical plans for expediting the muster and for +economizing the expenditure of the public money, and his judgment was +highly valued.[245] + +All the ability, experience, and zeal at the disposal of the State were +necessary, for the whiskey tax was only less disliked in Virginia than +in Pennsylvania, and a portion of the Commonwealth was inclined to +assist rather than to suppress the insurrection.[246] Whether or not he +was one of the military force that, on the ground, overawed the whiskey +insurgents, it is positively established that Marshall was ready, in +person, to help put down with arms all forcible opposition to the +National laws and authority. + +Jefferson, now the recognized commander-in-chief of the new party, was, +however, heartily with the popular outbreak. He had approved +Washington's first proclamations against the whiskey producers;[247] +but, nevertheless, as the anger of the people grew, it found Jefferson +responsive. "The excise law is an infernal one," he cried; the rebellion +against it, nothing more than "riotous" at the worst.[248] + +And Jefferson wielded his verbal cat-o'-nine-tails on Washington's order +to put the rebellion down by armed forces.[249] It was all "for the +favorite purpose of strengthening government and increasing public +debt."[250] Washington thought the Whiskey Rebellion treasonable; and +Jefferson admitted that "there was ... a meeting to consult about a +separation" from the Union; but talking was not acting.[251] Thus the +very point was raised which Marshall enforced in the Burr trial twelve +years later, when Jefferson took exactly opposite grounds. But to take +the popular view now made for Republican solidarity and strength. +Criticism is ever more profitable politics than building. + +All this had different effects on different public men. The Republican +Party was ever growing stronger, and under Jefferson's skillful +guidance, was fast becoming a seasoned political army. The sentiment of +the multitude against the National Government continued to rise. But +instead of weakening John Marshall's Nationalist principles, this +turbulent opposition strengthened and hardened them. So did other and +larger events of that period which tumultuously crowded fast upon one +another's heels. As we have seen, the horrors of the Reign of Terror in +Paris did not chill the frenzied enthusiasm of the masses of Americans +for France. "By a strange kind of reasoning," wrote Oliver Wolcott to +his brother, "some suppose the liberties of America depend on the right +of cutting throats in France."[252] + +In the spring of 1793 France declared war against England. The popular +heart in America was hot for France, the popular voice loud against +England. The idea that the United States was an independent nation +standing aloof from foreign quarrels did not enter the minds of the +people. But it was Washington's one great conception. It was not to make +the American people the tool of any foreign government that he had drawn +his sword for their independence. It was to found a separate nation with +dignity and rights equal to those of any other nation; a nation friendly +to all, and allied with none[253]--this was the supreme purpose for +which he had fought, toiled, and suffered. And Washington believed that +only on this broad highway could the American people travel to ultimate +happiness and power.[254] He determined upon a policy of absolute +impartiality. + +On the same day that the Minister of the new French Republic landed on +American shores, Washington proclaimed Neutrality.[255] This action, +which to-day all admit to have been wise and far-seeing statesmanship, +then caused an outburst of popular resentment against Neutrality and the +Administration that had dared to take this impartial stand. For the +first time Washington was openly abused by Americans.[256] + +"A great majority of the American people deemed it criminal to remain +unconcerned spectators of a conflict between their ancient enemy [Great +Britain] and republican France," declares Marshall. The people, he +writes, thought Great Britain was waging war "with the sole purpose of +imposing a monarchical government on the French people. The few who did +not embrace these opinions, and they were certainly very few, were held +up as objects of public detestation; and were calumniated as the tools +of Britain and the satellites of despotism."[257] + +The National Government was ungrateful, cried the popular voice; it was +aiding the tyrants of Europe against a people struggling for freedom; it +was cowardly, infamous, base. "Could any friend of his kind be neutral?" +was the question on the popular tongue; of course not! unless, indeed, +the miscreant who dared to be exclusively American was a monarchist at +heart. "To doubt the holiness of their [the French] cause was the +certain road to odium and proscription," testifies an observer.[258] +The Republican press, following Paine's theory, attacked "all +governments, including that of the United States, as naturally hostile +to the liberty of the people," asserts Marshall.[259] Few were the +friends of Neutrality outside of the trading and shipping +interests.[260] + +Jefferson, although still in Washington's Cabinet, spoke of "the +pusillanimity of the proclamation"[261] and of "the sneaking neutrality" +it set up.[262] "In every effort made by the executive to maintain the +neutrality of the United States," writes Marshall, "that great party +[Republican] which denominated itself 'THE PEOPLE' could perceive only a +settled hostility to France and to liberty."[263] + +And, of course, Washington's proclamation of Neutrality was +"unconstitutional," shouted the Republican politicians. Hamilton quickly +answered. The power to deal with foreign affairs was, he said, lodged +somewhere in the National Government. Where, then? Plainly not in the +Legislative or Judicial branches, but in the Executive Department, which +is "the _organ_ of intercourse between the nation and foreign nations" +and "the _interpreter_ of ... treaties in those cases in which the +judiciary is not competent--that is between government and +government.... The _executive power_ of the United States is completely +lodged in the President," with only those exceptions made by the +Constitution, as that of declaring war. But if it is the right of +Congress to declare war, "it is the duty of the Executive to preserve +peace till the declaration is made."[264] + +Washington's refusal to take sides in the European war was still more +fuel for the Republican furnace. The bill to maintain Neutrality escaped +defeat in Congress by a dangerously narrow margin: on amendments and +motions in the Senate it was rescued time and again only by the deciding +vote of the Vice-President.[265] In the House, resolutions were +introduced which, in the perspective of history, were stupid. Public +speakers searched for expressions strong enough for the popular taste; +the newspapers blazed with denunciation. "The artillery of the press," +declares Marshall, "was played with unceasing fury on" the supporters of +Neutrality; "and the democratic societies brought their whole force into +operation. Language will scarcely afford terms of greater outrage, than +were employed against those who sought to stem the torrent of public +opinion and to moderate the rage of the moment."[266] + +At the most effective hour, politically, Jefferson resigned[267] from +the Cabinet, as he had declared, two years before, he intended to +do.[268] He had prepared well for popular leadership. His stinging +criticism of the Nationalist financial measures, his warm championship +of France, his bitter hostility to Great Britain, and most of all, his +advocacy of the popular view of the Constitution, secured him the favor +of the people. Had he remained Secretary of State, he would have found +himself in a hazardous political situation. But now, freed from +restraint, he could openly lead the Republican forces which so eagerly +awaited his formal command.[269] + +As in the struggle for the Constitution, so now Neutrality was saved by +the combined efforts of the mercantile and financial interests who +dreaded the effect of the war on business and credit;[270] and by the +disinterested support of those who wished the United States to become a +nation, distinct from, unconnected with, and unsubservient to any other +government. + +Among these latter was John Marshall, although he also held the view of +the commercial classes from which most of his best clients came; and his +personal loyalty to Washington strengthened his opinions. Hot as +Virginia was against the Administration, Marshall was equally hot in its +favor. Although he was the most prudent of men, and in Virginia silence +was the part of discretion for those who approved Washington's course, +Marshall would not be still. He made speeches in support of Washington's +stand, wrote pamphlets, and appealed in every possible way to the solid +reason and genuine Americanism of his neighbors. He had, of course, read +Hamilton's great defense of Neutrality; and he asserted that sound +National policy required Neutrality and that it was the duty of the +President to proclaim and enforce it. Over and over again, by tongue and +pen, he demonstrated the constitutional right of the Executive to +institute and maintain the Nation's attitude of aloofness from foreign +belligerents.[271] + +Marshall rallied the friends of the Administration, not only in +Richmond, but elsewhere in Virginia. "The [Administration] party in +Richmond was soon set in motion," Monroe reported to Jefferson; "from +what I have understood here [I] have reason to believe they mean to +produce the most extensive effect they are capable of. M^r. Marshall +has written G. Jones[272] on the subject and the first appearances +threatened the most furious attack on the French Minister [Genêt]."[273] + +At last Marshall's personal popularity could no longer save him from +open and public attack. The enraged Republicans assailed him in +pamphlets; he was criticized in the newspapers; his character was +impugned.[274] He was branded with what, in Virginia, was at that time +the ultimate reproach: Marshall, said the Republicans, was the friend +and follower of Alexander Hamilton, the monarchist, the financial +manipulator, the father of Assumption, the inventor of the rotten +Funding system, the designer of the stock-jobbing Bank of the United +States, and, worst of all, the champion of a powerful Nationalism and +the implacable foe of the sovereignty of the States. + +Spiritedly Marshall made reply. He was, indeed, a disciple of +Washington's great Secretary of the Treasury, he said, and proud of it; +and he gloried in his fealty to Washington, for which also he had been +blamed. In short, Marshall was aggressively for the Administration and +all its measures. These were right, he said, and wise and necessary. +Above all, since that was the chief ground of attack, all of them, from +Assumption to Neutrality, were plainly constitutional. At a public +meeting at Richmond, Marshall offered resolutions which he had drawn up +in support of the Administration's foreign policy, spoke in their favor, +and carried the meeting for them by a heavy majority.[275] + +Marshall's bold course cost him the proffer of an honor. Our strained +relations with the Spaniards required an alert, able, and cool-headed +representative to go to New Orleans. Jefferson[276] confided to Madison +the task of finding such a man in Virginia. "My imagination has hunted +thro' this whole state," Madison advised the Secretary of State in +reply, "without being able to find a single character fitted for the +mission to N. O. Young Marshall seems to possess some of the +qualifications, but there would be objections of several sorts to +him."[277] Three months later Madison revealed one of these "several +objections" to Marshall; but the principal one was his sturdy, fighting +Nationalism. This "objection" was so intense that anybody who was even a +close friend of Marshall was suspected and proscribed by the +Republicans. The Jacobin Clubs of Paris were scarcely more intolerant +than their disciples in America. + +So irritated, indeed, were the Republican leaders by Marshall's +political efforts in support of Neutrality and other policies of the +Administration, that they began to hint at improper motives. With his +brother, brother-in-law, and General Henry Lee (then Governor of +Virginia) Marshall had purchased the Fairfax estate.[278] This was +evidence, said the Republicans, that he was the tool of the wicked +financial interests. Madison hastened to inform Jefferson. + +"The circumstances which derogate from full confidence in W[ilson] +N[icholas]," cautioned Madison, "are ... his connection & intimacy with +Marshall, of whose _disinterestedness_ as well as understanding he has +the highest opinion. It is said that Marshall, who is at the head of the +great purchase from Fairfax, has lately obtained pecuniary aids from the +bank [of the United States] or people connected with it. I think it +certain that he must have felt, in the moment of purchase, an absolute +confidence in the monied interests which will explain him to everyone +that reflects in the active character he is assuming."[279] + +In such fashion do the exigencies of politics generate suspicion and +false witness. Marshall received no money from the Bank for the Fairfax +purchase and it tied him to "the monied interests" in no way except +through business sympathy. He relied for help on his brother's +father-in-law, Robert Morris, who expected to raise the funds for the +Fairfax purchase from loans negotiated in Europe on the security of +Morris's immense real-estate holdings in America.[280] But even the once +poised, charitable, and unsuspicious Madison had now acquired that state +of mind which beholds in any business transaction, no matter how +innocent, something furtive and sinister. His letter proves, however, +that the fearless Richmond lawyer was making himself effectively felt as +a practical power for Washington's Administration, to the serious +discomfort of the Republican chieftains. + +While Marshall was beloved by most of those who knew him and was +astonishingly popular with the masses, jealousy of his ability and +success had made remorseless enemies for him. It appears, indeed, that a +peculiarly malicious envy had pursued him almost from the time he had +gone to William and Mary College. His sister-in-law, with hot +resentment, emphasizes this feature of Marshall's career. +"Notwithstanding his amiable and correct conduct," writes Mrs. +Carrington, "there were those who would catch at the most trifling +circumstance to throw a shade over his fair fame." He had little +education, said his detractors; "his talents were greatly overrated"; +his habits were bad. "Tho' no man living ever had more ardent friends, +yet there does not exist one who had at one time more slanderous +enemies."[281] + +These now assailed Marshall with all their pent-up hatred. They stopped +at no charge, hesitated at no insinuation. For instance, his +conviviality was magnified into reports of excesses and the tale was +carried to the President. "It was cruelly insinuated to G[eorge] +W[ashington]," writes Marshall's sister-in-law, "by an after great +S[olo?]n that to Mr. M[arsha]lls fondness for play was added an +increasing fondness for liquor." Mrs. Carrington loyally defends +Marshall, testifying, from her personal knowledge, that "this S----n +knew better than most others how Mr. M----ll always played for amusement +and never, never for gain, and that he was, of all men, the most +temperate."[282] + +Considering the custom of the time[283] and the habits of the foremost +men of that period,[284] Marshall's sister-in-law is entirely accurate. +Certainly this political slander did not impress Washington, for his +confidence in Marshall grew steadily; and, as we shall presently see, he +continued to tender Marshall high honors and confide to him political +tasks requiring delicate judgment. + +Such petty falsehoods did not disturb Marshall's composure. But he +warmly resented the assault made upon him because of his friendship for +Hamilton; and his anger was hot against what he felt was the sheer +dishonesty of the attacks on the measures of the National Government. "I +wish very much to see you," writes Marshall to Archibald Stuart at this +time: "I want to observe [illegible] how much honest men you and I are +[illegible] half our acquaintance. Seriously there appears to me every +day to be more folly, envy, malice, and damn rascality in the world than +there was the day before and I do verily begin to think that plain +downright honesty and unintriguing integrity will be kicked out of +doors."[285] + +A picturesque incident gave to the Virginia opponents of Washington's +Administration more substantial cause to hate Marshall than his +pamphlets, speeches, and resolutions had afforded. At Smithfield, not +far from Norfolk, the ship Unicorn was fitting out as a French +privateer. The people of Isle of Wight County were almost unanimous in +their sympathy with the project, and only seven or eight men could be +procured to assist the United States Marshal in seizing and holding the +vessel.[286] Twenty-five soldiers and three officers were sent from +Norfolk in a revenue cutter;[287] but the Governor, considering this +force insufficient to outface resistance and take the ship, dispatched +Marshall, with a considerable body of militia, to Smithfield. + +Evidently the affair was believed to be serious; "the Particular +Orders ... to Brigadier General Marshall" placed under his command +forces of cavalry, infantry, and artillery from Richmond and another +body of troops from Petersburg. The Governor assures Marshall that "the +executive know that in your hands the dignity and rights of the +Commonwealth will ever be safe and they are also sure that prudence, +affection to our deluded fellow citizens, and marked obedience to law in +the means you will be compelled to adopt, will equally characterize +every step of your procedure." He is directed to "collect every +information respecting this daring violation of order," and particularly +"the conduct of the Lieutenant Colonel Commandant of Isle of Wight," who +had disregarded his instructions.[288] + +Clad in the uniform of a brigadier-general of the Virginia Militia,[289] +Marshall set out for Smithfield riding at the head of the cavalry, the +light infantry and artillery following by boat.[290] He found all +thought of resistance abandoned upon his arrival. A "peaceable search" +of Captain Sinclair's house revealed thirteen cannon with ball, +grape-shot, and powder. Three more pieces of ordnance were stationed on +the shore. Before General Marshall and his cavalry arrived, the United +States Marshal had been insulted, and threatened with violence. Men had +been heard loading muskets in Sinclair's house, and fifteen of these +weapons, fully charged, were discovered. The house so "completely +commanded the Deck of the" Unicorn "that ... one hundred men placed in +the vessel could not have protected her ten minutes from fifteen placed +in the house."[291] + +The State and Federal officers had previously been able to get little +aid of any kind, but "since the arrival of distant militia," reports +Marshall, "those of the County are as prompt as could be wished in +rendering any service required of them," and he suggests that the +commandant of the county, rather than the men, was responsible for the +failure to act earlier. He at once sent messengers to the infantry and +artillery detachment which had not yet arrived, with orders that they +return to Richmond and Petersburg.[292] + +Marshall "had ... frequent conversations with individuals of the Isle of +Wight" and found them much distressed at the necessity for calling +distant militia "to protect from violence the laws of our common +country.... The commanding officers [of the county] ... seem not to have +become sufficiently impressed with the importance of maintaining the +Sovereignty of the law" says Marshall, but with unwarranted optimism he +believes "that a more proper mode of thinking is beginning to +prevail."[293] + +Thus was the Smithfield defiance of Neutrality and the National laws +quelled by strong measures, taken before it had gathered dangerous +headway. "I am very much indebted to Brig.-Gen'l Marshall and Major +Taylor[294] for their exertions in the execution of my orders," writes +Governor Lee to the Secretary of War.[295] + +But the efforts of the National Government and the action of Governor +Lee in Virginia to enforce obedience to National laws and observance of +Neutrality, while they succeeded locally in their immediate purpose, did +not modify the public temper toward the Administration. Neutrality, in +particular, grew in disfavor among the people. When the congressional +elections of 1794 came on, all complaints against the National +Government were vivified by that burning question. As if, said the +Republicans, there could be such a status as neutrality between "right +and wrong," between "liberty" and "tyranny."[296] + +Thus, in the campaign, the Republicans made the French cause their own. +Everything that Washington's Administration had accomplished was wrong, +said the Republicans, but Neutrality was the work of the Evil One. The +same National power which had dared to issue this "edict" against +American support of French "liberty" had foisted on the people +Assumption, National Courts, and taxes on whiskey. This identical +Nationalist crew had, said the Republicans, by Funding and National +Banks, fostered, nay, created, stock-jobbing and speculation by which +the few "monocrats" were made rich, while the many remained poor. Thus +every Republican candidate for Congress became a knight of the flaming +sword, warring upon all evil, but especially and for the moment against +the dragon of Neutrality that the National Government had uncaged to +help the monarchs of Europe destroy free government in France.[297] +Chiefly on that question the Republicans won the National House of +Representatives. + +But if Neutrality lit the flames of public wrath, Washington's next act +in foreign affairs was powder and oil cast upon fires already fiercely +burning. Great Britain, by her war measures against France, did not +spare America. She seized hundreds of American vessels trading with her +enemy and even with neutrals; in order to starve France[298] she lifted +cargoes from American bottoms; to man her warships she forcibly took +sailors from American ships, "often leaving scarcely hands enough to +navigate the vessel into port";[299] she conducted herself as if she +were not only mistress of the seas, but their sole proprietor. And the +British depredations were committed in a manner harsh, brutal, and +insulting. + +Even Marshall was aroused and wrote to his friend Stuart: "We fear, not +without reason, a war. The man does not live who wishes for peace more +than I do; but the outrages committed upon us are beyond human bearing. +Farewell--pray Heaven we may weather the storm."[300] If the +self-contained and cautious Marshall felt a just resentment of British +outrage, we may, by that measure, accurately judge of the inflamed and +dangerous condition of the general sentiment. + +Thus it came about that the deeply rooted hatred of the people for their +former master[301] was heated to the point of reckless defiance. This +was the same Monarchy, they truly said, that still kept the military and +trading posts on American soil which, more than a decade before, it had, +by the Treaty of Peace, solemnly promised to surrender.[302] The +Government that was committing these savage outrages was the same +faithless Power, declared the general voice, that had pledged +compensation for the slaves its armies had carried away, but not one +shilling of which had been paid. + +If ever a country had good cause for war, Great Britain then furnished +it to America; and, had we been prepared, it is impossible to believe +that we should not have taken up arms to defend our ravaged interests +and vindicate our insulted honor. In Congress various methods of +justifiable retaliation were urged with intense earnestness, marred by +loud and extravagant declamation.[303] "The noise of debate was more +deafening than a mill.... We sleep upon our arms," wrote a member of the +National House.[304] But these bellicose measures were rejected because +any one of them would have meant immediate hostilities. + +For we were not prepared. War was the one thing America could not then +afford. Our Government was still tottering on the unstable legs of +infancy. Orderly society was only beginning and the spirit of unrest and +upheaval was strong and active. In case of war, wrote Ames, expressing +the conservative fears, "I dread anarchy more than great guns."[305] Our +resources had been bled white by the Revolution and the desolating years +that followed. We had no real army, no adequate arsenals,[306] no +efficient ships of war; and the French Republic, surrounded by hostile +bayonets and guns and battling for very existence, could not send us +armies, fleets, munitions, and money as the French Monarchy had done. + +Spain was on our south eager for more territory on the Mississippi, the +mouth of which she controlled; and ready to attack us in case we came +to blows with Great Britain. The latter Power was on our north, the +expelled Loyalists in Canada burning with that natural resentment[307] +which has never cooled; British soldiers held strategic posts within our +territory; hordes of Indians, controlled and their leaders paid by Great +Britain,[308] and hostile to the United States, were upon our borders +anxious to avenge themselves for the defeats we had inflicted on them +and their kinsmen in the savage wars incited by their British +employers.[309] Worst of all, British warships covered the oceans and +patrolled every mile of our shores just beyond American waters. Our +coast defenses, few, poor, and feeble in their best estate, had been +utterly neglected for more than ten years and every American port was at +the mercy of British guns.[310] + +Evidence was not wanting that Great Britain courted war.[311] She had +been cold and unresponsive to every approach for a better understanding +with us. She had not even sent a Minister to our Government until eight +years after the Treaty of Peace had been signed.[312] She not only held +our posts, but established a new one fifty miles south of Detroit; and +her entire conduct indicated, and Washington believed, that she meant to +draw a new boundary line which would give her exclusive possession of +the Great Lakes.[313] She had the monopoly of the fur trade[314] and +plainly meant to keep it. + +Lord Dorchester, supreme representative of the British Crown in Canada, +had made an ominous speech to the Indians predicting hostilities against +the United States within a year and declaring that a new boundary line +would then be drawn "by the warriors."[315] Rumors flew and gained +volume and color in their flight. Even the poised and steady Marshall +was disturbed. + +"We have some letters from Philadelphia that wear a very ugly aspect," +he writes Archibald Stuart. "It is said that Simcoe, the Governor of +Upper Canada, has entered the territory of the United States at the head +of about 500 men and has possessed himself of Presque Isle." But +Marshall cannot restrain his humor, notwithstanding the gravity of the +report: "As this is in Pennsylvania," he observes, "I hope the +democratic society of Philadelphia will at once demolish him and if they +should fail I still trust that some of our upper brothers [Virginia +Republicans] will at one stride place themselves by him and prostrate +his post. But seriously," continues Marshall, "if this be true we must +bid adieu to all hope of peace and prepare for serious war. My only hope +is that it is a mere speculating story."[316] + +Powerless to obtain our rights by force or to prevent their violation by +being prepared to assert them with arms, Washington had no recourse but +to diplomacy. At all hazards and at any cost, war must be avoided for +the time being. It was one of Great Britain's critical mistakes that she +consented to treat instead of forcing a conflict with us; for had she +taken the latter course it is not improbable that, at the end of the +war, the southern boundary of British dominion in America would have +been the Ohio River, and it is not impossible that New York and New +England would have fallen into her hands. At the very least, there can +be little doubt that the Great Lakes and the St. Lawrence would have +become exclusively British waters.[317] + +Amid a confusion of counsels, Washington determined to try for a treaty +of amity, commerce, and navigation with Great Britain, a decision, the +outcome of which was to bring Marshall even more conspicuously into +politics than he ever had been before. Indeed, the result of the +President's policy, and Marshall's activity in support of it, was to +become one of the important stepping-stones in the latter's career. + +Chief Justice Jay was selected for the infinitely delicate task of +negotiation. Even the news of such a plan was received with stinging +criticism. What! Kiss the hand that smote us! It was "a degrading insult +to the American people; a pusillanimous surrender of their honor; and an +insidious injury to France."[318] And our envoy to carry out this +shameful programme!--was it not that same Jay who once tried to barter +away the Mississippi?[319] + +It was bad enough to turn our backs on France; but to treat with the +British Government was infamous. So spoke the voice of the people. The +democratic societies were especially virulent; "Let us unite with France +and stand or fall together"[320] was their heroic sentiment. But +abhorrence of the mission did not blind the Republicans to the +advantages of political craft. While the negotiations were in progress +they said that, after all, everything would be gained that America +desired, knowing that they could say afterward, as they did and with +just cause, that everything had been lost.[321] + +At last Jay secured from Great Britain the famous treaty that bears his +name. It is perhaps the most humiliating compact into which America ever +entered. He was expected to secure the restriction of contraband--it was +enlarged; payment for the slaves--it was refused; recognition of the +principle that "free ships make free goods"--it was denied; equality +with France as to belligerent rights--it was not granted; opening of the +West Indian trade--it was conceded upon hard and unjust conditions; +payment for British spoliation of American commerce--it was promised at +some future time, but even then only on the award of a commission; +immediate surrender of the posts--their evacuation was agreed to, but +not until a year and a half after the treaty was signed. + +On the other hand, the British secured from us free navigation and +trading rights on the Mississippi--never contemplated; agreement that +the United States would pay all debts due from American citizens to +British creditors--a claim never admitted hitherto; prohibition of any +future sequestration of British debts; freedom of all American ports to +British vessels, with a pledge to lay no further restrictions on British +commerce--never before proposed; liberty of Indians and British subjects +to pass our frontiers, trade on our soil, retain lands occupied without +becoming American citizens, but privileged to become such at +pleasure--an odious provision, which, formerly, had never occurred to +anybody. + +Thus, by the Treaty of 1794, we yielded everything and gained little not +already ours. But we secured peace; we were saved from war. That +supreme end was worth the sacrifice and that, alone, justified it. It +more than demonstrated the wisdom of the Jay Treaty. + +While the Senate was considering the bitter terms which Great Britain, +with unsheathed sword, had forced upon us, Senator Stephen T. Mason of +Virginia, in violation of the Senate rules, gave a copy of the treaty to +the press.[322] Instantly the whole land shook with a tornado of +passionate protest.[323] From one end of the country to the other, +public meetings were held. Boston led off.[324] Washington was smothered +with violent petitions that poured in upon him from every quarter +praying, demanding, that he withhold his assent.[325] As in the struggle +for the Constitution and in the violent attacks on Neutrality, so now +the strongest advocates of the Jay Treaty were the commercial +interests. "The common opinion among men of business of all descriptions +is," declares Hamilton, "that a disagreement would greatly shock and +stagnate pecuniary plans and operations in general."[326] + +The printing presses belched pamphlets and lampoons, scurrilous, +inflammatory, even indecent. An example of these was a Boston screed. +This classic of vituperation, connecting the treaty with the financial +measures of Washington's Administration, represented the Federalist +leaders as servants of the Devil; Independence, after the death of his +first wife, Virtue, married a foul creature, Vice, and finally himself +expired in convulsions, leaving Speculation, Bribery, and Corruption as +the base offspring of his second marriage.[327] + +Everywhere Jay was burned in effigy. Hamilton was stoned in New York +when he tried to speak to the mob; and with the blood pouring down his +face went, with the few who were willing to listen to him, to the safety +of a hall.[328] Even Washington's granite resolution was shaken. Only +once in our history have the American people so scourged a great public +servant.[329] He was no statesman, raged the Republicans; everybody knew +that he had been a failure as a soldier, they said; and now, having +trampled on the Constitution and betrayed America, let him be impeached, +screamed the infuriated opposition.[330] Seldom has any measure of our +Government awakened such convulsions of popular feeling as did the Jay +Treaty, which, surrendering our righteous and immediate demands, yet +saved our future. Marshall, watching it all, prepared to defend the +popularly abhorred compact; and thus he was to become its leading +defender in the South. + +When, finally, Washington reluctantly approved its ratification by the +Senate,[331] many of his friends deserted him.[332] "The trouble and +perplexities ... have worn away my mind," wrote the abused and +distracted President.[333] Mercer County, Kentucky, denounced Senator +Humphrey Marshall for voting for ratification and demanded a +constitutional amendment empowering State Legislatures to recall +Senators at will.[334] The Legislature of Virginia actually passed a +resolution for an amendment of the National Constitution to make the +House of Representatives a part of the treaty-making power.[335] The +Lexington, Kentucky, resolutions branded the treaty as "shameful to the +American name."[336] It was reported that at a dinner in Virginia this +toast was drunk: "A speedy death to General Washington."[337] Orators +exhausted invective; poets wrote in the ink of gall.[338] + +Jefferson, in harmony, of course, with the public temper, was against +the treaty. "So general a burst of dissatisfaction," he declared, +"never before appeared against any transaction.... The whole body of the +people ... have taken a greater interest in this transaction than they +were ever known to do in any other."[339] The Republican chieftain +carefully observed the effect of the popular commotion on his own and +the opposite party. "It has in my opinion completely demolished the +monarchical party here[340] [Virginia]." Jefferson thought the treaty +itself so bad that it nearly turned him against all treaties. "I am not +satisfied," said he, "we should not be better without treaties with any +nation. But I am satisfied we should be better without such as +this."[341] + +The deadliest charge against the treaty was the now familiar one of +"unconstitutionality." Many urged that the President had no power to +begin negotiations without the assent of the Senate;[342] and all +opponents agreed that it flagrantly violated the Constitution in several +respects, especially in regulating trade, to do which was the exclusive +province of Congress.[343] Once more, avowed the Jeffersonians, it was +the National Government which had brought upon America this disgrace. +"Not one in a thousand would have resisted Great Britain ... in the +beginning of the Revolution" if the vile conduct of Washington had been +foreseen; and it was plain, at this late day, that "either the Federal +or State governments must fall"--so wrote Republican pamphleteers, so +spoke Republican orators.[344] + +Again Hamilton brought into action the artillery of his astounding +intellect. In a series of public letters under the signature of +"Camillus," he vindicated every feature of the treaty, evading nothing, +conceding nothing. These papers were his last great constructive work. +In numbers three, six, thirty-seven, and thirty-eight of "Camillus," he +expounded the Constitution on the treaty-making power; demonstrated the +exclusive right of the President to negotiate, and, with the Senate, to +conclude, treaties; and proved, not only that the House should not be +consulted, but that it is bound by the Constitution itself to pass all +laws necessary to carry treaties into effect.[345] + +Fearless, indeed, and void of political ambition were those who dared to +face the tempest. "The cry against the Treaty is like that against a +mad-dog," wrote Washington from Mount Vernon.[346] Particularly was this +true of Virginia, where it raged ungovernably.[347] A meeting of +Richmond citizens "have outdone all that has gone before them" in the +resolutions passed,[348] bitterly complained Washington. Virginians, +testified Jefferson, "were never more unanimous. 4. or 5. individuals of +Richmond, distinguished however, by their talents as by their devotion +to all the sacred acts of the government, & the town of Alexandria +constitute the whole support of that instrument [Jay Treaty] here."[349] +These four or five devoted ones, said Jefferson, were "Marshall, +Carrington, Harvey, Bushrod Washington, Doctor Stewart."[350] But, as we +are now to see, Marshall made up in boldness and ability what the +Virginia friends of the Administration lacked in numbers. + + +FOOTNOTES: + +[195] Compare Hamilton's "Opinion as to the Constitutionality of the +Bank of the United States" with Marshall's opinion in McCulloch vs. +Maryland, The student of Marshall cannot devote too much attention to +Hamilton's great state papers, from the "First Report on the Public +Credit" to "Camillus." It is interesting that Hamilton produced all +these within five years, notwithstanding the fact that this was the +busiest and most crowded period of his life. + +[196] Binney, in Dillon, iii, 301-02. + +[197] La Rochefoucauld, iii, 73. For a man even "to be passive ... is a +satisfactory proof that he is on the wrong side." (Monroe to Jefferson, +July 17, 1792; Monroe's _Writings_: Hamilton, i, 238.) + +[198] George Mason to John Mason, July 12, 1791; Rowland, ii, 338. + +[199] Corbin to Hamilton, March 17, 1793; as quoted in Beard: _Econ. O. +J. D._, 226. + +[200] "Patrick Henry once said 'that he could forgive anything else in +Mr. Jefferson, but his corrupting Mr. Madison.'" (Pickering to Marshall, +Dec. 26, 1828; Pickering MSS., Mass. Hist. Soc.) "His [Madison's] +placing himself under the pupilage of Mr. Jefferson and supporting his +public deceptions, are sufficient to put him out of my book." (Pickering +to Rose, March 22, 1808; _ib._) + +[201] Madison's course was irreconcilable with his earlier Nationalist +stand. (See Beard: _Econ. O. J. D._, 77; and see especially the +remarkable and highly important letter of Hamilton to Carrington, May +26, 1792; _Works_: Lodge, ix, 513-35, on Madison's change, Jefferson's +conduct, and the politics of the time.) Carrington was now the +brother-in-law of Marshall and his most intimate friend. Their houses in +Richmond almost adjoined. (See _infra_, chap. V.) + +[202] See brief but excellent account of this famous journey in Gay: +_Madison_ (American Statesmen Series), 184-85; and _contra_, Rives, iii, +191. + +[203] Jefferson to Madison, June 29, 1792; _Works_: Ford, vii, 129-30. + +[204] No letters have been discovered from Hamilton to Marshall or from +Marshall to Hamilton dated earlier than three years after Jefferson's +letter to Madison. + +[205] "The length of the last session has done me irreparable injury in +my profession, as it has made an impression on the general opinion that +two occupations are incompatible." (Monroe to Jefferson, June 17, 1792; +Monroe's _Writings_: Hamilton, i, 230.) + +[206] See _infra_, chap. X. + +[207] Ames to Dwight, Jan., 1793; _Works_: Ames, i, 126-27. + +[208] Rives, iii, 192-94; and see McMaster, ii, 52-53; also Hamilton to +Carrington, May 26, 1792; _Works_: Lodge, ix, 513-35. + +[209] Washington to Jefferson, Aug. 23, 1792; _Writings_: Ford, xii, +174-75. This letter is almost tearful in its pleading. + +[210] Jefferson to Washington, Sept. 9, 1792; _Works_: Ford, vii, 137 +_et seq._ The quotation in the text refers to Jefferson's part in the +deal fixing the site of the Capital and passing the Assumption Act. +Compare with Jefferson's letters written at the time. (_Supra_, 64.) It +is impossible that Jefferson was not fully advised; the whole country +was aroused over Assumption, Congress debated it for weeks, it was the +one subject of interest and conversation at the seat of government, and +Jefferson himself so testifies in his correspondence. + +[211] Washington to Hamilton, Aug. 26, 1792; _Writings_: Ford, xii, +177-78. + +[212] Hamilton to Washington, Sept, 9, 1792; _Works_: Lodge, vii, 306. + +[213] See Marshall, ii, 191-92. + +[214] Journal, H.D. (Nov. 28, 1793), 101. + +[215] _Ib._ The Legislature instructed Virginia's Senators and +Representatives to endeavor to secure measures to "suspend the operation +and completion" of the articles of the treaty of peace looking to the +payment of British debts until the posts and negroes should be given up. +(_Ib._, 124-25; also see Virginia Statutes at Large, New Series, i, +285.) Referring to this Ames wrote: "Thus, murder, at last, is out." +(Ames to Dwight, May 6, 1794; _Works_: Ames, i, 143-44.) + +[216] Chisholm _vs._ Georgia, 2 Dallas, 419. + +[217] Journal, H.D. (1793), 92-99; also see Virginia Statutes at Large, +New Series, i, 284. This was the origin of the Eleventh Amendment to the +Constitution. The Legislature "Resolved, That a State cannot, under the +Constitution of the United States, be made a defendant at the suit of +any individual or individuals, and that the decision of the Supreme +Federal Court, that a State may be placed in that situation, is +incompatible with, and dangerous to the sovereignty and independence of +the individual States, as the same tends to a general consolidation of +these confederated republics." Virginia Senators were "instructed" to +make "their utmost exertions" to secure an amendment to the Constitution +regarding suits against States. The Governor was directed to send the +Virginia resolution to all the other States. (Journal, H.D. (1793), 99.) + +[218] _Ib._, 125. + +[219] _Ib._; also Statutes at Large, _supra_, 284. + +[220] See _Annals_, 2d Cong., 900-63. + +[221] Journal, H.D. (1793), 56-57. Of Giles's methods in this attack on +Hamilton the elder Wolcott wrote that it was "such a piece of baseness +as would have disgraced the council of Pandemonium." (Wolcott to his +son, March 25, 1793; Gibbs, i, 91.) + +[222] Beard: _Econ. O. J. D._, chap. vi. + +[223] Professor Beard, after a careful treatment of this subject, +concludes that "The charge of mere corruption must fall to the ground." +(_Ib._, 195.) + +[224] "To the northward of Baltimore everybody ... speculates, trades, +and jobs in the stocks. The judge, the advocate, the physician and the +minister of divine worship, are all, or almost all, more or less +interested in the sale of land, in the purchase of goods, in that of +bills of exchange, and in lending money at two or three per cent." (La +Rochefoucauld, iv, 474.) The French traveler was also impressed with the +display of riches in the Capital. "The profusion of luxury of +Philadelphia, on great days, at the tables of the wealthy, in their +equipages and the dresses of their wives and daughters, are ... extreme. +I have seen balls on the President's birthday where the splendor of the +rooms, and the variety and richness of the dresses did not suffer, in +comparison with Europe." The extravagance extended to working-men who, +on Sundays, spent money with amazing lavishness. Even negro servants had +balls; and negresses with wages of one dollar per week wore dresses +costing sixty dollars. (_Ib._, 107-09.) + +[225] Jefferson to T. M. Randolph, March 16, 1792; _Works_: Ford, vi, +408. + +[226] Jefferson to Short, May 18, 1792; _Works_: Ford, vi, 413; and see +"A Citizen" in the _National Gazette_, May 3, 1792, for a typical +Republican indictment of Funding and Assumption. + +[227] Gallatin's _Writings_: Adams, i, 3. + +[228] Pennsylvania alone had five thousand distilleries. (Beard: _Econ. +O. J. D._, 250.) Whiskey was used as a circulating medium. (McMaster, +ii, 29.) Every contemporary traveler tells of the numerous private +stills in Pennsylvania and the South. Practically all farmers, +especially in the back country, had their own apparatus for making +whiskey or brandy. (See chap. VII, vol. I, of this work.) + +Nor was this industry confined to the lowly and the frontiersmen. +Washington had a large distillery. (Washington to William Augustine +Washington, Feb. 27, 1798; _Writings_: Ford, xiii, 444.) + +New England's rum, on the other hand, was supplied by big distilleries; +and these could include the tax in the price charged the consumer. Thus +the people of Pennsylvania and the South felt the tax personally, while +New Englanders were unconscious of it. Otherwise there doubtless would +have been a New England "rum rebellion," as Shays's uprising and as New +England's implied threat in the Assumption fight would seem to prove. +(See Beard: _Econ. O. J. D._, 250-51.) + +[229] Marshall, ii, 200. + +[230] _Ib._, 238. + +[231] Graydon, 372. + +[232] Sept. 25, 1794; _Writings_: Ford, xii, 467. + +[233] Sept. 15, 1792; Richardson, i, 124; Aug. 7, 1794; _Writings_: +Ford, xii, 445. + +[234] Hamilton remained with the troops until the insurrection was +suppressed and order fully established. (See Hamilton's letters to +Washington, written from various points, during the expedition, from +Oct. 25 to Nov. 19, 1794; _Works_: Lodge, vi, 451-60.) + +[235] Marshall, ii, 200, 235-38, 340-48; Gibbs, i, 144-55; and see +Hamilton's Report to the President, Aug. 5, 1794; _Works_: Lodge, vi, +358-88. But see Gallatin's _Writings_: Adams, i, 2-12; Beard: _Econ. O. +J. D._, 250-60. For extended account of the Whiskey Rebellion from the +point of view of the insurgents, see Findley: _History of the +Insurrection_, etc., and Breckenridge: _History of the Western +Insurrection_. + +[236] The claim now made by the Republicans that they were the only +friends of the Constitution was a clever political turn. Also it is an +amusing incident of our history. The Federalists were the creators of +the Constitution; while the Republicans, generally speaking and with +exceptions, had been ardent foes of its adoption. (See Beard: _Econ. O. +J. D._) + +[237] Graydon, 374. Jefferson's party was called Republican because of +its championship of the French Republic. (Ambler, 63.) + +[238] In the Fairfax purchase. (See _infra_, chap. V.) + +[239] See Hamilton's orders to General Lee; _Works_: Lodge, vi, 445-51; +and see Washington to Lee, Oct. 20, 1794; _Writings_: Ford, xii, 478-80. + +[240] Washington to Lee, Aug. 26, 1794; _Writings_: Ford, xii, 454-56. + +[241] Washington to Jay, Nov. 1, 1794; _ib._, 486. + +[242] Washington to Thruston, Aug. 10, 1794; _ib._, 452. + +[243] Washington to Morgan, Oct. 8, 1794; _ib._, 470. The Virginia +militia were under the Command of Major-General Daniel Morgan. + +[244] General Order, June 30, 1794; _Cal. Va. St. Prs._, vii, 202. + +[245] Carrington to Lieutenant-Governor Wood, Sept. 1, 1794; _ib._, 287. + +[246] Major-General Daniel Morgan to the Governor of Virginia, Sept. 7, +1794; _ib._, 297. + +[247] Jefferson to Washington, Sept. 18, 1792; _Works_: Ford, vii, 153. + +[248] Jefferson to Madison, Dec. 28, 1794; _ib._, viii, 157. + +[249] _Ib._ + +[250] Jefferson to Monroe, May 26, 1795; _ib._, 177. + +[251] Jefferson to Madison, Dec. 28, 1794; _ib._, 157. + +[252] Wolcott to Wolcott, Dec. 15, 1792; Gibbs, i, 85. + +[253] Marshall, ii, 256; see Washington's "Farewell Address." + +[254] John Adams claimed this as his particular idea. "Washington +learned it from me ... and practiced upon it." (Adams to Rush, July 7, +1805; _Old Family Letters_, 71.) + +"I trust that we shall have too just a sense of our own interest to +originate any cause, that may involve us in it [the European war]." +(Washington to Humphreys, March 23, 1793; _Writings_: Ford, xii, 276.) + +[255] Marshall, ii, 259; and see Rules of Neutrality, _ib._, note 13, p. +15. Washington's proclamation was drawn by Attorney-General Randolph. +(Conway, 202.) + +[256] Marshall, ii, 259-60. "The publications in Freneau's and Bache's +papers are outrages on common decency." (Washington to Lee, July 21, +1793; _Writings_: Ford, xii, 310.) + +[257] Marshall, ii, 256. + +[258] Graydon, 382. + +[259] Marshall, ii, 260. "A Freeman" in the _General Advertiser_ of +Philadelphia stated the most moderate opinion of those who opposed +Neutrality. "France," said he, "is not only warring against the +despotism of monarchy but the despotism of aristocracy and it would +appear rather uncommon to see men [Washington and those who agreed with +him] welcoming the Ambassador of republicanism who are warring [against] +their darling aristocracy. But ... shall the officers of our government +prescribe rules of conduct to freemen? Fellow citizens, view this +conduct [Neutrality] well and you will discover principles lurking at +bottom at variance with your liberty. Who is the superior of the people? +Are we already so degenerate as to acknowledge a superior in the United +States?" (_General Advertiser_, April 25, 1793.) + +[260] "Our commercial and maritime people feel themselves deeply +interested to prevent every act that may put our peace at hazard." +(Cabot to King, Aug. 2, 1793; Lodge: _Cabot_, 74.) + +The merchants and traders of Baltimore, "as participants in the general +prosperity resulting from peace, and the excellent laws and constitution +of the United States ... beg leave to express the high sense they +entertain of the provident wisdom and watchfulness over the concerns and +peace of a happy people which you have displayed in your late +proclamation declaring neutrality ... well convinced that the true +interests of America consist in a conduct, impartial, friendly, and +unoffending to all the belligerent powers." (Address of the Merchants +and Traders of Baltimore to George Washington, President of the United +States; _General Advertiser_, Philadelphia, June 5, 1793.) + +[261] Jefferson to Madison, May 19, 1793; _Works_: Ford, vii, 336. + +[262] Jefferson to Monroe, May 5, 1793; _ib._, 309. + +[263] Marshall, ii, 273. + +[264] Pacificus No. 1; _Works_: Lodge, iv, 432-44. + +[265] Marshall, ii, 327. + +[266] Marshall, ii, 322. + +[267] Jefferson to Washington, Dec. 31, 1793; _Works_: Ford, viii, 136. + +[268] Jefferson to Short, Jan. 28, 1792; _ib._, vi, 382. + +[269] Marshall, ii, 233. + +[270] Generally speaking, the same classes that secured the Constitution +supported all the measures of Washington's Administration. (See Beard: +_Econ. O. J. D._, 122-24.) + +While the Republicans charged that Washington's Neutrality was inspired +by favoritism to Great Britain, as it was certainly championed by +trading and moneyed interests which dealt chiefly with British houses, +the Federalists made the counter-charge, with equal accuracy, that the +opponents of Neutrality were French partisans and encouraged by those +financially interested. + +The younger Adams, who was in Europe during most of this period and who +carefully informed himself, writing from The Hague, declared that many +Americans, some of them very important men, were "debtors to British +merchants, creditors to the French government, and speculators in the +French revolutionary funds, all to an immense amount," and that other +Americans were heavily indebted in England. All these interests were +against Neutrality and in favor of war with Great Britain--those owing +British debts, because "war ... would serve as a sponge for their +debts," or at least postpone payment, and the creditors of the French +securities, because French success would insure payment. (J. Q. Adams to +his father, June 24, 1796; _Writings, J. Q. A._: Ford, i, 506.) + +[271] Story, in Dillon, iii, 350. + +[272] Gabriel Jones, the ablest lawyer in the Valley, and, of course, a +stanch Federalist. + +[273] Monroe to Jefferson, Sept. 3, 1793; Monroe's _Writings_: Hamilton, +i, 274-75. Considering the intimate personal friendship existing between +Monroe and Marshall, the significance and importance of this letter +cannot be overestimated. + +[274] It was at this point, undoubtedly, that the slander concerning +Marshall's habits was started. (See _infra_, 101-03.) + +[275] The above paragraphs are based on Justice Story's account of +Marshall's activities at this period, supplemented by Madison and +Monroe's letters; by the well-known political history of that time; and +by the untrustworthy but not negligible testimony of tradition. While +difficult to reconstruct a situation from such fragments, the account +given in the text is believed to be substantially accurate. + +[276] See _Works_: Ford, xii, footnote to 451. + +[277] Madison to Jefferson, June 17, 1793; _Writings_: Hunt, vi, 134. + +[278] See _infra_, chap. V. + +[279] Madison to Jefferson, Sept. 2, 1793; _Writings_: Hunt, vi, 196. + +[280] See _infra_, chap. V. Robert Morris secured in this way all the +money he was able to give his son-in-law for the Fairfax purchase. + +[281] Mrs. Carrington to her sister Nancy; undated; MS. + +[282] _Ib._ + +[283] See _supra_, vol. I, chap. VII. + +[284] See, for instance, Jefferson to Short (Sept 6, 1790; _Works_: +Ford, vi, 146), describing a single order of wine for Washington and one +for himself; and see Chastellux's account of an evening with Jefferson: +"We were conversing one evening over a bowl of punch after Mrs. +Jefferson had retired. Our conversation turned on the poems of +Ossian.... The book was sent for and placed near the bowl, where by +their mutual aid the night far advanced imperceptibly upon us." +(Chastellux, 229.) + +Marshall's Account Book does not show any purchases of wine at all +comparable with those of other contemporaries. In March, 1791, Marshall +enters, "wine £60"; August, ditto, "£14-5-8"; September, 1792, "Wine +£70"; in July, 1793, "Whisky 6.3.9" (pounds, shillings, and pence); in +May, 1794, "Rum and brandy 6-4"; August, 1794, ditto, five shillings, +sixpence; May, 1795, "Whisky £6.16"; Sept., "wine £3"; Oct., ditto, +"£17.6." + +[285] Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc. + +[286] Major George Keith Taylor to Brigadier-General Mathews, July 19, +1794; _Cal. Va. St. Prs._, vii, 223. + +[287] Mathews to Taylor, July 20, 1794; _ib._, 224. + +[288] Governor Henry Lee "Commander-in-chief," to Marshall, July 21, +1794; MS., "War 10," Archives, Va. St. Lib. + +[289] "Dark blue coat, skirts lined with buff, capes, lapels and cuffs +buff, buttons yellow. Epaulets gold one on each shoulder, black cocked +hat, with black cockade, black stock, boots and side arms." (Division +Orders, July 4, 1794; _Cal. Va. St. Prs._, vii, 204. But see Schoepf +(ii, 43), where a uniform worn by one brigadier-general of Virginia +Militia is described as consisting of "a large white hat, a blue coat, a +brown waistcoat, and green breeches.") + +[290] Particular Orders, _supra_. + +[291] Marshall to Governor of Virginia, July 23, 1794; _Cal. Va. St. +Prs._, vii, 228; and same to same, July 28, 1794; _ib._, 234. + +[292] _Ib._ + +[293] Marshall to Governor of Virginia, July 28, 1794; _Cal. Va. St. +Prs._, vii, 235. + +[294] George Keith Taylor; see _infra_, chaps. X and XII. + +[295] Lee to the Secretary of War, July 28, 1794; _Cal. Va. St. Prs._, +vii, 234. + +[296] See, for instance, Thompson's speech, _infra_, chap. VI. + +[297] Marshall, ii, 293. + +[298] _Ib._, 285. + +[299] _Ib._, 285. + +[300] Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc. + +[301] "The idea that Great Britain was the natural enemy of America had +become habitual" long before this time. (Marshall, ii, 154.) + +[302] One reason for Great Britain's unlawful retention of these posts +was her purpose to maintain her monopoly of the fur trade. (_Ib._, 194. +And see Beard: _Econ. O. J. D._, 279.) + +[303] Marshall, ii, 320-21; and see _Annals_, 3d Cong., 1st Sess., 1793, +274-90; also Anderson, 29; and see prior war-inviting resolves and +speeches in _Annals_, 3d Cong., _supra_, 21, 30, 544 _et seq._; also +Marshall, ii, 324 _et seq._ + +[304] Ames to Dwight, Dec. 12, 1794; _Works_: Ames, i, 154. + +[305] Ames to Gore, March 26, 1794; _Works_: Ames, i, 140. And see +Marshall, ii, 324 _et seq._ + +[306] See Washington to Ball, Aug. 10, 1794; _Writings_: Ford, xii, 449. + +[307] See Van Tyne, chap. xi. + +[308] Marshall, ii, 286, 287. + +[309] _Ib._ + +[310] John Quincy Adams, who was in London and who was intensely +irritated by British conduct, concluded that: "A war at present with +Great Britain must be total destruction to the commerce of our country; +for there is no maritime power on earth that can contend with the +existing naval British force." (J. Q. Adams to Sargent, The Hague, Oct. +12, 1795; _Writings, J. Q. A._: Ford, i, 419.) + +[311] "I believe the intention is to draw the United States into it +[war] merely to make tools of them.... The conduct of the British +government is so well adapted to increasing our danger of war, that I +cannot but suppose they are secretly inclined to produce it." (J. Q. +Adams to his father, The Hague, Sept. 12, 1795; _ib._, 409.) + +[312] Marshall, ii, 194. + +[313] Marshall, ii, 337. + +[314] _Ib._, 195; and see Beard: _Econ. O. J. D._, 279. + +[315] See this speech in Rives, iii, footnote to 418-19. It is curious +that Marshall, in his _Life of Washington_, makes the error of asserting +that the account of Dorchester's speech was "not authentic." It is one +of the very few mistakes in Marshall's careful book. (Marshall, ii, +320.) + +[316] Marshall to Stuart, May 28, 1794; MS., Va. Hist. Soc. + +[317] It must not be forgotten that we were not so well prepared for war +in 1794 as the colonies had been in 1776, or as we were a few years +after Jay was sent on his mission. And on the traditional policy of +Great Britain when intending to make war on any country, see J. Q. Adams +to his father, June 24, 1796; _Writings, J. Q. A._: Ford, i, 499-500. + +Also, see same to same, The Hague, June 9, 1796; _ib._, 493, predicting +dissolution of the Union in case of war with Great Britain. "I confess +it made me doubly desirous to quit a country where the malevolence that +is so common against America was exulting in triumph." (_Ib._) + +"The truth is that the American _Government_ ... have not upon earth +more rancorous enemies, than the springs which move the machine of this +Country [England] ... Between Great Britain and the United States no +_cordiality_ can exist." (Same to same, London, Feb. 10, 1796; _ib._, +477; also, March 24, 1794; _ib._, 18, 183, 187.) + +[318] Marshall, ii, 363. + +[319] _American Remembrancer_, i, 9. + +[320] Resolution of Wythe County (Va.) Democratic Society, quoted in +Anderson, 32. + +[321] Ames to Dwight, Feb. 3, 1795; _Works_: Ames, i, 166. + +[322] Marshall, ii, 362-64. + +[323] _Ib._, 366. + +[324] The Boston men, it appears, had not even read the treaty, as was +the case with other meetings which adopted resolutions of protest. +(Marshall, ii, 365 _et seq._) Thereupon the Boston satirists lampooned +the hasty denunciators of the treaty as follows:-- + + "I've never read it, but I say 'tis bad. + If it goes down, I'll bet my ears and eyes, + It will the people all unpopularize; + Boobies may hear it read ere they decide, + I move it quickly be unratified." + +On Dr. Jarvis's speech at Faneuil Hall against the Jay Treaty; Loring: +_Hundred Boston Orators_, 232. The Republicans were equally sarcastic: +"I say the treaty is a good one ... for I do not think about it.... What +did we choose the Senate for ... but to think for us.... Let the people +remember that it is their sacred right to submit and obey; and that all +those who would persuade them that they have a right to think and speak +on the sublime, mysterious, and to them incomprehensible affairs of +government are factious Democrats and outrageous Jacobins." (Essay on +Jacobinical Thinkers: _American Remembrancer_, i, 141.) + +[325] See Marshall's vivid description of the popular reception of the +treaty; Marshall, ii, 365-66. + +[326] Hamilton to King, June 20, 1795; _Works_: Lodge, x, 103. + +[327] "An Emetic for Aristocrats.... Also a History of the Life and +Death of Independence; Boston, 1795." Copies of such attacks were +scattered broadcast--"Emissaries flew through the country spreading +alarm and discontent." (Camillus, no. 1; _Works_: Lodge, v, 189-99.) + +[328] McMaster, ii, 213-20; Gibbs, i, 207; and Hildreth, iv, 548. + +[329] Present-day detraction of our public men is gentle reproof +contrasted with the savagery with which Washington was, thenceforth, +assailed. + +[330] Marshall, ii, 370. Of the innumerable accounts of the abuse of +Washington, Weld may be cited as the most moderate. After testifying to +Washington's unpopularity this acute traveler says: "It is the spirit of +dissatisfaction which forms a leading trait in the character of the +Americans as a people, which produces this malevolence [against +Washington]; if their public affairs were regulated by a person sent +from heaven, I firmly believe his acts, instead of meeting with +universal approbation, would by many be considered as deceitful and +flagitious." (Weld, i, 108-09.) + +[331] Washington almost determined to withhold ratification. (Marshall, +ii, 362.) The treaty was signed November 19, 1794; received by the +President, March 7, 1795; submitted to the Senate June 8, 1795; ratified +by the Senate June 24; and signed by Washington August 12, 1795. (_Ib._, +360, 361, 368.) + +[332] "Washington now defies the whole Sovereign that made him what he +is----and can unmake him again. Better his hand had been cut off when +his glory was at its height before he blasted all his Laurels!" (Dr. +Nathaniel Ames's Diary, Aug. 14, 1795; _Dedham (Mass.) Historical +Register_, vii, 33.) Of Washington's reply to the address of the +merchants and traders of Philadelphia "An Old Soldier of '76," wrote: +"Has adulation ... so bewildered his senses, that relinquishing even +common decency, he tells 408 merchants and traders of Philadelphia that +they are more immediately concerned than any other class of his fellow +citizens?" (_American Remembrancer_, ii, 280-81.) + +[333] Washington to Jay, May 8, 1796; _Writings_: Ford, xiii, 189. + +[334] _American Remembrancer_, ii, 265. + +[335] Journal, H.D. (1795), 54-55; and see Anderson, 43. + +[336] _American Remembrancer_, ii, 269. + +[337] Ames to Gore, Jan. 10, 1795; _Works_: Ames, i, 161. + +[338] + + "This treaty in one page confines, + The sad result of base designs; + The wretched purchase here behold + Of Traitors--who their country sold. + Here, in their proper shape and mien, + Fraud, perjury, and guilt are seen." + (Freneau, iii, 133.) + +[339] Jefferson to Monroe, Sept. 6, 1795; _Works_: Ford, viii, 187-88. + +[340] _Ib._ + +[341] Jefferson to Tazewell, Sept. 13, 1795; _Works_: Ford, viii, 191. +The Jay Treaty and Neutrality must be considered together, if the temper +of the times is to be understood. "If our neutrality be still preserved, +it will be due to the President alone," writes the younger Adams from +Europe. "Nothing but his weight of character and reputation, combined +with his firmness and political intrepidity could have stood against the +torrent that is still tumbling with a fury that resounds even across the +Atlantic.... If his system of administration now prevails, ten years +more will place the United States among the most powerful and opulent +nations on earth.... Now, when a powerful party at home and a mighty +influence from abroad, are joining all their forces to assail his +reputation, and his character I think it my duty as an American to avow +my sentiments." (J. Q. Adams to Bourne, Dec. 24, 1795; _Writings, J. Q. +A._: Ford, i, 467.) + +[342] Charles Pinckney's Speech; _American Remembrancer_, i, 7. + +[343] Marshall, ii, 378. The Republicans insisted that the assent of the +House of Representatives is necessary to the ratification of any treaty +that affects commerce, requires appropriation of money, or where any act +of Congress whatever may be necessary to carry a treaty into effect. +(_Ib._; and see Livingston's resolutions and debate; _Annals_, 4th +Cong., 1st Sess., 1795, 426; 628.) + +[344] "Priestly's Emigration," printed in Cobbett, i, 196, quoting +"Agricola." + +[345] "Camillus"; _Works_: Lodge, v and vi. It is impossible to give a +satisfactory condensation of these monumental papers. Struck off in +haste and under greatest pressure, they equal if not surpass Hamilton's +"First Report on the Public Credit," his "Opinion as to the +Constitutionality of the Bank of the United States," or his "Report on +Manufactures." As an intellectual performance, the "Letters of Camillus" +come near being Hamilton's masterpiece. + +[346] Washington to Hamilton, July 29, 1795; _Writings_: Ford, xiii, 76. + +[347] The whole country was against the treaty on general grounds; but +Virginia was especially hostile because of the sore question of runaway +slaves and the British debts. + +[348] Washington to Randolph, Aug. 4, 1795; _Writings_: Ford, xiii, +footnote to 86. See Resolutions, which were comparatively mild; +_American Remembrancer_, i, 133-34; and see _Richmond and Manchester +Advertiser_, of July 30, and Aug. 6, 1795. + +[349] Jefferson to Coxe, Sept. 10, 1795; _Works_: Ford, vii, 29. + +[350] Jefferson to Monroe, Sept. 6, 1795; _ib._, 27. + + + + +CHAPTER IV + +WASHINGTON'S DEFENDER + + His [Marshall's] lax, lounging manners have made him popular. + (Jefferson.) + + Having a high opinion of General Marshall's honor, prudence, and + judgment, consult him. (Washington.) + + The man [Washington] who is the source of all the misfortunes of + our country is no longer possessed of the power to multiply evils + on the United States. (The _Aurora_ on Washington's retirement + from the Presidency.) + + +Jefferson properly named Marshall as the first of Washington's friends +in Virginia. For, by now, he had become the leader of the Virginia +Federalists. His lucid common sense, his level poise, his steady +courage, his rock-like reliability--these qualities, together with his +almost uncanny influence over his constituents, had made him chief in +the Virginia Federalist councils. + +So high had Marshall risen in Washington's esteem and confidence that +the President urged him to become a member of the Cabinet. + +"The office of Attorney Gen^l. of the United States has become vacant by +the death of Will Bradford, Esq.[351] I take the earliest opportunity of +asking if you will accept the appointment? The salary annexed thereto, +and the prospects of lucrative practice in this city [Philadelphia]--the +present seat of the Gen^l. Government, must be as well known to you, +perhaps better, than they are to me, and therefore I shall say nothing +concerning them. + +"If your answer is in the affirmative, it will readily occur to you that +no unnecessary time should be lost in repairing to this place. If, on +the contrary, it should be the negative (which would give me concern) it +might be as well to say nothing of this offer. But in either case, I +pray you to give me an answer as promptly as you can."[352] + +Marshall decided instantly; he could not possibly afford to accept a +place yielding only fifteen hundred dollars annually, the salary of the +Attorney-General at that period,[353] and the duties of which permitted +little time for private practice which was then allowable.[354] So +Marshall, in a "few minutes" declined Washington's offer in a letter +which is a model of good taste. + +"I had the honor of receiving a few minutes past your letter of the 26th +inst. + +"While the business I have undertaken to complete in Richmond,[355] +forbids me to change my situation tho for one infinitely more eligible, +permit me Sir to express my sincere acknowledgments for the offer your +letter contains & the real pride & gratification I feel at the favorable +opinion it indicates. + +"I respect too highly the offices of the present government of the +United States to permit it to be suspected that I have declined one of +them."[356] + +When he refused the office of Attorney-General, Washington, sorely +perplexed, wrote Marshall's brother-in-law,[357] Edward Carrington, +United States Marshal and Collector of Internal Revenue for the District +of Virginia,[358] a letter, "the _whole_" of which "is perfectly +confidential, written, perhaps, with more candor than prudence," +concerning Innes or Henry for the place; but, says the President, +"having a high opinion of General[359] Marshall's honor, prudence, and +judgment," Carrington must consult him.[360] + +The harassed President had now come to lean heavily on Marshall in +Virginia affairs; indeed, it may be said that he was Washington's +political agent at the State Capital. Carrington's answer is typical of +his reports to the President: "The inquiry [concerning the selection of +an Attorney-General] which you have been pleased to submit to Gen^l. +Marshall and myself demands & receives our most serious attention--On +his [Marshall's] aid I rely for giving you accurate information."[361] + +[Illustration: _John Marshall_ +_From a painting by Rembrandt Peale_] + +Later Carrington advises Washington that Marshall "wishes an opportunity +of conversing with Col. Innes before he decides."[362] Innes was absent +at Williamsburg; and although the matter was urgent, Marshall and +Carrington did not write Innes, because, to do so, would involve a +decisive offer from Washington which "Gen^l. Marshall does not think +advisable."[363] + +When Washington's second letter, suggesting Patrick Henry, was received +by Carrington, he "immediately consulted Gen^l. Marshall thereon"; and +was guided by his opinion. Marshall thought that Washington's letter +should be forwarded to Henry because "his nonacceptance, from domestic +considerations, may be calculated on"; the offer "must tend to soften" +Henry "if he has any asperities"; and the whole affair would make Henry +"active on the side of Government & order."[364] + +Marshall argued that, if Henry should accept, his friendship for the +Administration could be counted on. But Marshall's strongest reason for +trying to induce Henry to become a member of the Cabinet was, says +Carrington, that "we are fully persuaded that a more deadly blow could +not be given to the Faction [Republican party] in Virginia, & +perhaps elsewhere, than that Gentleman's acceptance of the" +Attorney-Generalship. "So much have the opposers of the Government held +him [Henry] up as their oracle, even since he has ceased to respond to +them, that any event demonstrating his active support to Government, +could not but give the [Republican] party a severe shock."[365] + +A week later Carrington reports that Henry's "conduct & sentiments +generally both as to government & yourself [Washington] are such as we +[Marshall and Carrington] calculated on ... which assure us of his +discountenancing calumny of every description & disorder,"[366] meaning +that Henry was hostile to the Republicans. + +In the rancorous assaults upon the Jay Treaty in Virginia, Marshall, of +course, promptly took his position by Washington's side, and stoutly +defended the President and even the hated compact itself. Little cared +Marshall for the effect of his stand upon his popularity. Not at all did +he fear or hesitate to take that stand. And high courage was required to +resist the almost universal denunciation of the treaty in Virginia. Nor +was this confined to the masses of the people; it was expressed also by +most of the leading men in the various communities. At every meeting of +protest, well-drawn and apparently convincing resolutions were adopted, +and able, albeit extravagant, speeches were made against the treaty and +the Administration. + +Typical of these was the address of John Thompson at Petersburg, August +1, 1795.[367] With whom, asked Thompson, was the treaty made? With the +British King "who had sworn eternal enmity to republics"; that hateful +monarch who was trying "to stifle the liberty of France" and "to starve +thirty millions of men" by "intercepting the correspondence and +plundering the commerce of neutral nations," especially that of the +United States. The British, declared Thompson, sought "the destruction +of our rising commerce; the annihilation of our growing navigation," and +were pursuing that object "with all the ... oppression which rapacity +can practice." + +Sequestration of British debts and other justifiable measures of +retaliation would, said he, have stopped Great Britain's lawless +practices. But the Administration preferred to treat with that malign +Power; and our envoy, Jay, instead of "preserving the attitude of +dignity and speaking the language of truth ... basely apostatizing from +republican principles, stooped to offer the incense of flattery to a +tyrant, the scourge of his country, the foe of mankind.... Yes!" +exclaimed the radical orator, "we hesitated to offend a proud King, who +had captured our vessels, enslaved our fellow-citizens, ruined our +merchants, invaded our territory and trampled on our sovereignty." In +spite of these wrongs and insults, "we prostrated ourselves before him, +smiled in his face, flattered, and obtained this treaty." + +The treaty thus negotiated was, declared Thompson, the climax of the +Funding system which had "organized a great aristocracy ... usurped the +dominion of the senate ... often preponderated in the house of +representatives and which proclaims itself in servile addresses to our +supreme executive, in dangerous appointments, in monstrous accumulations +of debt, in violation of the constitution, in proscriptions of +democrats, and, to complete the climax of political infamy, in this +treaty." + +Concerning the refusal to observe the principle that "free bottoms make +free goods," our yielding the point rendered us, avowed Thompson, "a +cowardly confederate ... of ... ruthless despots, who march to desolate +France, to restore the altars of barbarous superstition and to +extinguish the celestial light which has burst upon the human mind. O my +countrymen, when you are capable of such monstrous baseness, even the +patriot will invoke upon you the contempt of ages." This humiliation had +been thrust upon us as a natural result of Washington's Neutrality +proclamation--"a sullen neutrality between freemen and despots." + +Thompson's searching, if boyish, rhetoric truly expressed the feeling in +the hearts of the people; it was a frenzied sentiment with which +Marshall had to contend. Notwithstanding his blazing language, Thompson +analyzed the treaty with ability. In common with opponents of the treaty +everywhere, he laid strongest emphasis on its unconstitutionality and +the "usurpation" by the President and Senate of the rights and powers of +the House of Representatives. + +But Thompson also mentioned one point that touched Marshall closely. +"The ninth article," said he, "invades the rights of this commonwealth, +by contemplating the case of Denny Fairfax."[369] Marshall and his +brother were now the owners of this estate;[370] and the Jay Treaty +confirmed all transfers of British property and authorized British +subjects to grant, sell, or devise lands held in America in the same +manner as if they were citizens of the United States. In Congress a few +months later, Giles, who, declared Ames, "has no scruples and certainly +less sense,"[371] touched lightly on this same chord.[372] So did Heath, +who was from that part of Virginia lying within the Fairfax grant.[373] + +Such was the public temper in Virginia, as accurately if bombastically +expressed by the youthful Thompson, when the elections for the +Legislature of 1795 were held. It was certain that the General Assembly +would take drastic and hostile action against the treaty; and, perhaps, +against Washington himself, in case the Republicans secured a majority +in that body. The Federalists were in terror and justly so; for the +Republicans, their strength much increased by the treaty, were +aggressive and confident. + +The Federalist candidate in Richmond was the member of the Legislature +whom the Federalists had succeeded in electing after Marshall's +retirement three years before. He was Marshall's intimate friend and a +stanch supporter of Washington's Administration. But it appears that in +the present crisis his popularity was not sufficient to secure his +election, nor his courage robust enough for the stern fight that was +certain to develop in the General Assembly. + +The polls were open and the voting in progress. Marshall was among the +first to arrive; and he announced his choice.[374] Upon his appearance +"a gentleman demanded that a poll be opened for Mr. Marshall."[375] +Marshall, of course, indignantly refused; he had promised to support his +friend, he avowed, and now to become a candidate was against "his wishes +and feeling and honor." But Marshall promised that he would stand for +the Legislature the following year. + +Thereupon Marshall left the polls and went to the court-house to make an +argument in a case then pending. No sooner had he departed than a poll +was opened for him in spite of his objections;[376] he was elected; and +in the evening was told of the undesired honor with which the +freeholders of Richmond had crowned him. + +Washington was apprehensive of the newly elected Legislature. He +anxiously questioned Carrington "as to the temper of our Assembly." The +latter reported that he did not "expect an extravagant conduct during +the session."[377] He thought that "the spirit of dissatisfaction is +considerably abated abroad" (throughout Virginia and away from +Richmond), because recent attempts to hold county and district meetings +"for the avowed purpose of condemning the Administration & the Treaty" +had been "abortive." It seemed to him, however, that "there is a very +general impression unfavorable to the Treaty, owing to the greater +industry of those who revile, over the supporters of it."[378] + +Still, Carrington was not sure about the Legislature itself; for, as he +said, "it has every year for several past been observable, that, at +meeting [of the Legislature] but few hot heads were to be seen, while +the great body were rational; but in the course of the session it has +seldom happened otherwise than that the spirit of party has been +communicated so as to infect a majority. In the present instance I +verily believe a question put on this day [the first day of the session] +for making the Treaty a subject of consideration would be negatived--yet +sundry members are here who will attempt every injury to both the +Administration & the Treaty. The party will want ability in their +leaders.... General Lee, C. Lee, Gen^l. Marshall & Mr. Andrews will act +with ability on the defensive."[379] + +Three days later the buoyant official advised the President that the +Republicans doubted their own strength and, at worst, would delay their +attack "in order that, as usual, a heat may be generated." Marshall was +still busy searching for a properly qualified person to appoint to the +unfilled vacancy in the office of Attorney-General; and Carrington tells +Washington that "Gen^l. Marshall and myself have had a private +consultation" on that subject and had decided to recommend Judge Blain. +But, he adds, "The suggestion rests entirely with Gen^l. M[arshall] & +myself & will there expire, should you, for any consideration, forbear +to adopt it." His real message of joy, however, was the happy frame of +mind of the Legislature.[380] + +Alas for this prophecy of optimism! The Legislature had not been in +session a week before the anti-Administration Banquo's ghost showed its +grim visage. The Republicans offered a resolution approving the vote of +Virginia Senators against the Jay Treaty. For three days the debate +raged. Marshall led the Federalist forces. "The support of the Treaty +has fallen altogether on Gen^l. Marshall and Mr. Chas. Lee," Carrington +reports to Washington.[382] + +Among the many objections to the treaty the principal one, as we have +seen, was that it violated the Constitution. The treaty regulated +commerce; the Constitution gave that power to Congress, which included +the House of Representatives; yet the House had not been consulted. The +treaty involved naturalization, the punishment of piracies, the laying +of imposts and the expenditure of money--all of these subjects were +expressly placed under the control of Congress and one of them[383] (the +raising and expending of public money) must originate in the House; yet +that popular branch of the Government had been ignored. The treaty +provided for a quasi-judicial commission to settle the question of the +British debts; yet "all the power of the Federal government with respect +to debts is given [Congress] by a concise article of the +Constitution.... What article of the Constitution authorizes President +and Senate to establish a judiciary colossus which is to stand with one +foot on America and the other on Britain, and drag the reluctant +governments of those countries to the altar of justice?"[384] + +Thus the question was raised whether a commercial treaty, or an +international compact requiring an appropriation of money, or, indeed, +any treaty whatever in the execution of which any action of any kind on +the part of the House of Representatives was necessary, could be made +without the concurrence of the House as well as the Senate. On this, the +only vital and enduring question involved, Marshall's views were clear +and unshakable. + +The defense of the constitutional power of the President and Senate to +make treaties was placed solely on Marshall's shoulders. The Federalists +considered his argument a conclusive demonstration. Carrington wrote +Washington that "on the point of constitutionality many conversions were +acknowledged."[385] He was mistaken; the Republicans were not impressed. +On the contrary, they thought that the treaty "was much less ably +defended than opposed."[386] + +The Republicans had been very much alarmed over Marshall and especially +feared the effect of one clever move. "John Marshall," wrote Jefferson's +son-in-law from Richmond to the Republican commander in Monticello, "it +was once apprehended would make a great number of converts by an +argument which cannot be considered in any other light than an uncandid +artifice. To prevent what would be a virtual censure of the President's +conduct he maintained _that the treaty in all its commercial parts was +still under the power of the H._[ouse] _of R._[epresentatives]."[387] + +Marshall, indeed, did make the most of this point. It was better, said +he, and "more in the spirit of the constitution" for the National House +to refuse support after ratification than to have a treaty "stifled in +embryo" by the House passing upon it before ratification. "He compared +the relation of the Executive and the Legislative department to that +between the states and the Congress under the old confederation. The old +Congress might have given up the right of laying discriminating duties +in favor of any nation by treaty; it would never have thought of taking +beforehand the assent of each state thereto. Yet, no one would have +pretended to deny the power of the states to lay such [discriminating +duties]."[388] + +Such is an unfriendly report of this part of Marshall's effort which, +wrote Jefferson's informant, "is all that is original in his argument. +The sophisms of Camillus, & the nice distinctions of the Examiner made +up the rest."[389] Marshall's position was that a "treaty is as +completely a valid and obligatory contract when negotiated by the +President and ratified by him, with the assent and advice of the Senate, +as if sanctioned by the House of Representatives also, under a +constitution requiring such sanction"; and he admitted only that the +powers of the House in reference to a treaty were limited to granting +or refusing appropriations to carry it into effect.[390] + +But as a matter of practical tactics to get votes, Marshall appears to +have put this in the form of an assertion--no matter what treaty the +President and Senate made, the House held the whip hand, he argued, and +in the end, could do what it liked; why then unnecessarily affront and +humiliate Washington by applauding the Virginia Senators for their vote +against the treaty? This turn of Marshall's, thought the Republicans, +"was brought forward for the purpose of gaining over the unwary & +wavering. It has never been admitted by the writers in favor of the +treaty to the northward."[391] + +But neither Marshall's unanswerable argument on the treaty-making power, +nor his cleverness in holding up the National House of Representatives +as the final arbiter, availed anything. The Federalists offered an +amendment affirming that the President and Senate "have a right to make" +a treaty; that discussion of a treaty in a State Legislature, "except as +to its constitutionality," was unnecessary; and that the Legislature +could not give "any mature opinion upon the conduct of the Senators from +Virginia ... without a full investigation of the treaty." They were +defeated by a majority of 46 out of a total of 150 members present and +voting; John Marshall voting for the amendment.[392] On the main +resolution proposed by the Republicans the Federalists lost two votes +and were crushed by a majority of two to one; Marshall, of course, +voting with the minority.[393] + +Carrington hastily reported to Washington that though "the discussion +has been an able one on the side of the Treaty," yet, "such was the +apprehension that a vote in its favor would be unpopular, that argument +was lost"; and that, notwithstanding many members were convinced by +Marshall's constitutional argument, "obligations of expediency" held +them in line against the Administration. The sanguine Carrington assured +the President, however, that "during the discussion there has been +preserved a decided respect for & confidence in you."[394] + +But alas again for the expectations of sanguinity! The Republican +resolution was, as Jefferson's son-in-law had reported to the Republican +headquarters at Monticello, "a virtual censure of the President's +conduct." This was the situation at the close of the day's debate. +Realizing it, as the night wore on, Washington's friends determined to +relieve the President of this implied rebuke by the Legislature of his +own State. The Republicans had carried their point; and surely, thought +Washington's supporters, the Legislature of Virginia would not openly +affront the greatest of all Americans, the pride of the State, and the +President of the Nation. + +Infatuated imagination! The next morning the friends of the +Administration offered a resolution that Washington's "motives" in +approving the treaty met "the entire approbation of this House"; and +that Washington, "for his great abilities, _wisdom_ and integrity merits +and possesses the undiminished confidence of his country." The +resolution came near passing. But some lynx-eyed Republican discovered +in the nick of time the word "_wisdom_."[395] That would never do. The +Republicans, therefore, offered an amendment "that this House do +entertain the highest sense of the integrity and patriotism of the +President of the United States; and that while they approve of the vote +of the Senators of this State" on the treaty, "they in no wise censure +the motives which influenced him in his [Washington's] conduct +thereupon."[396] + +The word "wisdom" was carefully left out. Marshall, Lee, and the other +Federalists struggled hard to defeat this obnoxious amendment; but the +Republicans overwhelmed them by a majority of 33 out of a total of 145 +voting, Marshall, of course, casting his vote against it.[397] + +In worse plight than ever, Washington's friends moved to amend the +Republican amendment by resolving: "That the President of the United +States, for his great abilities, _wisdom_, and integrity, merits and +possesses the undiminished confidence of this House." But even this, +which omitted all reference to the treaty and merely expressed +confidence in Washington's "abilities, wisdom, and integrity," was +beaten by a majority of 20 out of a total of 138 voting.[398] + +As soon as Jefferson got word of Marshall's support of Washington's +Administration in the Legislature, he poured out his dislike which had +long been distilling:-- + +"Though Marshall will be able to embarras [_sic_] the republican party +in the assembly a good deal," wrote Jefferson to Madison, "yet upon the +whole his having gone into it will be of service. He has been, hitherto, +able to do more mischief acting under the mask of Republicanism than he +will be able to do after throwing it plainly off. His lax lounging +manners have made him popular with the bulk of the people of Richmond; & +a profound hypocrisy, with many thinking men of our country. But having +come forth in the plenitude of his English principles the latter will +see that it is high time to make him known."[399] + +Such was Jefferson's inability to brook any opposition, and his +readiness to ascribe improper motives to any one having views different +from his own. So far from Marshall's having cloaked his opinions, he had +been and was imprudently outspoken in avowing them. Frankness was as +much a part of Marshall's mental make-up as his "lax, lounging manners" +were a part of his physical characteristics. Of all the men of the +period, not one was cleaner of hypocrisy than he. From Patrick Henry in +his early life onward to his associates on the bench at the end of his +days the testimony as to Marshall's open-mindedness is uniform and +unbroken. + +With the possible exception of Giles and Roane, Jefferson appears to +have been the only man who even so much as hinted at hypocrisy in +Marshall. Although strongly opposing his views and suggesting the +influence of supposed business connections, Madison had supreme +confidence in Marshall's integrity of mind and character. So had Monroe. +Even Jefferson's most panegyrical biographer declares Marshall to have +been "an earnest and sincere man."[400] + +The House of Delegates having refused to approve Washington, even +indirectly, the matter went to the State Senate. There for a week +Washington's friends fought hard and made a slight gain. The Senate +struck out the House resolution and inserted instead: "The General +Assembly entertain the highest sense of the integrity, patriotism and +wisdom of the President of the United States, and in approving the vote +of the Senators of the State in the Congress of the United States, +relative to the treaty with Great Britain, they in no wise mean to +censure the motives which influenced him in his conduct thereupon." To +this the House agreed, although by a slender majority, Marshall, of +course, voting for the Senate amendment.[401] + +During this session Marshall was, as usual, on the principal standing +committees and did his accustomed share of general legislative work. He +was made chairman of a special committee to bring in a bill "authorizing +one or more branches of the bank of the United States in this +commonwealth";[402] and later presented the bill,[403] which finally +passed, December 8, 1795, though not without resistance, 38 votes being +cast against it.[404] + +But the Republicans had not yet finished with the Jay Treaty or with its +author. On December 12, 1795, they offered a resolution instructing +Virginia's Senators and Representatives in Congress to attempt to secure +amendments to the Constitution providing that: "Treaties containing +stipulations upon the subject of powers vested in Congress shall be +approved by the House of Representatives"; that "a tribunal other than +the Senate be instituted for trying impeachments"; that "Senators shall +be chosen for three years"; and that "U.S. Judges shall hold no other +appointments."[405] + +The Federalists moved to postpone this resolution until the following +year "and print and distribute proposed amendments for the consideration +of the people"; but they were beaten by a majority of 11 out of a total +vote of 129, Marshall voting for the resolution. The instruction to +secure these radical constitutional changes then passed the House by a +majority of 56 out of a total vote of 120, Marshall voting against +it.[406] + +Marshall's brother-in-law, United States Marshal Carrington, had a hard +time explaining to Washington his previous enthusiasm. He writes: "The +active powers of the [Republican] party ... unveiled themselves, & +carried in the House some points very extraordinary indeed, manifesting +disrespect towards you." But, he continues, when the Virginia Senate +reversed the House, "the zealots of Anarchy were backward to act ... +while the friends of Order were satisfied to let it [the Virginia Senate +amendment] remain for farther effects of reflection"; and later +succeeded in carrying it. + +"The fever has raged, come to its crisis, and is abating." Proof of +this, argued Carrington, was the failure of the Republicans to get +signatures to "some seditious petitions [against the Jay Treaty] which +was sent in vast numbers from Philadelphia" and which "were at first +patronized with great zeal by many of our distinguished anarchists; +but ... very few copies will be sent to Congress fully signed."[407] + +Never was appointive officer so oblivious of facts in his reports to his +superior, as was Carrington. Before adjournment on December 12, 1795, +the Legislature adopted part of the resolution which had been offered in +the morning: "No treaty containing any stipulation upon the subject of +powers vested in Congress by the eighth section of the first article [of +the Constitution] shall become the Supreme law of the land until it +shall have been approved in those particulars by a majority in the +House of Representatives; and that the President, before he shall +ratify _any_ treaty, shall submit the same to the House of +Representatives."[408] + +Carrington ignored or failed to understand this amazing resolution of +the Legislature of Virginia; for nearly three months later he again +sought to solace Washington by encouraging reports. "The public mind in +Virginia was never more tranquil than at present. The fever of the late +session of our assembly, had not been communicated to the Country.... +The people do not approve of the violent and petulant measures of the +Assembly, because, in several instances, public meetings have declared a +decided disapprobation." In fact, wrote Carrington, Virginia's +"hostility to the treaty has been exaggerated." Proof "of the mass of +the people being less violent than was asserted" would be discovered "in +the failure of our Zealots in getting their signatures to certain +printed papers, sent through the Country almost by Horse loads, as +copies of a petition to Congress on the subject of the Treaty."[409] But +a few short months would show how rose-colored were the spectacles which +Mr. Carrington wore when he wrote this reassuring letter. + +The ratification of the British treaty; the rage against England; and +the devotion to France which already had made the Republican a French +party; the resentment of the tri-color Republic toward the American +Government--all forged a new and desperate menace. It was, indeed, +Scylla or Charybdis, as Washington had foreseen, and bluntly stated, +that confronted the National Government. War with France now seemed the +rock on which events were driving the hard-pressed Administration--war +for France or war from France. + +The partisan and simple-minded Monroe had been recalled from his +diplomatic post at Paris. The French mission, which at the close of our +Revolution was not a place of serious moment,[410] now became +critically--vitally--important. Level must be the head and stout the +heart of him who should be sent to deal with that sensitive, proud, and +now violent country. Lee thus advises the President: "No person would be +better fitted than John Marshall to go to France for supplying the place +of our minister; but it is scarcely short of absolute certainty that he +would not accept any such office."[411] + +But Washington's letter was already on the way, asking Marshall to +undertake this delicate task:-- + +"In confidence I inform you," wrote Washington to Marshall, "that it has +become indispensably necessary to recall our minister at Paris & to send +one in his place, who will explain faithfully the views of this +government & ascertain those of France. + +"Nothing would be more pleasing to me than that you should be this +organ, if it were only for a temporary absence of a few months; but it +being feared that even this could not be made to comport with your +present pursuits, I have in order that as little delay as possible may +be incurred put the enclosed letter [to Charles Cotesworth Pinckney] +under cover to be forwarded to its address, if you decline the present +offer or to be returned to me if you accept it. Your own correct +knowledge of circumstances renders details unnecessary."[412] + +Marshall at once declined this now high distinction and weighty service, +as he had already refused the United States district attorneyship and a +place in Washington's Cabinet. Without a moment's delay, he wrote the +President:-- + +"I will not attempt to express those sensations which your letter of the +8th instant has increased. Was it possible for me in the present crisis +of my affairs to leave the United States, such is my conviction of the +importance of that duty which you would confide to me, &, pardon me if I +add, of the fidelity with which I shoud attempt to perform it, that I +woud certainly forego any consideration not decisive with respect to my +future fortunes, & woud surmount that just diffidence I have entertain^d +of myself, to make one effort to convey truly & faithfully to the +government of France those sentiments which I have ever believed to be +entertained by that of the United States. + +"I have forwarded your letter to Mr. Pinckney. The recall of our +minister at Paris has been conjectured while its probable necessity has +been regretted by those who love more than all others, our own country. +I will certainly do myself the honor of waiting on you at Mt. +Vernon."[413] + +Washington, although anticipating Marshall's refusal of the French +mission, promptly answered: "I ... regret that present circumstances +should deprive our Country of the services, which, I am confident, your +going to France would have rendered it"; and Washington asks Marshall's +opinion on the proper person to appoint to the office of +Surveyor-General.[414] + +The President's letter, offering the French post to Pinckney, was lost +in the mails; and the President wrote Marshall about it, because it also +enclosed a note "containing three bank bills for one hundred dollars +each for the sufferers by fire in Charlestown."[415] In answer, Marshall +indulged in a flash of humor, even at Washington's expense. "Your letter +to General Pinckney was delivered by myself to the post master on the +night on which I received it and was, as he says, immediately forwarded +by him. Its loss is the more remarkable, as it could not have been +opened from a hope that it contained bank notes." He also expressed his +gratification "that a gentleman of General Pinckney's character will +represent our government at the court of France."[416] + +The office of Secretary of State now became vacant, under circumstances +apparently forbidding. The interception of Fauchet's[417] famous +dispatch number 10[418] had been fatal to Randolph. The French +Minister, in this communication to his Government, portrays a frightful +state of corrupt public thinking in America; ascribes this to the +measures of Washington's Administration; avows that a revolution is +imminent; declares that powerful men, "all having without doubt" +Randolph at their head, are balancing to decide on their party; asserts +that Randolph approached him with suggestions for money; and +concludes:-- + +"Thus with some thousands of dollars the [French] republic could have +decided on civil war or on peace [in America]! Thus the consciences of +the pretended patriots of America have already their prices!... What +will be the old age of this [American] government, if it is thus early +decrepid!"[419] + +The discovery of this dispatch of the French Minister destroyed Randolph +politically. Washington immediately forced his resignation.[420] + +The President had great difficulty in finding a suitable successor to +the deposed Secretary of State. He tendered the office to five men, all +of whom declined.[421] "What am I to do for a Secretary of State?" he +asks Hamilton; and after recounting his fruitless efforts to fill that +office the President adds that "Mr. Marshall, of Virginia, has declined +the office of Attorney General, and I am pretty certain, would accept +of no other."[422] It is thus made clear that Washington would have +made Marshall the head of his Cabinet in 1795 but for the certainty that +his Virginia champion would refuse the place, as he had declined other +posts of honor and power. + +Hardly had the Virginia Legislature adjourned when the conflict over the +treaty was renewed in Congress. The Republicans had captured the House +of Representatives and were full of fight. They worked the mechanism of +public meetings and petitions to its utmost. On March 7 the House +plunged into a swirl of debate over the British treaty; time and again +it seemed as though the House would strangle the compact by withholding +appropriations to make it effective.[423] If the treaty was to be saved, +all possible pressure must be brought to bear on Congress. So the +Federalists took a leaf out of the book of Republican tactics, and got +up meetings wherever they could to petition Congress to grant the +necessary money. + +In Virginia, as elsewhere, the merchants were the principal force in +arranging these meetings.[424] As we have seen, the business and +financial interests had from the first been the stanchest supporters of +Washington's Administration. "The commercial and monied people are +zealously attached to" and support the Government, wrote Wolcott in +1791.[425] And now Hamilton advised King that "men of business of all +descriptions" thought the defeat of the treaty "would greatly shock and +stagnate pecuniary plans and operations in general."[426] Indeed, the +one virtue of the treaty, aside from its greatest purpose, that of +avoiding war, was that it prevented the collapse of credit and the wreck +of Hamilton's financial system. + +Washington, with the deceptive hopefulness of responsibility, had, even +when it seemed that the people were as one man against the treaty, +"doubted much whether the great body of the yeomanry have formed any +opinions on the subject."[427] The Federalist meetings were designed to +show that the "yeomanry," having been "educated," had at last made up +its mind in favor of Washington's policy. + +Marshall and Carrington arranged for the Richmond gathering. "The +disorganizing machinations of a faction [Republicans]," reported the +busy United States Marshal, "are no longer left to be nourished and +inculcated on the minds of the credulous by clamorous demagogues, while +the great mass of citizens, viewing these, as evils at a distance, +remain inactive.... All who are attached to peace and order, ... will +now come forward and speak for themselves.... A meeting of the people of +this city will take place on Monday next" to petition the National House +of Representatives to support the treaty. So Carrington advised the +President; and the same thing, said he, was to be done "extensively" by +"public meetings and Petitions throughout Virginia."[428] + +Washington was expecting great results from the Richmond demonstration. +"It would give me and ... every friend to order and good government +throughout the United States very great satisfaction," he wrote to +encourage the Virginia Federalists; "more so than similar sentiments +from any other State in the Union; for people living at a distance from +it [Virginia] know not how to believe it possible" that the Virginia +Legislature and her Senators and Representatives in Congress should +speak and act as they had done.[429] "It is," philosophized Washington, +"on _great_ occasions _only_ and after time has been given for cool and +deliberate reflection that the _real_ voice of the people can be known. +The present ... is one of those great occasions, than which none more +important has occurred, or probably may occur again to call forth their +decision."[430] + +By such inspiration and management the historic Federalist gathering was +brought about at Richmond on April 25, 1796, where the "Marshall +eloquence" was to do its utmost to convert a riotously hostile sentiment +into approval of this famous treaty and of the Administration which was +responsible for it. All day the meeting lasted. Marshall put forth his +whole strength. At last a "decided majority" adopted a favorable +resolution drawn by an "original opponent" of the treaty. Thus were +sweetened the bitter resolutions adopted by these same freeholders of +Richmond some months before, which had so angered Washington. + +The accounts of this all-day public discussion are as opposite as were +the prejudices and interests of the narrators. Justice Story tells us +that Marshall's speech was "masterly," the majority for the resolution +"flattering," and the assemblage itself made up of the "same citizens" +who formerly had "denounced" the treaty.[431] But there was present at +the meeting an onlooker who gives a different version. Randolph, who, in +disgrace, was then sweating venom from every pore, thus reports to +Madison at the end of the hard-fought day:-- + +"Between 3 & 400 persons were present; a large proportion of whom were +British merchants, some of whom pay for the British purchases of +horses--their clerks--officers, who have held posts under the President +at his will,--stockholders--expectants of office--and many without the +shadow of a freehold.[432] Notwithstanding this, the numbers on the +republican side, tho' inferior, were inferior in a small degree only; +and it is believed on good grounds that the majority of free-holders +were on the side of the house of representatives [against the treaty]. + +"Campbell[433] and Marshall the principal combatants [word illegible] as +you know without being told. Marshall's argument was inconsistent, and +shifting; concluding every third sentence with the horrors of war. +Campbell spoke elegantly and forcibly; and threw ridicule and absurdity +upon his antagonist with success. Mr. Clofton [Clopton, member of +Congress from Richmond] will receive two papers; one signed by the +treaty men, many of whom he will know to have neither interest nor +feeling in common with the citizens of Virginia, and to have been +transplanted hither from England or Caledonia since the war, +interspersed pretty considerably with fugitive tories who have returned +under the amnesty of peace. + +"The notice, which I sent you the other day," he goes on to say, "spoke +of instructions and a petition; but Marshall, suspecting that he would +be outnumbered by freeholders, and conscious that none should instruct +those who elect, quitted the idea of instruction, and betook himself to +a petition, in which he said all the inhabitants of Richmond, though not +freeholders, might join. Upon which Campbell gave notice, that it would +be published that he (Marshall) declined hazarding the question on the +true sense of the country. Very few of the people [freeholders] of the +county were present; but three-fourths of those who were present voted +with Campbell. Dr. Foushee was extremely active and influential."[434] + +Marshall, on the contrary, painted in rich colors his picture of this +town-hall contest. He thus reports to Hamilton: "I had been informed of +the temper of the House of Representatives and we [Richmond Federalists] +had promptly taken such measures as appeared to us fitted to the +occasion. We could not venture an expression of the public mind under +the violent prejudices with which it has been impressed, so long as a +hope remained, that the House of Representatives might ultimately +consult the interest or honor of the nation.... But now, when all hope +of this has vanished, it was deemed advisable to make the experiment, +however hazardous it might be. + +"A meeting was called," continues Marshall, "which was more numerous +than I have ever seen at this place; and after a very ardent and zealous +discussion which consumed the day, a decided majority declared in favor +of a resolution that the wellfare and honor of the nation required us to +give full effect to the treaty negotiated with Britain. This resolution, +with a petition drawn by an original opponent of the treaty, will be +forwarded by the next post to Congress."[435] + +The resolution which Marshall's speech caused an "original +opponent"[436] of the treaty to draw was "that the Peace, Happiness, & +Wellfare, not less than the National Honor of the United States, depend +in a great degree upon giving, with good faith, Full effect to the +Treaty lately negotiated with Great Britain." The same newspaper that +printed this resolution, in another account of the meeting "which was +held at the instance of some friends of the British Treaty," says that +"in opposition to that resolution a vast number of the meeting" +subscribed to counter-declarations which "are now circulated throughout +this City and the county of Henrico for the subscription of all those +who" are opposed to the treaty.[437] Even the exultant Carrington +reported "that the enemies of the Treaty or rather of the Government, +are putting in practice every part and effort to obtain subscriptions to +a counteracting paper." + +Carrington denounced the unfavorable newspaper account as "a most +absolute falsehood." He tells Washington that the opposition resolution +"was not even listened [to] in the meeting." But still he is very +apprehensive--he beholds the politician's customary "crisis" and strives +to make the people see it: "There never was a crisis at which the +activity of the Friends of Government was more urgently called for--some +of us here have endeavored to make this impression in different parts of +the Country."[438] The newspaper reported that the Federalists had +induced "school boys & apprentices" to sign the petition in favor of the +treaty; Carrington adds a postscript stating that this was, "I believe, +a little incorrect." + +Marshall foresaw that the Republicans would make this accusation and +hastened to anticipate it by advancing the same charge against his +opponents. The Republicans, says Marshall, secured the signatures to +their petition not only "of many respectable persons but of still a +greater number of mere boys.... Altho' some caution has been used by us +in excluding those who might not be considered as authorized to vote," +yet, Marshall advises King, "they [Republicans] will not fail to charge +us with having collected a number of names belonging to foreigners and +to persons having no property in the place. The charge is as far +untrue," asserts Marshall, "as has perhaps ever happened on any occasion +of the sort. We could, by resorting to that measure, have doubled our +list of petitioners." And he adds that "the ruling party [Republican] of +Virginia are extremely irritated at the vote of to-day, and will spare +no exertion to obtain a majority in other counties. Even here they will +affect to have the greater number of freeholders."[439] + +It was in this wise that petitions favorable to the Jay Treaty and to +Washington were procured in the President's own State. It was thus that +the remainder of the country was assured that the Administration was not +without support among the people of Virginia. Unsuspected and wholly +unforeseen was the influence on Marshall's future which his ardent +championship of this despised treaty was to exercise. + +The Federalists were wise to follow the Republican practice of petition +to Congress; for, "nothing ... but the torrent of petitions and +remonstrances ... would have produced a division (fifty-one to +forty-eight) in favor of the appropriation."[440] So great was the joy +of the commercial classes that in Philadelphia, the financial heart of +the country, a holiday was celebrated when the House voted the +money.[441] + +Marshall's activity, skill, courage, ability, and determination in the +Legislature and before the people at this critical hour lifted him +higher than ever, not only in the regard of Washington, but in the +opinion of the Federalist leaders throughout the country.[442] They were +casting about for a successor to Washington who could be most easily +elected. The Hamiltonian Federalists were already distrustful of Adams +for the presidency, and, even then, were warily searching for some other +candidate. Why not Patrick Henry? Great changes had occurred in the old +patriot's mind and manner of thinking. He was now a man of wealth and +had come to lean strongly toward the Government. His friendship for +Washington, Marshall, and other Virginia Federalists had grown; while +for Jefferson and other Virginia Republicans it had turned to dislike. +Still, with Henry's lifelong record, the Federalists could not be sure +of him. + +To Marshall's cautious hands the Federalist leaders committed the +delicate business of sounding Henry. King of New York had written +Marshall on the subject. "Having never been in habits of correspondence +with Mr. H.[enry]," replies Marshall, "I cou'd not by letter ask from +him a decision on the proposition I was requested to make him without +giving him at the same time a full statement of the whole conversation & +of the persons with whom that conversation was held." Marshall did not +think this wise, for "I am not positively certain what course that +Gentleman might take. The proposition might not only have been rejected +but mentioned publickly to others in such manner as to have become an +unpleasant circumstance." + +A prudent man was Marshall. He thought that Lee, who "corresponds +familiarly with Mr. H. & is in the habit of proposing offices to him," +was the man to do the work; and he asked Lee "to sound Mr. H. as from +himself or in such manner as might in any event be perfectly safe." Lee +did so, but got no answer. However, writes Marshall, "Mr. H.[enry] will +be in Richmond on the 22^d of May. I can then sound him myself & if I +find him (as I suspect I shall) totally unwilling to engage in the +contest, I can stop where prudence may direct. I trust it will not then +be too late to bring forward to public view Mr. H. or any other +gentleman who may be thought of in his stead. Shou'd anything occur to +render it improper to have any communication with M^r. H. on this +subject, or shou'd you wish the communication to take any particular +shape you will be so obliging as to drop me a line concerning it."[443] + +Marshall finally saw Henry and at once wrote the New York lieutenant of +Hamilton the result of the interview. "Mr. Henry has at length been +sounded on the subject you communicated to my charge," Marshall advises +King. "Gen^l. Lee and myself have each conversed with him on it, tho' +without informing him particularly of the persons who authorized the +communication. He is unwilling to embark in the business. His +unwillingness, I think, proceeds from an apprehension of the +difficulties to be encountered by those who shall fill high Executive +offices."[444] + +The autumn of 1796 was at hand. Washington's second term was closing in +Republican cloudbursts and downpours of abuse of him. He was, said the +Republicans, an aristocrat, a "monocrat," a miser, an oppressor of the +many for the enrichment of the few. Nay, more! Washington was a thief, +even a murderer, charged the Republicans. His personal habits were low +and base, said these champions of purity.[445] Washington had not even +been true to the cause of the Revolution, they declared; and to prove +this, an ancient slander, supported by forged letters alleged to have +been written by Washington during the war, was revived.[446] + +Marshall, outraged and insulted by these assaults on the great American, +the friend of his father and himself and the commander of the patriots +who had, by arms, won liberty and independence for the very men who +were now befouling Washington's name, earnestly defended the President. +Although his law practice and private business called for all his +strength and time, Marshall, in order to serve the President more +effectively, again stood for the Legislature, and again he was elected. + +In the Virginia House of Delegates, Marshall and the other friends of +Washington took the initiative. On November 17, 1796, they carried a +motion for an address to the President, declaratory of Virginia's +"gratitude for the services of their most excellent fellow citizen"; who +"has so wisely and prosperously administrated the national +concerns."[447] But how should the address be worded? The Republicans +controlled the committee to which the resolution was referred. Two days +later that body reported a cold and formal collection of sentences as +Virginia's address to Washington upon his leaving, apparently forever, +the service of America. Even Lee, who headed the committee, could not +secure a declaration that Washington was or had been wise. + +This stiff "address" to Washington, reported by the committee, left out +the word "wisdom." Commendation of Washington's conduct of the +Government was carefully omitted. Should his friends submit to this? No! +Better to be beaten in a manly contest. Marshall and the other +supporters of the President resolved to try for a warmer expression. On +December 10, they introduced a substitute declaring that, if Washington +had not declined, the people would have reëlected him; that his whole +life had been "strongly marked by wisdom, valor, and patriotism"; that +"posterity to the most remote generations and the friends of true and +genuine liberty and of the rights of man throughout the world, and in +all succeeding ages, will unite" in acclaiming "that you have never +ceased to deserve well of your country"; that Washington's "valor and +wisdom ... had essentially contributed to establish and maintain the +happiness and prosperity of the nation."[448] + +But the Republicans would have none of it. After an acrid debate and in +spite of personal appeals made to the members of the House, the +substitute was defeated by a majority of three votes. John Marshall was +the busiest and most persistent of Washington's friends, and of course +voted for the substitute,[449] which, almost certainly, he drew. Cold as +was the original address which the Federalists had failed to amend, the +Republicans now made it still more frigid. They would not admit that +Washington deserved well of the whole country. They moved to strike out +the word "country" and in lieu thereof insert "native state."[450] + +Many years afterward Marshall told Justice Story his recollection of +this bitter fight: "In the session of 1796 ... which," said Marshall, +"called forth all the strength and violence of party, some Federalist +moved a resolution expressing the high confidence of the House in the +virtue, patriotism, and wisdom of the President of the United States. A +motion was made to strike out the word _wisdom_. In the debate the whole +course of the Administration was reviewed, and the whole talent of each +party was brought into action. Will it be believed that the word was +retained by a very small majority? A very small majority in the +legislature of Virginia acknowledged the wisdom of General +Washington!"[451] + +Dazed for a moment, the Federalists did not resist. But, their courage +quickly returning, they moved a brief amendment of twenty words +declaring that Washington's life had been "strongly marked by wisdom, in +the cabinet, by valor, in the field, and by the purest patriotism in +both." Futile effort! The Republicans would not yield. By a majority of +nine votes[452] they flatly declined to declare that Washington had been +wise in council, brave in battle, or patriotic in either; and the +original address, which, by these repeated refusals to endorse either +Washington's sagacity, patriotism, or even courage, had now been made a +dagger of ice, was sent to Washington as the final comment of his +native State upon his lifetime of unbearable suffering and incalculable +service to the Nation. + +Arctic as was this sentiment of the Virginia Republicans for Washington, +it was tropical compared with the feeling of the Republican Party toward +the old hero as he retired from the Presidency. On Monday, March 5, +1797, the day after Washington's second term expired, the principal +Republican newspaper of America thus expressed the popular sentiment:-- + +"'Lord, now lettest thou thy servant depart in peace, for mine eyes have +seen thy salvation,' was the pious ejaculation of a man who beheld a +flood of happiness rushing in upon mankind.... + +"If ever there was a time that would license the reiteration of the +exclamation, that time is now arrived, for the man [Washington] who is +the source of all the misfortunes of our country, is this day reduced to +a level with his fellow citizens, and is no longer possessed of power to +multiply evils upon the United States. + +"If ever there was a period for rejoicing this is the moment--every +heart, in unison with the freedom and happiness of the people ought to +beat high with exultation, that the name of Washington from this day +ceases to give a currency to political iniquity, and to legalize +corruption.... + +"A new æra is now opening upon us, an æra which promises much to the +people; for public measures must now stand upon their own merits, and +nefarious projects can no longer be supported by a name. + +"When a retrospect is taken of the Washingtonian administration for +eight years, it is a subject of the greatest astonishment, that a single +individual should have cankered the principles of republicanism in an +enlightened people, just emerged from the gulph of despotism, and should +have carried his designs against the public liberty so far as to have +put in jeopardy its very existence. + +"Such however are the facts, and with these staring us in the face, this +day ought to be a JUBILEE in the United States."[453] + +Such was Washington's greeting from a great body of his fellow citizens +when he resumed his private station among them after almost twenty years +of labor for them in both war and peace. Here rational imagination must +supply what record does not reveal. What must Marshall have thought? Was +this the fruit of such sacrifice for the people's welfare as no other +man in America and few in any land throughout all history had ever +made--this rebuke of Washington--Washington, who had been the soul as +well as the sword of the Revolution; Washington, who alone had saved the +land from anarchy; Washington, whose level sense, far-seeing vision, and +mighty character had so guided the newborn Government that the American +people had taken their place as a separate and independent Nation? +Could any but this question have been asked by Marshall? + +He was not the only man to whom such reflections came. Patrick Henry +thus expressed his feelings: "I see with concern our old +commander-in-chief most abusively treated--nor are his long and great +services remembered.... If he, whose character as our leader during the +whole war, was above all praise, is so roughly handled in his old age, +what may be expected by men of the common standard of character?"[454] + +And Jefferson! Had he not become the voice of the majority? + +Great as he was, restrained as he had arduously schooled himself to be, +Washington personally resented the brutal assaults upon his character +with something of the fury of his unbridled youth: "I had no conception +that parties would or even could go to the length I have been witness +to; nor did I believe, until lately, that it was within the bounds of +probability--hardly within those of possibility--that ... every act of +my administration would be tortured and the grossest and most insidious +misrepresentations of them be made ... and that too in such exaggerated +and indecent terms as could scarcely be applied to a Nero--a notorious +defaulter--or even to a common pickpocket."[455] + +Here, then, once more, we clearly trace the development of that +antipathy between Marshall and Jefferson, the seeds of which were sown +in those desolating years from 1776 to 1780, and in the not less trying +period from the close of the Revolution to the end of Washington's +Administration. Thus does circumstance mould opinion and career far more +than abstract thinking; and emotion quite as much as reason shape +systems of government. The personal feud between Marshall and Jefferson, +growing through the years and nourished by events, gave force and speed +to their progress along highways which, starting at the same point, +gradually diverged and finally ran in opposite directions. + + +FOOTNOTES: + +[351] When Jefferson resigned, Randolph succeeded him as Secretary of +State, and continued in that office until driven out of public life by +the famous Fauchet disclosure. William Bradford of Pennsylvania +succeeded Randolph as Attorney-General. + +[352] Washington to Marshall, Aug. 26, 1795; Washington MSS., Lib. Cong. + +[353] Act of 1789, _Annals_, 1st Cong., 1st Sess., Appendix, 2238. + +[354] For Randolph's pathetic account of his struggles to subsist as +Attorney-General, see Conway, chap. xv. + +[355] The Fairfax purchase. See _infra_, chap. V. + +[356] Marshall to Washington, Aug. 31, 1795; Washington MSS., Lib. Cong. + +[357] See _infra_, chap. V. + +[358] Executive Journal, U.S. Senate, i, 81, 82. And see Washington's +_Diary_: Lossing, 166. Carrington held both of these offices at the same +time. + +[359] Referring to Marshall's title as General of Virginia Militia. He +was called "General" from that time until he became Chief Justice of the +United States. + +[360] Washington to Carrington, Oct. 9, 1795; _Writings_: Ford, xiii, +116. + +[361] Carrington to Washington, Oct. 2, 1795; MS., Lib. Cong. + +[362] _Ib._ + +[363] Carrington to Washington, Oct. 8, 1795; MS., Lib. Cong. + +[364] _Ib._, Oct. 13, 1795; MS., Lib. Cong. + +[365] _Ib._ A passage in this letter clearly shows the Federalist +opinion of the young Republican Party and suggests the economic line +dividing it from the Federalists. "In the present crisis Mr. H.[enry] +may reasonably be calculated on as taking the side of Government, even +though he may retain his old prejudices against the Constitution. He has +indubitably an abhorrence of Anarchy.... We know too that he is +improving his fortune fast, which must additionally attach him to the +existing Government & order, the only Guarantees of property. Add to all +this, that he has no affection for the present leaders of the opposition +in Virg^a." (Carrington to Washington, Oct. 13, 1795; MS., Lib. Cong.) + +[366] Carrington to Washington, Oct. 20, 1795; MS., Lib. Cong. +Carrington's correspondence shows that everything was done on Marshall's +judgment and that Marshall himself personally handled most of the +negotiations. (See _ib._, Oct. 28; Oct. 30, 1795.) + +[367] _American Remembrancer_, i, 21 _et seq._ John Thompson was +nineteen years old when he delivered this address. His extravagant +rhetoric rather than his solid argument is quoted in the text as better +illustrating the public temper and prevailing style of oratory. (See +sketch of this remarkable young Virginian, _infra_, chap. X.) + +[368] A favorite Republican charge was that the treaty would separate us +from France and tie us to Great Britain: "A treaty which children cannot +read without discovering that it tends to disunite us from our present +ally, and unite us to a government which we abhor, detest and despise." +("An Old Soldier of '76"; _American Remembrancer_, ii, 281.) + +[369] _American Remembrancer_, i, 27. + +[370] See _infra_, chap. V. + +[371] Ames to Gore, March 11, 1796; _Works_: Ames, i, 189. + +[372] _Annals_, 4th Cong., 1st Sess., 1033-34. + +[373] _Ib._, 1063. See Anderson, 41-43. As one of the purchasers of the +Fairfax estate, Marshall had a personal interest in the Jay Treaty, +though it does not appear that this influenced him in his support of it. + +[374] The voting was _viva voce_. See _infra_, chap. X. + +[375] Undoubtedly this gentleman was one of the perturbed Federalist +managers. + +[376] _North American Review_, xxvi, 22. While this story seems +improbable, no evidence has appeared which throws doubt upon it. At any +rate, it serves to illustrate Marshall's astonishing popularity. + +[377] Carrington's reports to Washington were often absurd in their +optimistic inaccuracy. They are typical of those which faithful +office-holding politicians habitually make to the appointing power. For +instance, Carrington told Washington in 1791 that, after traveling all +over Virginia as United States Marshal and Collector of Internal +Revenue, he was sure the people were content with Assumption and the +whiskey tax (Washington's _Diary_: Lossing, footnote to 166), when, as a +matter of fact, the State was boiling with opposition to those very +measures. + +[378] The mingling, in the Republican mind, of the Jay Treaty, +Neutrality, unfriendliness to France, and the Federalist Party is +illustrated in a toast at a dinner in Lexington, Virginia, to Senator +Brown, who had voted against the treaty: "The French Republic--May every +power or party who would attempt to throw any obstacle in the way of its +independence or happiness receive the reward due to corruption." +(_Richmond and Manchester Advertiser_, Oct. 15, 1795.) + +[379] Carrington to Washington, Nov. 10, 1795; MS., Lib. Cong. + +[380] _Ib._, Nov. 13, 1795; MS.; Lib. Cong. + +[381] The resolution "was warmly agitated three whole days." (Randolph +to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, footnote to 197.) + +[382] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. + +[383] See debates; _Annals_, 4th Cong., 1st Sess., 423-1291; also see +Petersburg Resolutions; _American Remembrancer_, i, 102-07. + +[384] Thompson's address, Aug. 1, 1795, at Petersburg; _ib._, 21 _et +seq._ + +[385] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. + +[386] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, +footnote to 197. + +[387] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, +footnote to 197. + +[388] _Ib._ + +[389] _Ib._ See Hamilton's dissertation on the treaty-making power in +numbers 36, 37, 38, of his "Camillus"; _Works_: Lodge, vi, 160-97. + +[390] Marshall to Hamilton, April 25, 1796; _Works_: Hamilton, vi, 109. + +[391] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, 198. + +[392] Journal, H.D. (Nov. 20, 1795), 27-28. + +[393] Journal, H.D. (Nov. 20, 1795), 28. + +[394] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. + +[395] The italics are mine. "The word 'wisdom' in expressing the +confidence of the House in the P.[resident] was so artfully introduced +that if the fraudulent design had not been detected in time the vote of +the House, as to its effect upon the P. would have been entirely done +away.... A resolution so worded as to acquit the P. of all evil +intention, but at the same time silently censuring his error, was passed +by a majority of 33." (Letter of Jefferson's son-in-law, enclosed by +Jefferson to Madison; _Works_: Ford, viii, footnote to 198.) + +[396] Journal, H.D. (Nov. 21, 1795), 29. + +[397] _Ib._ + +[398] Journal, H.D. (Nov. 21, 1795), 29. + +[399] Jefferson to Madison, Nov. 26, 1795; _Works_: Ford, viii, 197-98. + +[400] Randall, ii, 36. + +[401] Journal, H.D. (1795), 72. + +[402] Journal, H.D. (1795), 50. + +[403] _Ib._, 53. + +[404] _Ib._, 79. + +[405] _Ib._, 90. + +[406] _Ib._, 91-92. + +[407] Carrington to Washington, Dec. 6, 1795; MS., Lib. Cong. + +[408] Journal, H.D. (Dec. 12, 1795), 91-92. + +[409] Carrington to Washington, Feb. 24, 1796; MS., Lib. Cong. + +[410] Dodd, 39. + +[411] Lee to Washington, July 7, 1796; _Writings_: Sparks, xi, 487. + +[412] Washington to Marshall, July 8, 1796; Washington MSS., Lib. Cong. + +[413] Marshall to Washington, July 11, 1796; _ib._ + +[414] Washington to Marshall, July 15, 1796; Washington's Private Letter +Book; MS., Lib. Cong. + +[415] Washington to Marshall, Oct. 10, 1796; _ib._ + +[416] Marshall to Washington, Oct. 12, 1796; Washington MSS., Lib. Cong. + +[417] Genêt's successor as French Minister to the United States. + +[418] _Interesting State Papers_, 48 _et seq._ + +[419] _Interesting State Papers_, 55. + +[420] For able defense of Randolph see Conway, chap. xxiii; but +_contra_, see Gibbs, i, chap. ix. + +[421] Patterson of New Jersey, Johnson of Maryland, C. C. Pinckney of +South Carolina, Patrick Henry of Virginia, and Rufus King of New York. +(Washington to Hamilton, Oct. 29, 1795; _Writings_: Ford, xiii, 129-30.) +King declined because of the abuse heaped upon public officers. +(Hamilton to Washington, Nov. 5, 1795; _ib._, footnote to 130.) + +[422] Washington to Hamilton, Oct. 29, 1795; _Writings_: Ford, xiii, +131. + +[423] For debate see _Annals_, 4th Cong., 1st Sess., 423-1291. + +[424] Carrington to Washington, May 9, 1796; MS., Lib. Cong. + +[425] Oliver Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62. + +[426] Hamilton to King, June 20, 1795; _Works_: Lodge, x, 103. + +[427] Washington to Knox, Sept. 20, 1795; _Writings_: Ford, xiii, +105-06. + +[428] Carrington to the President, April 22, 1796; _Writings_: Ford, +xiii, footnote to 185. + +[429] Washington to Carrington, May 1, 1796; _ib._, 185. + +[430] _Ib._, 186. + +[431] Story, in Dillon, iii, 352. + +[432] Senator Stephen Thompson Mason wrote privately to Tazewell that +the Fairfax purchasers and British merchants were the only friends of +the treaty in Virginia. (Anderson, 42.) + +[433] Alexander Campbell. (See _infra_, chap. V.) + +[434] Randolph to Madison, Richmond, April 25, 1796; Conway, 362. Only +freeholders could vote. + +[435] Marshall to Hamilton, April 25, 1796; _Works_: Hamilton, vi, 109. + +[436] Author unknown. + +[437] _Richmond and Manchester Advertiser_, April 27, 1796. + +[438] Carrington to the President, April 27, 1796; MS., Lib. Cong. + +[439] Marshall to King, April 25, 1796; King, ii, 45-46. + +[440] Washington to Thomas Pinckney, May 22, 1796; _Writings_: Ford, +xiii, 208. + +[441] Robert Morris to James M. Marshall, May 1, 1796; Morris's Private +Letter Book; MS., Lib. Cong. + +[442] Story, in Dillon, iii, 350. + +[443] Marshall to King, April 19, 1796; Hamilton MSS., Lib. Cong. +Hamilton, it seems, had also asked Marshall to make overtures to Patrick +Henry for the Presidency. (King, ii, footnote to 46.) But no +correspondence between Hamilton and Marshall upon this subject has been +discovered. Marshall's correspondence about Henry was with King. + +[444] Marshall to King, May 24, 1796; King, ii, 48. + +[445] For an accurate description of the unparalleled abuse of +Washington, see McMaster, ii, 249-50, 289-91, 302-06. + +[446] Marshall, ii, 391-92. Also see Washington to Pickering, March 3, +1797; _Writings_: Ford, xiii, 378-80; and to Gordon, Oct. 15; _ib._, +427. + +[447] Journal, H.D. (1796), 46-47; MS. Archives, Va. St. Lib. + +[448] Journal, H.D. (1796), 153; MS. Archives, Va. St. Lib. + +[449]_ Ib._ + +[450] _Ib._ This amendment is historically important for another reason. +It is the first time that the Virginia Legislature refers to that +Commonwealth as a "State" in contra-distinction to the country. Although +the Journal shows that this important motion was passed, the manuscript +draft of the resolution signed by the presiding officer of both Houses +does not show the change. (MS. Archives, Va. St. Lib.) + +[451] Story, in Dillon, iii, 355. Marshall's account was inaccurate, as +we have seen. His memory was confused as to the vote in the two contests +(_supra_), a very natural thing after the lapse of twenty years. In the +first contest the House of Delegates voted overwhelmingly against +including the word "wisdom" in the resolutions; and on the Senate +amendment restored it by a dangerously small majority. On the second +contest in 1796, when Marshall declares that Washington's friends won +"by a very small majority," they were actually defeated. + +[452] Journal, H. D., 153-90. + +[453] _Aurora_, Monday, March 5, 1797. This paper, expressing Republican +hatred of Washington, had long been assailing him. For instance, on +October 24, 1795, a correspondent, in the course of a scandalous attack +upon the President, said: "The consecrated ermine of Presidential +chastity seems too foul for time itself to bleach." (See Cobbett, i, +411; and _ib._, 444, where the _Aurora_ is represented as having said +that "Washington has the ostentation of an eastern bashaw.") From August +to September the _Aurora_ had accused Washington of peculation. (See +"Calm Observer" in _Aurora_, Oct. 23 to Nov. 5, 1795.) + +[454] Henry to his daughter, Aug. 20, 1796; Henry, ii, 569-70. Henry was +now an enemy of Jefferson and his dislike was heartily reciprocated. + +[455] Washington to Jefferson, July 6, 1796; _Writings_: Ford, xiii, +230-31. This letter is in answer to a letter from Jefferson denying +responsibility for the publication of a Cabinet paper in the _Aurora_. +(Jefferson to Washington, June 19, 1796; _Works_: Ford, viii, 245; and +see Marshall, ii, 390-91.) Even in Congress Washington did not escape. +In the debate over the last address of the National Legislature to the +President, Giles of Virginia declared that Washington had been "neither +wise nor firm." He did not think "so much of the President." He "wished +him to retire ... the government of the United States could go on very +well without him." (_Annals_, 4th Cong., 2d Sess. (Dec. 14, 1796), +1614-18.) On the three roll-calls and passage of the address Giles voted +against Washington. (_Ib._, 1666-68.) So did Andrew Jackson, a new +member from Tennessee. (_Ib._) + +The unpopularity of Washington's Administration led to the hostile +policy of Bache's paper, largely as a matter of business. This provident +editor became fiercely "Republican" because, as he explained to his +relative, Temple Franklin, in England, he "could not [otherwise] +maintain his family," and "he had determined to adopt a bold experiment +and to come out openly against the Administration. He thought the public +temper would bear it." (Marshall to Pickering, Feb. 28, 1811, relating +the statement of Temple Franklin to James M. Marshall while in England +in 1793.) + + + + +CHAPTER V + +THE MAN AND THE LAWYER + + Tall, meagre, emaciated, his muscles relaxed, his joints loosely + connected, his head small, his complexion swarthy, his countenance + expressing great good humor and hilarity. (William Wirt.) + + Mr. Marshall can hardly be regarded as a learned lawyer. (Gustavus + Schmidt.) + + His head is one of the best organized of any I have known. (Rufus + King.) + + +On a pleasant summer morning when the cherries were ripe, a tall, +ungainly man in early middle life sauntered along a Richmond street. His +long legs were encased in knee breeches, stockings, and shoes of the +period; and about his gaunt, bony frame hung a roundabout or short linen +jacket. Plainly, he had paid little attention to his attire. He was +bareheaded and his unkempt hair was tied behind in a queue. He carried +his hat under his arm, and it was full of cherries which the owner was +eating as he sauntered idly along.[456] Mr. Epps's hotel (The Eagle) +faced the street along which this negligently appareled person was +making his leisurely way. He greeted the landlord as he approached, +cracked a joke in passing, and rambled on in his unhurried walk. + +At the inn was an old gentleman from the country who had come to +Richmond where a lawsuit, to which he was a party, was to be tried. The +venerable litigant had a hundred dollars to pay to the lawyer who should +conduct the case, a very large fee for those days. Who was the best +lawyer in Richmond, asked he of his host? "The man who just passed us, +John Marshall by name," said the tavern-keeper. But the countryman would +have none of Marshall. His appearance did not fill the old man's idea of +a practitioner before the courts. He wanted, for his hundred dollars, a +lawyer who looked like a lawyer. He would go to the court-room itself +and there ask for further recommendation. But again he was told by the +clerk of the court to retain Marshall, who, meanwhile, had ambled into +the court-room. + +But no! This searcher for a legal champion would use his own judgment. +Soon a venerable, dignified person, solemn of face, with black coat and +powdered wig, entered the room. At once the planter retained him. The +client remained in the court-room, it appears, to listen to the lawyers +in the other cases that were ahead of his own. Thus he heard the pompous +advocate whom he had chosen; and then, in astonishment, listened to +Marshall. + +The attorney of impressive appearance turned out to be so inferior to +the eccentric-looking advocate that the planter went to Marshall, +frankly told him the circumstances, and apologized. Explaining that he +had but five dollars left, the troubled old farmer asked Marshall +whether he would conduct his case for that amount. With a kindly jest +about the power of a black coat and a powdered wig, Marshall +good-naturedly accepted.[457] + +This not too highly colored story is justified by all reports of +Marshall that have come down to us. It is some such picture that we must +keep before us as we follow this astonishing man in the henceforth easy +and giant, albeit accidental, strides of his great career. John +Marshall, after he had become the leading lawyer of Virginia, and, +indeed, throughout his life, was the simple, unaffected man whom the +tale describes. Perhaps consciousness of his own strength contributed to +his disregard of personal appearance and contempt for studied manners. +For Marshall knew that he carried heavier guns than other men. "No one," +says Story, who knew him long and intimately, "ever possessed a more +entire sense of his own extraordinary talents ... than he."[458] + +Marshall's most careful contemporary observer, William Wirt, tells us +that Marshall was "in his person, tall, meagre, emaciated; his muscles +relaxed and his joints so loosely connected, as not only to disqualify +him, apparently, for any vigorous exertion of body, but to destroy +everything like elegance and harmony in his air and movements. + +"Indeed, in his whole appearance, and demeanour; dress, attitudes, +gesture; sitting, standing, or walking; he is as far removed from the +idolized graces of lord Chesterfield, as any other gentleman on earth. + +"To continue the portrait; his head and face are small in proportion to +his height; his complexion swarthy; the muscles of his face being +relaxed; ... his countenance has a faithful expression of great good +humour and hilarity; while his black eyes--that unerring index--possess +an irradiating spirit which proclaims the imperial powers of the mind +that sits enthroned within.... + +"His voice is dry, and hard; his attitude, in his most effective +orations, often extremely awkward; as it was not unusual for him to +stand with his left foot in advance, while all his gesture proceeded +from his right arm, and consisted merely in a vehement, perpendicular +swing of it from about the elevation of his head to the bar, behind +which he was accustomed to stand."[459] + +During all the years of clamorous happenings, from the great Virginia +Convention of 1788 down to the beginning of Adams's Administration and +in the midst of his own active part in the strenuous politics of the +time, Marshall practiced his profession, although intermittently. +However, during the critical three weeks of plot and plan, debate and +oratory in the famous month of June, 1788, he managed to do some "law +business": while Virginia's Constitutional Convention was in session, he +received twenty fees, most of them of one and two pounds and the largest +from "Col^o. W. Miles Cary 6.4." He drew a deed for his fellow member of +the Convention, James Madison, while the Convention was in session, for +which he charged his colleague one pound and four shillings. + +But there was no time for card-playing during this notable month and no +whist or backgammon entries appear in Marshall's Account Book. Earlier +in the year we find such social expenses as "Card table 5.10 Cards 8/ +paper 2/-6" and "expenses and loss at billiards at dif^t times 3" +(pounds). In September, 1788, occurs the first entry for professional +literature, "Law books 20/-1"; but a more important book purchase was +that of "Mazai's book sur les etats unis[460] 18" (shillings), an entry +which shows that some of Marshall's family could read French.[461] + +Marshall's law practice during this pivotal year was fairly profitable. +He thus sums up his earnings and outlay, "Rec^d. in the year 1788 +1169.05; and expended in year 1788, 515-13-7" which left Marshall more +than 653 pounds or about $1960 Virginia currency clear profit for the +year.[462] + +The following year (1789) he did a little better, his net profit being a +trifle over seven hundred pounds, or about $2130 Virginia currency. In +1790 he earned a few shillings more than 1427 pounds and had about $2400 +Virginia currency remaining, after paying all expenses. In 1791 he did +not do so well, yet he cleared over $2200 Virginia currency. In 1792 his +earnings fell off a good deal, yet he earned more than he expended, over +402 pounds (a little more than $1200 Virginia currency). + +In 1793 Marshall was slightly more successful, but his expenses also +increased, and he ended this year with a trifle less than 400 pounds +clear profit. He makes no summary in 1794, but his Account Book shows +that he no more than held his own. This business barometer does not +register beyond the end of 1795,[463] and there is no further evidence +than the general understanding current in Richmond as to the amount of +his earnings after this date. La Rochefoucauld reported in 1797 that +"Mr. Marshall does not, from his practice, derive above four or five +thousand dollars per annum and not even that sum every year."[464] We +may take this as a trustworthy estimate of Marshall's income; for the +noble French traveler and student was thorough in his inquiries and took +great pains to verify his statements. + +In 1789 Marshall bought the tract of land amounting to an entire city +"square" of two acres,[465] on which, four years later, he built the +comfortable brick residence where he lived, while in Richmond, during +the remainder of his life. This house still stands (1916) and is in +excellent repair. It contains nine rooms, most of them commodious, and +one of them of generous dimensions where Marshall gave the "lawyer +dinners" which, later, became so celebrated. This structure was one of a +number of the important houses of Richmond.[466] Near by were the +residences of Colonel Edward Carrington, Daniel Call, an excellent +lawyer, and George Fisher, a wealthy merchant; these men had married the +three sisters of Marshall's wife. The house of Jacquelin Ambler was also +one of this cluster of dwellings. So that Marshall was in daily +association with four men to whom he was related by marriage, a not +negligible circumstance; for every one of them was a strong and +successful man, and all of them were, like Marshall, pronounced +Federalists. Their views and tastes were the same, they mutually aided +and supported one another; and Marshall was, of course, the favorite of +this unusual family group. + +In the same locality lived the Leighs, Wickhams, Ronalds, and others, +who, with those just mentioned, formed the intellectual and social +aristocracy of the little city.[467] Richmond grew rapidly during the +first two decades that Marshall lived there. From the village of a few +hundred people abiding in small wooden houses, in 1783, the Capital +became, in 1795, a vigorous town of six thousand inhabitants, dwelling +mostly in attractive brick residences.[468] This architectural +transformation was occasioned by a fire which, in 1787, destroyed most +of the buildings in Richmond.[469] Business kept pace with the growth of +the city, wealth gradually and healthfully accumulated, and the comforts +of life appeared. Marshall steadily wove his activities into those of +the developing Virginia metropolis and his prosperity increased in +moderate and normal fashion. + +[Illustration: JOHN MARSHALL'S HOUSE, RICHMOND] + +[Illustration: THE LARGE ROOM WHERE THE FAMOUS "LAWYERS' DINNERS" WERE +GIVEN] + +In his personal business affairs Marshall showed a childlike faith in +human nature which sometimes worked to his disadvantage. For instance, +in 1790 he bought a considerable tract of land in Buckingham County, +which was heavily encumbered by a deed of trust to secure "a debt of +a former owner" of the land to Caron de Beaumarchais.[470] Marshall +knew of this mortgage "at the time of the purchase, but he felt no +concern ... because" the seller verbally "promised to pay the debt and +relieve the land from the incumbrance." + +So he made the payments through a series of years, in spite of the fact +that Beaumarchais's mortgage remained unsatisfied, that Marshall urged +its discharge, and, finally, that disputes concerning it arose. Perhaps +the fact that he was the attorney of the Frenchman in important +litigation quieted apprehension. Beaumarchais having died, his agent, +unable to collect the debt, was about to sell the land under the trust +deed, unless Marshall would pay the obligation it secured. Thus, +thirteen years after this improvident transaction, Marshall was forced +to take the absurd tangle into a court of equity.[471] + +But he was as careful of matters entrusted to him by others as this land +transaction would suggest that he was negligent of his own affairs. +Especially was he in demand, it would seem, when an enterprise was to be +launched which required public confidence for its success. For instance, +the subscribers to a fire insurance company appointed him on the +committee to examine the proposed plan of business and to petition the +Legislature for a charter,[472] which was granted under the name of the +"Mutual Assurance Society of Virginia."[473] Thus Marshall was a founder +of one of the oldest American fire insurance companies.[474] Again, when +in 1792 the "Bank of Virginia," a State institution, was organized,[475] +Marshall was named as one of the committee to receive and approve +subscriptions for stock.[476] + +No man could have been more watchful than was Marshall of the welfare of +members of his family. At one of the most troubled moments of his life, +when greatly distressed by combined business and political +complications,[477] he notes a love affair of his sister and, unasked, +carefully reviews the eligibility of her suitor. Writing to his brother +James on business and politics, he says:-- + +"I understand that my sister Jane, while here [Richmond], was addressed +by Major Taylor and that his addresses were encouraged by her. I am not +by any means certain of the fact nor did I suspect it until we had +separated the night preceding her departure and consequently I could +have no conversation with her concerning it. + +"I believe that tho' Major Taylor was attach'd to her, it would probably +have had no serious result if Jane had not manifested some partiality +for him. This affair embarrasses me a good deal. Major Taylor is a young +gentleman of talents and integrity for whom I profess and feel a real +friendship. There is no person with whom I should be better pleased if +there were not other considerations which ought not to be overlook'd. +Mr. Taylor possesses but little if any fortune, he is encumbered with a +family, and does not like his profession. Of course he will be as +eminent in his profession as his talents entitle him to be. These are +facts unknown to my sister but which ought to be known to her. + +"Had I conjectured that Mr. Taylor was contemplated in the character of +a lover I shou'd certainly have made to her all proper communications. I +regret that it was concealed from me. I have a sincere and real +affection and esteem for Major Taylor but I think it right in affairs of +this sort that the real situation of the parties should be mutually +understood. Present me affectionately to my sister."[478] + +From the beginning of his residence in Richmond, Marshall had been an +active member of the Masonic Order. He had become a Free Mason while in +the Revolutionary army,[479] which abounded in camp lodges. It was due +to his efforts as City Recorder of Richmond that a lottery was +successfully conducted to raise funds for the building of a Masonic hall +in the State Capital in 1785.[480] The following year Marshall was +appointed Deputy Grand Master. In 1792 he presided over the Grand Lodge +as Grand Master _pro tempore_; and the next year he was chosen as the +head of the order in Virginia. He was reëlected as Grand Master in 1794; +and presided over the meetings of the Grand Lodge held during 1793 until +1795 inclusive. During the latter year the Masonic hall in Manchester +was begun and he assisted in the ceremonies attending the laying of the +corner-stone, which bore this inscription: "This stone was laid by the +Worshipful Archibald Campbell, Master of the Manchester Lodge of free & +accepted Masons Assisted by & in the presence of the Most Worshipful +John Marshall Grand Master of Masons to Virginia."[481] + +Upon the expiration of his second term in this office, the Grand Lodge +"Resolved, that the Grand Lodge are truly sensible of the great +attention of our late Grand Master, John Marshall, to the duties of +Masonry, and that they entertain an high sense of the wisdom displayed +by him in the discharge of the duties of his office; and as a token of +their entire approbation of his conduct do direct the Grand Treasurer to +procure and present him with an elegant Past Master's jewel."[482] + +From 1790 until his election to Congress, nine years later,[483] +Marshall argued one hundred and thirteen cases decided by the Court of +Appeals of Virginia. Notwithstanding his almost continuous political +activity, he appeared, during this time, in practically every important +cause heard and determined by the supreme tribunal of the State. +Whenever there was more than one attorney for the client who retained +Marshall, the latter almost invariably was reserved to make the closing +argument. His absorbing mind took in everything said or suggested by +counsel who preceded him; and his logic easily marshaled the strongest +arguments to support his position and crushed or threw aside as +unimportant those advanced against him. + +Marshall preferred to close rather than open an argument. He wished to +hear all that other counsel might have to say before he spoke himself; +for, as has appeared, he was but slightly equipped with legal +learning[484] and he informed himself from the knowledge displayed by +his adversaries. Even after he had become Chief Justice of the Supreme +Court of the United States and throughout his long and epochal occupancy +of that high place, Marshall showed this same peculiarity which was so +prominent in his practice at the bar. + +Every contemporary student of Marshall's method and equipment notes the +meagerness of his learning in the law. "Everyone has heard of the +gigantick abilities of John Marshall; as a most able and profound +reasoner he deserves all the praise which has been lavished upon him," +writes Francis Walker Gilmer, in his keen and brilliant contemporary +analysis of Marshall. "His mind is not very richly stored with +knowledge," he continues, "but it is so creative, so well organized by +nature, or disciplined by early education, and constant habits of +systematick thinking, that he embraces every subject with the clearness +and facility of one prepared by previous study to comprehend and explain +it."[485] + +Gustavus Schmidt, who was a competent critic of legal attainments and +whose study of Marshall as a lawyer was painstaking and thorough, bears +witness to Marshall's scanty acquirements. "Mr. Marshall," says Schmidt, +"can hardly be regarded as a learned lawyer.... His acquaintance with +the Roman jurisprudence as well as with the laws of foreign countries +was not very extensive. He was what is called a common law lawyer in the +best & noblest acceptation of that term." + +Mr. Schmidt attempts to excuse Marshall's want of those legal weapons +which knowledge of the books supply. + +"He was educated for the bar," writes Schmidt, "at a period when +digests, abridgments & all the numerous facilities, which now smooth +the path of the law student were almost unknown & when you often sought +in vain in the Reporters which usually wore the imposing form of folios, +even for an index of the decisions & when marginal notes of the points +determined in a case was a luxury not to be either looked for or +expected. + +"At this period when the principles of the Common Law had to be studied +in the black-letter pages of Coke upon Littleton, a work equally +remarkable for quaintness of expression, profundity of research and the +absence of all method in the arrangements of its very valuable +materials; when the rules of pleading had to be looked for in Chief +Justice Saunders's Reports, while the doctrinal parts of the +jurisprudence, based almost exclusively on the precedents had to be +sought after in the reports of Dyer, Plowden, Coke, Popham ... it +was ... no easy task to become an able lawyer & it required no common +share of industry and perseverance to amass sufficient knowledge of the +law to make even a decent appearance in the forum."[486] + +It would not be strange, therefore, if Marshall did cite very few +authorities in the scores of cases argued by him. But it seems certain +that he would not have relied upon the "learning of the law" in any +event; for at a later period, when precedents were more abundant and +accessible, he still ignored them. Even in these early years other +counsel exhibited the results of much research; but not so Marshall. In +most of his arguments, as reported in volumes one, two, and four of +Call's Virginia Reports and in volumes one and two of Washington's +Virginia Reports,[487] he depended on no authority whatever. Frequently +when the arguments of his associates and of opposing counsel show that +they had explored the whole field of legal learning on the subject in +hand, Marshall referred to no precedent.[488] The strongest feature of +his argument was his statement of the case. + +The multitude of cases which Marshall argued before the General Court of +Appeals and before the High Court of Chancery at Richmond covered every +possible subject of litigation at that time. He lost almost as +frequently as he won. Out of one hundred and twenty-one cases reported, +Marshall was on the winning side sixty-two times and on the losing side +fifty times. In two cases he was partly successful and partly +unsuccessful, and in seven it is impossible to tell from the reports +what the outcome was. + +Once Marshall appeared for clients whose cause was so weak that the +court decided against him on his own argument, refusing to hear opposing +counsel.[489] He was extremely frank and honest with the court, and on +one occasion went so far as to say that the opposing counsel was in the +right and himself in the wrong.[490] "My own opinion," he admitted to +the court in this case, "is that the law is correctly stated by Mr. +Ronald [the opposing counsel], but the point has been otherwise +determined in the General Court." Marshall, of course, lost.[491] + +Nearly all the cases in which Marshall was engaged concerned property +rights. Only three or four of the controversies in which he took part +involved criminal law. A considerable part of the litigation in which he +was employed was intricate and involved; and in this class of cases his +lucid and orderly mind made him the intellectual master of the +contending lawyers. Marshall's ability to extract from the confusion of +the most involved question its vital elements and to state those +elements in simple terms was helpful to the court, and frankly +appreciated by the judges. + +Few letters of Marshall to his fellow lawyers written during this period +are extant. Most of these are very brief and confined strictly to the +particular cases which he had been retained by his associate attorneys +throughout Virginia to conduct before the Court of Appeals. +Occasionally, however, his humor breaks forth. + +"I cannot appear for Donaghoe," writes Marshall to a country member of +the bar who lived in the Valley over the mountains. "I do not decline +his business from any objection to his _bank_. To that I should like +very well to have free access & wou'd certainly discount _from_ it as +largely as he wou'd permit, but I am already fixed by Rankin & as those +who are once in the bank do not I am told readily get out again I +despair of being ever able to touch the guineas of Donaghoe. + +"Shall we never see you again in Richmond? I was very much rejoiced when +I heard that you were happily married but if that amounts to a ne exeat +which is to confine you entirely to your side of the mountain, I shall +be selfish enough to regret your good fortune & almost wish you had +found some little crooked rib among the fish and oysters which would +once a year drag you into this part of our terraqueous globe. + +"You have forgotten I believe the solemn compact we made to take a +journey to Philadelphia together this winter and superintend for a while +the proceedings of Congress."[492] + +Again, writing to Stuart concerning a libel suit, Marshall says: +"Whether the truth of the libel may be justified or not is a perfectly +unsettled question. If in that respect the law here varies from the law +of England it must be because such is the will of their Honors for I +know of no legislative act to vary it. It will however be right to +appeal was it only to secure a compromise."[493] + +Marshall's sociableness and love of play made him the leader of the +Barbecue Club, consisting of thirty of the most agreeable of the +prominent men in Richmond. Membership in this club was eagerly sought +and difficult to secure, two negatives being sufficient to reject a +candidate. Meetings were held each Saturday, in pleasant weather, at +"the springs" on the farm of Mr. Buchanan, the Episcopal clergyman. +There a generous meal was served and games played, quoits being the +favorite sport. One such occasion of which there is a trustworthy +account shows the humor, the wit, and the good-fellowship of Marshall. + +He welcomed the invited guests, Messrs. Blair and Buchanan, the famous +"Two Parsons" of Richmond, and then announced that a fine of a basket of +champagne, imposed on two members for talking politics at a previous +meeting of the club, had been paid and that the wine was at hand. It was +drunk from tumblers and the Presbyterian minister joked about the danger +of those who "drank from tumblers _on_ the table becoming tumblers +_under_ the table." Marshall challenged "Parson" Blair to a game of +quoits, each selecting four partners. His quoits were big, rough, heavy +iron affairs that nobody else could throw, those of the other players +being smaller and of polished brass. Marshall rang the meg and Blair +threw his quoit directly over that of his opponent. Loud were the cries +of applause and a great controversy arose as to which player had won. +The decision was left to the club with the understanding that when the +question was determined they should "crack another bottle of champagne." + +Marshall argued his own case with great solemnity and elaboration. The +one first ringing the meg must be deemed the winner, unless his +adversary knocked off the first quoit and put his own in its place. +This required perfection, which Blair did not possess. Blair claimed to +have won by being on top of Marshall; but suppose he tried to reach +heaven "by riding on my back," asked Marshall. "I fear that from my many +backslidings and deficiencies, he may be badly disappointed." Blair's +method was like playing leap frog, said he. And did anybody play +backgammon in that way? Also there was the ancient legal maxim, "_Cujus +est solum, ejus est usque ad coelum_": being "the first occupant his +right extended from the ground up to the vault of heaven and no one had +a right to become a squatter on his back." If Blair had any claim "he +must obtain a writ of ejectment or drive him [Marshall] from his +position vi et armis." Marshall then cited the boys' game of marbles +and, by analogy, proved that he had won and should be given the verdict +of the club. + +Wickham argued at length that the judgment of the club should be that +"where two adversary quoits are on the same meg, neither is victorious." +Marshall's quoit was so big and heavy that no ordinary quoit could move +it and "no rule requires an impossibility." As to Marshall's insinuation +that Blair was trying to reach "Elysium by mounting on his back," it was +plain to the club that such was not the parson's intention, but that he +meant only to get a more elevated view of earthly things. Also Blair, by +"riding on that pinnacle," will be apt to arrive in time at the upper +round of the ladder of fame. The legal maxim cited by Marshall was +really against his claim, since the ground belonged to Mr. Buchanan and +Marshall was as much of a "squatter" as Blair was. "The first squatter +was no better than the second." And why did Marshall talk of ejecting +him by force of arms? Everybody knew that "parsons are men of peace and +do not vanquish their antagonists _vi et armis_. We do not deserve to +prolong this riding on Mr. Marshall's back; he is too much of a +_Rosinante_ to make the ride agreeable." The club declined to consider +seriously Marshall's comparison of the manly game of quoits with the +boys' game of marbles, for had not one of the clergymen present preached +a sermon on "marvel not"? There was no analogy to quoits in Marshall's +citation of leap frog nor of backgammon; and Wickham closed, amid the +cheers of the club, by pointing out the difference between quoits and +leap frog. + +The club voted with impressive gravity, taking care to make the vote as +even as possible and finally determined that the disputed throw was a +draw. The game was resumed and Marshall won.[494] + +Such were Marshall's diversions when an attorney at Richmond. His +"lawyer dinners" at his house,[495] his card playing at Farmicola's +tavern, his quoit-throwing and pleasant foolery at the Barbecue Club, +and other similar amusements which served to take his mind from the +grave problems on which, at other times, it was constantly working, were +continued, as we shall see, and with increasing zest, after he became +the world's leading jurist-statesman of his time. But neither as lawyer +nor judge did these wholesome frivolities interfere with his serious +work. + +Marshall's first case of nation-wide interest, in which his argument +gave him fame among lawyers throughout the country, was the historic +controversy over the British debts. When Congress enacted the Judiciary +Law of 1789 and the National Courts were established, British creditors +at once began action to recover their long overdue debts. During the +Revolution, other States as well as Virginia had passed laws +confiscating the debts which their citizens owed British subjects and +sequestering British property. + +Under these laws, debtors could cancel their obligations in several +ways. The Treaty of Peace between the United States and Great Britain +provided, among other things, that "It is agreed that creditors on +either side shall meet with no legal impediments to the recovery of the +full value in sterling money of all bona fide debts heretofore +contracted." The Constitution provided that "All treaties made, or which +shall be made, under the authority of the United States, shall be the +supreme law of the land; and the judges in every State shall be bound +thereby, anything in the Constitution or laws of any State to the +contrary notwithstanding,"[496] and that "The judicial power shall +extend to all cases in law and equity arising under this Constitution, +the laws of the United States, and treaties made, or which shall be +made, under their authority; to all cases ... between a State, or the +citizens thereof, and foreign States citizens, or subjects."[497] + +Thus the case of Ware, Administrator, _vs._ Hylton ET AL., which +involved the validity of a State law in conflict with a treaty, +attracted the attention of the whole country when finally it reached the +Supreme Court. The question in that celebrated controversy was whether a +State law, suspending the collection of a debt due to a subject of Great +Britain, was valid as against the treaty which provided that no "legal +impediment" should prevent the recovery of the obligation. + +Ware _vs._ Hylton was a test case; and its decision involved immense +sums of money. Large numbers of creditors who had sought to cancel their +debts under the confiscation laws were vitally interested. Marshall, in +this case, made the notable argument that carried his reputation as a +lawyer beyond Virginia and won for him the admiration of the ablest men +at the bar, regardless of their opinion of the merits of the +controversy. + +It is an example of "the irony of fate" that in this historic legal +contest Marshall supported the theory which he had opposed throughout +his public career thus far, and to demolish which his entire after life +was given. More remarkable still, his efforts for his clients were +opposed to his own interests; for, had he succeeded for those who +employed him, he would have wrecked the only considerable business +transaction in which he ever engaged.[498] He was employed by the +debtors to uphold those laws of Virginia which sequestered British +property and prevented the collection of the British debts; and he put +forth all his power in this behalf. + +Three such cases were pending in Virginia; and these were heard twice by +the National Court in Richmond as a consolidated cause, the real issue +being the same in all. The second hearing was during the May Term of +1793 before Chief Justice Jay, Justice Iredell of the Supreme Court, and +Judge Griffin of the United States District Court. The attorneys for the +British creditors were William Ronald, John Baker, John Stark, and John +Wickham. For the defendants were Alexander Campbell, James Innes, +Patrick Henry, and John Marshall. Thus we see Marshall, when thirty-six +years of age, after ten years of practice at the Richmond bar, +interrupted as those years were by politics and legislative activities, +one of the group of lawyers who, for power, brilliancy, and learning, +were unsurpassed in America. + +The argument at the Richmond hearing was a brilliant display of +eloquence, reasoning, and erudition, and, among lawyers, its repute has +reached even to the present day. Counsel on both sides exerted every +ounce of their strength. When Patrick Henry had finished his appeal, +Justice Iredell was so overcome that he cried, "Gracious God! He is an +orator indeed!"[499] The Countess of Huntingdon, who was then in +Richmond and heard the arguments of all the attorneys, declared: "If +every one had spoken in Westminster Hall, they would have been honored +with a peerage."[500] + +In his formal opinion, Justice Iredell thus expressed his admiration: +"The cause has been spoken to, at the bar, with a degree of ability +equal to any occasion.... I shall as long as I live, remember with +pleasure and respect the arguments which I have heard on this case: they +have discovered an ingenuity, a depth of investigation, and a power of +reasoning fully equal to anything I have ever witnessed.... Fatigue has +given way under its influence; the heart has been warmed, while the +understanding has been instructed."[501] + +Marshall's argument before the District Court of Richmond must have +impressed his debtor clients more than that of any other of their +distinguished counsel, with the single exception of Alexander Campbell; +for when, on appeal to the Supreme Court of the United States, the case +came on for hearing in 1796, we find that only Marshall and Campbell +appeared for the debtors. + +It is unfortunate that Marshall's argument before the Supreme Court at +Philadelphia is very poorly reported. But inadequate as the report is, +it still reveals the peculiar clearness and the compact and simple +reasoning which made up the whole of Marshall's method, whether in legal +arguments, political speeches, diplomatic letters, or judicial opinions. + +Marshall argued that the Virginia law barred the recovery of the debts +regardless of the treaty. "It has been conceded," said he, "that +independent nations have, in general, the right to confiscation; and +that Virginia, at the time of passing her law, was an independent +nation." A State engaged in war has the powers of war, "and confiscation +is one of those powers, weakening the party against whom it is employed +and strengthening the party that employs it." Nations have equal powers; +and, from July 4, 1776, America was as independent a nation as Great +Britain. What would have happened if Great Britain had been victorious? +"Sequestration, confiscation, and proscription would have followed in +the train of that event," asserted Marshall. + +Why, then, he asked, "should the confiscation of British property be +deemed less just in the event of an American triumph?" Property and its +disposition is not a natural right, but the "creature of civil society, +and subject in all respects to the disposition and control of civil +institutions." Even if "an individual has not the power of extinguishing +his debts," still "the community to which he belongs ... may ... upon +principles of public policy, prevent his creditors from recovering +them." The ownership and control of property "is the offspring of the +social state; not the incident of a state of nature. But the Revolution +did not reduce the inhabitants of America to a state of nature; and if +it did, the plaintiff's claim would be at an end." Virginia was within +her rights when she confiscated these debts. + +As an independent nation Virginia could do as she liked, declared +Marshall. Legally, then, at the time of the Treaty of Peace in 1783, +"the defendant owed nothing to the plaintiff." Did the treaty revive +the debt thus extinguished? No: For the treaty provides "that creditors +on either side shall meet with no lawful impediment to the recovery" of +their debts. Who are the creditors? "There cannot be a creditor where +there is not a debt; and the British debts were extinguished by the act +of confiscation," which was entirely legal. + +Plainly, then, argued Marshall, the treaty "must be construed with +reference to those creditors" whose debts had not been extinguished by +the sequestration laws. There were cases of such debts and it was to +these only that the treaty applied. The Virginia law must have been +known to the commissioners who made the treaty; and it was unthinkable +that they should attempt to repeal those laws in the treaty without +using plain words to that effect. + +Such is an outline of Marshall's argument, as inaccurately and +defectively reported.[502] + +Cold and dry as it appears in the reporter's notes, Marshall's address +to the Supreme Court made a tremendous impression on all who heard it. +When he left the court-room, he was followed by admiring crowds. The +ablest public men at the Capital were watching Marshall narrowly and +these particularly were captivated by his argument. "His head is one of +the best organized of any one that I have known," writes the keenly +observant King, a year later, in giving to Pinckney his estimate of +Marshall. "This I say from general Reputation, and more satisfactorily +from an Argument that I heard him deliver before the fed'l Court at +Philadelphia."[503] King's judgment of Marshall's intellectual strength +was that generally held. + +Marshall's speech had a more enduring effect on those who listened to it +than any other address he ever made, excepting that on the Jonathan +Robins case.[504] Twenty-four years afterwards William Wirt, then at the +summit of his brilliant career, advising Francis Gilmer upon the art of +oratory, recalled Marshall's argument in the British Debts case as an +example for Gilmer to follow. Wirt thus contrasts Marshall's method with +that of Campbell on the same occasion:-- + +"Campbell played off all his Apollonian airs; but they were lost. +Marshall spoke, as he always does, to the judgment merely and for the +simple purpose of convincing. Marshall was justly pronounced one of the +greatest men of the country; he was followed by crowds, looked upon, and +courted with every evidence of admiration and respect for the great +powers of his mind. Campbell was neglected and slighted, and came home +in disgust. + +"Marshall's maxim seems always to have been, 'aim exclusively _at +Strength_:' and from his eminent success, I say, if I had my life to go +over again, I would practice on his maxim with the most rigorous +severity, until the character of my mind was established."[505] + +[Illustration] + +In another letter to Gilmer, Wirt again urges his son-in-law to imitate +Marshall's style. In his early career Wirt had suffered in his own +arguments from too much adornment which detracted from the real solidity +and careful learning of his efforts at the bar. And when, finally, in +his old age he had, through his own mistakes, learned the value of +simplicity in statement and clear logic in argument, he counseled young +Gilmer accordingly. + +"In your arguments at the bar," he writes, "_let argument strongly +predominate_. Sacrifice your flowers.... Avoid as you would the gates of +death, the reputation for floridity.... Imitate ... Marshall's simple +process of reasoning."[506] + +Following the advice of his distinguished brother-in-law, Gilmer studied +Marshall with the hungry zeal of ambitious youth. Thus it is that to +Francis Gilmer we owe what is perhaps the truest analysis, made by a +personal observer, of Marshall's method as advocate and orator. + +"So perfect is his analysis," records Gilmer, "that he extracts the +whole matter, the kernel of the inquiry, unbroken, undivided, clean and +entire. In this process, such is the instinctive neatness and precision +of his mind that no superfluous thought, or even word, ever presents +itself and still he says everything that seems appropriate to the +subject. + +"This perfect exemption from any unnecessary encumbrance of matter or +ornament, is in some degree the effect of an aversion for the labour of +thinking. So great a mind, perhaps, like large bodies in the physical +world, is with difficulty set in motion. That this is the case with Mr. +Marshall's is manifest, from his mode of entering on an argument both in +conversation and in publick debate. + +"It is difficult to rouse his faculties; he begins with reluctance, +hesitation, and vacancy of eye; presently his articulation becomes less +broken, his eye more fixed, until finally, his voice is full, clear, and +rapid, his manner bold, and his whole face lighted up, with the mingled +fires of genius and passion; and he pours forth the unbroken stream of +eloquence, in a current deep, majestick, smooth, and strong. + +"He reminds one of some great bird, which flounders and flounces on the +earth for a while before it acquires the impetus to sustain its soaring +flight. + +"The characteristick of his eloquence is an irresistible cogency, and a +luminous simplicity in the order of his reasoning. His arguments are +remarkable for their separate and independent strength, and for the +solid, compact, impenetrable order in which they are arrayed. + +"He certainly possesses in an eminent degree the power which had been +ascribed to him, of mastering the most complicated subjects with +facility, and when moving with his full momentum, even without the +appearance of resistance." + +Comparing Marshall and Randolph, Gilmer says:-- + +"The powers of these two gentlemen are strikingly contrasted by nature. +In Mr. Marshall's speeches, all is reasoning; in Mr. Randolph's +everything is declamation. The former scarcely uses a figure; the latter +hardly an abstraction. One is awkward; the other graceful. + +"One is indifferent as to his words, and slovenly in his pronunciation; +the other adapts his phrases to the sense with poetick felicity; his +voice to the sound with musical exactness. + +"There is no breach in the train of Mr. Marshall's thoughts; little +connection between Mr. Randolph's. Each has his separate excellence, but +either is far from being a finished orator."[507] + +Another invaluable first-hand analysis of Marshall's style and manner of +argument is that of William Wirt, himself, in the vivacious descriptions +of "The British Spy":-- + +"He possesses one original, and, almost supernatural faculty, the +faculty of developing a subject by a single glance of his mind, and +detecting at once, the very point on which every controversy depends. No +matter what the question; though ten times more knotty than 'the gnarled +oak,' the lightning of heaven is not more rapid nor more resistless, +than his astonishing penetration. + +"Nor does the exercise of it seem to cost him an effort. On the +contrary, it is as easy as vision. I am persuaded that his eye does not +fly over a landscape and take in its various objects with more +promptitude and facility, than his mind embraces and analyses the most +complex subject. + +"Possessing while at the bar this intellectual elevation, which enabled +him to look down and comprehend the whole ground at once, he determined +immediately and without difficulty, on which side the question might be +most advantageously approached and assailed. + +"In a bad cause his art consisted in laying his premises so remotely +from the point directly in debate, or else in terms so general and so +spacious, that the hearer, seeing no consequence which could be drawn +from them, was just as willing to admit them as not; but his premises +once admitted, the demonstration, however distant, followed as +certainly, as cogently, as inevitably, as any demonstration in +Euclid."[508] + +Marshall's supremacy, now unchallenged, at the Virginia bar was noted by +foreign observers. La Rochefoucauld testifies to this in his exhaustive +volumes of travel:-- + +"Mr. J. Marshall, conspicuously eminent as a professor of the law, is +beyond all doubt one of those who rank highest in the public opinion at +Richmond. He is what is termed a federalist, and perhaps somewhat warm +in support of his opinions, but never exceeding the bounds of propriety, +which a man of his goodness and prudence and knowledge is incapable of +transgressing. + +"He may be considered as a distinguished character in the United States. +His political enemies allow him to possess great talents but accuse him +of ambition. I know not whether the charge be well or ill grounded, or +whether that ambition might ever be able to impel him to a dereliction +of his principles--a conduct of which I am inclined to disbelieve the +possibility on his part. + +"He has already refused several employments under the general +government, preferring the income derived from his professional labours +(which is more than sufficient for his moderate system of economy), +together with a life of tranquil ease in the midst of his family and in +his native town. + +"Even by his friends he is taxed with some little propensity to +indolence; but even if this reproach were well founded, he nevertheless +displays great superiority in his profession when he applies his mind to +business."[509] + +When Jefferson foresaw Marshall's permanent transfer to public life he +advised James Monroe to practice law in Richmond because "the business +is very profitable;[510] ... and an opening of great importance must be +made by the retirement of Marshall."[511] + +Marshall's solid and brilliant performance in the British Debts case +before the Supreme Court at Philadelphia did much more than advance him +in his profession. It also focused upon him the keen scrutiny of the +politicians and statesmen who at that time were in attendance upon +Congress in the Quaker City. Particularly did the strength and +personality of the Virginia advocate impress the Federalist leaders. + +These vigilant men had learned of Marshall's daring championship of the +Jay Treaty in hostile Virginia. And although in the case of Ware _vs._ +Hylton, Marshall was doing his utmost as a lawyer before the Supreme +Court to defeat the collection of the British debts, yet his courageous +advocacy of the Jay Treaty outweighed, in their judgment, his +professional labors in behalf of the clients who had employed him. + +The Federalist leaders were in sore need of Southern support; and when +Marshall was in Philadelphia on the British Debts case, they were prompt +and unsparing in their efforts to bind this strong and able man to them +by personal ties. Marshall himself unwittingly testifies to this. "I +then [during this professional visit to Philadelphia] became +acquainted," he relates, "with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. +Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of +New York. I was delighted with these gentlemen. The particular subject +(the British Treaty) which introduced me to their notice was at that +time so interesting, and a Virginian who supported, with any sort of +reputation, the measures of the government, was such a _rara avis_, +that I was received by them all with a degree of kindness which I had +not anticipated. I was particularly intimate with Mr. Ames, and could +scarcely gain credit with him when I assured him that the appropriations +[to effectuate the treaty] would be seriously opposed in Congress."[512] + +As we shall presently see, Marshall became associated with Robert Morris +in the one great business undertaking of the former's life. Early in +this transaction when, for Marshall, the skies were still clear of +financial clouds, he appears to have made a small purchase of bank stock +and ventured modestly into the commercial field. "I have received your +letter of 18 ulto," Morris writes Marshall, "& am negotiating for Bank +Stock to answer your demand."[513] + +And again: "I did not succeed in the purchase of the Bank Stock +mentioned in my letter of the 3^d Ulto to you and as M^r Richard tells +me in his letter of the 4 Inst that you want the money for the Stock, +you may if you please draw upon me for $7000 giving me as much time in +the sight as you can, and I will most certainly pay your drafts as they +become due. The Brokers shall fix the price of the Stock at the market +price at the time I pay the money & I will then state the Am^t including +Dividends & remit you the Balance but if you prefer having the Stock I +will buy it on receiving your Answer to this, cost what it may."[514] + +Soon afterward, Morris sent Marshall the promised shares of stock, +apparently to enable him to return shares to some person in Richmond +from whom he had borrowed them. + +"You will receive herewith enclosed the Certificates for four shares of +Bank Stock of the United States placed in your name to enable you to +return the four shares to the Gentlemen of whom you borrowed them, this +I thought better than remitting the money lest some difficulty should +arise about price of shares. Two other shares in the name of M^r Geo +Pickett is also enclosed herewith and I will go on buying and remitting +others untill the number of Ten are completed for him which shall be +done before the time limited in your letter of the 12^h Ins^t The +dividends shall also be remitted speedily."[515] + +Again Washington desired Marshall to fill an important public office, +this time a place on the joint commission, provided for in the Jay +Treaty, to settle the British claims. These, as we have seen, had been +for many years a source of grave trouble between the two countries. +Their satisfactory adjustment would mean, not only the final settlement +of this serious controversy, but the removal of an ever-present cause of +war.[516] But since Marshall had refused appointment to three offices +tendered him by Washington, the President did not now communicate with +him directly, but inquired of Charles Lee, Attorney-General of Virginia, +whether Marshall might be prevailed upon to accept this weighty and +delicate business. + +"I have very little doubt," replied Lee, "that Mr. John Marshall would +not act as a Commissioner under the Treaty with Great Britain, for +deciding on the claims of creditors. I have been long acquainted with +his private affairs, and I think it almost impossible for him to +undertake that office. If he would, I know not any objection that +subsists against him. + +"First, he is not a debtor.[517] Secondly, he cannot be benefitted or +injured by any decision of the Commissioners. Thirdly, his being +employed as counsel, in suits of that kind, furnishes no reasonable +objection; nor do I know of any opinions that he has published, or +professes, that might, with a view of impartiality, make him liable to +be objected to. + +"Mr. Marshall is at the head of his profession in Virginia, enjoying +every convenience and comfort; in the midst of his friends and the +relations of his wife at Richmond; in a practice of his profession that +annually produces about five thousand dollars on an average; with a +young and increasing family; and under a degree of necessity to continue +his profession, for the purpose of complying with contracts not yet +performed."[518] + +The "contracts" which Marshall had to fulfill concerned the one +important financial adventure of his life. It was this, and not, as some +suppose, the condition of his invalid wife, to which Marshall vaguely +referred in his letter to Washington declining appointment as +Attorney-General and as Minister to France. + +The two decades following the establishment of the National Government +under the Constitution were years of enormous land speculation. Hardly a +prominent man of the period failed to secure large tracts of real +estate, which could be had at absurdly low prices, and to hold the lands +for the natural advance which increasing population would bring. The +greatest of these investors was Robert Morris, the financier of the +Revolution, the second richest man of the time,[519] and the leading +business man of the country. + +[Illustration] + +John Marshall had long been the attorney in Virginia for Robert Morris, +who frequently visited that State, sometimes taking his family with him. +In all probability, it was upon some such journey that James M. +Marshall, the brother of John Marshall, met and became engaged to Hester +Morris, daughter of the great speculator, whom he married on April 19, +1795.[520] James M. Marshall--nine years younger than his +brother--possessed ability almost equal to John Marshall and wider and +more varied accomplishments.[521] + +It is likely that the Pennsylvania financier, before the marriage, +suggested to the Marshall brothers the purchase of what remained of the +Fairfax estate in the Northern Neck, embracing over one hundred and +sixty thousand acres of the best land in Virginia.[522] At any rate, +sometime during 1793 or 1794 John Marshall, his brother, James M. +Marshall, his brother-in-law, Rawleigh Colston, and General Henry Lee +contracted for the purchase of this valuable holding.[523] In January of +that year James M. Marshall sailed for England to close the +bargain.[524] The money to buy the Fairfax lands was to be advanced by +Robert Morris, who, partly for this purpose, sent James M. Marshall to +Europe to negotiate[525] loans, immediately after his marriage to Hester +Morris. + +At Amsterdam "some Capitalists proposed to supply on very hard terms a +Sum more than Sufficient to pay Mr. Fairfax," writes Morris, and James +M. Marshall "has my authority to apply the first Monies he receives on +my acco^t to that Payment."[526] By the end of 1796 Morris's +over-speculations had gravely impaired his fortune. The old financier +writes pathetically to James M. Marshall: "I am struggling hard, very +hard, indeed to regain my Position." He tells his son-in-law that if a +loan cannot be obtained on his other real estate he "expects these +Washington Lotts will be the most certain of any Property to raise +Money on"; and that "[I] will have a number of them Placed under your +Controul."[527] + +The loan failed, for the time being, but, writes Morris to John +Marshall, "Mr. Hottenguer[528] who first put the thing in motion says it +will come on again" and succeed; "if so, your brother will, of course, +be ready for Mr. Fairfax." Morris is trying, he says, to raise money +from other sources lest that should fail. "I am here distressed +exceedingly in money matters," continues the harried and aging +speculator "as indeed every body here are but I will immediately make +such exertions as are in my power to place funds with your brother and I +cannot but hope that his and my exertions will produce the needful in +proper time to prevent mischief."[529] + +A month later Morris again writes John Marshall that he is "extremely +anxious & fearing that it [the Amsterdam loan] may fall through I am +trying to obtain a loan here for the purposes of your Brother in London. +This," says the now desperate financier, "is extremely difficult, for +those who have money or credit in Europe seem to dread every thing that +is American." He assures John Marshall that he will do his utmost. "My +anxiety ... [to make good the Fairfax purchase] is beyond what I can +express." Alexander Baring "could supply the money ... but he parries +me. He intends soon for the Southward I will introduce him to you."[530] + +The title to the Fairfax estate had been the subject of controversy for +many years. Conflicting grants, overlapping boundaries, sequestration +laws, the two treaties with Great Britain, were some of the elements +that produced confusion and uncertainty in the public mind and +especially in the minds of those holding lands within the grant. The +only real and threatening clouds upon the title to the lands purchased +by the Marshall syndicate, however, were the confiscatory laws passed +during the Revolution[531] which the Treaty of Peace and the Jay Treaty +nullified.[532] There were also questions growing out of grants made by +the colonial authorities between 1730 and 1736, but these were not +weighty. + +The case of Hunter _vs._ Fairfax, Devisee, involving these questions, +was pending in the Supreme Court of the United States. John Marshall +went to Philadelphia and tried to get the cause advanced and decided. +He was sadly disappointed at his failure and so wrote his brother. "Your +Brother has been here," writes Morris to his son-in-law, "as you will +see by a letter from him forwarded by this conveyance. He could not get +your case brought forward in the Supreme Court of the U. S. at which he +was much dissatisfied & I am much concerned thereat, fearing that real +disadvantage will result to your concern thereby."[533] + +The case came on for hearing in regular course during the fall term. +Hunter, on the death of his attorney, Alexander Campbell, prayed the +Court, by letter, for a continuance, which was granted over the protest +of the Fairfax attorneys of record, Lee and Ingersoll of Philadelphia, +who argued that "from the nature of the cause, delay would be worse for +the defendant in error [the Fairfax heir] than a decision adverse to his +claim." The Attorney-General stated that the issue before the Court was +"whether ... the defendant in error being an alien can take and hold the +lands by devise. And it will be contended that his title is completely +protected by the treaty of peace." Mr. Justice Chase remarked: "I +recollect that ... a decision in favor of such a devisee's title was +given by a court in Maryland. It is a matter, however, of great moment +and ought to be deliberately and finally settled."[534] The Marshalls, +of course, stood in the shoes of the Fairfax devisee; had the Supreme +Court decided against the Fairfax title, their contract of purchase +would have been nullified and, while they would not have secured the +estate, they would have been relieved of the Fairfax indebtedness. It +was, then, a very grave matter to the Marshalls, in common with all +others deriving their titles from Fairfax, that the question be settled +quickly and permanently. + +A year or two before this purchase by the Marshalls of what remained of +the Fairfax estate, more than two hundred settlers, occupying other +parts of it, petitioned the Legislature of Virginia to quiet their +titles.[535] Acting on these petitions and influenced, perhaps, by the +controversy over the sequestration laws which the Marshall purchase +renewed, the Legislature in 1796 passed a resolution proposing to +compromise the dispute by the State's relinquishing "all claim to any +lands specifically appropriated by ... Lord Fairfax to his own use +either by deed or actual survey ... if the devises of Lord Fairfax, or +those claiming under them, will relinquish all claims to lands ... which +were waste and unappropriated at the time of the death of Lord +Fairfax."[536] + +Acting for the purchasing syndicate, John Marshall, in a letter to the +Speaker of the House, accepted this legislative offer of settlement upon +the condition that "an act passes during this session confirming ... the +title of those claiming under Mr. Fairfax the lands specifically +appropriated and reserved by the late Thomas Lord Fairfax or his +ancestors for his or their use."[537] + +When advised of what everybody then supposed to be the definitive +settlement of this vexed controversy, Robert Morris wrote John Marshall +that "altho' you were obliged to give up a part of your claim yet it was +probably better to do that than to hold a contest with such an opponent +[State of Virginia]. I will give notice to M^r. Ja^s. Marshall of this +compromise."[538] John Marshall, now sure of the title, and more anxious +than ever to consummate the deal by paying the Fairfax heir, hastened to +Philadelphia to see Morris about the money. + +"Your Brother John Marshall Esq^r. is now in this City," writes Robert +Morris to his son-in-law, "and his principal business I believe is to +see how you are provided with Money to pay Lord Fairfax.... I am so +sensible of the necessity there is for your being prepared for Lord +Fairfax's payment that there is nothing within my power that I would not +do to enable you to meet it."[539] + +The members of the Marshall syndicate pressed their Philadelphia backer +unremittingly, it appears, for a few days later he answers what seems to +have been a petulant letter from Colston assuring that partner in the +Fairfax transaction that he is doing his utmost to "raise the money to +enable Mr. James Marshall to meet the Payments for your Purchase at +least so far as it is incumbent on me to supply the means.... From the +time named by John Marshall Esq^{re} when here, I feel perfect +Confidence, because I will furnish him before that period with such +Resources & aid as I think cannot fail."[540] + +[Illustration: PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT MORRIS +SHOWING PAYMENT OF £7700 TO FAIRFAX (_Facsimile_)] + +Finally Marshall's brother negotiated the loan, an achievement which +Morris found "very pleasing, as it enables you to take the first steps +with Lord Fairfax for securing your bargain."[541] Nearly forty thousand +dollars of this loan was thus applied. In his book of accounts with +Morris, James M. Marshall enters: "Jany 25 '97 To £7700 paid the Rev^d. +Denny Fairfax and credited in your [Morris's] account with me 7700" +(English pounds sterling).[542] The total amount which the Marshalls +had agreed to pay for the remnant of the Fairfax estate was "fourteen +thousand pounds British money."[543] When Robert Morris became bankrupt, +payment of the remainder of the Fairfax indebtedness fell on the +shoulders of Marshall and his brother. + +This financial burden caused Marshall to break his rule of declining +office and to accept appointment as one of our envoys to France at the +time of Robert Morris's failure and imprisonment for debt; for from that +public employment of less than one year, Marshall, as we shall see, +received in the sorely needed cash, over and above his expenses, three +times the amount of his annual earnings at the bar.[544] "Mr. John +Marshall has said here," relates Jefferson after Marshall's return, +"that had he not been appointed minister [envoy] to France, he was +desperate in his affairs and must have sold his estate [the Fairfax +purchase] & that immediately. That that appointment was the greatest +God-send that could ever have befallen a man."[545] Jefferson adds: "I +have this from J. Brown and S. T. Mason [Senator Mason]."[546] + +So it was that Marshall accepted a place on the mission to France[547] +when it was offered to him by Adams, who "by a miracle," as Hamilton +said, had been elected President.[548] + + +FOOTNOTES: + +[456] _Southern Literary Messenger_, 1836, ii, 181-91; also see Howe, +266. + +[457] _Southern Literary Messenger_, ii, 181-91; also Howe, 266. +Apparently the older lawyer had been paid the one hundred dollars, for +prepayment was customary in Virginia at the time. (See La Rochefoucauld, +iii, 76.) This tale, fairly well authenticated, is so characteristic of +Marshall that it is important. It visualizes the man as he really was. +(See Jefferson's reference, in his letter to Madison, to Marshall's +"lax, lounging manners," _supra_, 139.) + +[458] Story, in Dillon, iii, 363. + +[459] Wirt: _The British Spy_, 110-12. + +[460] Mazzei's _Recherches sur les États-Unis_, published in this year +(1788) in four volumes. + +[461] Marshall himself could not read French at this time. (See _infra_, +chap. VI.) + +[462] In this chapter of Marshall's receipts and expenditures all items +are from his Account Book, described in vol. I, chap. V, of this work. + +[463] Marshall's third child, Mary, was born Sept. 17, of this year. + +[464] La Rochefoucauld, iii, 75-76. + +[465] Records, Henrico County, Virginia, Deed Book, iii, 74. + +[466] In 1911 the City Council of Richmond presented this house to the +Association for the Preservation of Virginia Antiquities, which now owns +and occupies it. + +[467] Mordecai, 63-70; and _ib._, chap. vii. + +[468] La Rochefoucauld, iii, 63. Negroes made up one third of the +population. + +[469] _Ib._, 64; also Christian, 30. + +[470] This celebrated French playwright and adventurer is soon to appear +again at a dramatic moment of Marshall's life. (See _infra_, chaps. VI +to VIII.) + +[471] Marshall's bill in equity in the "High Court of Chancery sitting +in Richmond," January 1, 1803; Chamberlin MSS., Boston Public Library. +Marshall, then Chief Justice, personally drew this bill. After the +Fairfax transaction, he seems to have left to his brother and partner, +James M. Marshall, the practical handling of his business affairs. + +[472] Memorial of William F. Ast and others; MS. Archives, Va. St. Lib. + +[473] Christian, 46. + +[474] This company is still doing business in Richmond. + +[475] Christian, 46. + +[476] The enterprise appears not to have filled the public with +investing enthusiasm and no subscriptions to it were received. + +[477] See _infra_, chap. X. + +[478] Marshall to James M. Marshall, April 3, 1799; MS. This was the +only one of Marshall's sisters then unmarried. She was twenty years of +age at this time and married Major George Keith Taylor within a few +months. He was a man of unusual ability and high character and became +very successful in his profession. In 1801 he was appointed by President +Adams, United States Judge for a Virginia district. (See _infra_, chap. +XII.) The union of Mr. Taylor and Jane Marshall turned out to be very +happy indeed. (Paxton, 77.) + +Compare this letter of Marshall with that of Washington to his niece, in +which he gives extensive advice on the subject of love and marriage. +(Washington to Eleanor Parke Custis, Jan. 16, 1795; _Writings_: Ford, +xiii, 29-32.) + +[479] Marshall to Everett, July 22, 1833. + +[480] Christian, 28. + +[481] _Richmond and Manchester Advertiser_, Sept. 24, 1795. + +[482] _Proceedings_ of the M. W. Grand Lodge of Ancient York Masons of +the State of Virginia, from 1778 to 1822, by John Dove, i, 144; see also +121, 139. + +[483] See _infra_, chap. X. + +[484] See vol. I, chap. V, of this work. + +[485] Gilmer, 23-24. + +[486] Gustavus Schmidt, in _Louisiana Law Journal_ (1841), 81-82. + +[487] For a list of cases argued by Marshall and reported in Call and +Washington, with title of case, date, volume, and page, see Appendix I. + +[488] A good illustration of a brilliant display of legal learning by +associate and opposing counsel, and Marshall's distaste for authorities +when he could do without them, is the curious and interesting case of +Coleman _vs._ Dick and Pat, decided in 1793, and reported in 1 +Washington, 233. Wickham for appellant and Campbell for appellee cited +ancient laws and treaties as far back as 1662. Marshall cited no +authority whatever. + +[489] See Stevens _vs._ Taliaferro, Adm'r, 1 Washington, 155, Spring +Term, 1793. + +[490] Johnson _vs._ Bourn, 1 Washington, 187, Spring Term, 1793. + +[491] _Ib._ + +[492] Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc. + +[493] _Ib._, May 28, 1794. + +[494] Munford, 326-38. + +[495] See vol. III of this work. + +[496] Constitution of the United States, article vi. + +[497] _Ib._, article iii, section 2. + +[498] The Fairfax deal; see _infra_, 203 _et seq._ + +[499] Henry, ii, 475. + +[500] Howe, 221-22. + +[501] 3 Dallas, 256-57, and footnote. In his opinion Justice Iredell +decided for the debtors. When the Supreme Court of the United States, of +which he was a member, reversed him in Philadelphia, the following year, +Justice Iredell, pursuant to a practice then existing, and on the advice +of his brother justices, placed his original opinion on record along +with those of Justices Chase, Paterson, Wilson, and Cushing, each of +whom delivered separate opinions in favor of the British creditors. + +[502] For Marshall's argument in the British Debts case before the +Supreme Court, see 3 Dallas, 199-285. + +[503] King to Pinckney, Oct. 17, 1797; King, ii, 234-35. King refers to +the British Debts case, the only one in which Marshall had made an +argument before the Supreme Court up to this time. + +[504] See _infra_, chap. XI. + +[505] Kennedy, ii, 76. Mr. Wirt remembered the argument well; but +twenty-four years having elapsed, he had forgotten the case in which it +was made. He says that it was the Carriage Tax case and that Hamilton +was one of the attorneys. But it was the British Debts case and +Hamilton's name does not appear in the records. + +[506] Kennedy, ii, 66. Francis W. Gilmer was then the most brilliant +young lawyer in Virginia. His health became too frail for the hard work +of the law; and his early death was universally mourned as the going out +of the brightest light among the young men of the Old Dominion. + +[507] Gilmer, 23-24. + +[508] Wirt: _The British Spy_, 112-13. + +[509] La Rochefoucauld, iii, 120. Doubtless La Rochefoucauld would have +arrived at the above conclusion in any event, since his estimate of +Marshall is borne out by every contemporary observer; but it is worthy +of note that the Frenchman while in Richmond spent much of his time in +Marshall's company. (_Ib._, 119.) + +[510] _Ib._, 75. "The profession of a lawyer is ... one of the most +profitable.... In Virginia the lawyers usually take care to insist on +payment before they proceed in a suit; and this custom is justified by +the general disposition of the inhabitants to pay as little and as +seldom as possible." + +[511] Jefferson to Monroe, Feb. 8, 1798; _Works_: Ford, viii, 365. +Marshall was in France at the time. (See _infra_, chaps. VI to VIII +inclusive.) + +[512] Story, in Dillon, iii, 354. Ware _vs._ Hylton was argued Feb. 6, +8, 9, 10, 11, and 12. The fight against the bill to carry out the Jay +Treaty did not begin in the National House of Representatives until +March 7, 1796. + +[513] Morris to Marshall, May 3, 1796; Morris's Private Letter Book; +MS., Lib. Cong. The stock referred to in this correspondence is probably +that of the Bank of the United States. + +[514] Morris to Marshall, June 16, 1796; Morris's Private Letter Book; +MS., Lib. Cong. + +[515] Morris to Marshall, Aug. 24, 1796; _ib._ + +[516] The commission failed and war was narrowly averted by the payment +of a lump sum to Great Britain. It is one of the curious turns of +history that Marshall, as Secretary of State, made the proposition that +finally concluded the matter and that Jefferson consummated the +transaction. (See _infra_, chap. XII.) + +[517] Lee means a debtor under the commission. Marshall was a debtor to +Fairfax. (See _infra_.) + +[518] Lee to Washington, March 20, 1796; _Cor. Rev._: Sparks, iv, +481-82. + +[519] William Bingham of Philadelphia was reputed to be "the richest man +of his time." (Watson: _Annals of Philadelphia_ i. 414.) Chastellux +estimates Morris's wealth at the close of the Revolution at 8,000,000 +francs. (Chastellux, 107.) He increased his fortune many fold from the +close of the war to 1796. + +The operations of Robert Morris in land were almost without limit. For +instance, one of the smaller items of his purchases was 199,480 acres in +Burke County, North Carolina. (Robert Morris to James M. Marshall, Sept. +24, 1795; Morris's Private Letter Book; MS., Lib. Cong.) + +Another example of Morris's scattered and detached deals was his +purchase of a million acres "lying on the western counties of +Virginia ... purchased of William Cary Nicholas.... I do not consider +one shilling sterling as one fourth the real value of the lands.... If, +therefore," writes Morris to James M. Marshall, "a little over £5000 +Stg. could be made on this security it would be better than selling +especially at 12^d. per acre." (Robert Morris to James M. Marshall, Oct. +10, 1795; _ib._) + +Morris owned at one time or another nearly all of the western half of +New York State. (See Oberholtzer, 301 _et seq._) "You knew of Mr. Robert +Morris's purchase ... of one million, three hundred thousand acres of +land of the State of Massachusetts, at five pence per acre. It is said +he has sold one million two hundred thousand acres of these in Europe." +(Jefferson to Washington, March 27, 1791; _Cor. Rev._: Sparks, iv, 365.) + +Patrick Henry acquired considerable holdings which helped to make him, +toward the end of his life, a wealthy man. Washington, who had a keen +eye for land values, became the owner of immense quantities of real +estate. In 1788 he already possessed two hundred thousand acres. (De +Warville, 243.) + +[520] Oberholtzer, 266 _et seq._ Hester Morris, at the time of her +marriage to John Marshall's brother, was the second greatest heiress in +America. + +[521] Grigsby, i, footnote to 150. + +[522] Deed of Lieutenant-General Phillip Martin (the Fairfax heir who +made the final conveyance) to Rawleigh Colston, John Marshall, and James +M. Marshall; Records at Large, Fauquier County (Virginia) Circuit Court, +200 _et seq._ At the time of the contract of purchase, however, the +Fairfax estate was supposed to be very much larger than the quantity of +land conveyed in this deed. It was considerably reduced before the +Marshalls finally secured the title. + +[523] Lee is mentioned in all contemporary references to this +transaction as one of the Marshall syndicate, but his name does not +appear in the Morris correspondence nor in the deed of the Fairfax heir +to the Marshall brothers and Colston. + +[524] J^s. Marshall to ---- [Edmund Randolph] Jan. 21, 1794; MS. +Archives Department of State. Marshall speaks of dispatches which he is +carrying to Pinckney, then American Minister to Great Britain. This +letter is incorrectly indexed in the Archives as from John Marshall. It +is signed "J^s. Marshall" and is in the handwriting of James M. +Marshall. John Marshall was in Richmond all this year, as his Account +Book shows. + +[525] Morris to John Marshall, Nov. 21, 1795; and Aug. 24, 1796; +Morris's Private Letter Book; MS., Lib. Cong. + +[526] Morris to Colston, Nov. 11, 1796; _ib._ + +[527] Robert Morris to James M. Marshall, Dec. 3, 1796; Morris's Private +Letter Book; MS., Lib. Cong. By the expression "Washington Lotts" Morris +refers to his immense real estate speculations on the site of the +proposed National Capital. Morris bought more lots in the newly laid out +"Federal City" than all other purchasers put together. Seven thousand +two hundred and thirty-four lots stood in his name when the site of +Washington was still a primeval forest. (Oberholtzer, 308-12.) Some of +these he afterwards transferred to the Marshall brothers, undoubtedly to +make good his engagement to furnish the money for the Fairfax deal, +which his failure prevented him from advancing entirely in cash. (For +account of Morris's real estate transactions in Washington see La +Rochefoucauld, iii, 622-26.) + +[528] This Hottenguer soon appears again in John Marshall's life as one +of Talleyrand's agents who made the corrupt proposals to Marshall, +Pinckney, and Gerry, the American Commissioners to France in the famous +X.Y.Z. transaction of 1797-98. (See _infra_, chaps. VI to VIII.) + +[529] Robert Morris to John Marshall, Dec. 30, 1796; Morris's Private +Letter Book; MS., Lib. Cong. + +[530] Morris to John Marshall, Jan. 23, 1797; Morris's Private Letter +Book; MS., Lib. Cong. + +[531] Hening, ix, chap. ix, 377 _et seq._; also _ib._, x, chap. xiv, 66 +_et seq._; xi, chap. xliv, 75-76; xi, chap. xlv, 176 _et seq._; xi, +chap. xlvii, 81 _et seq._; xi, chap. xxx, 349 _et seq._ + +[532] Such effect of these treaties was not yet conceded, however. + +[533] Morris to James M. Marshall, March 4, 1796; Morris's Private +Letter Book; MS., Lib. Cong. + +[534] Hunter _vs._ Fairfax, Devisee, 3 Dallas, 303, and footnote. + +[535] Originals in Archives of Virginia State Library. Most of the +petitions were by Germans, many of their signatures being in German +script. They set forth their sufferings and hardships, their good faith, +loss of papers, death of witnesses, etc. + +[536] Laws of Virginia, Revised Code (1819), i, 352. + +[537] Laws of Virginia, Revised Code (1819), i, 352. Marshall's letter +accepting the proposal of compromise is as follows:-- + + "RICHMOND, November 24th, 1796. + + "SIR, being one of the purchasers of the lands of Mr. Fairfax, and + authorized to act for them all, I have considered the resolution of + the General Assembly on the petitions of sundry inhabitants of the + counties of Hampshire, Hardy, and Shenandoah, and have determined + to accede to the proposition it contains. + + "So soon as the conveyance shall be transmitted to me from Mr. + Fairfax, deeds extinguishing his title to the waste and unappropriated + lands in the Northern Neck shall be executed, provided an act passes + during this session, confirming, on the execution of such deeds, the + title of those claiming under Mr. Fairfax the lands specifically + appropriated and reserved by the late Thomas Lord Fairfax, or his + ancestors, for his or their use. + + "I remain Sir, with much respect and esteem, + + "Your obedient servant, JOHN MARSHALL. + + "The Honorable, the Speaker of the House of Delegates." + +(Laws of Virginia.) + +[538] Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter +Book; MS., Lib. Cong. + +[539] Morris to James M. Marshall, Feb. 10, 1797; Morris's Private +Letter Book; MS., Lib. Cong. Morris adds that "I mortgaged to Col^o. +Hamilton 100,000 acres of Genesee Lands to secure payment of $75,000 to +Mr. Church in five years. This land is worth at this moment in Cash two +Dollars pr Acre." + +[540] Morris to Colston, Feb. 25, 1797; _ib._ + +[541] Morris to James M. Marshall, April 27, 1797; _ib._ + +[542] MS. The entry was made in Amsterdam and Morris learned of the loan +three months afterwards. + +[543] Records at Large in Clerk's Office of Circuit Court of Fauquier +County, Virginia, 200 _et seq._ The deed was not filed until 1806, at +which time, undoubtedly, the Marshalls made their last payment. + +[544] See _infra_, chap. VIII. It was probably this obligation too, that +induced Marshall, a few years later, to undertake the heavy task of +writing the _Life of Washington_, quite as much as his passionate +devotion to that greatest of Americans. (See vol. III of this work.) + +[545] "Anas," March 21, 1800; _Works_: Ford, i, 355. + +[546] _Ib._ Misleading as Jefferson's "Anas" is, his information in this +matter was indisputably accurate. + +[547] See _infra_, chap. VI. A short time before the place on the French +mission was tendered Marshall, his father in Kentucky resigned the +office of Supervisor of Revenue for the District of Ohio. In his letter +of resignation Thomas Marshall gives a résumé of his experiences as an +official under Washington's Administrations. Since this is one of the +only two existing letters of Marshall's father on political subjects, +and because it may have turned Adams's mind to John Marshall, it is +worthy of reproduction:-- + + SIR, + + Having determined to resign my Commission as Supervisor of the + Revenue for the district of Ohio, on the 30th day of June next, + which terminates the present fiscal year, I have thought it right + to give this timely notice to you as President of the United + States, in whom the nomination and appointment of my successor is + vested; in order that you may in the meantime select some fit + person to fill the office. You will therefore be pleased to + consider me as out of office on the first day of July ensuing. + + It may possibly be a subject of enquiry, why, after holding the + office during the most critical & troublesome times, I should now + resign it, when I am no longer insulted, and abused, for + endeavoring to execute the Laws of my Country--when those Laws + appear to be, more than formerly, respected--and when the + probability is, that in future they may be carried into effect + with but little difficulty? + + In truth this very change, among other considerations, furnishes + a reason for the decision I have made. For having once engaged in + the business of revenue I presently found myself of sufficient + importance with the enemies of the Government here to be made an + object of their particular malevolence--and while this was the + case, I was determined not to be driven from my post. + + At this time, advanced in years and declining in health, I find + myself unfit for the cares, and active duties of the office; and + therefore cheerfully resign a situation, which I at first + accepted and afterwards held, more from an attachment to the + Government, than from any pecuniary consideration, to be filled + by some more active officer, as still more conducive to the + public service. + + To the late President I had the honor of being known, and + combined, with respect and veneration for his public character, + the more social and ardent affections of the man, and of the + friend. + + You Sir I have not the honor to know personally, but you have + filled too many important stations in the service of your + country; & fame has been too busy with your name to permit me to + remain ignorant of your character; for which in all its public + relations permit me to say, I feel the most entire respect and + esteem: Nor is it to me among the smallest motives for my + rejoicing that you are the President; and of my attachment to + your administration to know that you have ever been on terms of + friendship with the late President--that you have approved his + administration,--and that you propose to yourself his conduct as + an example for your imitation. + + On this occasion I may say without vanity that I have formerly + and not infrequently, given ample testimony of my attachment to + Republican Government, to the peace, liberty and happiness of my + country and that it is not now to be supposed that I have changed + my principles--or can esteem those who possess different ones. + + And altho' I am too old [Thomas Marshall was nearly sixty-five + years of age when he wrote this letter] and infirm for active + services, (for which I pray our country may not feel a call) yet + my voice shall ever be excited in opposition to foreign + influence, (from whence the greatest danger seems to threaten, as + well as against internal foes) and in support of a manly, firm, + and independent, exercise of those constitutional rights, which + belong to the President, and Government of the United States. + And, _even opinions_, have their effect. + + I am Sir with the most + JOHN ADAMS, ESQ. entire respect and esteem + President of the Your very humble Servt, + United States. T. MARSHALL. + +(Thomas Marshall to Adams, April 28, 1797; MS., Dept. of State.) + +[548] See _infra_, chaps. XI and XII. + + + + +CHAPTER VI + +ENVOY TO FRANCE + + My dearest life, continue to write to me, as my heart clings with + delight only to what comes from you. (Marshall to his wife.) + + He is a plain man, very sensible and cautious. (Adams.) + + Our poor insulted country has not before it the most flattering + prospects. (Marshall at Antwerp.) + + + "PHILADELPHIA July 2^{nd} 1797. + +"MY DEAREST POLLY + +"I am here after a passage up the bay from Baltimore.... I dined on +saturday in private with the President whom I found a sensible plain +candid good tempered man & was consequently much pleased with him. I am +not certain when I shall sail.... So you ... my dearest life continue to +write to me as your letters will follow me should I be gone before their +arrival & as my heart clings with real pleasure & delight only to what +comes from you. I was on friday evening at the faux hall of +Philadelphia.... The amusements were walking, sitting, punch ice cream +etc Music & conversation.... Thus my dearest Polly do I when not engaged +in the very serious business which employs a large portion of my time +endeavor by a-[muse]ments to preserve a mind at ease & [keep] it from +brooding too much over my much loved & absent wife. By all that is dear +on earth, I entreat you to do the same, for separation will not I trust +be long & letters do everything to draw its sting. I am my dearest life +your affectionate + + "J MARSHALL."[549] + +[Illustration: FIRST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE +(_Facsimile_)] + +So wrote John Marshall at the first stage of his journey upon that +critical diplomatic mission which was to prove the most dramatic in our +history and which was to be the turning-point in Marshall's life. From +the time when Mary Ambler became his bride in 1783, Marshall had never +been farther away from his Richmond home than Philadelphia, to which +city he had made three flying visits in 1796, one to argue the British +Debts case, the other two to see Robert Morris on the Fairfax deal and +to hasten the decision of the Supreme Court in that controversy. + +But now Marshall was to cross the ocean as one of the American envoys to +"the terrible Republic" whose "power and vengeance" everybody +dreaded.[550] He was to go to that now arrogant Paris whose streets were +resounding with the shouts of French victories. It was the first and the +last trans-Atlantic voyage Marshall ever undertook; and although he was +to sail into a murky horizon to grapple with vast difficulties and +unknown dangers, yet the mind of the home-loving Virginian dwelt more on +his Richmond fireside than on the duties and hazards before him. + +Three days after his arrival at Philadelphia, impressionable as a boy, +he again writes to his wife: "My dearest Polly I have been extremely +chagrined at not having yet received a letter from you. I hope you are +well as I hear nothing indicating the contrary but you know not how +solicitous how anxiously solicitous I am to hear it from yourself. Write +me that you are well & in good spirits & I shall set out on my voyage +with a lightened heart ... you will hear from me more than once before +my departure." + +The Virginia envoy was much courted at Philadelphia before he sailed. "I +dined yesterday," Marshall tells his wife, "in a very large company of +Senators & members of the house of representatives who met to celebrate +the 4th of July. The company was really a most respectable one & I +experienced from them the most flattering attention. I have much reason +to be satisfied & pleased with the manner in which I am received here." +But flattery did not soothe Marshall--"Something is wanting to make me +happy," he tells his "dearest Polly." "Had I my dearest wife with me I +should be delighted indeed."[551] + +Washington had sent letters in Marshall's care to acquaintances in +France commending him to their attention and good offices; and the +retired President wrote Marshall himself a letter of hearty good wishes. +"Receive sir," replies Marshall, "my warm & grateful acknowledgments for +the polite &, allow me to add, friendly wishes which you express +concerning myself as well as for the honor of being mentioned in your +letters."[552] + +A less composed man, totally unpracticed as Marshall was in diplomatic +usages, when embarking on an adventure involving war or peace, would +have occupied himself constantly in preparing for the vast business +before him. Not so Marshall. While waiting for his ship, he indulged +his love of the theater. Again he tells his wife how much he misses her. +"I cannot avoid writing to you because while doing so I seem to myself +to be in some distant degree enjoying your company. I was last night at +the play & saw the celebrated Mrs. Mary in the character of Juliet. She +performs that part to admiration indeed but I really do not think Mrs. +Westig is far her inferior in it. I saw," gossips Marshall, "Mrs. +Heyward there. I have paid that lady one visit to one of the most +delightful & romantic spots on the river Schuylkil.... She expressed +much pleasure to see me & has pressed me very much to repeat my visit. I +hope I shall not have time to do so." + +Marshall is already bored with the social life of Philadelphia. "I am +beyond expression impatient to set out on the embassy," he informs his +wife. "The life I lead here does not suit me I am weary of it I dine out +every day & am now engaged longer I hope than I shall stay. This +dissipated life does not long suit my temper. I like it very well for a +day or two but I begin to require a frugal repast with good cold +water"--There was too much wine, it would seem, at Philadelphia to suit +Marshall. + +"I would give a great deal to dine with you to day on a piece of cold +meat with our boys beside us to see Little Mary running backwards & +forwards over the floor playing the sweet little tricks she [is] full +of.... I wish to Heaven the time which must intervene before I can +repass these delightful scenes was now terminated & that we were looking +back on our separation instead of seeing it before us. Farewell my +dearest Polly. Make yourself happy & you will bless your ever +affectionate + + "J. MARSHALL."[553] + +If Marshall was pleased with Adams, the President was equally impressed +with his Virginia envoy to France. "He [Marshall] is a plain man very +sensible, cautious, guarded, and learned in the law of nations.[554] I +think you will be pleased with him,"[555] Adams writes Gerry, who was to +be Marshall's associate and whose capacity for the task even his +intimate personal friend, the President, already distrusted. Hamilton +was also in Philadelphia at the time[556]--a circumstance which may or +may not have been significant. It was, however, the first time, so far +as definite evidence attests, that these men had met since they had been +comrades and fellow officers in the Revolution. + +The "Aurora," the leading Republican newspaper, was mildly sarcastic +over Marshall's ignorance of the French language and general lack of +equipment for his diplomatic task. "Mr. Marshall, one of our extra +envoys to France, will be eminently qualified for the mission by the +time he reaches that country," says the "Aurora." Some official of great +legal learning was coaching Marshall, it seems, and advised him to read +certain monarchical books on the old France and on the fate of the +ancient republics. + +The "Aurora" asks "whether some history of France since the overthrow of +the Monarchy would not have been more instructive to Mr. Marshall. The +Envoy, however," continues the "Aurora," "approved the choice of his +sagacious friend, but very shrewdly observed 'that he must first +purchase Chambaud's grammar, English and French.' We understand that he +is a very apt scholar, and no doubt, during the passage, he will be able +to acquire enough of the French jargon for all the purposes of the +embassy."[557] + +Having received thirty-five hundred dollars for his expenses,[558] +Marshall set sail on the brig Grace for Amsterdam where Charles +Cotesworth Pinckney, the expelled American Minister to France and head +of the mission, awaited him. As the land faded, Marshall wrote, like any +love-sick youth, another letter to his wife which he sent back by the +pilot. + +"The land is just escaping from my view," writes Marshall to his +"dearest Polly"; "the pilot is about to leave us & I hasten from the +deck into the cabin once more to give myself the sweet indulgence of +writing to you.... There has been so little wind that we are not yet +entirely out of the bay. It is so wide however that the land has the +appearance of a light blue cloud on the surface of the water & we shall +very soon lose it entirely." + +Marshall assures his wife that his "cabin is neat & clean. My berth a +commodious one in which I have my own bed & sheets of which I have a +plenty so that I lodge as conveniently as I could do in any place +whatever & I find I sleep very soundly altho on water." He is careful to +say that he has plenty of creature comforts. "We have for the voyage, +the greatest plenty of salt provisions live stock & poultry & as we lay +in our own liquors I have taken care to provide myself with a plenty of +excellent porter wine & brandy. The Captain is one of the most obliging +men in the world & the vessel is said by every body to be a very fine +one." + +There were passengers, too, who suited Marshall's sociable disposition +and who were "well disposed to make the voyage agreeable.... I have then +my dearest Polly every prospect before me of a passage such as I could +wish in every respect but one ... fear of a lengthy passage. We have met +in the bay several vessels. One from Liverpool had been at sea nine +weeks, & the others from other places had been proportionately long.... +I shall be extremely impatient to hear from you & our dear children." + +Marshall tells his wife how to direct her letters to him, "some ... by +the way of London to the care of Rufus King esquire our Minister there, +some by the way of Amsterdam or the Hague to the care of William Vanns +[_sic_] Murr[a]y esquire our Minister at the Hague & perhaps some +directed to me as Envoy extraordinary of the United States to the French +Republic at Paris. + +"Do not I entreat you omit to write. Some of your letters may miscarry +but some will reach me & my heart can feel till my return no pleasure +comparable to what will be given it by a line from you telling me that +all remains well. Farewell my dearest wife. Your happiness will ever be +the first prayer of your unceasingly affectionate + + "J. MARSHALL."[559] + +So fared forth John Marshall upon the adventure which was to open the +door to that historic career that lay just beyond it; and force him, +against his will and his life's plans, to pass through it. But for this +French mission, it is certain that Marshall's life would have been +devoted to his law practice and his private affairs. He now was sailing +to meet the ablest and most cunning diplomatic mind in the contemporary +world whose talents, however, were as yet known to but few; and to face +the most venal and ruthless governing body of any which then directed +the affairs of the nations of Europe. Unguessed and unexpected by the +kindly, naïve, and inexperienced Richmond lawyer were the scenes about +to unroll before him; and the manner of his meeting the emergencies so +soon to confront him was the passing of the great divide in his destiny. + +Even had the French rulers been perfectly honest and simple men, the +American envoys would have had no easy task. For American-French affairs +were sadly tangled and involved. Gouverneur Morris, our first Minister +to France under the Constitution, had made himself unwelcome to the +French Revolutionists; and to placate the authorities then reigning in +Paris, Washington had recalled Morris and appointed Monroe in his place +"after several attempts had failed to obtain a more eligible +character."[560] + +Monroe, a partisan of the Revolutionists, had begun his mission with +theatrical blunders; and these he continued until his recall,[561] when +he climaxed his imprudent conduct by his attack on Washington.[562] +During most of his mission Monroe was under the influence of Thomas +Paine,[563] who had then become the venomous enemy of Washington. + +Monroe had refused to receive from his fellow Minister to England, John +Jay, "confidential informal statements" as to the British treaty which +Jay prudently had sent him by word of mouth only. When the Jay Treaty +itself arrived, Monroe publicly denounced the treaty as +"shameful,"[564] a grave indiscretion in the diplomatic representative +of the Government that had negotiated the offending compact. + +Finally Monroe was recalled and Washington, after having offered the +French mission to John Marshall, appointed Charles Cotesworth Pinckney +of South Carolina as his successor. The French Revolutionary authorities +had bitterly resented the Jay compact, accused the American Government +of violating its treaty with France, denounced the United States for +ingratitude, and abused it for undue friendship to Great Britain. + +In all this the French Directory had been and still was backed up by the +Republicans in the United States, who, long before this, had become a +distinctly French party. Thomas Paine understated the case when he +described "the Republican party in the United States" as "that party +which is the sincere ally of France."[565] + +The French Republic was showing its resentment by encouraging a +piratical warfare by French privateers upon American commerce. Indeed, +vessels of the French Government joined in these depredations. In this +way, it thought to frighten the United States into taking the armed side +of France against Great Britain. The French Republic was emulating the +recent outrages of that Power; and, except that the French did not +impress Americans into their service, as the British had done, their +Government was furnishing to America the same cause for war that Great +Britain had so brutally afforded. + +In less than a year and a half before Marshall sailed from Philadelphia, +more than three hundred and forty American vessels had been taken by +French privateers.[566] Over fifty-five million dollars' worth of +American property had been destroyed or confiscated under the decrees of +the Directory.[567] American seamen, captured on the high seas, had been +beaten and imprisoned. The officers and crew of a French armed brig +tortured Captain Walker, of the American ship Cincinnatus, four hours by +thumbscrews.[568] + +When Monroe learned that Pinckney had been appointed to succeed him, he +began a course of insinuations to his French friends against his +successor; branded Pinckney as an "aristocrat"; and thus sowed the seeds +for the insulting treatment the latter received upon his appearance at +the French Capital.[569] Upon Pinckney's arrival, the French Directory +refused to receive him, threatened him with arrest by the Paris police, +and finally ordered the new American Minister out of the territory of +the Republic.[570] + +To emphasize this affront, the Directory made a great ado over the +departure of Monroe, who responded with a characteristic address. To +this speech Barras, then President of the Directory, replied in a +harangue insulting to the American Government; it was, indeed, +an open appeal to the American people to repudiate their own +Administration,[571] of the same character as, and no less offensive +than, the verbal performances of Genêt. + +And still the outrages of French privateers on American ships continued +with increasing fury.[572] The news of Pinckney's treatment and the +speech of Barras reached America after Adams's inauguration. The +President promptly called Congress into a special session and delivered +to the National Legislature an address in which Adams appears at his +best. + +The "refusal [by the Directory] ... to receive him [Pinckney] until we +had acceded to their demands without discussion and without +investigation, is to treat us neither as allies nor as friends, nor as a +sovereign state," said the President; who continued:-- + +"The speech of the President [Barras] discloses sentiments more alarming +than the refusal of a minister [Pinckney], because more dangerous to our +independence and union.... + +"It evinces a disposition to separate the people of the United States +from the government, to persuade them that they have different +affections, principles and interests from those of their fellow citizens +whom they themselves have chosen to manage their common concerns and +thus to produce divisions fatal to our peace. + +"Such attempts ought to be repelled with a decision which shall convince +France and the world that we are not a degraded people, humiliated under +a colonial spirit of fear and sense of inferiority, fitted to be the +miserable instruments of foreign influence, and regardless of national +honor, character, and interest. + +"I should have been happy to have thrown a veil over these transactions +if it had been possible to conceal them; but they have passed on the +great theatre of the world, in the face of all Europe and America, and +with such circumstances of publicity and solemnity that they cannot be +disguised and will not soon be forgotten. They have inflicted a wound in +the American breast. It is my sincere desire, however, that it may be +healed." + +Nevertheless, so anxious was President Adams for peace that he informed +Congress: "I shall institute a fresh attempt at negotiation.... If we +have committed errors, and these can be demonstrated, we shall be +willing to correct them; if we have done injuries, we shall be willing +on conviction to redress them; and equal measures of justice we have a +right to expect from France and every other nation."[573] + +Adams took this wise action against the judgment of the Federalist +leaders,[574] who thought that, since the outrages upon American +commerce had been committed by France and the formal insult to our +Minister had been perpetrated by France, the advances should come from +the offending Government. Technically, they were right; practically, +they were wrong. Adams's action was sound as well as noble +statesmanship. + +Thus came about the extraordinary mission, of which Marshall was a +member, to adjust our differences with the French Republic. The +President had taken great care in selecting the envoys. He had +considered Hamilton, Jefferson, and Madison,[575] for this delicate and +fateful business; but the two latter, for reasons of practical politics, +would not serve, and without one of them, Hamilton's appointment was +impossible. Pinckney, waiting at Amsterdam, was, of course, to head the +commission. Finally Adams's choice fell on John Marshall of Virginia and +Francis Dana, Chief Justice of the Supreme Court of Massachusetts; and +these nominations were confirmed by the Senate.[576] + +But Dana declined,[577] and, against the unanimous advice of his +Cabinet,[578] Adams then nominated Elbridge Gerry, who, though a +Republican, had, on account of their personal relations, voted for Adams +for President, apologizing, however, most humbly to Jefferson for having +done so.[579] + +No appointment could have better pleased that unrivaled politician. +Gerry was in general agreement with Jefferson and was, temperamentally, +an easy instrument for craft to play upon. When Gerry hesitated to +accept, Jefferson wrote his "dear friend" that "it was with infinite joy +to me that you were yesterday announced to the Senate" as one of the +envoys; and he pleaded with Gerry to undertake the mission.[580] + +The leaders of the President's party in Congress greatly deplored the +selection of Gerry. "No appointment could ... have been more +injudicious," declared Sedgwick.[581] "If, sir, it was a desirable thing +to distract the mission, a fitter person could not, perhaps, be found. +It is ten to one against his agreeing with his colleagues," the +Secretary of War advised the President.[582] Indeed, Adams himself was +uneasy about Gerry, and in a prophetic letter sought to forestall the +very indiscretions which the latter afterwards committed. + +[Illustration: PART OF LETTER OF JULY 17, 1797, FROM JOHN ADAMS TO +ELBRIDGE GERRY DESCRIBING JOHN MARSHALL (_Facsimile_)] + +"There is the utmost necessity for harmony, complaisance, and +condescension among the three envoys, and unanimity is of great +importance," the President cautioned Gerry. "It is," said Adams, "my +sincere desire that an accommodation may take place; but our national +faith, and the honor of our government, cannot be sacrificed. You have +known enough of the unpleasant effects of disunion among ministers to +convince you of the necessity of avoiding it, like a rock or +quicksand.... It is probable there will be manoeuvres practiced to +excite jealousies among you."[583] + +Forty-eight days after Marshall took ship at Philadelphia, he arrived at +The Hague.[584] The long voyage had been enlivened by the sight of many +vessels and the boarding of Marshall's ship three times by British +men-of-war. + +"Until our arrival in Holland," Marshall writes Washington, "we saw only +British & neutral vessels. This added to the blockade of the dutch fleet +in the Texel, of the french fleet in Brest & of the spanish fleet in +Cadiz, manifests the entire dominion which one nation [Great Britain] at +present possesses over the seas. + +"By the ships of war which met us we were three times visited & the +conduct of those who came on board was such as wou'd proceed from +general orders to pursue a system calculated to conciliate America. + +"Whether this be occasion'd by a sense of justice & the obligations of +good faith, or solely by the hope that the perfect contrast which it +exhibits to the conduct of France may excite keener sensations at that +conduct, its effects on our commerce is the same."[585] + +It was a momentous hour in French history when the Virginian landed on +European soil. The French elections of 1797 had given to the +conservatives a majority in the National Assembly, and the Directory was +in danger. The day after Marshall reached the Dutch Capital, the troops +sent by Bonaparte, that young eagle, his pinions already spread for his +imperial flight, achieved the revolution of the 18th Fructidor (4th of +September); gave the ballot-shaken Directory the support of bayonets; +made it, in the end, the jealous but trembling tool of the youthful +conqueror; and armed it with a power through which it nullified the +French elections and cast into prison or drove into exile all who came +under its displeasure or suspicion. + +With Lodi, Arcola, and other laurels upon his brow, the Corsican already +had begun his astonishing career as dictator of terms to Europe. The +native Government of the Netherlands had been replaced by one modeled on +the French system; and the Batavian Republic, erected by French arms, +had become the vassal and the tool of Revolutionary France. + +Three days after his arrival at The Hague, Marshall writes his wife of +the safe ending of his voyage and how "very much pleased" he is with +Pinckney, whom he "immediately saw." They were waiting "anxiously" for +Gerry, Marshall tells her. "We shall wait a week or ten days longer & +shall then proceed on our journey [to Paris]. You cannot conceive (yes +you can conceive) how these delays perplex & mortify me. I fear I cannot +return until the spring & that fear excites very much uneasiness & even +regret at my having ever consented to cross the Atlantic. I wish +extremely to hear from you & to know your situation. My mind clings so +to Richmond that scarcely a night passes in which during the hours of +sleep I have not some interesting conversation with you or concerning +you." + +Marshall tells his "dearest Polly" about the appearance of The Hague, +its walks, buildings, and "a very extensive wood adjoining the city +which extends to the sea," and which is "the pride & boast of the +place." "The society at the Hague is probably very difficult, to an +American it certainly is, & I have no inclination to attempt to enter +into it. While the differences with France subsist the political +characters of this place are probably unwilling to be found frequently +in company with our countrymen. It might give umbrage to France." +Pinckney had with him his wife and daughter, "who," writes Marshall, +"appears to be about 12 or 13 years of age. Mrs. Pinckney informs me +that only one girl of her age has visited her since the residence of the +family at the Hague.[586] In fact we seem to have no communication but +with Americans, or those who are employed by America or who have +property in our country." + +While at The Hague, Marshall yields, as usual, to his love for the +theater, although he cannot understand a word of the play. "Near my +lodgings is a theatre in which a french company performs three times a +week," he tells his wife. "I have been frequently to the play & tho' I +do not understand the language I am very much amused at it. The whole +company is considered as having a great deal of merit but there is a +Madame de Gazor who is considered as one of the first performers in +Paris who bears the palm in the estimation of every person." + +Marshall narrates to his wife the result of the _coup d'état_ of +September 4. "The Directory," he writes, "with the aid of the soldiery +have just put in arrest the most able & leading members of the +legislature who were considered as moderate men & friends of peace. Some +conjecture that this event will so abridge our negotiations as probably +to occasion my return to America this fall. A speedy return is my most +ardent wish but to have my return expedited by the means I have spoken +of is a circumstance so calamitous that I deprecate it as the greatest +of evils. Remember me affectionately to our friends & kiss for me our +dear little Mary. Tell the boys how much I expect from them & how +anxious I am to see them as well as their beloved mother. I am my +dearest Polly unalterably your + + "J MARSHALL."[587] + +The theaters and other attractions of The Hague left Marshall plenty of +time, however, for serious and careful investigations. The result of +these he details to Washington. The following letter shows not only +Marshall's state of mind just before starting for Paris, but also the +effect of European conditions upon him and how strongly they already +were confirming Marshall's tendency of thought so firmly established by +every event of his life since our War for Independence:-- + +"Tho' the face of the country [Holland] still exhibits a degree of +wealth & population perhaps unequal'd in any other part of Europe, its +decline is visible. The great city of Amsterdam is in a state of +blockade. More than two thirds of its shipping lie unemploy'd in port. +Other seaports suffer tho' not in so great a degree. In the meantime the +requisitions made [by the French] upon them [the Dutch] are enormous.... + +"It is supposed that France has by various means drawn from Holland +about 60,000,000 of dollars. This has been paid, in addition to the +national expenditures, by a population of less than 2,000,000.... Not +even peace can place Holland in her former situation. Antwerp will draw +from Amsterdam a large portion of that commerce which is the great +source of its wealth; for Antwerp possesses, in the existing state of +things, advantages which not even weight of capital can entirely +surmount." + +Marshall then gives Washington a clear and striking account of the +political happenings among the Dutch under French domination:-- + +"The political divisions of this country & its uncertainty concerning +its future destiny must also have their operation.... + +"A constitution which I have not read, but which is stated to me to have +contain'd all the great fundamentals of a representative government, & +which has been prepar'd with infinite labor, & has experienc'd an +uncommon length of discussion was rejected in the primary assemblies by +a majority of nearly five to one of those who voted.... + +"The substitute wish'd for by its opponents is a legislature with a +single branch having power only to initiate laws which are to derive +their force from the sanction of the primary assemblies. I do not know +how they wou'd organize it.... It is remarkable that the very men who +have rejected the form of government propos'd to them have reëlected a +great majority of the persons who prepar'd it & will probably make from +it no essential departure.... It is worthy of notice that more than two +thirds of those entitled to suffrage including perhaps more than four +fifths of the property of the nation & who wish'd, as I am told, the +adoption of the constitution, withheld their votes.... + +"Many were restrain'd by an unwillingness to take the oath required +before a vote could be receiv'd; many, disgusted with the present state +of things, have come to the unwise determination of revenging themselves +on those whom they charge with having occasion'd it by taking no part +whatever in the politics of their country, & many seem to be indifferent +to every consideration not immediately connected with their particular +employments." + +Holland's example made the deepest impression on Marshall's mind. What +he saw and heard fortified his already firm purpose not to permit +America, if he could help it, to become the subordinate or ally of any +foreign power. The concept of the American people as a separate and +independent Nation unattached to, unsupported by, and unafraid of any +other country, which was growing rapidly to be the passion of Marshall's +life, was given fresh force by the humiliation and distress of the Dutch +under French control. + +"The political opinions which have produc'd the rejection of the +constitution," Marshall reasons in his report to Washington, "& which, +as it wou'd seem, can only be entertain'd by intemperate & ill inform'd +minds unaccustom'd to a union of the theory & practice of liberty, must +be associated with a general system which if brought into action will +produce the same excesses here which have been so justly deplor'd in +France. + +"The same materials exist tho' not in so great a degree. They have their +clubs, they have a numerous poor & they have enormous wealth in the +hands of a minority of the nation." + +Marshall interviewed Dutch citizens, in his casual, indolent, and +charming way; and he thus relates to Washington the sum of one such +conversation:-- + +"On my remarking this to a very rich & intelligent merchant of Amsterdam +& observing that if one class of men withdrew itself from public duties +& offices it wou'd immediately be succeeded by another which wou'd +acquire a degree of power & influence that might be exercis'd to the +destruction of those who had retir'd from society, he replied that the +remark was just, but that they relied on France for a protection from +those evils which she had herself experienc'd. That France wou'd +continue to require great supplies from Holland & knew its situation too +well to permit it to become the prey of anarchy. + +"That Holland was an artificial country acquired by persevering industry +& which cou'd only be preserv'd by wealth & order. That confusion & +anarchy wou'd banish a large portion of that wealth, wou'd dry up its +sources & wou'd entirely disable them from giving France that pecuniary +aid she so much needed. That under this impression very many who tho' +friends to the revolution, saw with infinite mortification french troops +garrison the towns of Holland, wou'd now see their departure with equal +regret. + +"Thus, they willingly relinquish national independence for individual +safety. What a lesson to those who wou'd admit foreign influence into +the United States!" + +Marshall then narrates the events in France which followed the _coup +d'état_ of September 4. While this account is drawn from rumors and +newspapers and therefore contains a few errors, it is remarkable on the +whole for its general accuracy. No condensation can do justice to +Marshall's review of this period of French history in the making. It is +of first importance, also, as disclosing his opinions of the Government +he was so soon to encounter and his convictions that unrestrained +liberty must result in despotism. + +"You have observed the storm which has been long gathering in Paris," +continues Marshall. "The thunderbolt has at length been launch'd at the +heads of the leading members of the legislature & has, it is greatly to +be fear'd, involv'd in one common ruin with them, the constitution & +liberties of their country.... Complete & impartial details concerning +it will not easily be obtained as the press is no longer free. The +journalists who had ventur'd to censure the proceedings of a majority of +the directory are seiz'd, & against about forty of them a sentence of +transportation is pronounced. + +"The press is plac'd under the superintendence of a police appointed by +& dependent on the executive. It is supposed that all private letters +have been seiz'd for inspection. + +"From some Paris papers it appears, that on the first alarm, several +members of the legislature attempted to assemble in their proper halls +which they found clos'd & guarded by an arm'd force. Sixty or seventy +assembled at another place & began to remonstrate against the violence +offer'd to their body, but fear soon dispersed them. + +"To destroy the possibility of a rallying point the municipal +administrations of Paris & the central administration of the seine were +immediately suspended & forbidden by an arrêté of the directoire, to +assemble themselves together. + +"Many of the administrators of the departments through France elected by +the people, had been previously remov'd & their places filled by persons +chosen by the directory.... + +"The fragment of the legislature convok'd by the directory at L'Odéon & +L'école de santé, hasten'd to repeal the law for organizing the national +guards, & authoriz'd the directory to introduce into Paris as many +troops as shou'd be judg'd necessary. The same day the liberty of the +press was abolish'd by a line, property taken away by another & personal +security destroy'd by a sentence of transportation against men unheard & +untried. + +"All this," sarcastically remarks Marshall, "is still the triumph of +liberty & of the constitution." + +Although admitting his lack of official information, Marshall "briefly" +observes that: "Since the election of the new third, there were found in +both branches of the legislature a majority in favor of moderate +measures & apparently, wishing sincerely for peace. They have manifested +a disposition which threaten'd a condemnation of the conduct of the +directory towards America, a scrutiny into the transactions of Italy, +particularly those respecting Venice & Genoa, an enquiry into the +disposition of public money & such a regular arrangement of the finances +as wou'd prevent in future those dilapidations which are suspected to +have grown out of their disorder. They [French conservatives] have +sought too by their laws to ameliorate the situation of those whom +terror had driven out of France, & of those priests who had committed no +offense." + +Marshall thus details to Washington the excuse of the French radicals +for their severe treatment of the conservatives:-- + +"The cry of a conspiracy to reëstablish royalism was immediately rais'd +against them [conservatives]. An envoy was dispatched to the Army of +Italy to sound its disposition. It was represented that the legislature +was hostile to the armies, that it withheld their pay & subsistence, +that by its opposition to the directory it encourag'd Austria & Britain +to reject the terms of peace which were offer'd by France & which but +for that opposition wou'd have been accepted, & finally that it had +engag'd in a conspiracy for the destruction of the constitution & the +republic & for the restoration of royalty. + +"At a feast given to the armies of Italy to commemorate their fellow +soldiers who had fallen in that country the Generals address'd to them +their complaints, plainly spoke of marching to Paris to support the +directory against the councils & received from them addresses +manifesting the willingness of the soldiers to follow them. + +"The armies also addressed the directory & each other, & addresses were +dispatched to different departments. The directory answer'd them by the +stronge[st] criminations of the legislature. Similar proceedings were +had in the army of the interior commanded by Gen^l. Hoche. Detachments +were mov'd within the limits prohibited by the constitution, some of +which declar'd they were marching to Paris 'to bring the legislature to +reason.'" + +Here follows Marshall's story of what then happened, according to the +accounts which were given him at The Hague:-- + +"Alarm'd at these movements the council of five hundred call'd on the +directory for an account of them. The movement of the troops within the +constitutional circle was attributed to accident & the discontents of +the army to the faults committed by the legislature who were plainly +criminated as conspirators against the army & the republic. + +"This message was taken up by Tronçon in the council of antients & by +Thibideau in the council of five hundred. I hope you have seen their +speeches. They are able, & seem to me entirely exculpated the +legislature. + +"In the mean time the directory employed itself in the removal of the +administrators of many of the departments & cantons & replacing those +whom the people had elected by others in whom it cou'd confide, and in +the removal generally of such officers both civil & military as cou'd +not be trusted to make room for others on whom it cou'd rely. + +"The legislature on its part, pass'd several laws to enforce the +constitutional restrictions on the armies & endeavored to organize the +national guards. On this latter subject especially Pichegru, great & +virtuous I believe in the cabinet as in the field, was indefatigable. We +understand that the day before the law for their organization wou'd have +been carried into execution the decisive blow was struck." + +Marshall now relates, argumentatively, the facts as he heard them in the +Dutch Capital; and in doing so, reveals his personal sentiments and +prejudices:-- + +"To support the general charge of conspiracy in favor of royalty I know +of no particular facts alleged against the arrested Members except +Pichegru & two or three others.... Pichegru is made in the first moment +of conversation to unbosom himself entirely to a perfect stranger who +had only told him that he came from the Prince of Conde & cou'd not +exhibit a single line of testimonial of any sort to prove that he had +ever seen that Prince or that he was not a spy employ'd by some of the +enemies of the General. + +"This story is repel'd by Pichegru's character which has never before +been defil'd. Great as were the means he possess'd of personal +aggrandizement he retir'd clean handed from the army without adding a +shilling to his private fortune. It is repel'd by his resigning the +supreme command, by his numerous victories subsequent to the alleged +treason, by its own extreme absurdity & by the fear which his accusers +show of bringing him to trial according to the constitution even before +a tribunal they can influence & overawe, or of even permitting him to be +heard before the prostrate body which is still term'd the legislature & +which in defiance of the constitution has pronounc'd judgment on him. + +"Yet this improbable & unsupported tale seems to be receiv'd as an +established truth by those who the day before [his] fall bow'd to him as +an idol. I am mortified as a man to learn that even his old army which +conquer'd under him, which ador'd him, which partook of his fame & had +heretofore not join'd their brethren in accusing the legislature, now +unite in bestowing on him the heaviest execrations & do not hesitate to +pronounce him a traitor of the deepest die." + +Irrespective of the real merits of the controversy, Marshall tells +Washington that he is convinced that constitutional liberty is dead or +dying in France:-- + +"Whether this conspiracy be real or not," he says, "the wounds inflicted +on the constitution by the three directors seem to me to be mortal. In +opposition to the express regulations of the constitution the armies +have deliberated, the result of their deliberations addressed to the +directory has been favorably received & the legislature since the +revolution has superadded its thanks. + +"Troops have been marched within those limits which by the constitution +they are forbidden to enter but on the request of the legislature. The +directory is forbidden to arrest a member of the legislature unless in +the very commission of a criminal act & then he can only be tried by the +high court, on which occasion forms calculated to protect his person +from violence or the prejudice of the moment are carefully prescrib'd. + +"Yet it has seized, by a military force, about fifty leading members not +taken in a criminal act & has not pursued a single step mark'd out by +the constitution. The councils can inflict no penalty on their own +members other than reprimand, arrest for eight & imprisonment for three +days. Yet they have banished to such places as the directory shall chuse +a large portion of their body without the poor formality of hearing a +defense. + +"The legislature shall not exercise any judiciary power or pass any +retrospective law. Yet it has pronounc'd this heavy judgment on others +as well as its own members & has taken from individuals property which +the law has vested in them." + +Marshall is already bitter against the Directory because of its +violation of the French Constitution, and tells Washington:-- + +"The members of the directory are personally secur'd by the same rules +with those of the legislature. Yet three directors have depriv'd two of +their places, the legislature has then banished them without a hearing & +has proceeded to fill up the alledg'd vacancies. Merlin late minister of +justice & François de Neufchatel have been elected. + +"The constitution forbids the house of any man to be entered in the +night. The orders of the constituted authorities can only be executed in +the day. Yet many of the members were seiz'd in their beds. + +"Indeed, sir, the constitution has been violated in so many instances +that it wou'd require a pamphlet to detail them. The detail wou'd be +unnecessary for the great principle seems to be introduc'd that the +government is to be administered according to the will of the nation." + +Marshall now indulges in his characteristic eloquence and peculiar +method of argument:-- + +"Necessity, the never to be worn out apology for violence, is +alledg'd--but cou'd that necessity go further than to secure the persons +of the conspirators? Did it extend to the banishment of the printers & +to the slavery of the press? If such a necessity did exist it was +created by the disposition of the people at large & it is a truth which +requires no demonstration that if a republican form of government cannot +be administered by the general will, it cannot be administered against +that will by an army." + +Nevertheless, hope for constitutional liberty in France lingers in his +heart in spite of this melancholy recital. + +"After all, the result may not be what is apprehended. France possesses +such enormous power, such internal energy, such a vast population that +she may possibly spare another million & preserve or reacquire her +liberty. Or, the form of the government being preserved, the +independence of the legislature may be gradually recover'd. + +"With their form of government or resolutions we have certainly no right +to intermeddle, but my regrets at the present state of things are +increased by an apprehension that the rights of our country will not be +deem'd so sacred under the existing system as they wou'd have been had +the legislature preserved its legitimate authority."[588] + +Washington's reply, which probably reached Marshall some time after the +latter's historic letter to Talleyrand in January, 1798,[589] is +informing. He "prays for a continuance" of such letters and hopes he +will be able to congratulate Marshall "on the favorable conclusion of +your embassy.... To predict the contrary might be as unjust as it is +impolitic, and therefore," says Washington, "mum--on that topic. Be the +issue what it may," he is sure "that nothing which justice, sound +reasoning, and fair representation would require will be wanting to +render it just and honorable." If so, and the mission fails, "then the +eyes of all who are not willfully blind ... will be fully opened." The +Directory will have a rude awakening, if they expect the Republicans to +support France against America in the "dernier ressort.... For the mass +of our citizens require no more than to understand a question to decide +it properly; and an adverse conclusion of the negotiation will effect +this." Washington plainly indicates that he wishes Marshall to read his +letter between the lines when he says: "I shall dwell very little on +European politics ... because this letter may pass through many +hands."[590] + +Gerry not arriving by September 18, Marshall and Pinckney set out for +Paris, "proceeding slowly in the hope of being overtaken" by their tardy +associate. From Antwerp Marshall writes Charles Lee, then +Attorney-General, correcting some unimportant statements in his letter +to Washington, which, when written, were "considered as certainly true," +but which "subsequent accounts contradict."[591] Down-heartedly he +says:-- + +"Our insulted injured country has not before it the most flattering +prospects. There is no circumstance calculated to flatter us with the +hope that our negotiations will terminate as they ought to do.... We +understand that all is now quiet in France, the small show of resistance +against which Napoleon march'd is said to have dispersed on hearing of +his movement." + +He then describes the celebration in Antwerp of the birth of the new +French régime:-- + +"To-day being the anniversary of the foundation of the Republic, was +celebrated with great pomp by the military at this place. Very few +indeed of the inhabitants attended the celebration. Everything in +Antwerp wears the appearance of consternation and affright. + +"Since the late revolution a proclamation has been published forbidding +any priest to officiate who has not taken the oath prescribed by a late +order. No priest at Antwerp has taken it & yesterday commenced the +suspension of their worship. + +"All the external marks of their religion too with which their streets +abound are to be taken down. The distress of the people at the calamity +is almost as great as if the town was to be given up to pillage."[592] + +Five days after leaving Antwerp, Marshall and Pinckney arrived in the +French Capital. The Paris of that time was still very much the Paris of +Richelieu, except for some large buildings and other improvements begun +by Louis XIV. The French metropolis was in no sense a modern city and +bore little resemblance to the Paris of the present day. Not until some +years afterward did Napoleon as Emperor begin the changes which later, +under Napoleon III, transformed it into the most beautiful city in the +world. Most of its ancient interest, as well as its mediæval +discomforts, were in existence when Marshall and Pinckney reached their +destination. + +The Government was, in the American view, incredibly corrupt, and the +lack of integrity among the rulers was felt even among the people. "The +venality is such," wrote Gouverneur Morris, in 1793, "that if there be +no traitor it is because the enemy has not common sense."[593] And +again: "The ... administration is occupied in acquiring wealth."[594] +Honesty was unknown, and, indeed, abhorrent, to most of the governing +officials; and the moral sense of the citizens themselves had been +stupefied by the great sums of money which Bonaparte extracted from +conquered cities and countries and sent to the treasury at Paris. Time +and again the Republic was saved from bankruptcy by the spoils of +conquest; and long before the American envoys set foot in Paris the +popular as well as the official mind had come to expect the receipt of +money from any source or by any means. + +The bribery of ministers of state and of members of the Directory was a +matter of course;[595] and weaker countries paid cash for treaties with +the arrogant Government and purchased peace with a price. During this +very year Portugal was forced to advance a heavy bribe to Talleyrand and +the Directory before the latter would consent to negotiate concerning a +treaty; and, as a secret part of the compact, Portugal was required to +make a heavy loan to France. It was, indeed, a part of this very +Portuguese money with which the troops were brought to Paris for the +September revolution of 1797.[596] + +Marshall and Pinckney at once notified the French Foreign Office of +their presence, but delayed presenting their letters of credence until +Gerry should join them before proceeding to business. A week passed; and +Marshall records in his diary that every day the waiting envoys were +besieged by "Americans whose vessels had been captured & condemned. By +appeals & other dilatory means the money had been kept out of the hands +of the captors & they were now waiting on expenses in the hope that our +[the envoys'] negotiations might relieve them."[597] A device, this, the +real meaning of which was to be made plain when the hour should come to +bring it to bear on the American envoys. + +Such was the official and public atmosphere in which Marshall and +Pinckney found themselves on their mission to adjust, with honor, the +differences between France and America: a network of unofficial and +secret agents was all about them; and at its center was the master +spider, Talleyrand. The unfrocked priest had been made Foreign Minister +under the Directory in the same month and almost the day that Marshall +embarked at Philadelphia for Paris. It largely was through the efforts +and influence of Madame de Staël[598] that this prince of intriguers +was able to place his feet upon this first solid step of his amazing +career. + +Talleyrand's genius was then unknown to the world, and even the +Directory at that time had no inkling of his uncanny craft. To be sure, +his previous life had been varied and dramatic and every page of it +stamped with ability; but in the tremendous and flaming events of that +tragic period he had not attracted wide attention. Now, at last, +Talleyrand had his opportunity. + +Among other incidents of his life had been his exile to America. For +nearly two years and a half he had lived in the United States, traveling +hither and yon through the forming Nation. Washington as President had +refused to receive the expelled Frenchman, who never forgave the slight. +In his journey from State to State he had formed a poor opinion of the +American people. "If," he wrote, "I have to stay here another year I +shall die."[599] + +The incongruities of what still was pioneer life, the illimitable +forests, the confusion and strife of opinion, the absence of National +spirit and general purpose, caused Talleyrand to look with contempt upon +the wilderness Republic. But most of all, this future master spirit of +European diplomacy was impressed with what seemed to him the sordid, +money-grubbing character of the American people. Nowhere did he find a +spark of that idealism which had achieved our independence; and he +concluded that gold was the American god.[600] + +Fauchet's disclosures[601] had caused official Paris to measure the +American character by the same yardstick that Talleyrand applied to us, +when, on leaving our shores, he said: "The United States merit no more +consideration than Genoa or Genève."[602] + +The French Foreign Minister was not fairly established when the American +affair came before him. Not only was money his own pressing need, but to +pander to the avarice of his master Barras and the other corrupt members +of the Directory was his surest method of strengthening his, as yet, +uncertain official position. Such were Talleyrand's mind, views, and +station, when, three days after Gerry's belated arrival, the newly +installed Minister received the American envoys informally at his house, +"where his office was held." By a curious freak of fate, they found him +closeted with the Portuguese Minister from whom the very conditions had +been exacted which Talleyrand so soon was to attempt to extort from the +Americans. + +It was a striking group--Talleyrand, tall and thin of body, with pallid, +shrunken cheeks and slumberous eyes, shambling forward with a limp, as, +with halting speech,[603] he coldly greeted his diplomatic visitors; +Gerry, small, erect, perfectly attired, the owl-like solemnity of his +face made still heavier by his long nose and enormous wig; Pinckney, +handsome, well-dressed, clear-eyed, of open countenance;[604] and +Marshall, tall, lean, loose-jointed, carelessly appareled, with only his +brilliant eyes to hint at the alert mind and dominant personality of the +man. + +Talleyrand measured his adversaries instantly. Gerry he had known in +America and he weighed with just balance the qualities of the +Massachusetts envoy; Pinckney he also had observed and feared nothing +from the blunt, outspoken, and transparently honest but not in the least +subtle or far-seeing South Carolinian; the ill-appearing Virginian, of +whom he had never heard, Talleyrand counted as a cipher. It was here +that this keen and cynical student of human nature blundered. + +Marshall and Talleyrand were almost of an age,[605] the Frenchman being +only a few months older than his Virginia antagonist. The powers of +neither were known to the other, as, indeed, they were at that time +unguessed generally by the mass of the people, even of their own +countries. + +[Illustration: TALLEYRAND] + +A month after Talleyrand became the head of French Foreign Affairs, +Rufus King, then our Minister at London, as soon as he had heard of +the appointment of the American envoys, wrote Talleyrand a conciliatory +letter congratulating the French diplomat upon his appointment. King and +Talleyrand had often met both in England and America. + +"We have been accustomed," writes King, "to converse on every subject +with the greatest freedom"; then, assuming the frankness of friendship, +King tries to pave the way for Marshall, Pinckney, and Gerry, without +mentioning the latter, however. "From the moment I heard that you had +been named to the Department of Foreign Affairs," King assures +Talleyrand, "I have felt a satisfactory Confidence that the Cause of the +increasing Misunderstanding between us would cease, and that the +overtures mediated by our Government would not fail to restore Harmony +and Friendship between the two Countries."[606] + +King might have saved his ink. Talleyrand did not answer the letter; it +is doubtful whether he even read it. At any rate, King's somewhat +amateurish effort to beguile the French Foreign Minister by empty words +utterly failed of its purpose. + +The Americans received cold comfort from Talleyrand; he was busy, he +said, on a report on Franco-American affairs asked for by the Directory; +when he had presented it to his superiors he would, he said, let the +Americans know "what steps were to follow." Talleyrand saw to it, +however, that the envoys received "cards of hospitality" which had been +denied to Pinckney. These saved the Americans at least from offensive +attentions from the police.[607] + +Three days later, a Mr. Church, an American-born French citizen, +accompanied by his son, called on Gerry, but found Marshall, who was +alone. From Thomas Paine, Church had learned of plans of the Directory +concerning neutrals which, he assured Marshall, "would be extremely +advantageous to the United States." "Do not urge your mission now," +suggested Church--the present was "a most unfavorable moment." Haste +meant that "all would probably be lost." What were these measures of the +Directory? asked Marshall. Church was not at liberty to disclose them, +he said; but the envoys' "true policy was to wait for events." + +That night came a letter from the author of "Common Sense." "This +letter," Marshall records, "made very different impressions on us. I +thought it an insult which ought to be received with that coldness which +would forbid the repetition of it. Mr. Gerry was of a contrary opinion." +Marshall insisted that the Directory knew of Paine's letter and would +learn of the envoys' answer, and that Pinckney, Gerry, and himself must +act only as they knew the American Government would approve. It was +wrong, said he, and imprudent to lead the Directory to expect anything +else from the envoys; and Paine's "aspersions on our government" should +be resented.[608] So began the break between Marshall and Gerry, which, +considering the characters of the two men, was inevitable. + +Next, Talleyrand's confidential secretary confided to Major +Mountflorence, of the American Consulate, that the Directory would +require explanations of President Adams's speech to Congress, by which +they were exasperated. The Directory would not receive the envoys, he +said, until the negotiations were over; but that persons would be +appointed "to treat with" the Americans, and that these agents would +report to Talleyrand, who would have "charge of the negotiations."[609] +Mountflorence, of course, so advised the envoys. + +Thus the curtain rose upon the melodrama now to be enacted--an episode +without a parallel in the history of American diplomacy. To understand +what follows, we must remember that the envoys were governed by careful, +lengthy, and detailed instructions to the effect that "no blame or +censure be directly, or indirectly, imputed to the United States"; that +in order not to "wound her [France] feelings or to excite her +resentment" the negotiations were to be on the principles of the British +Treaty; "that no engagement be made inconsistent with ... any prior +treaty"; that "no restraint on our lawful commerce with any other nation +be admitted"; that nothing be done "incompatible with the complete +sovereignty and independence of the United States in matters of policy, +commerce, and government"; and "_that no aid be stipulated in favor of +France during the present war_."[610] + +We are now to witness the acts in that strange play, known to American +history as the X. Y. Z. Mission, as theatrical a spectacle as any ever +prepared for the stage. Indeed, the episode differs from a performance +behind the footlights chiefly in that in this curious arrangement the +explanation comes after the acting is over. When the dispatches to the +American Government, which Marshall now is to write, were transmitted to +Congress, diplomatic prudence caused the names of leading characters to +be indicated only by certain letters of the alphabet. Thus, this +determining phase of our diplomatic history is known to the present day +as "The X. Y. Z. Affair." + + +FOOTNOTES: + +[549] Marshall to his wife, July 2, 1797; MS. + +[550] Sedgwick to King, June 24, 1797; King, ii, 192. + +[551] Marshall to his wife, July 5, 1797; MS. + +[552] Marshall to Washington, July 7, 1797; MS., Lib. Cong. + +[553] Marshall to his wife, July 11, 1797; MS. + +[554] This, of course, was untrue, at that time. Marshall probably +listened with polite interest to Adams, who was a master of the subject, +and agreed with him. Thus Adams was impressed, as is the way of human +nature. + +[555] Adams to Gerry, July 17, 1797; _Works_: Adams, viii, 549. + +[556] _Aurora_, July 17, 1797. + +[557] _Aurora_, July 19, 1797. For documents given envoys by the +Government, see _Am. St. Prs., For. Rel._, Class I, ii, 153. + +[558] Marshall to Secretary of State, July 10, 1797; Memorandum by +Pickering; Pickering MSS., in _Proc._, Mass. Hist. Soc., xxi, 177. + +[559] Marshall to his wife, "The Bay of Delaware," July 20, 1797; MS. + +[560] Washington's remarks on Monroe's "View"; _Writings_: Ford, xiii, +452. + +[561] See McMaster, ii, 257-59, 319, 370. But Monroe, although shallow, +was well meaning; and he had good excuse for over-enthusiasm; for his +instructions were: "Let it be seen that in case of a war with any nation +on earth, we shall consider France as our first and natural ally." (_Am. +St. Prs., For. Rel._, Class I, ii, 669.) + +[562] "View of the Conduct of the Executive of the United States, etc.," +by James Monroe (Philadelphia, Bache, Publisher, 1797). This pamphlet is +printed in full in Monroe's _Writings_: Hamilton, iii, as an Appendix. + +Washington did not deign to notice Monroe's attack publicly; but on the +margin of Monroe's book answered every point. Extracts from Monroe's +"View" and Washington's comments thereon are given in Washington's +_Writings_: Ford, xiii, 452-90. + +Jefferson not only approved but commended Monroe's attack on Washington. +(See Jefferson to Monroe, Oct. 25, 1797; _Works_: Ford, viii, 344-46.) +It is more than probable that he helped circulate it. (Jefferson to +Eppes, Dec. 21, 1797; _ib._, 347; and to Madison, Feb. 8, 1798; _ib._, +362; see also Jefferson to Monroe, Dec. 27; _ib._, 350. "Your book was +later coming than was to have been wished: however it works +irresistibly. It would have been very gratifying to you to hear the +unqualified eulogies ... by all who are not hostile to it from +principle.") + +[563] Ticknor, ii, 113. + +[564] For a condensed but accurate and impartial statement of Monroe's +conduct while Minister, see Gilman: _James Monroe_ (American Statesmen +Series), 36-73. + +[565] Paine to editors of the _Bien-Informé_, Sept. 27, 1797; +_Writings_: Conway, iii, 368-69. + +[566] _Am. St. Prs., For. Rel._, ii, 55-63. + +[567] See condensed summary of the American case in instructions to +Pinckney, Marshall, and Gerry; _ib._, 153-57. + +[568] _Ib._, 64; and for numerous other examples see _ib._, 28-64. + +[569] Ticknor, ii, 113. + +[570] Pinckney to Secretary of State, Amsterdam, Feb. 18, 1797; _Am. St. +Prs., For. Rel._, vii, 10. + +[571] See Barras's speech in _Am. St. Prs., For. Rel._, ii, 12. + +[572] See Allen: _Naval War with France_, 31-33. + +[573] Adams, Message to Congress, May 16, 1797; Richardson, i, 235-36; +also, _Works_: Adams, ix, 111-18. + +[574] Gibbs, ii, 171-72. + +[575] Hamilton proposed Jefferson or Madison. (Hamilton to Pickering, +March 22, 1797; Lodge: _Cabot_, 101.) + +[576] _Works_: Adams, ix, 111-18. + +[577] _Ib._ + +[578] Gibbs, i, 467, 469, and footnote to 530-31. + +[579] Austin: _Gerry_, ii, 134-35. + +[580] Jefferson to Gerry, June 21, 1797; _Works_: Ford, viii, 314. This +letter flattered Gerry's vanity and nullified Adams's prudent advice to +him given a few days later. (See _infra._) + +[581] Sedgwick to King, June 24, 1797; King, ii, 193. + +[582] McHenry to Adams, in Cabinet meeting, 1797; Steiner, 224. + +[583] Adams to Gerry, July 8, 1797; _Works_: Adams, viii, 547-48. +Nine days later the President again admonishes Gerry. While expressing +confidence in him, the President tells Gerry that "Some have +expressed ... fears of an unaccommodating disposition [in Gerry] and +others of an obstinacy that will risk great things to secure small ones. + +"Some have observed that there is, at present, a happy and perfect +harmony among all our ministers abroad, and have expressed apprehension +that your appointment might occasion an interruption of it." (Adams to +Gerry, July 17, 1797; _ib._, 549.) + +[584] Marshall took the commission and instructions of John Quincy Adams +as the American Minister to Prussia (_Writings, J.Q.A._: Ford, ii, +footnote to 216), to which post the younger Adams had been appointed by +Washington because of his brilliant "Publicola" essays. + +[585] Marshall, to Washington, The Hague, Sept. 15, 1797; Washington +MSS., Lib. Cong. See citations _ib._, _infra_. (Sparks MSS., _Proc._ +Mass. Hist. Soc., lxvi; also _Amer. Hist. Rev._, ii, no. 2, Jan., 1897.) + +[586] Pinckney and his family had been living in Holland for almost +seven months. (Pinckney to Pickering, Feb. 8, 1797; _Am. St. Prs., For. +Rel._, ii, 10.) + +[587] Marshall to his wife, The Hague, Sept. 9, 1797, MS. Marshall's +brother had been in The Hague July 30, but had gone to Berlin. Vans +Murray to J. Q. Adams, July 30, 1797; _Letters_: Ford, 358. Apparently +the brothers did not meet, notwithstanding the critical state of the +Fairfax contract. + +[588] Marshall to Washington, The Hague, Sept. 15, 1797; _Amer. Hist. +Rev._, ii, no. 2, Jan., 1897; and MS., Lib. Cong. + +[589] See _infra_, next chapter. + +[590] Washington to Marshall, Dec. 4, 1797; _Writings_: Ford, xiii, +432-34. + +[591] To justify the violence of the 18th Fructidor, the Directory +asserted that the French elections, in which a majority of conservatives +and anti-revolutionists were returned and General Pichegru chosen +President of the French Legislature, were parts of a royal conspiracy to +destroy liberty and again place a king upon the throne of France. In +these elections the French liberals, who were not in the army, did not +vote; while all conservatives, who wished above all things for a stable +and orderly government of law and for peace with other countries, +flocked to the polls. + +Among the latter, of course, were the few Royalists who still remained +in France. Such, at least, was the view Marshall took of this episode. +To understand Marshall's subsequent career, too much weight cannot be +given this fact and, indeed, all the startling events in France during +the six historic months of Marshall's stay in Paris. + +But Marshall did not take into account the vital fact that the French +soldiers had no chance to vote at this election. They were scattered far +and wide--in Italy, Germany, and elsewhere. Yet these very men were the +soul of the Revolutionary cause. And the private soldiers were more +enraged by the result of the French elections than their generals--even +than General Augereau, who was tigerish in his wrath. + +They felt that, while they were fighting on the battlefield, they had +been betrayed at the ballot box. To the soldiers of France the +revolution of the 18th Fructidor was the overthrow of their enemies in +their own country. The army felt that it had answered with loyal +bayonets a conspiracy of treasonable ballots. It now seems probable that +the soldiers and officers of the French armies were right in this view. + +Pinckney was absurdly accused of interfering in the elections in behalf +of the "Royalist Conspiracy." (Vans Murray to J. Q. Adams, April 3, +1798; _Letters_: Ford, 391.) Such a thing, of course, was perfectly +impossible. + +[592] Marshall to Lee, Antwerp, Sept. 22, 1797; MS., New York Pub. Lib. + +[593] Gouverneur Morris to Washington, Feb., 1793; Morris, ii, 37. While +Morris was an aristocrat, thoroughly hostile to democracy and without +sympathy with or understanding of the French Revolution, his statements +of facts have proved to be generally accurate. (See Lyman: _Diplomacy of +the United States_, i, 352, on corruption of the Directory.) + +[594] Morris to Pinckney, Aug. 13, 1797; Morris, ii, 51. + +[595] Loliée: _Talleyrand and His Times_, 170-71. + +[596] King to Secretary of State, Dispatch no. 54, Nov. 18, 1797; King, +ii, 243. + +[597] Marshall's Journal, official copy, Pickering Papers, Mass. Hist. +Soc., 1. + +[598] Loliée: _Talleyrand and His Times_, 147; and Blennerhassett: +_Talleyrand_, ii, 256-57. + +[599] Talleyrand to Mme. de Staël, quoted in McCabe: _Talleyrand_, 137. + +[600] _Memoirs of Talleyrand_: Broglie's ed., i, 179-82; also see +McCabe's summary in his _Talleyrand_, 136-38. Talleyrand was greatly +impressed by the statement of a New Jersey farmer, who wished to see +Bingham rather than President Washington because he had heard that +Bingham was "so wealthy.... Throughout America I met with a similar love +of money," says Talleyrand. (_Memoirs of Talleyrand_: Broglie's ed., i, +180.) In this estimate of American character during that period, +Talleyrand did not differ from other travelers, nor, indeed, from the +opinion of most Americans who expressed themselves upon this subject. +(See vol. I, chaps. VII, and VIII, of this work.) + +[601] Talleyrand as quoted in Pickering to King, Nov. 7, 1798; +_Pickering_: Pickering, ii, 429. + +[602] _Am. St. Prs., For. Rel._, ii, 158. + +[603] _Memoirs of Talleyrand_: Stewarton, ii, 10. + +[604] Pinckney was the only one of the envoys who could speak French. He +had received a finished education in England at Westminster and Oxford +and afterward had studied in France at the Royal Military College at +Caen. + +[605] Marshall and Talleyrand were forty-two years of age, Pinckney +fifty-one, and Gerry fifty-three. + +[606] King to Talleyrand, London, Aug. 3, 1797; King, ii, 206-08. + +[607] _Am. St. Prs., For. Rel._, ii, 158; Marshall's Journal, Official +Copy; MS., Mass. Hist. Soc., 2. The envoys' dispatches to the Secretary +of State were prepared by Marshall, largely, from his Journal. Citations +will be from the dispatches except when not including matter set out +exclusively in Marshall's Journal. + +[608] Marshall's Journal, Oct. 11, 2-4. + +[609] _Am. St. Prs., For. Rel._, ii, 8-11, and 158. Fulwar Skipwith was +consul; but Mountflorence was connected with the office. + +[610] _Am. St. Prs., For. Rel._, ii, 157. Italics are mine. + + + + +CHAPTER VII + +FACING TALLEYRAND + + Society is divided into two classes; the shearers and the shorn. + We should always be with the former against the latter. + (Talleyrand.) + + To lend money to a belligerent power is to relinquish our + neutrality. (Marshall.) + + +Diplomatically Marshall and his associates found themselves marooned. +Many and long were their discussions of the situation. "We have had +several conversations on the extraordinary silence of the Government +concerning our reception," writes Marshall in his Journal. "The plunder +of our commerce sustains no abatements, the condemnations of our vessels +are press'd with ardor ... our reception is postponed in a manner most +unusual & contemptuous. + +"I urge repeatedly that we ought, in a respectful communication to the +Minister [Talleyrand] ... to pray for a suspension of all further +proceedings against American vessels until the further order of the +Directory.... + +"We have already permitted much time to pass away, we could not be +charged with precipitation, & I am willing to wait two or three days +longer but not more.... The existing state of things is to France the +most beneficial & the most desirable, but to America it is ruinous. I +therefore urge that in a few days we shall lay this interesting subject +before the Minister."[611] + +Marshall tells us that Gerry again opposed action, holding that for the +envoys to act would "irritate the [French] Government." The Directory +"might take umbrage."[612] Besides, declared Gerry, France was in a +quandary what to do and "any movement on our part" would relieve her and +put the blame on the envoys. "But," records Marshall, "in the address I +propose I would say nothing which could give umbrage, & if, as is to be +feared, France is determined to be offended, she may quarrel with our +answer to any proposition she may make or even with our silence." +Pinckney agreed with Marshall; but they yielded to Gerry in order to +"preserve unanimity."[613] + +Tidings soon arrived of the crushing defeat of the Dutch fleet by the +British; and on the heels of this came reports that the Directory were +ready to negotiate with the Americans.[614] Next morning, and four days +after the mysterious intimations to the American envoys from Talleyrand +through his confidential secretary, a Parisian business man called on +Pinckney and told him that a Mr. Hottenguer,[615] "a native of +Switzerland who had been in America,"[616] and "a gentleman of +considerable credit and reputation," would call on Pinckney. Pinckney +had met Hottenguer on a former occasion, probably at The Hague. That +evening this cosmopolitan agent of financiers and foreign offices paid +the expected visit. After a while Hottenguer "whispered ... that he had +a message from Talleyrand." Into the next room went Pinckney and his +caller. There Hottenguer told Pinckney that the Directory were +"exceedingly irritated" at President Adams's speech and that "they +should be softened." + +Indeed, the envoys would not be received, said Hottenguer, unless the +mellowing process were applied to the wounded and angry Directory. He +was perfectly plain as to the method of soothing that sore and sensitive +body--"money" for the pockets of its members and the Foreign Minister +which would be "at the disposal of M. Talleyrand." Also a loan must be +made to France. Becoming still more explicit, Hottenguer stated the +exact amount of financial salve which must be applied in the first step +of the healing treatment required from our envoys--a small bribe of one +million two hundred thousand livres [about fifty thousand pounds +sterling, or two hundred and fifty thousand dollars]. + +"It was absolutely required," reports Marshall, "that we should ... pay +the debts due by contract from France to our citizens ... pay for the +spoliations committed on our commerce ... & make a considerable loan.... +Besides this, added Mr. Hottenguer, there must be something for the +pocket ... for the private use of the Directoire & Minister under the +form of satisfying claims which," says Marshall, "did not in fact +exist."[617] + +Pinckney reported to his colleagues. Again the envoys divided as to the +course to pursue. "I was decidedly of opinion," runs Marshall's +chronicle, "& so expressed myself, that such a proposition could not be +made by a nation from whom any treaty, short of the absolute surrender +of the independence of the United States was to be expected, but that if +there was a possibility of accommodation, to give any countenance +whatever to such a proposition would be certainly to destroy that +possibility because it would induce France to demand from us terms to +which it was impossible for us to accede. I therefore," continues +Marshall, "thought we ought, so soon as we could obtain the whole +information, to treat the terms as inadmissible and without taking any +notice of them to make some remonstrance to the minister on our +situation & on that of our countrymen." Pinckney agreed with Marshall; +Gerry dissented and declared that "the whole negotiation ... would be +entirely broken off if such an answer was given as I [Marshall] had +hinted & there would be a war between the two nations." At last it was +decided to get Hottenguer's proposition in writing.[618] + +When Pinckney so informed Hottenguer, the latter announced that he had +not dealt "immediately with Talleyrand but through another gentleman in +whom Talleyrand had great confidence." Hottenguer had no objection, +however, to writing out his "suggestions," which he did the next +evening.[619] The following morning he advised the envoys that a Mr. +Bellamy, "the confidential friend of M. Talleyrand," would call and +explain matters in person. Decidedly, the fog was thickening. The envoys +debated among themselves as to what should be done. + +"I again urg'd the necessity of breaking off this indirect mode of +procedure," testifies Marshall; but "Mr. Gerry reprobated precipitation, +insisted on further explanations as we could not completely understand +the scope & object of the propositions & conceiv'd that we ought not +abruptly object to them." Marshall and Pinckney thought "that they +[Talleyrand's demands] were beyond our powers & ... amounted to a +surrender of the independence of our country."[620] But Gerry had his +way and the weaving of the spider's web went on. + +Two hours after candlelight that evening Hottenguer and Bellamy entered +Marshall's room where the three Americans were waiting for them; and +Bellamy was introduced as "the confidential friend of M. Talleyrand," of +whom Hottenguer had told the envoys. Bellamy was, says Marshall, "a +genevan now residing in Hamburg but in Paris on a visit."[621] He went +straight to the point. Talleyrand, he confided to the envoys, was "a +friend of America ... the kindness and civilities he had personally +received in America" had touched his heart; and he was burning to "repay +these kindnesses." But what could this anxious friend of America do when +the cruel Directory were so outraged at the American President's address +to Congress that they would neither receive the envoys nor authorize +"Talleyrand to have any communications with" them. + +Bellamy pointed out that under these circumstances Talleyrand could not, +of course, communicate directly with the envoys; but "had authorized" +him to deal with them "and to promise" that the French Foreign Minister +would do his best to get the Directory to receive the Americans if the +latter agreed to Talleyrand's terms. Nevertheless, Bellamy "stated +explicitly and repeatedly that he was clothed with no authority"--he was +not a diplomat, he said, but only the trusted friend of Talleyrand. He +then pointed out the passages from Adams's address[622] which had so +exasperated the French rulers and stated what the envoys must do to make +headway. + +The American envoys, asserted Bellamy, must make "a formal disavowal in +writing ... that ... the speech of the Citizen President," Barras, was +"not offensive" to America; must offer "reparation" for President +Adams's address; must affirm that the decree of the Directory,[623] +which Adams had denounced, was not "contrary to the treaty of 1778"; +must state "in writing" the depredations on American trade "by the +English and French privateers," and must make "a formal declaration" +that Adams in his speech to Congress had not referred to the French +Government or its agents: if all this were done "the French Republic is +disposed to renew their old-time relations with America" by a new treaty +which should place France "with respect to the United States exactly on +the same footing as they [the United States] should be with England." +But, said Bellamy, there must be a secret article of this new treaty +providing for a loan from America to France.[624] + +Impossible as these terms were, the whole business must be preceded by a +bribe. "I will not disguise from you," said Bellamy, "that this +situation being met, the essential part of the treaty remains to be +adjusted.... _You must pay money--you must pay a great deal of money._" +Little was said about the two hundred and fifty thousand dollars bribe; +"that," declare the envoys' dispatches to the American Secretary of +State, "being completely understood on all sides to be required for the +officers of the government, and, therefore, needing no further +explanation." When all these conditions were complied with, said +Bellamy, "M. Talleyrand trusted that, by his influence with the +Directory, he could prevail on the government to receive" the +Americans. For two hours the talk ran on. Before Talleyrand's agents +left, the anxiously hospitable Gerry invited them to breakfast the next +morning. + +Into consultation once more went the envoys. "I pressed strongly," +writes Marshall in his Journal, "the necessity of declaring that the +propositions were totally inadmissible" and that "it was derogatory from +the honor and wounded the real interests of our country to permit +ourselves, while unacknowledg'd, to carry on this clandestine +negotiation with persons who produced no evidence of being authoriz'd by +the Directoire or the Minister to treat with us. Mr. Gerry was quite of +a contrary opinion & the old beaten ground about precipitation &c. was +trodden once again. Gen'l Pinckney advocated decidedly the same opinions +with myself & we determined that the next morning should positively put +an end to these conferences."[625] + +"On our retiring," continues Marshall's narrative, "Mr. Gerry began to +propose further delays & that we shou'd inform them [Talleyrand's +go-betweens] that we wou'd take their propositions into consideration--I +improperly interrupted him & declared that I wou'd not consent to any +proposition of the sort, that the subject was already considered & that +so far as my voice wou'd go I wou'd not permit it to be supposed longer +that we cou'd deliberate on such propositions as were made to us." + +Pinckney agreed with Marshall; but, for harmony's sake, Marshall finally +said that he would return to America to "consult our government" on +this express condition only--"that France should previously and +immediately suspend all depredations upon American commerce." For once, +Gerry assented and a letter was written accordingly.[626] + +Hottenguer was prompt in his engagement to breakfast with Gerry the next +morning; but Bellamy did not come till ten o'clock, explaining that he +had been closeted with Talleyrand. Bellamy was much depressed; the +Directory, he declared, would not receive the envoys until the latter +had disavowed President Adams's speech, _unless_ they "could find the +means to change their [the Directory's] determination in this +particular." What were such "means?" asked the envoys. "I am not +authorized to state them," said Bellamy. "You must search for them and +propose them yourselves." + +Still, Bellamy, merely as an individual, was willing to suggest such +"means." It was money, he explained. The "Directory were jealous of +their own honor and the honor of the nation"; they demanded the same +treatment formerly accorded to the King; and their "honor must be +maintained in the manner required" unless "the envoys substituted ... +something perhaps more valuable, and that was money."[627] + +It was all so simple, according to Bellamy. All that the envoys had to +do was to buy thirty-two million florins of Dutch inscriptions at twenty +shillings to the pound. "It was certain," he assured the Americans, +"that after a time the Dutch Government would repay ... the money, so +that America would ultimately lose nothing" and everybody would be +happy. But even if the envoys made the loan in this way, the bribe of +two hundred and fifty thousand dollars must be paid in addition. +Thereupon the envoys handed him the letter which Marshall had prepared +the night before, which stated that they had no power to make a loan, +but could send one of their number to America for consultation and +instruction. + +Bellamy was "disappointed" and at once modified his language. Why did +the envoys treat the money proposition as coming from the Directory? It +was only his own personal suggestion. Then "what has led to our present +conversation?" asked the envoys. Pinckney recalled Hottenguer's first +visit and the latter confirmed Pinckney's account. + +Upon the envoys stating the differences between France and America, to +settle which was the purpose of their mission, and gently resenting the +demands made upon them, Bellamy became excited. The envoys' conduct was +not to be borne, he exclaimed; let them beware of the resentment of +France. They "could not help it," answered the envoys--the Directory +must look after France; the envoys must look after the United States. + +Bellamy was "in despair." What a provincial view these Americans took of +a diplomatic negotiation! They must broaden their horizon. They must +acquire worldly wisdom. They must remember "the respect which the +Directory required"; they must realize that that august body "would +exact as much as was paid to the ancient kings." The envoys would not be +received without it; that was flat, Bellamy informed them; and "he +seemed to shudder at the consequences." + +Marshall and Pinckney simply would not see the point. But Gerry was a +man of the world who could understand European diplomacy. Marshall +declared that the envoys were there to adjust international differences. +If, however, France "would make war," then, said they: "We regret the +unavoidable necessity of defending ourselves."[628] + +For a little while Talleyrand's leeches dropped away from the perplexed +Americans. Marshall reported to Washington French conditions as he had +observed them up to that time. He confirms to the former President the +American report that French agriculture had been improved "in the course +of the present war":-- + +"In that part of the country through which I have passed the evidences +of plenty abound. The whole earth appears to be in cultivation & the +harvests of the present year appear to be as productive as the fields +which yield them are extensive. + +"I am informed that every part of the country exhibits the same aspect. +If this be the fact, there will probably remain, notwithstanding the +demands of the armies, a surplus of provisions." + +Marshall briefly but clearly analyzes the economic and commercial +outcome of the war:-- + +"Manufactures have declined in the same ratio that the cultivation of +the soil has increas'd. War has been made upon the great manufacturing +towns & they are in a considerable degree destroy'd. With manufactures +France does not supply herself fully from her internal resources. + +"Those of Britain flow in upon her notwithstanding the most severe +prohibitory laws. The port of Rotterdam is purposely left open by the +English & their goods are imported by the Dutch under Prussian and other +neutral colors. They are smuggled in great quantities into France. + +"Peace, then, will find this [French] nation entirely competent to the +full supply of her colonies with provisions and needing manufactures to +be imported for her own consumption.... France can take from America +tobacco & raw cotton she can supply us with wines, brandies & silks." + +Marshall then makes a searching commentary on French politics. + +"The existing political state of France is connected with certain +internal & powerfully operating causes by which it has been & will +continue to be greatly influenc'd. Not the least of these is the tenure +by which property is held. + +"In the course of the revolution it is believed that more than half the +land of France has become national.[629] Of this a very considerable +proportion has been sold at a low rate. + +"It is true that much of it belonged to those who have fallen under the +Guillotine or who have been termed emigrants. Among the emigrants are +many whose attachment to their country has never been shaken; & what is +remarkable, among them are many who were never out of France. The law +upon this subject is worthy of attention. + +"Any two persons, no matter what their reputation, may, to some +authority, I believe the municipality of the district, write & subscribe +against any person whatever a charge, that such person is an emigrant, +on receipt of which the person so charg'd is without further +investigation inscribed on the list of emigrants. + +"If the person so inscribed be afterwards apprehended while his name +remains on the list, the trial, as I understand, is, not of the fact of +emigration, but of the identity of the persons, & if this identity be +established, he is instantly fusiller'd [shot]. The law is either +rightly executed or permitted to be relax'd, as the occasion or the +temper of the times may direct. + +"During intervals of humanity some disposition has been manifested to +permit the return of those who have never offended, who have been +banished by a terror which the government itself has reprobated, & to +permit in case of arrestation, an investigation of the fact of +emigration as well as of the identity of the person accus'd. + +"There is too a great deal of property which has been sold as national +but which in truth was never so, & which may be reclaimed by the +original proprietors. + +"In this state the acquirers of national property are of course +extremely suspicious. They form a vast proportion of the population of +France. They are not only important in consequence of their numbers, but +in consequence of their vigor, their activity & that unity of interest +which produces a unity of effort among them. + +"The armies too have been promised a milliard. This promise rests upon +the national property for its performance. The effect of these +circumstances cannot escape your observation. Classes of citizens are to +be disfranchised against the next election." + +Marshall and Pinckney, at this early stage of Talleyrand's +financial-diplomatic intrigue, were so disgusted that they were on the +point of "returning to America immediately." The continuance of French +depredations on the high seas caused Marshall to write to Washington as +follows:-- + +"The captures of our vessels seem to be only limited by the ability to +capture. That ability is increasing, as the government has let out to +hardy adventurers the national frigates. Among those who plunder us, who +are most active in this infamous business, & most loud in vociferating +criminations equally absurd and untrue, are some unprincipled apostates +who were born in America. + +"These sea rovers by a variety of means seem to have acquired great +influence in the government. + +"This influence will be exerted to prevent an accommodation between the +United States & France and to prevent any regulations which may +intercept the passage of the spoils they have made on our commerce, to +their pockets. The government I believe is too well disposed to promote +their views. At present it seems to me to be radically hostile to our +country. + +"I cou'd wish to form a contrary opinion, but to do so I must shut my +eyes on every object which presents itself to them & fabricate in my own +mind non-existing things, to be substituted for realities, & to form the +basis of my creed. + +"Might I be permitted to hazard an opinion it wou'd be the Atlantic only +can save us, & that no consideration will be sufficiently powerful to +check the extremities to which the temper of this government will carry +it, but an apprehension that we may be thrown into the arms of Britain." + +Although the Treaty of Campo Formio had been signed on the 17th of +October, Paris had not yet heard of it. This treaty marked Bonaparte as +the most constructive diplomat, as well as the foremost captain, of the +age, for such he had already proved himself to be. A week later, when +Marshall wrote the above letter to Washington (October 24, 1797), he +reported that "The negotiations with the Emperor of Austria are said not +to have been absolutely broken off. Yesterday it was said that peace +with him was certain. Several couriers have arrived lately from +Buonaparte & the national debt rose yesterday from seven to ten livres +in the hundred. Whether this is founded on a real expectation of peace +with Austria or is the mere work of stock jobbers is not for me to +decide." + +But three days afterward (October 27) the news reached Paris; and +Marshall adds this postscript: "The definitive peace is made with the +Emperor. You will have seen the conditions. Venice has experienced the +fate of Poland. England is threatened with an invasion."[630] + +The thunders of cannon announcing Bonaparte's success were still rolling +through Paris when Talleyrand's plotters again descended upon the +American envoys. Bellamy came and, Pinckney and Gerry being at the +opera, saw Marshall alone. The triumph of Bonaparte was his theme. The +victorious general was now ready to invade England, announced Bellamy; +but "concerning America not a syllable was said."[631] + +Already Talleyrand, sensitive as any hawk to coming changes in the +political weather, had begun to insinuate himself into the confidence of +the future conqueror of Europe, whose diplomatic right arm he so soon +was to become. The next morning the thrifty Hottenguer again visits the +envoys. Bonaparte's success in the negotiations of Campo Formio, which +sealed the victories of the French arms, has alarmed Hottenguer, he +declares, for the success of the American mission. + +Why, he asks, have the Americans made no proposition to the Directory? +That haughty body "were becoming impatient and would take a decided +course in regard to America" if the envoys "could not soften them," +exclaims Talleyrand's solicitous messenger. Surely the envoys can see +that Bonaparte's treaty with Austria has changed everything, and that +therefore the envoys themselves must change accordingly. + +Exhibiting great emotion, Hottenguer asserts that the Directory have +determined "that all nations should aid them [the French], or be +considered and treated as enemies." Think, he cries, of the "power and +violence of France." Think of the present danger the envoys are in. +Think of the wisdom of "softening the Directory." But he hints that "the +Directory might be made more friendly." Gain time! Gain time! Give the +bribe, and gain time! the wily agent advises the Americans. Otherwise, +France may declare war against America. + +That would be most unfortunate, answer the envoys, but assert that the +present American "situation was more ruinous than a declared war could +be"; for now American "commerce was floundering unprotected." In case of +war "America would protect herself." + +"You do not speak to the point," Hottenguer passionately cries out; "it +is money; it is expected that you will offer money." + +"We have given an answer to that demand," the envoys reply. + +"No," exclaims Hottenguer, "you have not! What is your answer?" + +"It is no," shouts Pinckney; "no; not a sixpence!" + +The persistent Hottenguer does not desist. He tells the envoys that they +do not know the kind of men they are dealing with. The Directory, he +insists, disregard the justice of American claims; care nothing even for +the French colonies; "consider themselves as perfectly invulnerable" +from the United States. Money is the only thing that will interest such +terrible men. The Americans, parrying, ask whether, even if they give +money, Talleyrand will furnish proofs that it will produce results. +Hottenguer evades the question. A long discussion ensues. + +Pay the bribe, again and again urges the irritated but tenacious +go-between. Does not your Government "know that nothing is to be +obtained here without money?" + +"Our Government had not even suspected such a state of things," declare +the amazed Americans. + +"Well," answers Hottenguer, "there is not an American in Paris who could +not have given that information.... Hamburgh and other states of Europe +were obliged to buy peace ... nothing could resist" the power of France; +let the envoys think of "the danger of a breach with her."[632] + +Thus far Pinckney mostly had spoken for the envoys. Marshall now took up +the American case. Few utterances ever made by him more clearly reveal +the mettle of the man; and none better show his conception of the +American Nation's rights, dignity, and station among the Governments of +the world. + +[Illustration: CHARLES COTESWORTH PINCKNEY] + +"I told him [Hottenguer]," writes Marshall, "that ... no nation +estimated her [France's] power more highly than America or wished more +to be on amicable terms with her, but that one object was still dearer +to us than the friendship of France which was our national independence. +That America had taken a neutral station. She had a right to take it. +No nation had a right to force us out of it. That to lend ... money +to a belligerent power abounding in every thing requisite for war but +money was to relinquish our neutrality and take part in the war. To lend +this money under the lash & coercion of France was to relinquish the +government of ourselves & to submit to a foreign government imposed on +us by force," Marshall declared. "That we would make at least one manly +struggle before we thus surrendered our national independence. + +"Our case was different from that of the minor nations of Europe," he +explained. "They were unable to maintain their independence & did not +expect to do so. America was a great, & so far as concerned her +self-defense, a powerful nation. She was able to maintain her +independence & must deserve to lose it if she permitted it to be wrested +from her. France & Britain have been at war for near fifty years of the +last hundred & might probably be at war for fifty years of the century +to come." + +Marshall asserted that "America has no motives which could induce her to +involve herself in those wars and that if she now preserved her +neutrality & her independence it was most probable that she would not in +future be afraid as she had been for four years past--but if she now +surrendered her rights of self government to France or permitted them to +be taken from her she could not expect to recover them or to remain +neutral in any future war."[633] + +For two hours Talleyrand's emissary pleads, threatens, bullies, argues, +expostulates. Finally, he departs to consult with his fellow +conspirator, or to see Talleyrand, the master of both. Thus ran the +opening dialogue between the French bribe procurers and the American +envoys. Day after day, week after week, the plot ran on like a play upon +the stage. "A Mr. Hauteval whose fortune lay in the island of St. +Domingo" called on Gerry and revealed how pained Talleyrand was that the +envoys had not visited him. Again came Hauteval, whom Marshall judged to +be the only one of the agents "solicitous of preserving peace." + +Thus far the envoys had met with the same request, that they "call upon +Talleyrand at private hours." Marshall and Pinckney said that, "having +been treated in a manner extremely disrespectful" to their country, they +could not visit the Minister of Foreign Affairs "in the existing state +of things ... unless he should expressly signify his wish" to see them +"& would appoint a time & place." But, says Marshall, "Mr. Gerry having +known Mr. Talleyrand in Boston considered it a piece of personal respect +to wait on him & said that he would do so."[634] + +Hottenguer again calls to explain how anxious Talleyrand was to serve +the envoys. Make "one more effort," he urges, "to enable him to do so." +Bonaparte's daring plan for the invasion of England was under way and +Hottenguer makes the most of this. "The power and haughtiness of +France," the inevitable destruction of England, the terrible +consequences to America, are revealed to the Americans. "Pay by way of +fees" the two hundred and fifty thousand dollar bribe, and the Directory +would allow the envoys to stay in Paris; Talleyrand would then even +consent to receive them while one of them went to America for +instructions.[635] + +Why hesitate? It was the usual thing; the Portuguese Minister had been +dealt with in similar fashion, argues Hottenguer. The envoys counter by +asking whether American vessels will meanwhile be restored to their +owners. They will not, was the answer. Will the Directory stop further +outrages on American commerce, ask the envoys? Of course not, exclaims +Hottenguer. We do "not so much regard a little money as [you] said," +declare the envoys, "although we should hazard ourselves by giving it +but we see only evidences of the most extreme hostility to us." +Thereupon they go into a long and useless explanation of the American +case. + +Gerry's visit to his "old friend" Talleyrand was fruitless; the Foreign +Minister would not receive him.[636] Gerry persisted, nevertheless, and +finally found the French diplomat at home. Talleyrand demanded the loan, +and held a new decree of the Directory before Gerry, but proposed to +withhold it for a week so that the Americans could think it over. Gerry +hastened to his colleagues with the news. Marshall and Pinckney told +Hauteval to inform Talleyrand "that unless there is a hope that the +Directory itself might be prevailed upon by reason to alter its arrêté, +we do not wish to suspend it for an instant."[637] + +The next evening, when Marshall and Pinckney were away from their +quarters, Bellamy and Hottenguer called on Gerry, who again invited them +to breakfast. This time Bellamy disclosed the fact that Talleyrand was +now intimately connected with Bonaparte and the army in Italy. Let Gerry +ponder over that! "The fate of Venice was one which might befall the +United States," exclaimed Talleyrand's mouthpiece; and let Gerry not +permit Marshall and Pinckney to deceive themselves by expecting help +from England--France could and would attend to England, invade her, +break her, force her to peace. Where then would America be? Thus for an +hour Bellamy and Hottenguer worked on Gerry.[638] + +Far as Talleyrand's agents had gone in trying to force the envoys to +offer a bribe of a quarter of a million dollars, to the Foreign Minister +and Directory, they now went still further. The door of the chamber of +horrors was now opened wide to the stubborn Americans. Personal violence +was intimated; war was threatened. But Marshall and Pinckney refused to +be frightened. + +The Directory, Talleyrand, and their emissaries, however, had not +employed their strongest resource. "Perhaps you believe," said Bellamy +to the envoys, "that in returning and exposing to your countrymen the +unreasonableness of the demands of this government, you will unite them +in their resistance to those demands. You are mistaken; you ought to +know that the diplomatic skill of France and the means she possesses in +your country are sufficient to enable her, with the French party in +America,[639] to throw the blame which will attend the rupture of the +negotiations on the federalists, as you term yourselves, but on the +British party as France terms you. And you may assure yourselves that +this will be done."[640] + +Thus it was out at last. This was the hidden card that Talleyrand had +been keeping back. And it was a trump. Talleyrand managed to have it +played again by a fairer hand before the game was over. Yes, surely; +here was something to give the obstinate Marshall pause. For the envoys +knew it to be true. There was a French party in America, and there could +be little doubt that it was constantly growing stronger.[641] Genêt's +reception had made that plain. The outbursts throughout America of +enthusiasm for France had shown it. The popular passion exhibited, when +the Jay Treaty was made public, had proved it. Adams's narrow escape +from defeat had demonstrated the strength of French sympathy in +America. + +A far more dangerous circumstance, as well known to Talleyrand as it was +to the envoys, made the matter still more serious--the democratic +societies, which, as we have seen, had been organized in great numbers +throughout the United States had pushed the French propaganda with zeal, +system, and ability; and were, to America, what the Jacobin Clubs had +been to France before their bloody excesses. They had already incited +armed resistance to the Government of the United States.[642] Thorough +information of the state of things in the young country across the ocean +had emboldened Barras, upon taking leave of Monroe, to make a direct +appeal to the American people in disregard of their own Government, and, +indeed, almost openly against it. The threat, by Talleyrand's agents, of +the force which France could exert in America, was thoroughly understood +by the envoys. For, as we have seen, there was a French party in +America--"a party," as Washington declared, "determined to advocate +French measures under _all_ circumstances."[643] It was common knowledge +among all the representatives of the American Government in Europe that +the French Directory depended upon the Republican Party in this country. +"They reckon ... upon many friends and partisans among us," wrote the +American Minister in London to the American Minister at The Hague.[644] + +The Directory even had its particular agents in the United States to +inflame the American people against their own Government if it did not +yield to French demands. Weeks before the President, in 1797, had called +Congress in special session on French affairs, "the active and incessant +manoeuvres of French agents in" America made William Smith think that +any favorable action of France "will drive the great mass of knaves & +fools back into her [France's] arms," notwithstanding her piracies upon +our ships.[645] + +On November 1 the envoys again decided to "hold no more indirect +intercourse with" Talleyrand or the Directory. Marshall and Pinckney +told Hottenguer that they thought it "degrading our country to carry on +further such an indirect intercourse"; and that they "would receive no +propositions" except from persons having "acknowledged authority." After +much parrying, Hottenguer again unparked the batteries of the French +party in America. + +He told Marshall and Pinckney that "intelligence had been received from +the United States, that if Colonel Burr and Mr. Madison had constituted +the Mission, the difference between the two nations would have been +accommodated before this time." Talleyrand was even preparing to send a +memorial to America, threatened Hottenguer, complaining that the envoys +were "unfriendly to an accommodation with France." + +The insulted envoys hotly answered that Talleyrand's "correspondents in +America took a good deal on themselves when they undertook to say how +the Directory would have received Colonel Burr and Mr. Madison"; and +they defied Talleyrand to send a memorial to the United States.[646] + +Disgusted with these indirect and furtive methods, Marshall insisted on +writing Talleyrand on the subject that the envoys had been sent to +France to settle. "I had been for some time extremely solicitous" that +such a letter should be sent, says Marshall. "It appears to me that for +three envoys extraordinary to be kept in Paris thirty days without being +received can only be designed to degrade & humiliate their country & to +postpone a consideration of its just & reasonable complaints till future +events in which it ought not to be implicated shall have determined +France in her conduct towards it. Mr. Gerry had been of a contrary +opinion & we had yielded to him but this evening he consented that the +letter should be prepared."[647] + +Nevertheless Gerry again objected.[648] At last the Paris newspapers +took a hand. "It was now in the power of the Administration +[Directory]," says Marshall, "to circulate by means of an enslaved press +precisely those opinions which are agreeable to itself & no printer +dares to publish an examination of them." + +"With this tremendous engine at its will, it [the Directory] almost +absolutely controls public opinion on every subject which does not +immediately affect the interior of the nation. With respect to its +designs against America it experiences not so much difficulty as ... +would have been experienced had not our own countrymen labored to +persuade them that our Government was under a British influence."[649] + +On November 3, Marshall writes Charles Lee: "When I clos'd my last +letter I did not expect to address you again from this place. I +calculated on being by this time on my return to the United States.... +My own opinion is that France wishes to retain America in her present +situation until her negotiation with Britain, which it is believed is +about to recommence, shall have been terminated, and a present absolute +rupture with America might encourage England to continue the war and +peace with England ... will put us more in her [France's] power.... Our +situation is more intricate and difficult than you can believe.... The +demand for money has been again repeated. The last address to us ... +concluded ... that the French party in America would throw all the blame +of a rupture on the federalists.... We were warned of the fate of +Venice. All these conversations are preparing for a public letter but +the delay and the necessity of writing only in cypher prevents our +sending it by this occasion.... I wish you could ... address the +Minister concerning our reception. We despair of doing anything.... Mr. +Putnam an American citizen has been arrested and sent to jail under the +pretext of his cheating frenchmen.... This ... is a mere pretext. It is +considered as ominous toward Americans generally. He like most of them +is a creditor of the [French] government."[650] + +Finally the envoys sent Talleyrand the formal request, written by +Marshall,[651] that the Directory receive them. Talleyrand ignored it. +Ten more days went by. When might they expect an answer? inquired the +envoys. Talleyrand parried and delayed. "We are not yet received," wrote +the envoys to Secretary of State Pickering, "and the condemnation of our +vessels ... is unremittingly continued. Frequent and urgent attempts +have been made to inveigle us again into negotiations with persons not +officially authorized, of which the obtaining of money is the basis; but +we have persisted in declining to have any further communication +relative to diplomatic business with persons of that description."[652] + +Anxious as Marshall was about the business of his mission, which now +rapidly was becoming an intellectual duel between Talleyrand and +himself, he was far more concerned as to the health of his wife, from +whom he had heard nothing since leaving America. Marshall writes her a +letter full of apprehension, but lightens it with a vague account of the +amusements, distractions, and dissipations of the French Capital. + +"I have not, since my departure from the United States," Marshall tells +his wife, "received a single letter from you or from any one of my +friends in America. Judge what anxiety I must feel concerning you. I do +not permit myself for a moment to suspect that you are in any degree to +blame for this. I am sure you have written often to me but unhappily +for me your letters have not found me. I fear they will not. They have +been thrown over board or intercepted. Such is the fate of the greater +number of the letters addressed by Americans to their friends in France, +such I fear will be the fate of all that may be address'd to me. + +"In my last letter I informed you that I counted on being at home in +March. I then expected to have been able to leave this country by +christmas at furthest & such is my impatience to see you & my dear +children that I had determined to risk a winter passage." He asks his +wife to request Mr. Wickham to see that one of Marshall's law cases "may +ly till my return. I think nothing will prevent my being at the chancery +term in May. + +"Oh God," cries Marshall, "how much time & how much happiness have I +thrown away! Paris presents one incessant round of amusement & +dissipation but very little I believe even for its inhabitants of that +society which interests the heart. Every day you may see something new +magnificent & beautiful, every night you may see a spectacle which +astonishes & enchants the imagination. The most lively fancy aided by +the strongest description cannot equal the reality of the opera. All +that you can conceive & a great deal more than you can conceive in the +line of amusement is to be found in this gay metropolis but I suspect it +would not be easy to find a friend. + +"I would not live in Paris," Marshall tells his "dearest Polly" "[if I +could] ... be among the wealthiest of its citizens. I have changed my +lodging much for the better. I liv'd till within a few days in a house +where I kept my own apartments perfectly in the style of a miserable old +bachelor without any mixture of female society. I now have rooms in the +house of a very accomplished a very sensible & I believe a very amiable +Lady whose temper, very contrary to the general character of her country +women, is domestic & who generally sits with us two or three hours in +the afternoon. + +"This renders my situation less unpleasant than it has been but nothing +can make it eligible. Let me see you once more & I ... can venture to +assert that no consideration would induce me ever again to consent to +place the Atlantic between us. Adieu my dearest Polly. Preserve your +health & be happy as possible till the return of him who is ever +yours."[653] + +The American Minister in London was following anxiously the fortunes of +our envoys in Paris, and gave them frequent information and sound +advice. Upon learning of their experiences, King writes that "I will not +allow myself yet to despair of your success, though my apprehensions are +greater than my hopes." King enclosed his Dispatch number 52 to the +American Secretary of State, which tells of the Portuguese Treaty and +the decline of Spain's power in Paris.[654] + +In reply, Pinckney writes King, on December 14, that the Directory "are +undoubtedly hostile to our Government, and are determined, if possible, +to effectuate a change in our administration, and to oblige our present +President [Adams] to resign," and further adds that the French +authorities contemplate expelling from France "every American who could +not prove" that he was for France and against America. + +"Attempts," he continues, "are made to divide the Envoys and with that +view some civilities are shown to Mr. G.[erry] and none to the two +others [Marshall and Pinckney].... The American Jacobins here pay him +[Gerry] great Court."[655] The little New Englander already was yielding +to the seductions of Talleyrand, and was also responsive to the flattery +of a group of unpatriotic Americans in Paris who were buttering their +own bread by playing into the hands of the Directory and the French +Foreign Office. + +Marshall now beheld a stage of what he believed was the natural +development of unregulated democracy. Dramatic events convinced him that +he was witnessing the growth of license into absolutism. Early in +December Bonaparte arrived in Paris. Swiftly the Conqueror had come from +Rastadt, traveling through France _incognito_, after one of his +lightning-flash speeches to his soldiers reminding them of "the Kings +whom you have vanquished, the people upon whom you have conferred +liberty." The young general's name was on every tongue. + +Paris was on fire to see and worship the hero. But Bonaparte kept aloof +from the populace. He made himself the child of mystery. The future +Emperor of the French, clad in the garments of a plain citizen, slipped +unnoticed through the crowds. He would meet nobody but scholars and +savants of world renown. These he courted; but he took care that this +fact was known to the people. In this course he continued until the +stage was set and the cue for his entrance given. + +Finally the people's yearning to behold and pay homage to their +soldier-statesman becomes a passion not to be denied. The envious but +servile Directory yield, and on December 10, 1797, a splendid festival +in Bonaparte's honor is held at the Luxembourg. The scene flames with +color: captured battle-flags as decorations; the members of the +Directory appareled as Roman Consuls; foreign ministers in their +diplomatic costumes; officers in their uniforms; women brilliantly +attired in the height of fashion.[656] At last the victorious general +appears on the arm of Talleyrand, the latter gorgeously clad in the +dress of his high office; but Bonaparte, short, slender, and delicate, +wearing the plainest clothes of the simplest citizen. + +Upon this superb play-acting John Marshall looked with placid wonder. +Here, then, thought this Virginian, who had himself fought for liberty +on many a battlefield, were the first fruits of French revolutionary +republicanism. Marshall beheld no devotion here to equal laws which +should shield all men, but only adoration of the sword-wielder who was +strong enough to rule all men. In the fragile, eagle-faced little +warrior,[657] Marshall already saw the man on horseback advancing out of +the future; and in the thunders of applause he already heard the sound +of marching armies, the roar of shotted guns, the huzzas of charging +squadrons. + +All this was something that Jefferson had not seen. Jefferson's sojourn +in France had been at the time when the French Revolution was just +sprouting; and he foresaw only that beautiful idealism into which the +glorious dreamers of the time fondly imagined the Revolution would +flower. + +But Marshall was in Paris after the guillotine had done its work; when +corruption sat in the highest places of government; and when military +glory in the name of liberty had become the deity of the people. So +where Jefferson expected that the roses of peace would bloom, Marshall +saw clusters of bayonets, as the fruitage of the French Revolution. + + +FOOTNOTES: + +[611] Marshall's Journal, Oct. 15, 4-5. + +[612] Paris made an impression on the envoys as different as their +temperaments. Vans Murray records the effect on Gerry, who had written +to his friends in Boston of "how handsomely they [the envoys] were +received in Paris and how hopeful he is of settlement!!!" + +"Good God--he has mistaken the lamps of Paris for an illumination on his +arrival," writes our alarmed Minister at The Hague, "and the salutations +of fisherwomen for a procession of chaste matrons hailing the great +Pacificator!... His foible is to mistake things of common worldly +politeness for deference to his rank of which he rarely loses the +idea.... Gerry is no more fit to enter the labyrinth of Paris as a +town--alone--than an innocent is, much less formed to play a game with +the political genius of that city ... without some very steady friend at +his elbow.... Of all men in America he is ... the least qualify'd to +play a part in Paris, either among the men or the women--he is too +virtuous for the last--too little acquainted with the world and himself +for the first." (Vans Murray to J. Q. Adams, April 13, 1798; _Letters_: +Ford, 394.) + +[613] Marshall's Journal, 5. + +[614] _Ib._, Oct. 17, 6. + +[615] Probably the same Hottenguer who had helped Marshall's brother +negotiate the Fairfax loan in Amsterdam. (_Supra_, chap. IV.) + +[616] Marshall's Journal, Oct. 17, 6. + +[617] _Am. St. Prs., For. Rel._, ii, 158; Marshall's Journal, 6-7. + +[618] Marshall's Journal, 7-8. + +[619] _Am. St. Prs., For. Rel._, ii, 158. + +[620] Marshall's Journal, Oct. 20, 8-9. + +[621] Marshall's Journal, Oct. 20, 8-9. + +[622] _Supra_, 226. + +[623] Directing the capture of enemy goods on American ships, thus +nullifying the declaration in the Franco-American Treaty that "free +bottoms make free goods." + +[624] _Am. St. Prs., For. Rel._, ii, 159. + +[625] Marshall's Journal, Oct. 20, 10. _Am. St. Prs., For. Rel._, ii, +159. + +[626] Marshall's Journal, Oct. 21, 10-11. + +[627] _Am. St. Prs., For. Rel._, ii, 159-60. + +[628] _Am. St. Prs., For. Rel._, ii, 159-60. + +[629] By "national" lands, Marshall refers to the confiscated estates. + +[630] Marshall to Washington, Paris, Oct. 24 (postscript, 27th), 1797: +_Amer. Hist. Rev._, Jan., 1897, ii, 301-03; also, Washington MSS., Lib. +Cong.; or Sparks MSS., Mass. Hist. Soc. + +[631] Marshall's Journal, Oct. 26, 12. + +[632] _Am. St. Prs., For. Rel._, ii, 161-62. + +[633] Marshall's Journal, Oct. 27, 16-17. This statement of the American +case by Marshall is given in the dispatches, which Marshall prepared as +coming from the envoys generally. (See _Am. St. Prs., For. Rel._, ii, +161-62.) + +[634] Marshall's Journal, Oct. 23, 11-12. + +[635] _Am. St. Prs., For. Rel._, ii, 163; Marshall's Journal, Oct. 29, +21-22. + +[636] Marshall's Journal, Oct. 23, 12. + +[637] Marshall's Journal, Oct. 28, 18-19. + +[638] _Am. St. Prs., For. Rel._, ii, 163. + +[639] "Infinite pains have been taken there [in France] to spread +universally the idea that there are, in America, only two parties, the +one entirely devoted to France and the other to England." (J. Q. Adams +to his father, The Hague, July 2, 1797; _Writings, J. Q. A._: Ford, ii, +181.) + +[640] Marshall's Journal, Oct. 30, 25-26; _Am St. Prs., For. Rel._, 164. + +[641] "The French were extremely desirous of seeing Mr. Jefferson +President; ... they exerted themselves to the utmost in favor of his +election [in 1796]; ... they made a great point of his success." (Harper +to his Constituents, Jan. 5, 1797; _Bayard Papers_: Donnan, 25; and see +_supra_, chaps. I, II, III, and IV, of this volume.) + +[642] See _supra_, chap. III, 86 _et seq._ + +[643] Washington to King, June 25, 1797; King, ii, 194. + +[644] King to Murray, March 31, 1798; _ib._, 294. + +[645] Smith to King, Philadelphia, April 3, 1797; King, ii, 165. + +[646] _Am. St. Prs., For. Rel._, ii, 163-64. + +[647] Marshall's Journal, Nov. 4, 31. + +[648] _Ib._, 31. + +[649] Marshall's Journal, Nov. 8, 33. + +[650] Marshall to Lee, Nov. 3, 1797; MS., Lib. Cong. Lee was +Attorney-General. Marshall's letter was in cipher. + +[651] Marshall to Lee, Nov. 7, 8, 9, 10, and 11; MS., Lib. Cong. + +[652] _Am. St. Prs., For. Rel._, ii, 166. + +[653] Marshall to his wife, Paris, Nov. 27, 1797; MS. + +[654] King to Pinckney, Marshall, and Gerry, Nov. 15, 1797; enclosing +Dispatch no. 52 to Pinckney; King, ii, 240-41. See _ib._, 245; and Dec. +9, 1797; _ib._, 247. + +[655] Pinckney to King, Paris, Dec. 14, 1797; King, ii, 259-60. + +[656] Talleyrand, who gave the fête, wrote: "I spared no trouble to make +it brilliant and attractive; although in this I experienced some +difficulty on account of the vulgarity of the directors' wives who, of +course, enjoyed precedence over all other ladies." (_Memoirs of +Talleyrand_: Broglie's ed., i, 197; also see Sloane: _Life of Napoleon_, +ii, 20; and Lanfrey: _Life of Napoleon_, i, 254-57.) + +[657] "At first sight he [Bonaparte] seemed ... to have a charming face, +so much do the halo of victory, fine eyes, a pale and almost consumptive +look, become a young hero." (_Memoirs of Talleyrand_: Broglie's ed., i, +196.) + + + + +CHAPTER VIII + +THE AMERICAN MEMORIAL + + Separated far from Europe, we mean not to mingle in her quarrels. + (Marshall.) + + A fraudulent neutrality is no neutrality at all. (Marshall.) + + We have a very considerable party in America who are strongly in + our interest. (Madame de Villette.) + + +Four days after the festival of triumph to Bonaparte, Talleyrand's +agents resumed their work. The sordid scenes were repeated, but their +monotony was broken. Now the lady of the plot appeared upon the scene. +In the long, vexed, and fruitless days of their stay in Paris, the +American envoys, it seems, were not without the solace and diversion of +the society of the French Capital. + +Among the attractive feminine acquaintances they made, one was +undoubtedly an agent of the French Foreign Office. Madame de Villette +was one of the most engaging women in the French Capital.[658] +Cultivated, brilliant, and altogether charming, she made herself +particularly agreeable to the American envoys. She and Marshall became +especially good friends; but Madame de Villette ventured no diplomatic +suggestions to him, notwithstanding his easy good nature. She was far +too good a judge of character to commit that indiscretion. So was +Talleyrand, who by this time had begun to appreciate Marshall's +qualities. But Pinckney, hearty, handsome man of the world, but without +Marshall's penetration and adroitness, was another matter. Gerry the +intriguers could already count upon; and only one other member of the +commission was necessary to their ends. Perhaps Pinckney might be won +over by this captivating Frenchwoman. On some occasion Madame de +Villette approached him:-- + +"Why will you not lend us money?" said she to Pinckney. "If you were to +make us a loan, all matters will be adjusted. When you were contending +for your Revolution we lent you money." Pinckney pointed out the +differences--that America had _requested_ a loan of France, and France +now _demanded_ a loan of America. "Oh, no," said she. "We do not make a +demand; we think it more delicate that the offer should come from you; +but M. Talleyrand has mentioned to me (who am surely not in his +confidence) the necessity of your making us a loan, and I know that he +has mentioned it to two or three others; and that you have been informed +of it; and I will assure you that, if you remain here six months longer, +you will not advance a single step further in your negotiations without +a loan." + +If that is so, bluntly answered Pinckney, the envoys might as well leave +at once. "Why," exclaimed Talleyrand's fair agent, "that might possibly +lead to a rupture, which you had better avoid; for we have a very +considerable party in America who are strongly in our interest."[659] + +The fox-like Talleyrand had scented another hole by which he might get +at his elusive quarry. "Every man has his price" was his doctrine; and +his experience hitherto had proved it sound. He found that the brilliant +Paris adventurer, Beaumarchais, had a lawsuit against the State of +Virginia. Beaumarchais had won this suit in the lower court and it was +now pending on appeal. John Marshall was his attorney.[660] Here, then, +thought Talleyrand, was the way to reach this unknown quantity in his +problem. + +On December 17, Marshall, happening into Gerry's apartment, found +Bellamy there. Beaumarchais had given a dinner to Marshall and his +fellow envoys, from which Bellamy had been kept by a toothache. The +envoys had returned Beaumarchais's courtesy; and he had retired from +this dinner "much indisposed."[661] Since then Marshall had not seen his +client. Bellamy casually remarked that he had not known, until within a +short time, that Marshall was the attorney for Beaumarchais, who, he +said, had very high regard for his Virginia attorney. + +Marshall, his lawyer's instincts at once aroused, told Bellamy that +Beaumarchais's case was of very great magnitude and that he was deeply +interested in it. Whereupon, in a low tone, spoken aside for his ear +only, Bellamy told Marshall that, in case the latter won the suit, +Beaumarchais would "sacrifice £50,000 Sterling of it as the private +gratification" demanded by the Directory and Talleyrand, "so that the +gratification might be made without any actual loss to the American +government." Marshall rejected this offer and informed Pinckney of +it.[662] + +Marshall's character is revealed by the entry he promptly made in his +Journal. "Having been originally the Counsel of Mr. de Beaumarchais, I +had determined & so I informed Genl. Pinckney, that I would not by my +voice establish any argument in his favor, but that I would positively +oppose any admission of the claim of any French citizen if not +accompanied with the admission of claims of the American citizens to +property captured and condemned for want of a Rôle d'équipage."[663] + +Bellamy then urged upon Gerry his plan of the Marshall-Beaumarchais +arrangement. Talleyrand had been entertaining Gerry privately, and the +flattered New Englander again wished to call on the French Minister, "to +return the civility" by inviting Talleyrand to dinner.[664] To +Talleyrand, then, went Gerry in company with Bellamy and asked the +Foreign Minister to dine with him. Then Gerry tediously reviewed the +situation, concluding in a manner that must have amused the bored +Talleyrand: He would rather see the envoys depart for some city in +another nation, said Gerry, until the Directory would receive them, than +to stay in Paris under the circumstances. + +Gerry was sure that the French diplomat was alarmed by this stern +threat. "M. Talleyrand appeared to be uneasy at this declaration," he +told his colleagues. Still, Talleyrand avoided "saying a word on it"; +but he did say that Bellamy's representations "might always be relied +on." Talleyrand declared that he would go further; he would himself +write out his propositions. This he proceeded to do, held the writing +before Gerry's eyes and then burned it; after this performance +Talleyrand said he would dine with Gerry "the decade [ten days] after +the present."[665] + +Meanwhile, however, Gerry dined with the Foreign Minister. It was not a +merry function. Aside from his guest of honor, the French Minister also +had at his board Hottenguer, Bellamy, and Hauteval. Gerry could not +speak French and Hauteval acted as translator. It must have been a +pallid feast; the brilliant, witty, accomplished Talleyrand, man of the +world, _bon vivant_, and lover of gayety; the solemn, dull, and rigid +Gerry; the three trained French agents, one of them, as interpreter, the +only means of general communication.[666] On rising from the table, +Hottenguer at once brought up the question of the bribe. Would the +envoys now give it? Had they the money ready? Gerry answered no![667] + +Talleyrand, by now the mouthpiece of the rising Bonaparte, had proposed +terms of peace to Great Britain; "the price was a Bribe of a Million +Sterling to be divided among Directors, Ministers, and others. +Talleyrand's Department was to share one hundred thousand Pounds +Sterling." The British Government declined.[668] + +King in London hastens to inform his American diplomatic associates in +Paris of this offer, and cautions the envoys to act in concert. To +Pinckney, King writes in cipher his anxiety about Gerry, whose integrity +King had hoped would "overcome a miserable vanity and a few little +defects of character ... which I now fear have been discovered by those +who will be assiduous to turn them to mischief." + +From the same source Pinckney is warned: "You must not appear to suspect +what you may really know; ... you must ... save him [Gerry] and, in +doing so, prevent the Division that would grow out of a Schism in your +Commission." Gerry will be all right, thinks King, "unless Pride shall +be put in opposition to Duty, or Jealousy shall mislead a mind neither +ingenuous nor well organized, but habitually suspicious, and, when +assailed by personal vanity, inflexible."[669] + +Pinckney informs King of the situation in Paris on December 27, +declaring "that we ought to request our Passports and no longer exhibit +to the World the unprecedented Spectacle of three Envoys Extraordinary +from a free and independent nation, in vain soliciting to be +heard."[670] + +Marshall now insists that the American case be formally stated to the +French Government. Gerry at last agrees.[671] Marshall, of course, +prepares this vastly important state paper. For two weeks he works over +the first half of this historic document. "At my request Genl. Pinckney +& Mr. Gerry met in my room & I read to them the first part of a letter +to the Minister of Exterior Relations which consisted of a justification +of the American Government,"[672] he relates in his Journal. + +Over the last half of the American case, Marshall spends seven days. +"The Second part of the letter to the Minister of Exterior Relations, +comprehending the claims of the United States upon France, being also +prepared, I read it to Genl Pinckney & Mr. Gerry." Both sections of +Marshall's letter to Talleyrand were submitted to his colleagues for +suggestions.[673] + +It was hard work to get Gerry to examine and sign the memorial. "I had +so repeatedly pressed Mr. Gerry," notes Marshall, "on the subject of our +letter prepared for the Minister of Exterior Relations & manifested such +solicitude for its being so completed as to enable us to send it, that I +had obviously offended. Today I have urged that subject and for the last +time."[674] Two days later Marshall chronicles that "Mr. Gerry finished +the examination of our letter to the Minister of Exterior +Relations."[675] A week later the letter, translated and signed, is +delivered to Talleyrand.[676] + +Upon this memorial were based future and successful American +negotiations,[677] and the statement by Marshall remains to this day one +of the ablest state papers ever produced by American diplomacy. + +Marshall reminds Talleyrand of the frequent and open expressions of +America's regard for France, given "with all the ardor and sincerity of +youth." These, he says, were considered in America "as evidencing a +mutual friendship, to be as durable as the republics themselves." +Unhappily the scene changed, says Marshall, and "America looks around in +vain for the ally or the friend." He pictures the contrast in the +language and conduct of the French Government with what had passed +before, and says that the French charge of American partiality toward +Great Britain is unfounded. + +Marshall then reviews the international situation and makes it so plain +that America could not take part in the European wars, that even +Talleyrand was never able to answer the argument. "When that war [began] +which has been waged with such unparalleled fury," he writes, "which in +its vast vicissitudes of fortune has alternately threatened the very +existence of the conflicting parties, but which, in its progress, has +surrounded France with splendor, and added still more to her glory than +to her territory," America found herself at peace with all the +belligerent Powers; she was connected with some of them by treaties of +amity and commerce, and with France by a treaty of alliance. + +But these treaties, Marshall points out, did not require America to take +part in this war. "Being bound by no duty to enter into the war, the +Government of the United States conceived itself bound by duties, the +most sacred, to abstain from it." Upon the ground that man, even in +different degrees of social development, is still the natural friend of +man, "the state of peace, though unstipulated by treaty," was the only +course America could take. "The laws of nature" enjoined this, Marshall +announces; and in some cases "solemn and existing engagements ... +require a religious observance" of it.[678] + +Such was the moral ground upon which Marshall built his argument, and he +strengthened it by practical considerations. "The great nations of +Europe," he writes, "either impelled by ambition or by existing or +supposed political interests, peculiar to themselves, have consumed more +than a third of the present century in wars." The causes that produced +this state of things "cannot be supposed to have been entirely +extinguished, and humanity can scarcely indulge the hope that the temper +or condition of man is so altered as to exempt the next century from the +ills of the past. Strong fortifications, powerful navies, immense +armies, the accumulated wealth of ages, and a full population, enable +the nations of Europe to support those wars."[679] + +Problems of this character, Marshall explains, must be solved by +European countries, not by the United States. For, "encircled by no +dangerous Powers, they [the Americans] neither fear, nor are jealous of +their neighbors," says Marshall, "and are not, on that account, obliged +to arm for their own safety." He declares that America, separated from +Europe "by a vast and friendly ocean," has "no motive for a voluntary +war," but "the most powerful reasons to avoid it."[680] + +America's great and undefended commerce, made necessary by her then +economic conditions, would be, Marshall contends, the "immediate and +certain victim" of engaging in European wars; and he then demonstrates +the disastrous results to America of departing from her policy of +Neutrality. + +The immense and varied resources of the United States can only be used +for self-defense, reasons the Virginia lawyer. "Neither the genius of +the nation, nor the state of its own finances admit of calling its +citizens from the plough but to defend their own liberty and their own +firesides." + +He then points out that, in addition to the moral wrong and material +disaster of America's taking part in France's wars, such a course means +the launching into the almost boundless ocean of European politics. It +implies "contracting habits of national conduct and forming close +political connections which must have compromitted the future peace of +the nation, and have involved it in all the future quarrels of Europe." + +Marshall then describes the "long train of armies, debts, and taxes, +checking the growth, diminishing happiness, and perhaps endangering the +liberty of the United States, which must have followed." And all this +for what? Not to fulfill America's treaties; "not to promote her own +views, her own objects, her own happiness, her own safety; but to move +as a satellite around some other greater planet, whose laws she must of +necessity obey."[681] + +"It was believed," he declares, "that France would derive more benefit +from the Neutrality of America than from her becoming a party in the +war." Neutrality determined upon, he insists that "increased motives of +honor and of duty commanded its faithful observance.... A fraudulent +neutrality is no neutrality at all.... A ... nation which would be +admitted to its privileges, should also perform the duties it enjoins." + +If the American Government, occupying a neutral position, had granted +"favors unstipulated by treaty, to one of the belligerent Powers which +it refused to another, it could no longer have claimed the immunities of +a situation of which the obligations were forgotten; it would have +become a party to the war as certainly as if war had been openly and +formally declared, and it would have added to the madness of wantonly +engaging in such a hazardous conflict, the dishonor of insincere and +fraudulent conduct; it would have attained, circuitously, an object +which it could not plainly avow or directly pursue, and would have +tricked the people of the United States into a war which it would not +venture openly to declare." + +Then follows this keen thrust which Talleyrand could not evade: "It was +a matter of real delight to the government and people of America," +suavely writes Marshall, "to be informed that France did not wish to +interrupt the peace they [the American people] enjoyed." + +Marshall then makes a sudden and sharp attack memorable in the records +of diplomatic dueling. He calls attention to the astounding conduct of +the French Minister on American soil immediately after the American +Government had proclaimed its Neutrality to the world and had notified +American citizens of the duties which that Neutrality enjoined. In +polite phrase he reminds Talleyrand of Genêt's assumption of "the +functions of the government to which he was deputed, ... although he was +not even acknowledged as a minister or had reached the authority which +should inspect his credentials." + +But, notwithstanding this, says Marshall, "the American Government +resolved to see in him [Genêt] only the representative of a republic to +which it was sincerely attached" and "gave him the same warm and cordial +reception which he had experienced from its citizens without a single +exception from Charleston to Philadelphia." + +Two paragraphs follow of fulsome praise of France, which would seem to +have been written by Gerry, who insisted on revising the memorial.[682] +But in swift contrast Marshall again throws on the screen the +indefensible performances of the French Minister in America and the +tolerance with which the American Government treated them. "In what +manner would France have treated any foreign minister, who should have +dared to so conduct himself toward this republic?... In what manner +would the American Government have treated him [Genêt] had he been the +representative of any other nation than France?" + +No informed man can doubt the answer to these questions, says Marshall. +"From the Minister of France alone could this extraordinary conduct be +borne with temper." But "to have continued to bear it without perceiving +its extreme impropriety would have been to have merited the contempt" of +the world and of France herself. "The Government of the United States +did feel it," declares Marshall, but did not attribute Genêt's +misconduct to the French Nation. On the contrary, the American +Government "distinguished strongly between the [French] Government and +its Minister," and complained "in the language of a friend afflicted but +not irritated." Genêt's recall "was received with universal joy" in +America, "as a confirmation that his ... conduct was attributable only +to himself"; and "not even the publication of his private instructions +could persuade the American Government to ascribe any part of it to this +[French] republic."[683] + +Marshall further points out "the exertions of the United States to pay +up the arrearages" of their debt to France; America's "disinterested and +liberal advances to the sufferers of St. Domingo ... whose +recommendation was that they were Frenchmen and unfortunate"; and other +acts of good-will of the American Government toward the French Republic. + +He then makes a characteristically clear and convincing argument upon +the points at issue between France and America. France complained that +one article of the Jay Treaty provided that in case of war the property +of an enemy might be taken by either out of the ships of the other; +whereas, by the Treaty of 1778 between France and America, neither party +should take out of the vessels of the other the goods of its enemy. +France contended that this was a discrimination against her in favor of +Great Britain. Marshall shows that this provision in the Jay Treaty was +merely the statement of the existing law of nations, and that therefore +the Jay Treaty gave no new rights to Great Britain. + +Marshall reminds Talleyrand that any two nations by treaty have the +power to alter, as to their mutual intercourse, the usages prescribed by +international law; that, accordingly, France and America had so changed, +as between themselves, the law of nations respecting enemy's goods in +neutral bottoms. He cites the ordinance of France herself in 1744 and +her long continued practice under it; and he answers so overwhelmingly +the suggestion that the law of nations had not been changed by the rules +laid down by the "Armed Neutrality" of the Northern Powers of Europe in +the war existing at the time of that confederation, that the resourceful +Talleyrand made no pretense of answering it. + +The stipulation in the Franco-American Treaty of "protecting the goods +of the enemy of either party in the vessels of the other, and in turn +surrendering its own goods found in the vessels of the enemy," extended, +Marshall insists, to no other nation except to France and America; and +contends that this could be changed only by further specific agreements +between those two nations. + +Marshall wishes "that the principle that neutral bottoms shall make +neutral goods" were universally established, and declares that that +principle "is perhaps felt by no nation on earth more strongly than by +the United States." On this point he is emphatic, and reiterates that +"no nation is more deeply interested in its establishment" than America. +"It is an object they [the United States] have kept in view, and which, +if not forced by violence to abandon it, they will pursue in such manner +as their own judgment may dictate as being best calculated to attain +it." + +"But," he says, "the wish to establish a principle is essentially +different from a determination that it is already established.... +However solicitous America might be to pursue all proper means, tending +to obtain for this principle the assent of any or all of the maritime +Powers of Europe, she never conceived the idea of attaining that consent +by force."[684] "The United States will only arm to defend their own +rights," declares Marshall; "neither their policy nor their interests +permit them to arm, in order to compel a surrender of the rights of +others." + +He then gives the history of the Jay Treaty, and points out that Jay's +particular instructions not to preserve peace with Great Britain, "nor +to receive compensations for injuries sustained, nor security against +their future commission, at the expense of the smallest of its +[America's] engagements to France,"[685] were incorporated in the treaty +itself, in the clause providing that "nothing in this treaty shall, +however, be construed or operate contrary to former and existing public +treaties with other sovereignties or states."[686] So careful, in fact, +was America to meet the views of France that "previous to its +ratification" the treaty was submitted to the French Minister to the +United States, who did not even comment on the article relating to +enemy's goods in neutral bottoms, but objected only to that enlarging +the list of contraband;[687] and the American Government went to extreme +lengths to meet the views of the French Minister, who finally appeared +to be satisfied. + +The articles of contraband enumerated in the Jay Treaty, to which the +French Government objected, says Marshall, were contraband by the laws +of nations and so admitted by France herself in her treaties with other +countries.[688] + +Answering the charge that in the treaty the United States had agreed +that more articles should be contraband than she had in compacts with +other Powers, Marshall explains that "the United States, desirous of +liberating commerce, have invariably seized every opportunity which +presented itself to diminish or remove the shackles imposed on that of +neutrals. In pursuance of this policy, they have on no occasion +hesitated to reduce the list of contraband, as between themselves and +any nation consenting to such reduction. Their preëxisting treaties have +been with nations as willing as themselves to change this old rule." But +these treaties leave other governments, who do not accept the American +policy, "to the law which would have governed had such particular +stipulation never been made"--that is, to the law of nations. + +Great Britain declined to accept this American view of the freedom of +the seas; and, therefore, America was forced to leave that nation where +it had found her on the subject of contraband and freedom of ocean-going +commerce. Thus, contends Marshall, the Jay Treaty "has not added to the +catalog of contraband a single article ... ceded no privilege ... +granted no right," nor changed, in the most minute circumstance, the +preëxisting situation of the United States in relation either to France +or to Great Britain. Notwithstanding these truths, "the Government of +the United States has hastened to assure its former friend [France], +that, if the stipulations between them are found oppressive in practice, +it is ready to offer up those stipulations a willing sacrifice at the +shrine of friendship."[689] + +Stating the general purposes of the United States, Marshall strikes at +the efforts of France to compel America to do what France wishes and in +the manner that France wishes, instead of doing what American interests +require and in the manner America thinks wisest. + +The American people, he asserts, "must judge exclusively for themselves +how far they will or ought to go in their efforts to acquire new rights +or establish new principles. When they surrender this privilege, they +cease to be independent, and they will no longer deserve to be free. +They will have surrendered into other hands the most sacred of +deposits--the right of self-government; and instead of approbation, they +will merit the contempt of the world."[690] + +Marshall states the economic and business reasons why the United States, +of all countries, must depend upon commerce and the consequent necessity +for the Jay Treaty. He tartly informs Talleyrand that in doing so the +American Government was "transacting a business exclusively its own." +Marshall denies the insinuation that the negotiations of the Jay Treaty +had been unusually secret, but sarcastically observes that "it is not +usual for nations about to enter into negotiations to proclaim to others +the various objects to which those negotiations may possibly be +directed. Such is not, nor has it ever been, the principle of France." +To suppose that America owed such a duty to France, "is to imply a +dependence to which no Government ought willingly to submit."[691] + +Marshall then sets forth specifically the American complaints against +the French Government,[692] and puts in parallel columns the words of +the Jay Treaty to which the French objected, and the rules which the +French Directory pretended were justified by that treaty. So strong is +Marshall's summing up of the case in these portions of the American +memorial that it is hard for the present-day reader to see how even the +French Directory of that lawless time could have dared to attempt to +withstand it, much less to refuse further negotiations. + +Drawing to a conclusion, Marshall permits a lofty sarcasm to lighten his +weighty argument. "America has accustomed herself," he observes, "to +perceive in France only the ally and the friend. Consulting the feelings +of her own bosom, she [America] has believed that between republics an +elevated and refined friendship could exist, and that free nations were +capable of maintaining for each other a real and permanent affection. If +this pleasing theory, erected with so much care, and viewed with so much +delight, has been impaired by experience, yet the hope continues to be +cherished that this circumstance does not necessarily involve the +opposite extreme."[693] + +Then, for a moment, Marshall indulges his eloquence: "So intertwined +with every ligament of her heart have been the cords of affection which +bound her to France, that only repeated and continued acts of hostility +can tear them asunder."[694] + +Finally he tells Talleyrand that the American envoys, "searching only +for the means of effecting the objects of their mission, have permitted +no personal considerations to influence their conduct, but have waited, +under circumstances beyond measure embarrassing and unpleasant, with +that respect which the American Government has so uniformly paid to that +of France, for permission to lay before you, citizen Minister, these +important communications with which they have been charged." But, "if no +such hope" remains, "they [the envoys] have only to pray that their +return to their own country may be facilitated."[695] + +But Marshall's extraordinary power of statement and logic availed +nothing with Talleyrand and the Directory. "I consider Marshall, whom I +have heard speak on a great subject,[696] as one of the most powerful +reasoners I ever met with either in public or in print," writes William +Vans Murray from The Hague, commenting on the task of the envoys. +"Reasoning in such cases will have a fine effect in America, but to +depend upon it in Europe is really to place Quixote with Ginés de +Passamonte and among the men of the world whom he reasoned with, and so +sublimely, on their way to the galleys. They answer him, with you know +stones and blows, though the Knight is an _armed_ as well as an eloquent +Knight."[697] + +The events which had made Marshall and Pinckney more resolute in +demanding respectful treatment had made Gerry more pliant to French +influence. "Mr. Gerry is to see Mr. Talleyrand the day after to-morrow. +Three appointments have been made by that gentleman," Marshall notes in +his Journal, "each of which Mr. Gerry has attended and each of which Mr. +Talleyrand has failed to attend; nor has any apology for these +disappointments been thought necessary."[698] Once more Gerry waits on +Talleyrand, who remains invisible.[699] And now again Beaumarchais +appears. The Directory issues more and harsher decrees against American +commerce. Marshall's patience becomes finite. "I prepared to-day a +letter to the Minister remonstrating against the decree, ... subjecting +to confiscation all neutral vessels having on board any article coming +out of England or its possessions." The letter closes by "requesting our +passports."[700] + +[Illustration: ELBRIDGE GERRY] + +Marshall's memorial of the American case remained unread. One of +Talleyrand's many secretaries asked Gerry "what it contained? (for they +could not take the trouble to read it) and he added that such long +letters were not to the taste of the French Government who liked a short +address coming straight to the point."[701] Gerry, who at last saw +Talleyrand, "informed me [Marshall] that communications & propositions +had been made to him by that Gentleman, which he [Gerry] was not at +liberty to impart to Genl Pinckney or myself." Upon the outcome of his +secret conferences with Talleyrand, said Gerry, "probably depended peace +or war."[702] + +Gerry's "communication necessarily gives birth to some very serious +reflections," Marshall confides to his Journal. He recalls the attempts +to frighten the envoys "from our first arrival"--the threats of "a +variety of ills ... among others with being ordered immediately to +quit France," none of them carried out; "the most haughty & hostile +conduct ... towards us & our country and yet ... an unwillingness ... to +profess the war which is in fact made upon us."[703] + +A French agent, sent by the French Consul-General in America, just +arrived in Paris, "has probably brought with him," Marshall concludes, +"accurate details of the state of parties in America.... I should think +that if the French Government continues its hostility and does not relax +some little in its hauteur its party in the United States will no longer +support it. I suspect that some intelligence of this complexion has been +received ... whether she [France] will be content to leave us our +Independence if she can neither cajole or frighten us out of it or will +even endeavor to tear it from us by open war there can be no doubt of +her policy in one respect--she will still keep up and cherish, if it be +possible, ... her party in the United States." Whatever course France +takes, Marshall thinks will be "with a view to this her primary object." + +Therefore, reasons Marshall, Talleyrand will maneuver to throw the blame +on Pinckney and himself if the mission fails, and to give Gerry the +credit if it succeeds. "I am led irresistibly by this train of thought +to the opinion that the communication made to Mr. Gerry in secret is a +proposition to furnish passports to General Pinckney and myself and to +retain him for the purpose of negotiating the differences between the +two Republics." This would give the advantage to the French party in any +event. + +"I am firmly persuaded of his [Talleyrand's] unwillingness to dismiss us +while the war with England continues in its present uncertain state. He +believed that Genl Pinckney and myself are both determined to remain no +longer unless we can be accredited." Gerry had told Marshall that he +felt the same way; "but," says Marshall, "I am persuaded the Minister +[Talleyrand] does not think so. He would on this account as well as on +another which has been the base of all propositions for an accommodation +[the loan and the bribe] be well pleased to retain only one minister and +to chuse that one [Gerry]."[704] + +Marshall and Pinckney decided to let Gerry go his own gait. "We shall +both be happy if, by remaining without us, Mr. Gerry can negotiate a +treaty which shall preserve the peace without sacrificing the +independence of our country. We will most readily offer up all personal +considerations as a sacrifice to appease the haughtiness of this +Republic."[705] + +Marshall gave Gerry the letter on the decree and passport question "and +pressed his immediate attention to it." But Gerry was too excited by his +secret conferences with Talleyrand to heed it. Time and again Gerry, +bursting with importance, was closeted with the Foreign Minister, +hinting to his colleagues that he held peace or war in his hand. +Marshall bluntly told him that Talleyrand's plan now was "only to +prevent our taking decisive measures until the affairs of Europe shall +enable France to take them. I have pressed him [Gerry] on the subject of +the letter concerning the Decree but he has not yet read it."[706] + +Talleyrand and Gerry's "private intercourse still continues," writes +Marshall on February 10. "Last night after our return from the Theatre +Mr. Gerry told me, just as we were separating to retire each to his own +apartment, that he had had in the course of the day a very extraordinary +conversation with" a clerk of Talleyrand. It was, of course, secret. +Marshall did not want to hear it. Gerry said he could tell his +colleagues that it was on the subject of money. Then, at last, +Marshall's restraint gave way momentarily and his anger, for an instant, +blazed. Money proposals were useless; Talleyrand was playing with the +Americans, he declared. "Mr. Gerry was a little warm and the +conversation was rather unpleasant. A solicitude to preserve harmony +restrained me from saying all I thought."[707] + +Money, money, money! Nothing else would do! Gerry, by now, was for +paying it. No answer yet comes to the American memorial delivered to +Talleyrand nearly three weeks before. Marshall packs his belongings, in +readiness to depart. An unnamed person[708] calls on him and again +presses for money; France is prevailing everywhere; the envoys had +better yield; why resist the inevitable, with a thousand leagues of +ocean between them and home? Marshall answers blandly but crushingly. + +Again Talleyrand's clerk sees Gerry. The three Americans that night talk +long and heatedly. Marshall opposes any money arrangement; Gerry urges +it "very decidedly"; while Pinckney agrees with Marshall. Gerry argues +long about the horrors of war, the expense, the risk. Marshall presents +the justice of the American cause. Gerry reproaches Marshall with being +too suspicious. Marshall patiently explains, as to a child, the real +situation. Gerry again charges Marshall and Pinckney with undue +suspicion. Marshall retorts that Gerry "could not answer the argument +but by misstating it." The evening closes, sour and chill.[709] + +The next night the envoys once more endlessly debate their course. +Marshall finally proposes that they shall demand a personal meeting with +Talleyrand on the real object of the mission. Gerry stubbornly dissents +and finally yields, but indulges in long and childish discussion as to +what should be said to Talleyrand, confusing the situation with every +word.[710] Talleyrand fixes March 2 for the interview. + +The following day Marshall accidentally discovers Gerry closeted with +Talleyrand's clerk, who came to ask the New Englander to attend +Talleyrand "in a particular conversation." Gerry goes, but reports that +nothing important occurred. Then it comes out that Talleyrand had +proposed to get rid of Marshall and Pinckney and keep Gerry. Gerry +admits it. Thus Marshall's forecast made three weeks earlier[711] is +proved to have been correct. + +At last, for the first time in five months, the three envoys meet +Talleyrand face to face. Pinckney opens and Talleyrand answers. Gerry +suggests a method of making the loan, to which Talleyrand gives +qualified assent. The interview seems at an end. Then Marshall comes +forward and states the American case. There is much parrying for an +hour.[712] + +The envoys again confer. Gerry urges that their instructions permit them +to meet Talleyrand's demands. He goes to Marshall's room to convince the +granite-like Virginian, who would not yield. "I told him," writes +Marshall, "that my judgment was not more perfectly convinced that the +floor was wood or that I stood on my feet and not on my head than that +our instructions would not permit us to make the loan required."[713] +Let Gerry or Marshall or both together return to America and get new +instructions if a loan must be made. + +Two days later, another long and absurd discussion with Gerry occurs. +Before the envoys go to see Talleyrand the next day, Gerry proposes to +Marshall that, with reference to President Adams's speech, the envoys +should declare, in any treaty made, "that the complaints of the two +governments had been founded in mistake." Marshall hotly retorts: "With +my view of things, I should tell an absolute lye if I should say that +our complaints were founded in mistake. He [Gerry] replied hastily and +with warmth that he wished to God, I would propose something which was +accommodating: that I would propose nothing myself and objected to every +thing which he proposed. I observed that it was not worth while to talk +in that manner: that it was calculated to wound but not to do good: that +I had proposed every thing which in my opinion was calculated to +accommodate differences on just and reasonable grounds. He said that ... +to talk about justice was saying nothing: that I should involve our +country in a war and should bring it about in such a manner, as to +divide the people among themselves. I felt a momentary irritation, which +I afterwards regretted, and told Mr. Gerry that I was not accustomed to +such language and did not permit myself to use it with respect to him +or his opinions." + +Nevertheless, Marshall, with characteristic patience, once more begins +to detail his reasons. Gerry interrupts--Marshall "might think of him +[Gerry] as I [he] pleased." Marshall answers moderately. Gerry softens +and "the conversation thus ended."[714] + +Immediately after the bout between Marshall and Gerry the envoys saw +Talleyrand for a third time. Marshall was dominant at this interview, +his personality being, apparently, stronger even than his words. These +were strong enough--they were, bluntly, that the envoys could not and +would not accept Talleyrand's proposals. + +A week later Marshall's client, Beaumarchais, called on his American +attorney with the alarming news that "the effects of all Americans in +France were to be Sequestered." Pay the Government money and avoid this +fell event, was Beaumarchais's advice; he would see Talleyrand and call +again. "Mr. Beaumarchais called on me late last evening," chronicles +Marshall. "He had just parted from the Minister. He informed me that he +had been told confidentially ... that the Directory were determined to +give passports to General Pinckney and myself but to retain Mr. Gerry." +But Talleyrand would hold the order back for "a few days to give us time +to make propositions conforming to the views of the Government," which +"if not made Mr. Talleyrand would be compelled to execute the order." + +"I told him," writes Marshall, "that if the proposition ... was a loan +it was perfectly unnecessary to keep it [the order] up [back] a single +day: that the subject had been considered for five months" and that the +envoys would not change; "that for myself, if it were impossible to +effect the objects of our mission, I did not wish to stay another day in +France and would as cheerfully depart the next day as at any other +time."[715] + +Beaumarchais argued and appealed. Of course, France's demand was not +just--Talleyrand did not say it was; but "a compliance would be useful +to our country [America]." "France," said Beaumarchais, "thought herself +sufficiently powerful to give the law to the world and exacted from all +around her money to enable her to finish successfully her war against +England." + +Finally, Beaumarchais, finding Marshall flint, "hinted" that the envoys +themselves should propose which one of them should remain in France, +Gerry being the choice of Talleyrand. Marshall countered. If two were to +return for instructions, the envoys would decide that for themselves. If +France was to choose, Marshall would have nothing to do with it. + +"General Pinckney and myself and especially me," said Marshall, "were +considered as being sold to the English." Beaumarchais admitted "that +our positive refusal to comply with the demands of France was attributed +principally to me who was considered as entirely English.... I felt some +little resentment and answered that the French Government thought no +such thing; that neither the government nor any man in France thought me +English: but they knew I was not French: they knew I would not sacrifice +my duty and the interest of my country to any nation on earth, and +therefore I was not a proper man to stay, and was branded with the +epithet of being English: that the government knew very well I loved my +own country exclusively, and it was impossible to suppose any man who +loved America, fool enough to wish to engage her in a war with France if +that war was avoidable." + +Thus Marshall asserted his purely American attitude. It was a daring +thing to do, considering the temper of the times and the place where he +then was. Even in America, at that period, any one who was exclusively +American and, therefore, neutral, as between the European belligerents, +was denounced as being British at heart. Only by favoring France could +abuse be avoided. And to assert Neutrality in the French Capital was, of +course, even more dangerous than to take this American stand in the +United States. + +But Beaumarchais persisted and proposed to take passage with his +attorney to America; not on a public mission, of course (though he had +hinted at wishing to "reconcile" the two governments), but merely "to +testify," writes Marshall, "to the moderation of my conduct and to the +solicitude I had uniformly expressed to prevent a rupture with France." + +Beaumarchais "hinted very plainly," continues Marshall, "at what he had +before observed that means would be employed to irritate the people of +the United States against me and that those means would be successful. I +told him that I was much obliged to him but that I relied entirely on my +conduct itself for its justification and that I felt no sort of +apprehension for consequences, as they regarded me personally; that in +public life considerations of that sort never had and never would in any +degree influence me. We parted with a request, on his part, that, +whatever might arise, we would preserve the most perfect temper, and +with my assuring him of my persuasion that our conduct would always +manifest the firmness of men who were determined, and never the violence +of passionate men." + +"I have been particular," concludes Marshall, "in stating this +conversation, because I have no doubt of its having been held at the +instance of the Minister [Talleyrand] and that it will be faithfully +reported to him. I mentioned to-day to Mr. Gerry that the Government +wished to detain him and send away General Pinckney and myself. He said +he would not stay; but I find I shall not succeed in my efforts to +procure a Serious demand of passports for Mr. Gerry and myself."[716] + +During his efforts to keep Gerry from dangerously compromising the +American case, and while waiting for Talleyrand to reply to his +memorial, Marshall again writes to Washington a letter giving a survey +of the war-riven and intricate European situation. He tells Washington +that, "before this reaches you it will be known universally in +America[717] that scarcely a hope remains of" honorable adjustment of +differences between France and America; that the envoys have not been +and will not be "recognized" without "acceding to the demands of +France ... for money--to be used in the prosecution of the present war"; +that according to "reports," when the Directory makes certain that the +envoys "will not add a loan to the mass of American property already in +the hands of this [French] government, they will be ordered out of +France and a nominal [formally declared] as well as actual war will be +commenc'd against the United States."[718] + +Marshall goes on to say that his "own opinion has always been that this +depends on the state of war with England"; the French are absorbed in +their expected attack on Great Britain; "and it is perhaps justly +believed that on this issue is stak'd the independence of Europe and +America." He informs Washington of "the immense preparations for an +invasion" of England; the "numerous and veteran army lining the coast"; +the current statement that if "50,000 men can be" landed "no force in +England will be able to resist them"; the belief that "a formidable and +organized party exists in Britain, ready, so soon as a landing shall be +effected, to rise and demand a reform"; the supposition that England +then "will be in ... the situation of the batavian and cisalpine +republics and that its wealth, its commerce, and its fleets will be at +the disposition of this [French] government." + +But, he continues, "this expedition is not without its hazards. An army +which, arriving safe, would sink England, may itself be ... sunk in the +channel.... The effect of such a disaster on a nation already tir'd of +the war and groaning under ... enormous taxation" and, intimates +Marshall, none too warm toward the "existing arrangements ... might be +extremely serious to those who hold the reins of government" in France. +Many intelligent people therefore think, he says, that the "formidable +military preparations" for the invasion of England "cover and favor +secret negotiations for peace." This view Marshall himself entertains. + +He then briefly informs Washington of Bonaparte's arrangement with +Austria and Prussia which will "take from England, the hope of once more +arming" those countries "in her favor," "influence the secret [French] +negotiations with England," and greatly affect "Swisserland." Marshall +then gives an extended account of the doings and purposes of the French +in Switzerland, and refers to revolutionary activities in Sardinia, +Naples, and Spain. + +But notwithstanding the obstacles in its way, he concludes that "the +existing [French] government ... needs only money to enable it to effect +all its objects. A numerous brave and well disciplined army seems to be +devoted to it. The most military and the most powerful nation on earth +[the French] is entirely at its disposal.[719] Spain, Italy, and +Holland, with the Hanseatic towns, obey its mandates." + +But, says he, it is hard to "procure funds to work this vast machine. +Credit being annihilated ... the enormous contributions made by foreign +nations," together with the revenue from imposts, are not enough to meet +the expenses; and, therefore, "France is overwhelmed with taxes. The +proprietor complains that his estate yields him nothing. Real property +pays in taxes nearly a third of its produce and is greatly reduc'd in +its price."[720] + +While Marshall was thus engaged in studying French conditions and +writing his long and careful report to Washington, Talleyrand was in no +hurry to reply to the American memorial. Indeed, he did not answer until +March 18, 1798, more than six weeks after receiving it. The French +statement reached Marshall and Pinckney by Gerry's hands, two days after +its date. "Mr. Gerry brought in, just before dinner, a letter from the +Minister of exterior relations," writes Marshall, "purporting to be an +answer to our long memorial criminating in strong terms our government +and ourselves, and proposing that two of us should go home leaving for +the negotiation the person most acceptable to France. The person is not +named but no question is entertained that Mr. Gerry is alluded to. I +read the letter and gave it again to Mr. Gerry."[721] + +The next day the three envoys together read Talleyrand's letter. Gerry +protests that he had told the French Foreign Minister that he would not +accept Talleyrand's proposal to stay, "That," sarcastically writes +Marshall, "is probably the very reason why it was made." Talleyrand's +clerk calls on Gerry the next morning, suggesting light and innocent +duties if he would remain. No, theatrically exclaims Gerry, I "would +sooner be thrown into the Seine."[722] But Gerry remained. + +It is impossible, without reading Talleyrand's answer in full, to get an +idea of the weak shiftiness to which that remarkable man was driven in +his reply to Marshall. It was, as Pinckney said, "weak in argument, but +irritating and insulting in style."[723] The great diplomat complains +that the Americans have "claimed the right to take cognizance of the +validity of prizes carried into the ports of the United States by French +cruisers"; that the American Government permitted "any vessels to put +into the ports of the United States after having captured the property +of ships belonging to French citizens"; that "a French corvette had +anchored at Philadelphia and was seized by the Americans"; and that the +Jay Treaty was hostile to France. + +But his chief complaint was with regard to the American newspapers +which, said Talleyrand, "have since the treaty redoubled the invectives +and calumnies against the [French] republic, and against her +principles, her magistrates, and her envoys";[724] and of the fact that +the American Government might have, but did not, repress "pamphlets +openly paid for by the Minister of Great Britain" which contained +"insults and calumnies." So far from the American Government stopping +all this, snarls Talleyrand, it encouraged "this scandal in its public +acts" and, through its President, had denounced the French Directory as +endeavoring to propagate anarchy and division within the United States. + +Talleyrand then openly insults Marshall and Pinckney by stating that it +was to prevent the restoration of friendship that the American +Government had sent "to the French republic persons whose opinions and +connections are too well known to hope from them dispositions sincerely +conciliatory." Appealing directly to the French party in the United +States, he declares that he "does not hesitate to believe that the +American nation, like the French nation, sees this state of affairs with +regret, and does not consider its consequences without sorrow. He +apprehends that the American people will not commit a mistake concerning +the prejudices with which it has been desired to inspire them against an +allied people, nor concerning the engagements which it seems to be +wished to make them contract to the detriment of an alliance, which so +powerfully contributed to place them in the rank of nations, and to +support them in it; and that they will see in these new combinations +the only dangers their prosperity and importance can incur."[725] + +Finally, with cynical effrontery, Talleyrand actually proposes that +Gerry alone shall conduct the negotiations. "Notwithstanding the kind of +prejudice which has been entertained with respect to them [the envoys], +the Executive Directory is disposed to treat with that one of the three, +whose opinions, presumed to be more impartial, promise, in the course of +explanations, more of that reciprocal confidence which is +indispensable."[726] + +Who should answer Talleyrand? Marshall, of course. "It was agreed ... +that I should ... prepare an answer ... in which I should state that no +one of the ministers could consent to remain on a business committed to +all three."[727] In the discussion leading to this decision, "I," writes +Marshall, "was perfectly silent." Again Dutrimond, a clerk of +Talleyrand's, calls on Gerry, but sees Marshall instead, Gerry being +absent. + +Dutrimond's advice to Marshall is to leave France. The truth is, he +declares, that his chief must order the envoys out of France "in three +days at farthest." But spare them Gerry; let him remain--all this in +polite terms and with plausible argument. "I told him," relates +Marshall, "that personally nothing could be more desirable to me than to +return immediately to the United States." + +Then go on your own initiative, urges Talleyrand's clerk. Marshall grows +evasive; for he wishes the Directory to order his departure. A long +talk ensues. Dutrimond leaves and Gerry returns. Marshall relates what +had passed. "To prevent war I will stay," exclaims Gerry. "I made no +observation on this," dryly observes Marshall in his Journal.[728] + +Beaumarchais again tries his luck with Marshall, who replies that he +will go home by "the direct passage to America" if he can get +safe-conduct, "tho' I had private business of very considerable +consequence in England."[729] Otherwise, declares Marshall, "I should +embark immediately for England." That would never do, exclaims +Beaumarchais; it would enrage the Directory and subject Marshall to +attacks at home. Marshall remarks that he prefers to sail direct, +although he knows "that the captains of privateers had received orders +to cruise for us ... and take us to the West Indies."[730] + +Beaumarchais sees Talleyrand and reports that the Foreign Minister is +horrified at the thought of Marshall's returning by way of England; it +would "irritate this government" and delay "an accommodation"; it would +blast Marshall's reputation; the Directory "would immediately +publish ... that I was gone to England to receive the wages I had +earned by breaking off the treaty with France," Marshall records of +the representations made to him. + +"I am entitled to safe conduct," cries Marshall; and "the calumny +threatened against myself is too contemptible to be credited for a +moment by those who would utter it." I "despise" it, exclaims the +insulted Virginian.[731] Thus back and forth went this fantastic dance +of corrupt diplomacy and cautious but defiant honesty. + +At the long last, the interminable Gerry finished his review of +Marshall's reply to Talleyrand and made a lengthy and unctuous speech to +his colleagues on the righteousness of his own motives. Pinckney, +intolerably bored and disgusted, told Gerry what he thought of him. The +New Englander peevishly charged Marshall and Pinckney with concealing +their motives. + +"It is false, sir," shouted Pinckney. Gerry, he said, was the one who +had concealed from his colleagues, not only his purposes, but his +clandestine appointments with Talleyrand. Pinckney rode Gerry hard, "and +insisted in plain terms on the duplicity which had been practiced [by +Gerry] upon us both." The latter ridiculously explained, evaded, and, in +general, acted according to the expectation of those who warned Adams +against his appointment. Finally, however, Marshall's reply was signed +by all three and sent to Talleyrand.[732] + +The calmness, dignity, and conclusiveness of Marshall's rejoinder can be +appreciated only by reading the entire document. Marshall begins his +final statement of the American case and refutation of the French claims +by declaring what he had stated before, that the American envoys "are +ready to consider and to compensate the injury, if the American +Government has given just cause of complaint to that of France"; and +points out that the negotiations which the American envoys had sought +fruitlessly for six months, if taken up even now, would "demonstrate the +sincerity of this declaration."[733] This offer Marshall repeats again +and again. + +Before taking up Talleyrand's complaints in detail, he states that if +the envoys cannot convince Talleyrand that the American Government is +not in the wrong on a single point Talleyrand mentions, the envoys will +prove their good faith; and thus, with an offer to compensate France for +any wrong, "a base for an accommodation" is established. Every grievance +Talleyrand had made is then answered minutely and at great length. +History, reason, evidence, march through these pages like infantry, +cavalry, and artillery going to battle. Marshall's paper was +irresistible. Talleyrand never escaped from it. + +In the course of it there is a passage peculiarly applicable to the +present day. Answering Talleyrand's complaints about newspapers, +Marshall says:-- + +"The genius of the Constitution, and the opinions of the people of the +United States, cannot be overruled by those who administer the +Government. Among those principles deemed sacred in America, ... there +is no one ... more deeply impressed on the public mind, than the liberty +of the press. That this liberty is often carried to excess, that it has +sometimes degenerated into licentiousness, is seen and lamented; but the +remedy has not been discovered. Perhaps it is an evil inseparable from +the good with which it is allied; perhaps it is a shoot which cannot be +stripped from the stalk, without wounding vitally the plant from which +it is torn." + +At any rate, declares Marshall, there is, in America, no redress for +"the calumnies and invectives" of the press except "legal prosecution in +courts which are alike open to all who consider themselves as injured. +Without doubt this abuse of a valuable privilege is [a] matter of +peculiar regret when it is extended to the Government of a foreign +nation." It never is so extended "with the approbation of the Government +of the United States." But, he goes on to say, this is unavoidable +"especially on points respecting the rights and interests of +America, ... in a nation where public measures are the results of public +opinion." + +This practice of unrestricted criticism was not directed toward France +alone, Marshall assures Talleyrand; "it has been lavished still more +profusely on its [France's] enemies and has even been bestowed, with an +unsparing hand, on the Federal [American] Government itself. Nothing can +be more notorious than the calumnies and invectives with which the +wisest measures and most virtuous characters of the United States have +been pursued and traduced [by American newspapers]." It is plain, +therefore, that the American Government cannot influence the American +press, the excesses of which are, declares Marshall, "a calamity +incident to the nature of liberty." + +He reminds Talleyrand that "the same complaint might be urged on the +part of the United States. You must well know what degrading and +unworthy calumnies against their Government, its principles, and its +officers, have been published to the world by French journalists and in +French pamphlets." Yet America had not complained of "these calumnies, +atrocious as they are.... Had not other causes, infinitely more serious +and weighty, interrupted the harmony of the two republics, it would +still have remained unimpaired and the mission of the undersigned would +never have been rendered necessary."[734] + +Marshall again briefly sums up in broad outline the injuries which the +then French Government had inflicted upon Americans and American +property, and finally declares: "It requires no assurance to convince, +that every real American must wish sincerely to extricate his country +from the ills it suffers, and from the greater ills with which it is +threatened; but all who love liberty must admit that it does not exist +in a nation which cannot exercise the right of maintaining its +neutrality." + +Referring to Talleyrand's desire that Gerry remain and conduct the +negotiations, Marshall remarks that the request "is not accompanied by +any assurances of receding from those demands of money heretofore made +the consideration on which alone the cessation of hostility on American +commerce could be obtained." No one of the three American envoys had +power to act alone, he maintains. In spite of neglect and insult +Marshall still hopes that negotiations may begin; but if that is +impossible, he asks for passports and safe-conduct. + +Marshall made his final preparations for sailing, in order, he says, +"that I might be in readiness to depart so soon as the will of the +government should be signified to me." He was so hurried, he declares, +that "I could not even lay in a moderate stock of wine or send my foul +linen to be washed."[735] The now inescapable Beaumarchais saw Marshall +again and told him that Talleyrand said that "I [Marshall] was no +foreign minister; that I was to be considered as a private American +citizen, to obtain my passport in the manner pursued by all others +through the Consul ... I must give my name, stature, age, complexion, +&c., to our Consul." + +Marshall answered with much heat. Beaumarchais conferred with +Talleyrand, taking Marshall's side. Talleyrand was obdurate and said +that "he was mistaken in me [Marshall]; that I prevented all negotiation +and that so soon as I was gone the negotiation would be carried on; that +in America I belonged to the English faction, which universally hated +and opposed the French faction; that all I sought for was to produce a +rupture in such a manner as to throw the whole blame on France." +Marshall replied that Talleyrand "endeavored to make our situation more +unpleasant than his orders required, in order to gratify his personal +feelings," and he flatly refused to leave until ordered to go.[736] + +Finally Marshall and Pinckney received their passports. Pinckney, whose +daughter was ill and could leave France at that time only at the risk of +her life, had serious difficulty in getting permission to stay in the +south of France. On April 24, Marshall sailed for home. It is +characteristic of the man that, notwithstanding his humiliating +experiences and the failure of the mission, he was neither sour nor +depressed. He had made many personal friends in Paris; and on taking +ship at Bordeaux he does not forget to send them greetings, singling out +Madame de Villette for a gay message of farewell. "Present me to my +friends in Paris," he writes the American Consul-General at the French +Capital, "& have the goodness to say to Madam Vilette in my name & in +the handsomest manner, every thing which respectful friendship can +dictate. When you have done that You will have rendered not quite half +justice to my sentiments."[737] + +Gerry, to whom Pinckney and Marshall did not even bid farewell,[738] +remained in Paris, "extremely miserable."[739] Infinitely disgusted, +Pinckney writes King that Gerry, "as I suspected, is resolved to remain +here," notwithstanding Pinckney's "warm remonstrances with him on the +bad consequences ... of such conduct and on the impropriety of" his +secret "correspondence with Talleyrand under injunction not to +communicate it to his colleagues." Pinckney says: "I have made great +sacrifices of my feelings to preserve union; but in vain. I never met +with a man of less candour and so much duplicity as Mr. Gerry. General +Marshall is a man of extensive ability, of manly candour, and an honest +heart."[740] + + +FOOTNOTES: + +[658] _Am. St. Prs., For. Rel._, ii, 167. This lady was "understood to +be Madame de Villette, the celebrated Belle and Bonne of Voltaire." +(Lyman: _Diplomacy of the United States_, ii, footnote to 336.) Lyman +says that "as to the lady an intimation is given that that part of the +affair was not much to the credit of the Americans." (And see Austin: +_Gerry_, ii, footnote to 202.) Madame de Villette was the widow of a +Royalist colonel. Her brother, an officer in the King's service, was +killed while defending Marie Antoinette. Robespierre proscribed Madame +de Villette and she was one of a group confined in prison awaiting the +guillotine, of whom only a few escaped. (_Ib._) + +[659] _Am. St. Prs., For. Rel._, ii, 167. + +[660] Beaumarchais was one of the most picturesque figures of that +theatrical period. He is generally known to-day only as the author of +the operas, _The Barber of Seville_ and the _Marriage of Figaro_. His +suit was to recover a debt for supplies furnished the Americans during +the Revolution. Silas Deane, for our Government, made the original +contract with Beaumarchais. In addition to the contest before the +courts, in which Marshall was Beaumarchais's attorney, the matter was +before Congress three times during the claimant's life and, through his +heirs, twice after his death. In 1835 the case was settled for 800,000 +francs, which was nearly 2,500,000 francs less than Alexander Hamilton, +in an investigation, ordered by Congress, found to be due the Frenchman; +and 3,500,000 livres less than Silas Deane reported that America owed +Beaumarchais. + +Arthur Lee, Beaumarchais's enemy, to whom Congress in 1787 left the +adjustment, had declared that the Frenchman owed the United States two +million francs. This prejudiced report was the cause of almost a +half-century of dispute, and of gross injustice. (See Loménie: +_Beaumarchais et son temps_; also, Channing, iii, 283, and references in +the footnote; and Perkins: _France in the American Revolution_. Also see +Henry to Beaumarchais, Jan. 8, 1785; Henry, iii, 264, in which Henry +says: "I therefore feel myself gratified in seeing, as I think, ground +for hope that yourself, and those worthy and suffering of ours in your +nation, who in so friendly a manner advanced their money and goods when +we were in want, will be satisfied that nothing has been omitted which +lay in our power towards paying them.") + +[661] Marshall's Journal, ii, Dec. 17, 36. + +[662] _Am. St. Prs., For. Rel._, ii, 167; Marshall's Journal, Dec. 17, +36-37. + +[663] Marshall's Journal, Dec. 17, 38. The "_Rôle d'équipage_" was a +form of ship's papers required by the French Government which it was +practically impossible for American masters to furnish; yet, without it, +their vessels were liable to capture by French ships under one of the +many offensive decrees of the French Government. + +[664] Marshall's Journal, Dec. 17, 38. + +[665] _Am. St. Prs., For. Rel._, ii, 168. + +[666] This account in the dispatches is puzzling, for Talleyrand spoke +English perfectly. + +[667] _Am. St. Prs., For. Rel._, ii, 230. + +[668] King to Secretary of State (in cipher) London, Dec. 23, 1797; +King, ii, 261. King to Pinckney, Marshall, and Gerry, Dec. 23, 1797; +_ib._, 263. + +[669] King to Pinckney (in cipher) London, Dec. 24, 1797; King, ii, +263-64. + +[670] Pinckney to King, Dec. 27, 1797; King, ii, 266-67. + +[671] Marshall's Journal, Dec. 18, 1797, 38. + +[672] _Ib._, Jan. 2, 1798, 39. + +[673] Marshall's Journal, Jan. 2 and 10, 39. + +[674] _Ib._, Jan. 22, 40. + +[675] _Ib._, 40. + +[676] _Ib._, Jan. 31. + +[677] The Ellsworth mission. (See _infra_, chap. XII.) + +[678] _Am. St. Prs., For. Rel._, ii, 169. + +[679] _Am. St. Prs., For. Rel._, ii, 169-70. + +[680] _Ib._, 170. + +[681] _Am. St. Prs., For. Rel._, ii, 170. + +[682] Marshall's Journal, 39; also see Austin: _Gerry_, ii, chap. VI. + +[683] _Am. St. Prs., For. Rel._, ii, 170-71. + +[684] _Am. St. Prs., For. Rel._, ii, 172. + +[685] _Ib._, 173. + +[686] _Ib._ + +[687] _Ib._ + +[688] _Am. St. Prs., For. Rel._, ii, 175. + +[689] _Am. St. Prs., For. Rel._, ii, 175. + +[690] _Ib._, 176. + +[691] _Am. St. Prs., For. Rel._, ii, 177. + +[692] _Ib._, 178. + +[693] _Am. St. Prs., For. Rel._, ii, 181. + +[694] _Ib._, 181-82. + +[695] _Ib._, 182. + +[696] British Debts cases. (See vol. I, CHAP. V.) + +[697] Murray to J. Q. Adams, Feb. 20, 1798, _Letters_: Ford, 379. Murray +thought Marshall's statement of the American case "unanswerable" and +"proudly independent." (_Ib._, 395.) Contrast Murray's opinion of +Marshall with his description of Gerry, _supra_, chap. VII, 258, and +footnote. + +[698] Marshall's Journal, Jan. 31, 1798, 40. + +[699] _Ib._, Feb. 2. + +[700] _Ib._, Feb. 2, 41. + +[701] Marshall's Journal, Feb. 3, 42. + +[702] _Ib._, Feb. 4, 42. + +[703] _Ib._, 42-43, 46. + +[704] Marshall's Journal, Feb. 4, 42-45. + +[705] Marshall's Journal, Feb. 5, 45-46. + +[706] _Ib._, Feb. 6 and 7, 46. + +[707] Marshall's Journal, Feb. 10, 47-48. + +[708] Undoubtedly Beaumarchais. Marshall left his client's name blank in +his Journal, but Pickering, on the authority of Pinckney, in the +official copy, inserted Beaumarchais's name in later dates of the +Journal. + +[709] Marshall's Journal, Feb. 26, 52-60. + +[710] Marshall's Journal, Feb. 27, 61-67. + +[711] _Ib._, Feb. 28, 67-68. See _supra_, 312. + +[712] _Am. St. Prs., For. Rel._, ii, 186-87; Marshall's Journal, March +2, 68-72. + +[713] Marshall's Journal, March 3, 74. + +[714] Marshall's Journal, March 6, 79-81. + +[715] Marshall's Journal, 82-88; _Am. St. Prs., For. Rel._, ii, 187-88. + +[716] Marshall's Journal, March 13, 87-93. + +[717] This would seem to indicate that Marshall knew that his famous +dispatches were to be published. + +[718] France was already making "actual war" upon America; the threat of +formally declaring war, therefore, had no terror for Marshall. + +[719] Here Marshall contradicts his own statement that the French Nation +was tired of the war, groaning under taxation, and not "universally" +satisfied with the Government. + +[720] Marshall to Washington, Paris, March 8, 1798; _Amer. Hist. Rev._, +Jan., 1897, ii, 303; also MS., Lib. Cong. + +[721] Marshall's Journal, March 20, 93. + +[722] Marshall's Journal, March 22, 95. + +[723] Murray to J. Q. Adams, April 3, 1798, quoting Pinckney; _Letters_: +Ford, 391. + +[724] The exact reverse was true. Up to this time American newspapers, +with few exceptions, were hot for France. Only a very few papers, like +Fenno's _Gazette of the United States_, could possibly be considered as +unfriendly to France at this point. (See _supra_, chap. I.) + +[725] _Am. St. Prs., For. Rel._, ii, 190-91. + +[726] _Ib._, 191. + +[727] Marshall's Journal, March 22, 95. + +[728] Marshall's Journal, March 22, 95-97. + +[729] The Fairfax purchase. + +[730] Marshall's Journal, March 23, 99. + +[731] Marshall's Journal, March 29, 99-100. + +[732] _Ib._, April 3, 102-07. + +[733] _Am. St. Prs., For. Rel._, ii, 191. + +[734] _Am. St. Prs., For. Rel._, ii, 196. + +[735] This would seem to dispose of the story that Marshall brought home +enough "very fine" Madeira to serve his own use, supply weddings, and +still leave a quantity in existence three quarters of a century after +his return. (_Green Bag_, viii, 486.) + +[736] Marshall's Journal, April 10 and 11, 1798, 107-14. + +[737] Marshall to Skipwith, Bordeaux, April 21, 1798; MS., Pa. Hist. +Soc. + +[738] Murray to J. Q. Adams, April 24, 1798; _Letters_: Ford, 399. + +[739] Same to same, May 18, 1798; _ib._, 407. + +[740] Pinckney to King, Paris, April 4, 1798, enclosed in a letter to +Secretary of State, April 16, 1798; Pickering MSS., Mass. Hist. Soc. + + + + +CHAPTER IX + +THE TRIUMPHANT RETURN + + The present crisis is the most awful since the days of Vandalism. + (Robert Troup.) + + Millions for defense but not one cent for tribute. (Toast at + banquet to Marshall.) + + We shall remain free if we do not deserve to be slaves. (Marshall + to citizens of Richmond.) + + What a wicked use has been made of the X. Y. Z. dish cooked up by + Marshall. (Jefferson.) + + +While Talleyrand's drama of shame was enacting in Paris, things were +going badly for the American Government at home. The French party in +America, with whose wrath Talleyrand's male and female agents had +threatened our envoys, was quite as powerful and aggressive against +President Adams as the French Foreign Office had been told that it +was.[741] + +Notwithstanding the hazard and delay of ocean travel,[742] Talleyrand +managed to communicate at least once with his sympathizers in America, +whom he told that the envoys' "pretensions are high, that possibly no +arrangement may take place, but that there will be no declaration of war +by France."[743] + +Jefferson was alert for news from Paris. "We have still not a word from +our Envoys. This long silence (if they have been silent) proves things +are not going on very roughly. If they have not been silent, it proves +their information, if made public, would check the disposition to +arm."[744] He had not yet received the letter written him March 17, by +his agent, Skipwith. This letter is abusive of the Administration of +Washington as well as of that of Adams. Marshall was "one of the +declaiming apostles of Jay's Treaty"; he and Pinckney courted the +enemies of the Revolutionary Government; and Gerry's "paralytic mind" +was "too weak" to accomplish anything.[745] + +The envoys' first dispatches, sent from Paris October 22, 1797, reached +Philadelphia on the night of March 4, 1798.[746] These documents told of +the corrupt French demands and machinations. The next morning President +Adams informed Congress of their arrival.[747] Two weeks later came the +President's startling message to Congress declaring that the envoys +could not succeed "on terms compatible with the safety, the honor, or +the essential interests of the nation" and "exhorting" Congress to +prepare for war.[748] + +The Republicans were dazed. White hot with anger, Jefferson writes +Madison that the President's "insane message ... has had great effect. +Exultation on the one side & a certainty of victory; while the other +[Republican] is petrified with astonishment."[749] The same day he tells +Monroe that the President's "almost insane message" had alarmed the +merchants and strengthened the Administration; but he did not despair, +for the first move of the Republicans "will be a call for papers [the +envoys' dispatches].[750] In Congress the battle raged furiously; "the +question of war & peace depends now on a toss of cross & pile,"[751] was +Jefferson's nervous opinion. + +But the country itself still continued French in feeling; the +Republicans were gaining headway even in Massachusetts and Connecticut; +Jefferson expected the fall elections to increase the Republican +strength in the House; petitions against war measures were pouring into +Congress from every section; the Republican strategy was to gain time. +Jefferson thought that "the present period, ... of two or three weeks, +is the most eventful ever known since that of 1775."[752] + +The Republicans, who controlled the House of Representatives, demanded +that the dispatches be made public: they were sure that these papers +would not justify Adams's grave message. If the President should refuse +to send Congress the papers it would demonstrate, said the "Aurora," +that he "suspects the popularity of his conduct if exposed to public +view.... If he thinks he has done right, why should he be afraid of +letting his measures be known?" Let the representatives of the people +see "_the whole_ of the papers ... a _partial_ communication would be +worse than none."[753] + +Adams hesitated to reveal the contents of the dispatches because of "a +regard for the _personal safety_ of the Commissioners and an +apprehension of the effect of a disclosure upon our future diplomatic +intercourse."[754] High Federalist business men, to whom an intimation +of the contents of the dispatches had been given, urged their +publication. "We wish much for the papers if they can with propriety be +made public" was Mason's reply to Otis. "The Jacobins want them. And in +the name of God let them be gratified; it is not the first time they +have wished for the means of their destruction."[755] + +Both Federalists who were advised and Republicans who were still in the +dark now were gratified in their wish to see the incessantly discussed +and mysterious message from the envoys. The effect on the partisan +maneuvering was as radical and amusing as it is illuminative of partisan +sincerity. When, on April 3, the President transmitted to Congress the +dispatches thus far received, the Republicans instantly altered their +tactics. The dispatches did not show that the negotiations were at an +end, said the "Aurora"; it was wrong, therefore, to publish them--such a +course might mean war. Their publication was a Federalist trick to +discredit the Republican Party; and anyway Talleyrand was a monarchist, +the friend of Hamilton and King. So raged and protested the Republican +organ.[756] + +Troup thus reports the change: The Republicans, he says, "were very +clamorous for the publication [of the dispatches] until they became +acquainted with the intelligence communicated. From that moment they +opposed publication, and finally they carried a majority against the +measure. The Senate finding this to be the case instantly directed +publication."[757] The President then transmitted to Congress the second +dispatch which had been sent from Paris two weeks after the first. This +contained Marshall's superb memorial to Talleyrand. It was another blow +to Republican hopes. + +The dispatches told the whole story, simply yet with dramatic art. The +names of Hottenguer, Bellamy, and Hauteval were represented by the +letters X, Y, and Z,[758] which at once gave to this picturesque episode +the popular name that history has adopted. The effect upon public +opinion was instantaneous and terrific.[759] The first result, of +course, was felt in Congress. Vice-President Jefferson now thought it +his "duty to be silent."[760] In the House the Republicans were +"thunderstruck."[761] Many of their boldest leaders left for home; +others went over openly to the Federalists.[762] Marshall's disclosures +"produced such a shock on the republican mind, as has never been seen +since our independence," declared Jefferson.[763] He implored Madison to +write for the public an analysis of the dispatches from the Republican +point of view.[764] + +After recovering from his "shock" Jefferson tried to make light of the +revelations; the envoys had "been assailed by swindlers," he said, "but +that the Directory knew anything of it is neither proved nor probable." +Adams was to blame for the unhappy outcome of the mission, declared +Jefferson; his "speech is in truth the only obstacle to +negotiation."[765] Promptly taking his cue from his master, Madison +asserted that the publication of the dispatches served "more to inflame +than to inform the country." He did not think Talleyrand guilty--his +"conduct is scarcely credible. I do not allude to its depravity, which, +however heinous, is not without example. Its unparalleled stupidity is +what fills me with astonishment."[766] + +The hot-blooded Washington exploded with anger. He thought "the measure +of infamy was filled" by the "profligacy ... and corruption" of the +French Directory; the dispatches ought "to open the eyes of the +blindest," but would not "change ... the _leaders_ of the opposition +unless there shou'd appear a manifest desertion of the followers."[767] +Washington believed the French Government "capable [of] any thing bad" +and denounced its "outrageous conduct ... toward the United States"; but +he was even more wrathful at the "inimitable conduct of its partisans +[in America] who aid and abet their measures." He concluded that the +Directory would modify their defiant attitude when they found "the +spirit and policy of this country rising with resistance and that they +have falsely calculated upon support from a large part of the people +thereof."[768] + +Then was heard the voice of the country. "The effects of the publication +[of the dispatches] ... on the people ... has been prodigious.... The +leaders of the opposition ... were astonished & confounded at the +profligacy of their beloved friends the French."[769] In New England, +relates Ames, "the Jacobins [Republicans] were confounded, and the +trimmers dropt off from the party, like windfalls from an apple tree in +September."[770] Among all classes were observed "the most magical +effects"; so "irresistible has been the current of public opinion ... +that ... it has broken down the opposition in Congress."[771] Jefferson +mournfully informed Madison that "the spirit kindled up in the towns is +wonderful.... Addresses ... are pouring in offering life & +fortune."[772] Long afterwards he records that the French disclosures +"carried over from us a great body of the people, real republicans & +honest men, under virtuous motives."[773] In New England, especially, +the cry was for "open and deadly war with France."[774] From Boston +Jonathan Mason wrote Otis that "war for a time we must have and our +fears ... are that ... you [Congress] will rise without a proper +_climax_.... We pray that decisive orders may be given and that accursed +Treaty [with France] may be annulled.... The time is now passed, when we +should fear giving offense.... The yeomanry are not only united but +spirited."[775] + +Public meetings were held everywhere and "addresses from all bodies and +descriptions of men" poured "like a torrent on the President and both +Houses of Congress."[776] The blood of Federalism was boiling. "We +consider the present crisis as the most awful since the days of +Vandalism," declared the ardent Troup.[777] "Yankee Doodle," "Stony +Point," "The President's March," supplanted in popular favor "Ça ira" +and the "Marseillaise," which had been the songs Americans best loved to +sing. + +The black cockade, worn by patriots during the Revolutionary War, +suddenly took the place of the French cockade which until the X. Y. Z. +disclosures had decorated the hats of the majority in American cities. +The outburst of patriotism produced many songs, among others Joseph +Hopkinson's "Hail Columbia!" ("The President's March"), which, from its +first presentation in Philadelphia, caught the popular ear. This song is +of historic importance, in that it expresses lyrically the first +distinctively National consciousness that had appeared among Americans. +Everywhere its stirring words were sung. In cities and towns the young +men formed American clubs after the fashion of the democratic societies +of the French party. + + "Hail, Columbia! happy land! + Hail, ye heroes! heaven-born band! + Who fought and bled in Freedom's cause,"-- + +sang these young patriots, and "Hail, Columbia!" chanted the young women +of the land.[778] On every hilltop the fires of patriotism were +signaling devotion and loyalty to the American Government. + +Then came Marshall. Unannounced and unlooked for, his ship, the +Alexander Hamilton, had sailed into New York Harbor after a voyage of +fifty-three days from Bordeaux.[779] No one knew of his coming. "General +Marshall arrived here on Sunday last. His arrival was unexpected and his +stay with us was very short. I have no other apology to make," writes +Troup, "for our not giving him a public demonstration of our love and +esteem."[780] Marshall hurried on to Philadelphia. Already the great +memorial to Talleyrand and the brilliantly written dispatches were +ascribed to his pen, and the belief had become universal that the +Virginian had proved to be the strong and resourceful man of the +mission. + +On June 18, 1798, he entered the Capital, through which, twenty years +before, almost to a day, he had marched as a patriot soldier on the way +to Monmouth from Valley Forge. Never before had any American, excepting +only Washington, been received with such demonstration.[781] Fleets of +carriages filled with members of Congress and prominent citizens, and +crowds of people on horseback and on foot, went forth to meet him. + +"The concourse of citizens ... was immense." Three corps of cavalry "in +full uniform" gave a warlike color to the procession which formed behind +Marshall's carriage six miles out from Philadelphia. "The occasion +cannot be mentioned on which so prompt and general a muster of the +cavalry ever before took place." When the city was reached, the church +bells rang, cannon thundered, and amid "the shouts of the exulting +multitudes" Marshall was "escorted through the principal streets to the +city Tavern." The leading Federalist newspaper, the "Gazette of the +United States," records that, "even in the Northern Liberties,[782] +where the demons of anarchy and confusion are attempting to organize +treason and death, repeated shouts of applause were given as the +cavalcade approached and passed along."[783] The next morning O'Ellers +Tavern was thronged with Senators and Representatives and "a numerous +concourse of respectable citizens" who came to congratulate +Marshall.[784] + +The "Aurora" confirms this description of its Federalist rival; but adds +bitterly: "What an occasion for rejoicing! Mr. Marshall was sent to +France for the _ostensible_ purpose, at least, of effecting an amicable +accommodation of differences. He returns without having accomplished +that object, and on his return the Tories rejoice. This certainly looks +as if they did not wish him to succeed.... Many pensive and melancholy +countenances gave the glare of parade a gloom much more suited to the +occasion, and more in unison with the feelings of Americans. Well may +they despond: For tho' the patriotic Gerry may succeed in settling the +differences between the two countries--it is too certain that his +efforts can be of no avail when the late conduct of our administration, +and the unprecedented intemperance of our chief executive magistrate is +known in Europe."[785] + +Jefferson watched Marshall's home-coming with keen anxiety. "We heard of +the arrival of Marshall at New York," he writes, "and I concluded to +stay & see whether that circumstance would produce any new projects. No +doubt he there received more than hints from Hamilton as to the tone +required to be assumed.... Yet I apprehend he is not hot enough for his +friends." + +With much chagrin he then describes what happened when Marshall reached +Philadelphia: "M. was received here with the utmost éclat. The Secretary +of State & many carriages, with all the city cavalry, went to Frankfort +to meet him, and on his arrival here in the evening, the bells rung till +late in the night, & immense crowds were collected to see & make part of +the shew, which was circuitously paraded through the streets before he +was set down at the city tavern." But, says Jefferson, "all this was to +secure him [Marshall] to their [the Administration's] views, that he +might say nothing which would expose the game they have been +playing.[786] Since his arrival I can hear nothing directly from him." + +Swallowing his dislike for the moment, Jefferson called on Marshall +while the latter was absent from the tavern. "Thomas Jefferson presents +his compliments to General Marshall" ran the card he left. "He had the +honor of calling at his lodgings twice this morning, but was so unlucky +as to find that he was out on both occasions. He wished to have +expressed in person his regret that a pre-engagement for to-day which +could not be dispensed with, would prevent him the satisfaction of +dining in company with General Marshall, and therefore begs leave to +place here the expressions of that respect which in company with his +fellow citizens he bears him."[787] + +Many years afterwards Marshall referred to the adding of the syllable +"un" to the word "lucky" as one time, at least, when Jefferson came near +telling the truth.[788] To this note Marshall returned a reply as +frigidly polite as Jefferson's:-- + +"J. Marshall begs leave to accompany his respectful compliments to Mr. +Jefferson with assurances of the regret he feels at being absent when +Mr. Jefferson did him the honor to call on him. + +"J. Marshall is extremely sensible to the obliging expressions contained +in Mr. Jefferson's polite billet of yesterday. He sets out to-morrow for +Winchester & would with pleasure charge himself with any commands of Mr. +Jefferson to that part of Virginia."[789] + +Having made his report to the President and Secretary of State, Marshall +prepared to start for Virginia. But he was not to leave without the +highest compliment that the Administration could, at that time, pay him. +So gratified were the President, Cabinet, and Federalist leaders in +Congress with Marshall's conduct in the X. Y. Z. mission, and so high +their opinion of his ability, that Adams tendered him the appointment to +the place on the Supreme Bench,[790] made vacant by the death of Justice +Wilson. Marshall promptly declined. After applying to the Fairfax +indebtedness all the money which he might receive as compensation for +his services in the French mission, there would still remain a heavy +balance of obligation; and Marshall must devote all his time and +strength to business. + +On the night before his departure, the members of Congress gave the hero +of the hour the historic dinner at the city's principal tavern, "as an +evidence of their affection for his person and their gratified +approbation of the patriotic firmness with which he sustained the +dignity of his country during his important mission." One hundred and +twenty enthusiastic men sat at the banquet table. + +The Speaker of the National House, the members of the Cabinet, the +Justices of the Supreme Court, the Speaker of the Pennsylvania State +Senate, the field officers of the army, the Right Reverend Bishops +Carroll and White, "and other distinguished public characters attended." +Toasts "were drank with unbounded plaudits" and "many of them were +encored with enthusiasm." High rose the spirit of Federalism at +O'Eller's Tavern in Philadelphia that night; loud rang Federalist +cheers; copiously flowed Federalist wine. + +"Millions for Defense but not a cent for Tribute!" was the crowning +toast of that jubilant evening. It expressed the spirit of the +gathering; out over the streets of Philadelphia rolled the huzzas that +greeted it. But its unknown author[791] "builded better than he knew." +He did more than flatter Marshall and bring the enthusiastic banqueters, +wildly shouting, to their feet: he uttered the sentiment of the Nation. +"Millions for Defense but not a cent for Tribute" is one of the few +historic expressions in which Federalism spoke in the voice of America. +Thus the Marshall banquet in Philadelphia, June 18, 1798, produced that +slogan of defiant patriotism which is one of the slowly accumulating +American maxims that have lived. + +After Marshall retired from the banquet hall, the assemblage drank a +final toast to "The man whom his country delights to Honor."[792] + +Marshall was smothered with addresses, congratulations, and every +variety of attention from public bodies and civic and military +organizations. A committee from the Grand Jury of Gloucester County, New +Jersey, presented the returned envoy a laudatory address. His answer, +while dignified, was somewhat stilted, perhaps a trifle pompous. The +Grand Jury compliment was, said Marshall, "a sweet reward" for his +"exertions." The envoys wished, above all things, for peace, but felt +"that not even peace was to be purchased at the price of national +independence."[793] + +The officers of a militia brigade delivered to Marshall a eulogy in +which the war note was clear and dominant. Marshall answered that, +desirable as peace is, it "ought not to have been bought by dishonor and +national degradation"; and that the resort to the sword, for which the +militia officers declared themselves ready, made Marshall "feel with an +elevated pride the dignity and grandeur of the American +character."[794] + +The day before Marshall's departure from Philadelphia the President, +addressing Congress, said: "I congratulate you on the arrival of General +Marshall ... at a place of safety where he is justly held in honor.... +The negotiation may be considered at an end. _I will never send another +Minister to France without assurances that he will be received, +respected, and honored as the representative of a great, free, powerful, +and independent nation._"[795] Bold and defiant words expressive of the +popular sentiment of the hour; but words which were to be recalled later +by the enemies of Adams, to his embarrassment and to the injury of his +party.[796] + +"Having heard that Mrs. Marshall is in Winchester I shall immediately +set out for that place,"[797] Marshall writes Washington. His departure +from the Capital was as spectacular as his arrival. He "was escorted by +detachments of cavalry," says the "Aurora." "Certainly nothing less was +due considering the distinguished services which he has rendered by his +mission--he has acquired some knowledge of the French language,"[798] +sneers that partisan newspaper in good Republican fashion. When Marshall +approached Lancaster he was met by companies of "cavalry and uniformed +militia" which escorted him into the town, where he was "welcomed by the +discharges of artillery and the ringing of bells."[799] + +His journey throughout Pennsylvania and Virginia, repeating scenes of +his welcome at Philadelphia and Lancaster, ended at Richmond. There, +among his old neighbors and friends, the demonstrations reached their +climax. A long procession of citizens went out to meet him. Again rang +the cheers, again the bells pealed, again the cannon thundered. And +here, to his townsmen and friends, Marshall, for the first time, +publicly opened his heart and told, with emotion, what had befallen in +France. In this brief speech the Nationalist and fighting spirit, which +appears in all his utterances throughout his entire life, flashes like a +sword in battle. + +Marshall cannot express his "emotions of joy" which his return to +Richmond has aroused; nor "paint the sentiments of affection and +gratitude towards" his old neighbors. Nobody, he assures his hearers, +could appreciate his feelings who had not undergone similar experiences. + +The envoys, far from their country with no news from their Government, +were in constant anxiety, says Marshall. He tells of their trials, of +how they had discharged their duty, of his exultation over the spirit +America was now displaying. "I rejoice that I was not mistaken in the +opinion I had formed of my countrymen. I rejoice to find, though they +know how to estimate, and therefore seek to avoid the horrors and +dangers of war, yet they know also how to value the blessings of liberty +and national independence. Peace would be purchased at too high a price +by bending beneath a foreign yoke" and such a peace would be but brief; +for "the nation thus submitting would be soon involved in the quarrels +of its master.... We shall remain free if we do not deserve to be +slaves." + +Marshall compares the governments of France and America. To one who, +like himself, is so accustomed to real liberty that he "almost considers +it as the indispensable companion of man, a view of [French] despotism," +though "borrowing the garb usurping the name of freedom," teaches "the +solid safety and real security" existing in America. The loss of these +"would poison ... every other joy." Without them "freemen would turn +with loathing and disgust from every other comfort of life." To preserve +them, "all ... difficulties ought to be encountered." + +Stand by "the government of your choice," urges Marshall; its officials +are from the people, "subject in common with others to the laws they +make," and must soon return to the popular body "whose destiny involves +their own and in whose ruin they must participate." This is always a +good rule, but "it is peculiarly so in a moment of peril like the +present" when "want of confidence in our government ... furnishes ... a +foreign real enemy [France] those weapons which have so often been so +successfully used."[800] + +The Mayor, Recorder, Aldermen, and Common Council of Richmond presented +Marshall with an address of extravagant praise. "If reason and +argument ... if integrity, candor, and the pure spirit of conciliation" +had met like qualities in France, "smiling peace would have returned +along with you." But if Marshall had not brought peace, he had warned +America against a government "whose touch is death." Perhaps he had even +preserved "our excellent constitution and ... our well earned +liberties." In answer Marshall said that he reciprocated the "joy" of +his "fellow citizens, neighbors, and ancient friends" upon his return; +that they were right in thinking honorable peace with France was +impossible; and warned them against "the countless dangers which lurk +beneath foreign attachments."[801] + +Marshall had become a national hero. Known before this time, outside of +his own State, chiefly to the eminent lawyers of America, his name now +became a household word in the remotest log cabins of Kentucky and +Tennessee, as well as in the residences of Boston and New York. "Saving +General Washington, I believe the President, Pinckney, and Marshall are +the most popular characters now in our country," Troup reported to King +in London.[802] + +For the moment, only one small cloud appeared upon the horizon of +Marshall's popularity; but a vicious flash blazed from it. Marshall went +to Fredericksburg on business and attended the little theater at that +place. The band of the local artillery company furnished the music. A +Philadelphia Federalist, who happened to be present, ordered them to +play "The President's March" ("Hail, Columbia!"). Instantly the audience +was in an uproar. So violent did they become that "a considerable riot +took place." Marshall was openly insulted. Nor did their hostility +subside with Marshall's departure. "The inhabitants of Fredericksburg +waited," in anxious expectation, for an especially hated Federalist +Congressman, Harper of South Carolina, to pass through the town on his +way home, with the intention of treating him even more roughly.[803] + +With this ominous exception, the public demonstrations for Marshall were +warmly favorable. His strength with the people was greater than ever. By +the members of the Federal Party he was fairly idolized. This, the first +formal party organization in our history, was, as we have seen, in sorry +case even under Washington. The assaults of the Republicans, directed by +Jefferson's genius for party management, had all but wrecked the +Federalists. That great party general had out-maneuvered his adversaries +at every point and the President's party was already nearing the +breakers. + +The conduct of the French mission and the publication of Marshall's +dispatches and letters to Talleyrand saved the situation for the moment. +Those whom Jefferson's consummate skill had won over to the Republican +Party returned by thousands to their former party allegiance.[804] + +Congress acted with belated decision. Our treaty with France was +abrogated; non-intercourse laws passed; a provisional army created; the +Navy Department established; arsenals provided; the building of warships +directed. For a season our National machinery was permitted to work with +vigor and effectiveness. + +The voices that were wont to declaim the glories of French democracy +were temporarily silent. The people, who but yesterday frantically +cheered the "liberté, égalité, fraternité" of Robespierre and Danton, +now howled with wrath at mention of republican France. The pulpit became +a tribune of military appeal and ministers of the gospel preached +sermons against American "Jacobins."[805] Federalist orators had their +turn at assailing "despotism" with rhetoric and defending "liberty" with +eloquence; but the French Government was now the international villain +whom they attacked. + +"The struggle between Liberty and Despotism, Government and Anarchy, +Religion and Atheism, has been gloriously decided.... France has been +foiled, and America is free. The elastick veil of Gallick perfidy has +been rent, ... the severing blow has been struck." Our abrogation of the +treaty with France was "the completion of our Liberties, the acme of our +Independence ... and ... emancipated us from the oppressive friendship +of an ambitious, malignant, treacherous ally." That act evidenced "our +nation's manhood"; our Government was now "an Hercules, who, no longer +amused with the coral and bells of 'liberty and equality' ... no longer +willing to trifle at the _distaff_ of a 'Lady Negociator,' boldly +invested himself in the _toga virilis_."[806] Such was the language of +the public platform; and private expressions of most men were even less +restrained. + +Denouncing "the Domineering Spirit and boundless ambition of a nation +whose Turpitude has set _all objections_, divine & human, at +naught,"[807] Washington accepted the appointment as Commander-in-Chief +of the newly raised army. "Huzza! Huzza! Huzza! How transporting the +fact! The great, the good, the aged WASHINGTON has said 'I am ready +again to go with my fellow citizens to the field of battle in defense of +the Liberty & Independence of my Country,'" ran a newspaper +announcement, typically voicing the popular heart.[808] + +To Marshall's brother James, who had offered his services as an +aide-de-camp, Washington wrote that the French "(although _I_ conceive +them capable of _anything_ that is unjust or dishonorable)" will not +"attempt a serious invasion of this country" when they learn of "the +preparation which [we] are making to receive them." They have "made +calculations on false ground" in supposing that Americans would not +"support Independence and the Government of their country _at every +hazard_." Nevertheless, "the highest possible obligation rests upon the +country to be prepared for the event as the most effective means to +avert the evil."[809] Military preparations were active and conspicuous: +On July 4, New York City "resembles a camp rather than a commercial +port," testifies Troup.[810] + +The people for the moment believed, with Marshall and Washington, that +we were on the brink of war; had they known what Jefferson knew, their +apprehension would have been still keener. Reporting from Paris, the +French partisan Skipwith tells Jefferson that, from motives of +"commercial advantage and aggrandisement" as well as of "vengeance," +France will probably fall upon America. "Yes sir, the moment is come +that I see the fortunes, nay, independence, of my country at hazard, and +in the hands of the most gigantic nation on earth.... Already, the +language of planting new colonies upon the ... Mississippi is the +language of Frenchmen here."[811] Skipwith blames this predicament upon +Adams's character, speech, and action and upon Marshall's and Pinckney's +conduct in Paris;[812] and advises Jefferson that "war may be prevented, +and our country saved" by "modifying or breaking" the Jay Treaty and +lending money to France.[813] + +Jefferson was frantic with disappointment and anger. Not only did he see +the Republican Party, which he had built up with such patience and +skill, going to pieces before his very eyes; but the prospect of his +election to the Presidency as the successor of Adams, which until then +appeared to be inviting, now jeopardized if not made hopeless. With his +almost uncanny understanding of men, Jefferson laid all this to +Marshall; and, from the moment of his fellow Virginian's arrival from +France, this captain of the popular cause began that open and malignant +warfare upon Marshall which ended only with Jefferson's last breath. + +At once he set out to repair the havoc which Marshall's work had wrought +in his party. This task was made the harder because of the very tactics +which Jefferson had employed to increase the Republican strength. For, +until now, he had utilized so thoroughly the deep and widespread French +sentiment in America as his immediate party weapon, and made so emphatic +the French issue as a policy of party tactics, that, in comparison, all +other issues, except the central one of States' Rights, were secondary +in the public mind at this particular time. + +The French propaganda had gone farther than Jefferson, perhaps, intended +it to go. "They [the French] have been led to believe by their agents +and Partisans amongst _us_," testifies Washington, "that we are a +divided people, that the latter are opposed to their own +Government."[814] At any rate, it is certain that a direct connection, +between members of what the French politicians felt themselves justified +in calling "the French party" in America and the manipulators of French +public opinion, existed and was made use of. This is shown by the effect +in France of Jefferson's famous letter to Mazzei of April 24, 1796.[815] +It is proved by the amazing fact that Talleyrand's answer to the +memorial of the envoys was published in the Jeffersonian organ, the +"Aurora," before Adams had transmitted that document to Congress, if not +indeed before the President himself had received from our envoys +Talleyrand's reply to Marshall's statement of the American case.[816] + +Jefferson took the only step possible to a party leader. He sought to +minimize the effect of the disclosures revealed in Marshall's +dispatches. Writing to Peter Carr, April 12, 1798, Jefferson said: "You +will perceive that they [the envoys] have been assailed by swindlers, +whether with or without the participation of Talleyrand is not very +apparent.... That the Directory knew anything of it is neither proved +nor probable."[817] On June 8, 1798, Jefferson wrote to Archibald +Stuart: "It seems fairly presumable that the douceur of 50,000 Guineas +mentioned in the former dispatches was merely from X. and Y. as not a +word is ever said by Talleyrand to our envoys nor by them to him on the +subject."[818] Thus Jefferson's political desperation caused him to deny +facts which were of record, for the dispatches show, not only that +Talleyrand had full knowledge of the disgraceful transaction, but also +that he originated and directed it. + +The efforts of the Republicans to sneer away the envoys' disclosures +awakened Washington's bitter sarcasm. The Republicans were +"thunder-stricken ... on the publication of the dispatches from our +envoys," writes he, "but the contents of these dispatches are now +resolved by them into harmless chitchat--mere trifles--less than was or +ought to have been expected from the misconduct of the Administration +of this country, and that it is better to submit to such chastisement +than to hazard greater evils by shewing futile resentment."[819] + +Jefferson made no headway, however, in his attempts to discredit the X. +Y. Z. revelations. Had the Federalists stopped with establishing the +Navy Department and providing for an army, with Washington at its head; +had they been content to build ships and to take other proper measures +for the National defense, Adams's Administration would have been saved, +the Federalist Party kept alive for at least four years more, the +Republican Party delayed in its recovery and Jefferson's election to the +Presidency made impossible. Here again Fate worked, through the +blindness of those whose day had passed, the doom of Federalism. The +Federalists enacted the Alien and Sedition Laws and thus hastened their +own downfall. + +Even after this legislation had given him a new, real, and irresistible +"issue," Jefferson still assailed the conduct of Marshall and Pinckney; +he was resolved that not a single Republican vote should be lost. Months +later he reviews the effect of the X. Y. Z. disclosures. When the envoys +were appointed, he asserts, many "suspected ... from what was understood +of their [Marshall's and Pinckney's] dispositions," that the mission +would not only fail, but "widen the breach and provoke our citizens to +consent to a war with" France "& union with England." While the envoys +were in Paris the Administration's hostile attitude toward France +alarmed the people; "meetings were held ... in opposition to war"; and +the "example was spreading like a wildfire." + +Then "most critically for the government [Administration]," says +Jefferson, "the dispatches ... prepared by ... Marshall, with a view to +their being made public, dropped into their laps. It was truly a +God-send to them & they made the most of it. Many thousands of copies +were printed & dispersed gratis, at the public expense; & the zealots +for war co-operated so heartily, that there were instances of single +individuals who printed & dispersed 10. or 12,000 copies at their own +expense. The odiousness of the corruption supposed in those papers +excited a general & high indignation among the people." + +Thus, declares Jefferson, the people, "unexperienced in such maneuvers," +did not see that the whole affair was the work of "private swindlers" +unauthorized by "the French government of whose participation there was +neither proof nor probability." So "the people ... gave a loose [tongue] +to" their anger and declared "their honest preference of war to +dishonor. The fever was long & successfully kept up and ... war measures +as ardently crowded."[820] + +Jefferson's deep political sagacity did not underestimate the revolution +in the thought and feelings of the masses produced by the outcome of the +French mission; and he understood, to a nicety, the gigantic task which +must be performed to reassemble and solidify the shattered Republican +ranks. For public sentiment was, for the time being, decidedly warlike. +"We will pay tribute to no nation; ... We shall water our soil with our +blood ... before we yield,"[821] was Troup's accurate if bombastic +statement of the popular feeling. + +When the first ship with American newspapers containing the X. Y. Z. +dispatches reached London, they were at once "circulated throughout +Europe,"[822] and "produced everywhere much sensation favorable to the +United States and hostile to France."[823] The intimates of Talleyrand +and the Directory were "disappointed and chagrined.... Nothing can +exceed the rage of the apostate Americans, who have so long +misrepresented and disgraced their country at Paris."[824] From the +first these self-expatriated Americans had flattered Gerry and sent +swarms of letters to America about the good intentions of the +Directory.[825] + +American diplomatic representatives abroad were concerned over +Gerry's whimsical character and conduct. "Gerry is yet in Paris!... +I ... fear ... that man's more than infantine weakness. Of it you +cannot have an idea, unless you had seen him here [The Hague] and at +Paris. Erase all the two lines above; it is true, but it is cruel. If +they get hold of him they will convert him into an innocent baby-engine +against the government."[826] + +And now Gerry, with whom Talleyrand had been amusing himself and whose +conceit had been fed by American partisans of France in Paris, found +himself in sorry case. Talleyrand, with cynical audacity, in which one +finds much grim humor, peremptorily demands that Gerry tell him the +names of the mysterious "X., Y., and Z." With comic self-abasement, the +New Englander actually writes Talleyrand the names of the latter's own +agents whom Gerry had met in Talleyrand's presence and who the French +Minister personally had informed Gerry were dependable men. + +The Federalists made the most of Gerry's remaining in Paris. Marshall +told them that Gerry had "suffered himself to be wheedled in +Paris."[827] "I ... rejoice that I voted against his appointment,"[828] +declared Sedgwick. Cabot denounced Gerry's "course" as "the most +dangerous that cou'd have been taken."[829] Higginson asserted that +"those of us who knew him [Gerry] regretted his appointment and expected +mischief from it; but he has conducted himself worse than we had +anticipated."[830] The American Minister to Great Britain, bitterly +humiliated, wrote to Hamilton that Gerry's "answer to Talleyrand's +demands of the names of X, Y, and Z, place him in a more degraded light +than I ever believed it possible that he or any other American citizen +could be exhibited."[831] And Thomas Pinckney feared "that to want of +[Gerry's] judgment ... may be added qualities of a more criminal +nature."[832] + +Such sentiments, testifies Pickering, were common to all "the public men +whom I had heard speak of Mr. G."; Pinckney, Gerry's colleague, tells +his brother that he "never met with a man _so destitute of candour and +so full of deceit as Mr. Gerry_," and that this opinion was shared by +Marshall.[833] Troup wrote: "We have seen and read with the greatest +contempt the correspondence between Talleyrand and Mr. Gerry relative to +Messrs. X. Y. and Z.... I can say nothing honorable to [of] him [Gerry]. +De mortuis nil nisi bonum is a maxim as applicable to him as if he was +in his grave."[834] Washington gave his opinion with unwonted mildness: +"Nothing can excuse his [Gerry's] _secret_ negotiations.... I fear ... +that _vanity_ which may have led him into the mistake--& consciousness +of being _duped_ by the _Diplomatic skill_ of our good and magnanimous +Allies are too powerful for a weak mind to overcome."[835] + +Marshall was on tenter-hooks for fear that Gerry would not leave France +before the Directory got wind "of the present temper" of the American +people, and would hint to Gerry "insidious propositions ... not with +real pacific views but for the purpose of dividing the people of this +country and separating them from their government."[836] The peppery +Secretary of State grew more and more intolerant of Gerry. He tells +Marshall that "Gerry's correspondence with Talleyrand about W.[837] X. +Y. and Z: ... is the finishing stroke to his conduct in France, by which +he has dishonoured and injured his country and sealed his own indelible +disgrace."[838] + +Marshall was disgusted with the Gerry-Talleyrand correspondence about +the names of "X. Y. Z.," and wrote Pickering of Gerry's dinner to +Talleyrand at which Hottenguer, Bellamy, and Hauteval were present and +of their corrupt proposition to Gerry in Talleyrand's presence.[839] +Pickering urged Marshall to write "a short history of the mission of the +envoys extraordinary," and asked permission to show Marshall's journal +to President Adams.[840] + +Marshall is "unwilling," he says, "that my hasty journal, which I had +never even read over until I received it from you, should be shown to +him. This unwillingness proceeds from a repugnance to give him the +vexation which I am persuaded it would give him." Nevertheless, Adams +did read Marshall's Journal, it appears; for Cabot believed that "the +reading of Marshall's journal has compelled the P[resident] to ... +acquiesce in the unqualified condemnation of Gerry."[841] + +On his return to America, Gerry writes a turgid letter defending himself +and exculpating Talleyrand and the Directory. The Secretary of State +sends Gerry's letter to Marshall, declaring that Gerry "ought to be +impeached."[842] It "astonishes me," replies Marshall; and while he +wishes to avoid altercation, he thinks "it is proper for me to notice +this letter," and encloses a communication to Gerry, together with a +"certificate," stating the facts of Gerry's now notorious dinner to +Talleyrand.[843] + +Marshall is especially anxious to avoid any personal controversy at the +particular moment; for, as will presently appear, he is again running +for office. He tells Pickering that the Virginia Republicans are +"perfectly prepared" to use Gerry in any way "which can be applied to +their purposes"; and are ready "to receive him into their bosoms or to +drop him entirely as he may be French or American." He is so +exasperated, however, that he contemplates publishing the whole truth +about Gerry, but adds: "I have been restrained from doing so by my +having as a punishment for some unknown sins, consented to be nam'd a +candidate for the ensuing election to Congress."[844] + +Finding himself so violently attacked in the press, Marshall says: "To +protect myself from the vexation of these newspaper altercations ... I +wish if it be possible to avoid appearing in print myself." Also he +makes the excuse that the courts are in session, and that "my absence +has plac'd my business in such a situation as scarcely to leave a moment +which I can command for other purposes."[845] + +A week later Marshall is very anxious as to what course Gerry intends to +take, for, writes Marshall, publications to mollify public opinion +toward France and to irritate it against England "and to diminish the +repugnance to pay money to the French republic are appearing every +day."[846] + +The indefatigable Republican chieftain had been busily inspiring attacks +upon the conduct of the mission and particularly upon Marshall. "You +know what a wicked use has been made of the ... X. Y. Z. dish cooked up +by Marshall, where the swindlers are made to appear as the French +government," wrote Jefferson to Pendleton. "Art and industry combined +have certainly wrought out of this business a wonderful effect on the +people." But "now that Gerry comes out clearing the French government of +that turpitude, ... the people will be disposed to suspect they have +been duped." + +Because Marshall's dispatches "are too voluminous for them [the people] +and beyond their reach" Jefferson begs Pendleton to write a pamphlet +"recapitulating the whole story ... short, simple & levelled to every +capacity." It must be "so concise as omitting nothing material, yet may +be printed in handbills." Jefferson proposes to "print & disperse 10. +or 20,000 copies"[847] free of postage under the franks of Republican +Congressmen. + +Pickering having referred scathingly to the Gerry-Talleyrand dinner, +Gerry writes the President, to deny Marshall's account of that function. +Marshall replies in a personal letter to Gerry, which, considering +Marshall's placid and unresentful nature, is a very whiplash of rebuke; +it closes, however, with the hope that Gerry "will think justly of this +subject and will thereby save us both the pain of an altercation I do so +wish to avoid."[848] + +A few months later Marshall, while even more fixed than ever in his +contempt for Gerry, is mellower in expressing it. "I am grieved rather +than surprised at Mr. Gerry's letter," he writes.[849] So ended the only +incident in Marshall's life where he ever wrote severely of any man. +Although the unfriendliness between Jefferson and himself grew through +the years into unrelenting hatred on both sides, Marshall did not +express the intensity of his feeling. While his courage, physical and +moral, was perfect, he had no stomach for verbal encounters. He could +fight to the death with arms or arguments; but personal warfare by +tongue or pen was beyond or beneath him. Marshall simply could not scold +or browbeat. He was incapable of participating in a brawl. + +Soon after reaching Richmond, the domestic Marshall again shines out +sunnily in a letter to his wife at Winchester, over the Blue Ridge. He +tells his "dearest Polly" that although a week has passed he has +"scarcely had time to look into any business yet, there are so many +persons calling every hour to see me.... The hot and disagreeable ride" +to Richmond had been too much for him, but "if I could only learn that +you were entirely restored I should be happy. Your Mama & friends are in +good health & your Mama is as cheerful as usual except when some +particular conversation discomposes her. + +"Your sweet little Mary is one of the most fascinating little creatures +I ever beheld. She has improved very much since I saw her & I cannot +help agreeing that she is a substitute for her lovely sister. She talks +in a way not easily to be understood tho she comprehends very well +everything that is said to her & is the most coquettish little prude & +the most prudish little coquet I ever saw. I wish she was with you as I +think she would entertain you more than all the rest of your children +put together. + +"Poor little John[850] is cutting teeth & of course is sick. He appeared +to know me as soon as he saw me. He would not come to me, but he kept +his eyes fixed on me as on a person he had some imperfect recollection +of. I expect he has been taught to look at the picture & had some +confused idea of a likeness. He is small & weakly but by no means an +ugly child. If as I hope we have the happiness to raise him I trust he +will do as well as the rest. Poor little fellow, the present hot weather +is hard on him cutting teeth, but great care is taken of him & I hope he +will do well. + +"I hear nothing from you my dearest Polly but I will cherish the hope +that you are getting better & will indulge myself with expecting the +happiness of seeing you in October quite yourself. Remember my love to +give me this pleasure you have only to take the cold bath, to use a +great deal of exercise, to sleep tranquilly & to stay in cheerful +company. I am sure you will do everything which can contribute to give +you back to yourself & me. This hot weather must be very distressing to +you--it is to everybody--but it will soon be colder. Let me know in time +everything relative to your coming down. Farewell my dearest Polly. I am +your ever affectionate + + "J. MARSHALL."[851] + +On taking up his private business, Marshall found himself hard-pressed +for money. Payments for the Fairfax estate were overdue and he had no +other resources with which to meet them but the money due him upon his +French mission. "The disarrangement," he writes to the Secretary of +State, "produc'd by my absence and the dispersion of my family oblige me +to make either sales which I do not wish or to delay payments of money +which I ought not to delay, unless I can receive from the treasury. This +state of things obliges me to apply to you and to ask whether you can +furnish me either with an order from the Secretary of the Treasury on +Colo. Carrington or with your request to him to advance money to me. The +one or the other will be sufficient."[852] + +Pickering writes Marshall that Carrington can safely advance him the +needed cash. "I will lose no time to place the balance in your +hands,"[853] says Pickering, upon the receipt of Marshall's statement of +his account with the Government. + +The total amount paid Marshall for his eleven months' absence upon the +French mission was $19,963.97,[854] which, allowing five thousand +dollars for his expenses--a generous estimate--was considerably more +than three times as much as Marshall's annual income from his law +practice. It was an immense sum, considering the compensation of public +officials at that period--not much less than the annual salaries of the +President and his entire Cabinet; more than the total amount annually +paid to the justices of the Supreme Court. Thus, for the time being, the +Fairfax estate was saved. + +It was still necessary, however, if he, his brother, and brother-in-law, +were to discharge the remaining payments, that Marshall should give +himself to the business of making money--to work much harder than ever +he had done before and than his natural inclinations prompted. +Therefore, no more of unremunerative public life for him--no more waste +of time in the Legislature. There never could, of course, come another +such "God-send," to use Marshall's phrase as reported by Jefferson,[855] +as the French mission; and few public offices, National or State, +yielded so much as he could make in the practice of his profession. Thus +financial necessity and his own desire settled Marshall in the resolve, +which he believed nothing ever could shake, to give the remainder of his +days to his personal and private business. But Fate had her own plans +for John Marshall and again overruled what he believed to be his fixed +and unalterable purpose. + + +FOOTNOTES: + +[741] See summary in McMaster, ii, 374. + +[742] Six copies of the dispatches of the American envoys to the +Secretary of State were sent by as many ships, so that at least one of +them might reach its destination. + +[743] Jefferson to Madison, Jan. 25, 1798; _Works_: Ford, viii, 259. + +[744] Jefferson to Madison, Feb. 15, 1798; _Works_: Ford, viii, 368. + +[745] Skipwith to Jefferson, Paris, March 17, 1798; Gibbs, ii, 160. + +[746] _Am. St. Prs., For. Rel._, ii, 152, 157, 159, 161, 166. + +[747] _Ib._ The President at this time communicated only the first +dispatch, which was not in cipher. It merely stated that there was no +hope that the envoys would be received and that a new decree directed +the capture of all neutral ships carrying any British goods whatever. +(_Ib._, 157.) + +[748] _Ib._, 152; Richardson, i, 264; and _Works_: Adams, ix, 156. + +[749] Jefferson to Madison, March 21, 1798; _Works_: Ford, viii, 386. + +[750] Jefferson to Monroe, March 21, 1798; _ib._, 388-89. + +[751] Jefferson to Madison, March 29, 1798; _ib._, 392. + +[752] Jefferson to Pendleton, April 2, 1798; _ib._, 394-97. + +[753] _Aurora_, April 3, 1798. + +[754] Otis to Mason, March 22, 1798; Morison, i, 90. + +[755] Jonathan Mason to Otis, March 30, 1798; _ib._, 93. And see the +valuable New England Federalist correspondence of the time in _ib._ + +[756] _Aurora_, April 7, 1798. A week later, under the caption, "The +Catastrophe," the _Aurora_ began the publication of a series of ably +written articles excusing the conduct of the French officials and +condemning that of Marshall and Pinckney. + +[757] Troup to King, June 3, 1798; King, ii, 329. Ten thousand copies of +the dispatches were ordered printed and distributed at public expense. +Eighteen hundred were sent to Virginia alone. (Pickering to Marshall, +July 24, 1798; Pickering MSS., Mass. Hist. Soc.) This was the beginning +of the printing and distributing of public documents by the National +Government. (Hildreth, ii, 217.) + +[758] Pickering's statement, April 3, 1798; _Am. St. Prs._, ii, 157. + +[759] Jefferson to Madison, April 5, 1798; _Works_: Ford, viii, 398. + +[760] _Ib._ + +[761] Pickering to Jay, April 9, 1798; _Jay_: Johnston, iv, 236. + +[762] Jefferson to Madison, April 26, 1798; _Works_: Ford, viii, 411. +Among the Republicans who deserted their posts Jefferson names Giles, +Nicholas, and Clopton. + +[763] Jefferson to Madison, April 6, 1798; _ib._, 403. + +[764] _Ib._, April 12, 1798; _ib._, 404. + +[765] Jefferson to Carr, April 12, 1798; _Works_: Ford, viii, 405-06. + +[766] Madison to Jefferson, April 15, 1798; _Writings_: Hunt, vi, 315. + +[767] Washington to Pickering, April 16, 1798; _Writings_: Ford, xiii, +495. + +[768] Washington to Hamilton, May 27, 1798; _ib._, xiv, 6-7. + +[769] Sedgwick to King, May 1, 1798; King, ii, 319. + +[770] Ames to Gore, Dec. 18, 1798; _Works_: Ames, i, 245-46. + +[771] Troup to King, June 3, 1798; King, ii, 329. + +[772] Jefferson to Madison, May 3, 1797, _Works_: Ford, viii, 413. + +[773] Jefferson to Monroe, March 7, 1801; _ib._, ix, 203. + +[774] Higginson to Pickering, June 26, 1798; Pickering MSS., Mass. Hist. +Soc. + +[775] Jonathan Mason to Otis, May 28, 1798; Morison, i, 95-96. + +[776] Troup to King, June 3, 1798; King, ii, 329. + +[777] _Ib._, 330; and see letters of Bingham, Lawrence, and Cabot to +King, _ib._, 331-34. From the newspapers of the time, McMaster has drawn +a brilliant picture of the thrilling and dramatic scenes which all over +the United States marked the change in the temper of the people. +(McMaster, ii, 376 _et seq._) + +[778] "Hail Columbia exacts not less reverence in America than the +Marseillaise Hymn in France and Rule Britannia in England." (Davis, +128.) + +[779] Norfolk (Va.) _Herald_, June 25, 1798. + +[780] Troup to King, June 23, 1798; King, ii, 349. + +[781] Even Franklin's welcome on his first return from diplomatic +service in England did not equal the Marshall demonstration. + +[782] A strenuously Republican environ of Philadelphia. + +[783] _Gazette of the United States_, June 20, 1798; see also +Claypoole's _American Daily Advertiser_, Wednesday, June 20, 1798. + +[784] _Gazette of the United States_, June 21, 1798. + +[785] _Aurora_, June 21, 1798; and see _ib._, June 20. + +[786] Jefferson to Madison, June 21, 1798; _Works_: Ford, viii, 439-40. + +[787] General Marshall at O'Eller's Hotel, June 23, 1798; Jefferson +MSS., Lib. Cong. + +[788] _Green Bag_, viii, 482-83. + +[789] Marshall to Jefferson; Jefferson MSS., Lib. Cong. + +[790] Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist. +Soc. + +[791] This sentiment has been ascribed to General C. C. Pinckney, +Marshall's colleague on the X. Y. Z. mission. But it was first used at +the Philadelphia banquet to Marshall. Pinckney's nearest approach to it +was his loud, and wrathful, "No! not a sixpence!" when Hottenguer made +one of his incessant demands for money. (See _supra_, 273.) + +[792] Claypoole's _American Daily Advertiser_, Wednesday, June 20, 1798; +Pa. Hist. Soc. The toasts drank at this dinner to Marshall illustrate +the popular spirit at that particular moment. They also furnish good +examples of the vocabulary of Federalism at the period of its revival +and only two years before its annihilation by Jefferson's new party:-- + + "1. The United States--'free, sovereign & independent.' + + "2. The people and the Government--'one and indivisible.' + + "3. The President--'some other hand must be found to sign the + ignominious deed' that would surrender the sovereignty of his + Country. + + "4. General Washington--'His name a rampart & the Knowledge that + he lives a bulwark against mean and secret enemies of his + Country's Peace.' + + "5. General Pinckney. ''Tis not in mortals to command success: He + has done more--deserved it.' + + "6. The Officers & Soldiers of the American Army. 'May glory be + their Theme, Victory their Companion, & Gratitude & Love their + Rewards.' + + "7. The Navy of the United States. 'May its infant efforts, like + those of Hercules, be the Presage of its future Greatness.' + + "8. The Militia. 'May they never cease to combine the Valor of + the Soldier with the Virtues of the Citizen.' + + "9. The Gallant Youth of America. 'May they disdain to hold as + Tenants at Will, the Independence inherited from their + ancestors.' + + "10. The Heroes who fell in the Revolutionary War. 'May their + memory never be dishonored by a surrender of the Freedom + purchased with their Blood.' + + "11. The American Eagle. 'May it regard with disdain the crowing + of the Gallic cock.' + + "12. Union & Valour--infallible Antidotes against diplomatic + skill. + + "13. Millions for Defense but not a cent for Tribute. + + "14. The first duties of a good citizen--Reverence for the Laws + and Respect for the Magistracy. + + "15. Agriculture & Commerce--A Dissolution of whose partnership + will be the Bankruptcy of both. + + "16. The Constitution--'Esto Perpetua.' + + "After General Marshall Retired:-- + + "General Marshall--The man whom his country delights to Honor." + (_Ib._, June 25, 1798.) + +[793] Claypoole's _American Daily Advertiser_, Monday, June 25, 1798; +and _Gazette of the United States_, Saturday, June 23, 1798. + +[794] _Ib._, June 25, 1798; and June 23, 1798. + +[795] Adams to Congress, June 21, 1798; _Works_: Adams, ix, 158; and +Richardson, i, 266. Italics are mine. + +[796] _Infra_, chap. XII. + +[797] Marshall to Washington, June 22, 1798; MS., Lib. Cong. + +[798] _Aurora_, June 30, 1798. + +[799] _Gazette of the United States_, June 28, 1797. + +[800] _Columbian Centinel_, Boston, Sept. 22, 1798. + +[801] Norfolk (Va.) _Herald_, Aug. 30, 1798. + +[802] Troup to King, Nov. 16, 1798; King, ii, 465; and see same to same, +July 10, 1798; _ib._, 363. + +[803] Carey's _United States Recorder_, Aug. 16, 1798. + +[804] McMaster, ii, 380-85; Hildreth, v, 203 _et seq._ + +[805] McMaster, ii, 380-85. + +[806] "Oration of Robert Treat Paine to Young Men of Boston," July 17, +1799; in Works of _Robert Treat Paine_, ed. 1812, 301 _et seq._ + +[807] Washington to Murray, Aug. 10, 1798; _Writings_: Ford, xiv, 72. + +[808] Norfolk (Va.) _Herald_, July 10, 1798. + +[809] Washington to Jas. Marshall, July 18, 1798; MS., N.Y. Pub. Lib. +And see Washington to Murray, Aug. 10, 1798; _Writings_: Ford, xiv, 71. +"I ... hope that ... when the Despots of France find how much they ... +have been deceived by their partisans _among us_, ... that an appeal to +arms ... will be ... unnecessary." (_Ib._) + +[810] Troup to King, July 10, 1798; King, ii, 362. + +[811] Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158. + +[812] _Supra_, chap. VIII. + +[813] Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158. + +[814] Washington to Adams, July 4, 1798; _Writings_: Ford, xiv, 15-19. + +[815] See _infra_, chap. XII. + +[816] See Marshall (1st ed.), v, footnote to 743; Hildreth, v, 218; also +McMaster, ii, 390. + +[817] Jefferson to Carr, April 12, 1798; _Works_: Ford, viii, 405. + +[818] Jefferson to Stuart, June 8, 1798; _ib._, 436. + +[819] Washington to McHenry, May, 1798; _Writings_: Ford, xiii, footnote +to 495. + +[820] Jefferson to Gerry, Jan. 26, 1799; _Works_: Ford, ix, 21-22. + +[821] Troup to King, July 10, 1798; King, ii, 363. + +[822] King to Hamilton, London, July 14, 1798; _ib._, 365. + +[823] Smith to Wolcott, Lisbon, Aug. 14, postscript Aug. 17, 1798; +Gibbs, ii, 120. + +[824] King to Troup, July 31, 1798; King, ii, 377. + +[825] King to Pickering, July 19, 1798; _ib._, 370. + +[826] Murray to J. Q. Adams, June 8, 1787; _Letters_: Ford, 416. + +[827] Troup to King, July 10, 1798; King, ii, 363. + +[828] Sedgwick to King, July 1, 1798; _ib._, 353. + +[829] Cabot to King, July 2, 1798; _ib._, 353. + +[830] Higginson to Wolcott, Sept. 11, 1798; Gibbs, ii, 107. + +[831] King to Hamilton, London, July 14, 1798; King, ii, 365. + +[832] Thomas Pinckney to King, July 18, 1798; King, ii, 369. + +[833] Pickering to King, Sept. 15, 1798, quoting Pinckney; _ib._, 414. +Italics are Pinckney's. + +[834] Troup to King, Oct. 2, 1798; _ib._, 432-33. + +[835] Washington to Pickering, Oct. 26, 1798; _Writings_: Ford, xiv, +121. + +[836] Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist. +Soc. + +[837] Beaumarchais. + +[838] Pickering to Marshall, Sept. 4, 1798; Pickering MSS., Mass. Hist. +Soc. + +[839] Marshall to Secretary of State, Sept. 15, 1798; _ib._ + +[840] Pickering to Marshall, Oct. 19, 1798; _ib._ + +[841] Cabot to King, April 26, 1798; King, iii, 9. + +[842] Pickering to Marshall, Nov. 5, 1798; Pickering MSS. + +[843] Marshall to Pickering, Nov. 12, 1798; _ib._ + +[844] See next chapter. + +[845] Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist. +Soc. + +[846] Marshall to Pickering, Oct. 22, 1798; _ib._, Mass. Hist. Soc., +xxiii, 251. + +[847] Jefferson to Pendleton, Jan. 29, 1799; _Works_: Ford, ix, 27-28. + +[848] Marshall to Pickering, November 12, 1798; Pickering MSS., Mass. +Hist. Soc. + +[849] Marshall to Secretary of State, Feb. 19, 1799; _ib._ + +[850] Marshall's fourth child, born January 15, 1798, during Marshall's +absence in France. + +[851] Marshall to his wife, Richmond, Aug. 18, 1798; MS. Mrs. Marshall +remained in Winchester, where her husband had hurried to see her after +leaving Philadelphia. Her nervous malady had grown much worse during +Marshall's absence. Mrs. Carrington had been "more than usual occupied +with my poor sister Marshall ... who fell into a deep melancholy. Her +husband, who might by his usual tenderness (had he been here) have +dissipated this frightful gloom, was long detained in France.... The +malady increased." (Mrs. Carrington to Miss C[airns], 1800; Carrington +MSS.) + +[852] Marshall to Pickering, August 11, 1798; Pickering MSS., Mass. +Hist. Soc., xxiii, 33. + +[853] Pickering to Marshall, Sept. 4, 1798; _ib._ + +[854] Archives, State Department. Thirty-five hundred dollars was placed +at Marshall's disposal when he sailed for France, five hundred dollars +in specie and the remainder by letter of credit on governments and +European bankers. (Marshall to Secretary of State, July 10, 1797; +Pickering MSS. Also Archives, State Department.) He drew two thousand +dollars more when he arrived at Philadelphia on his return (June 23; +_ib._), and $14,463.97 on Oct. 13 (_ib._). + +[855] The "Anas"; _Works_: Ford, i, 355. + + + + +CHAPTER X + +CANDIDATE FOR CONGRESS + + Of the three envoys, the conduct of General Marshall alone has + been entirely satisfactory. (Adams.) + + In heart and sentiment, as well as by birth and interest, I am an + American. We should make no political connection with any nation + on earth. (Marshall to constituents.) + + Tell Marshall I love him because he felt and acted as a Republican + and an American. (Patrick Henry.) + + +In the congressional campaign of 1798-99, the Federalists of the +Richmond District were without a strong candidate. The one they had put +up lacked that personal popularity which then counted for as much in +political contests as the issues involved. Upon Marshall's return from +France and his enthusiastic reception, ending with the Richmond +demonstration, the Federalist managers pressed Marshall to take the +place of the candidate then running, who, indeed, was anxious to +withdraw in his favor. But the returned envoy refused, urged the +Federalist then standing to continue his candidacy, and pledged that he +would do all in his power to secure his election. + +Finally Washington asked Marshall to come to see him. "I received an +invitation from General Washington," writes Marshall in his account of +this important event, "to accompany his nephew ... on a visit to Mount +Vernon."[856] + +When Bushrod Washington wrote that Marshall accepted the invitation, the +General was extremely gratified. "I learnt with much pleasure ... of +General Marshall's intention to make me a visit," he writes his nephew. +"I wish it of all things; and it is from the ardent desire I have to see +him that I have not delayed a moment to express it.... The crisis is +most important.... The temper of the people in this state ... is so +violent and outrageous that I wish to converse with General Marshall and +yourself on the elections which must soon come."[857] Washington says +that when his visitors arrive the matter of the fictitious Langhorne +letter will also be taken up "and we will let General Marshall into the +whole business and advise with him thereon."[858] + +To Mount Vernon, therefore, Marshall and his companion journeyed on +horseback. For convenience in traveling, they had put their clothing in +the same pair of saddle-bags. They arrived in a heavy rain and were +"drenched to the skin." Unlocking the saddle-bags, the first article +they took out was a black bottle of whiskey. With great hilarity each +charged this to be the property of the other. Then came a thick twist of +tobacco, some corn bread, and finally the worn apparel of wagoners; at +some tavern on the way their saddle-bags had become exchanged for those +of drivers. The rough clothes were grotesque misfits; and when, clad in +these, his guests presented themselves, Washington, roaring with +laughter, expressed his sympathy for the wagoners when they, in turn, +discovered the exchange they had made with the lawyers.[859] In such +fashion began the conference that ended in John Marshall's candidacy for +Congress in the vital campaign of 1798-99. + +This was the first time, so far as is known, that Marshall had visited +Washington at his Potomac home. No other guest except Washington's +nephew seems to have been present at this conference, so decisive of +Marshall's future. The time was September, 1798, and the conversations +were held on the broad piazza,[860] looking out upon the river, with the +new Capitol almost within sight. There, for "four or five days," his old +commander used all his influence to induce Marshall to become the +Federalist candidate. + +"General Washington urged the importance of the crisis," writes Marshall +in describing the circumstance; "every man," insisted Washington, "who +could contribute to the success of sound opinions was required by the +most sacred duty to offer his services to the public." Marshall doubted +his "ability to do any good. I told him that I had made large pecuniary +engagements which required close attention to my profession and which +would distress me should the emoluments derived from it be abandoned." + +Marshall told of his promise to the Federalist candidate who was then +making his campaign for election. Washington declared that this +candidate still would withdraw in Marshall's favor; but Marshall +remained unshaken. Finally Washington gave his own conduct as an +example. Marshall thus describes the final appeal which his old leader +made to him: "He had withdrawn from office with a declaration of his +determination never again, under any circumstances, to enter public +life. No man could be more sincere in making that declaration, nor could +any man feel stronger motives for adhering to it. No man could make a +stronger sacrifice than he did in breaking a resolution, thus publicly +made, and which he had believed to be unalterable. Yet I saw him," +continues Marshall, "in opposition to his public declaration, in +opposition to his private feelings, consenting, under a sense of duty, +to surrender the sweets of retirement, and again to enter the most +arduous and perilous station which an individual could fill. My +resolution yielded to this representation."[861] + +There is a tradition that, at one point in the conference, Marshall, +becoming offended by Washington's insistence, which, runs the story, +took the form of a peremptory and angrily expressed command, determined +to leave so early in the morning that his host would have no opportunity +to press the matter further; but, Washington noting Marshall's +irritation and anticipating his purpose, was on the piazza when his +departing guest appeared at dawn, and there made the final appeal which +won Marshall's reluctant consent. + +Marshall felt that he was making a heavy personal sacrifice; it meant to +him the possible loss of the Fairfax estate. As we have seen, he had +just declined appointment to the Supreme Bench[862] for this very +reason, and this place later was given to Bushrod Washington, largely on +Marshall's advice.[863] Adams had been reluctant to give Marshall up as +one of the Associate Justices of the Supreme Court; "General Marshall or +Bushrod Washington will succeed Judge Wilson," wrote the President to +his Secretary of State[864] nearly three months after the first tender +of the place to Marshall in Philadelphia. Later on the President again +returned to Marshall. + +"I still think that General Marshall ought to be preferred," he wrote. +"Of the three envoys, the conduct of Marshall alone has been entirely +satisfactory, and ought to be marked by the most decided approbation of +the public. He has raised the American people in their own esteem, and, +if the influence of truth and justice, reason and argument is not lost +in Europe, he has raised the consideration of the United States in that +quarter of the world.... If Mr. Marshall should decline, I should next +think of Mr. [Bushrod] Washington."[865] + +Washington's appeal to Marshall's patriotism and sense of duty, however, +outbalanced the weighty financial reasons which decided him against +becoming an Associate Justice of the Supreme Court. Thus, against his +desire, he found himself once more in the hurly-burly of partisan +politics. But this time the fight which he was forced to lead was to be +desperate, indeed. + +The moment Marshall announced his candidacy he became the center of +Republican attack in Virginia. The virulence of the campaign against him +was so great that it has become a tradition; and while scarcely any of +the personal assaults, which appeared in print, are extant, they are +known to have been ruthless, and utterly unrestrained both as to the +charges made and the language used in making them. + +In his scurrilous review of Adams's Administration, which Adams properly +denounced as "a Mass of Lyes from the first page to the last,"[866] John +Wood repeats the substance of some of the attacks which, undoubtedly, +were launched against Marshall in this bitter political conflict. "John +Marshall," says Wood, "was an improper character in several respects; +his principles of aristocracy were well known. Talleyrand, when in +America, knew that this man was regarded as a royalist and not as a +republican, and that he was abhorred by most honest characters."[867] + +The abuse must have been very harsh and unjust; for Marshall, who seldom +gave way to resentment, complained to Pickering with uncharacteristic +temper. "The whole malignancy of Anti-federalism," he writes, "not only +in the district, where it unfortunately is but too abundant, but +throughout the State, has become uncommonly active and considers itself +as peculiarly interested in the reëlection of the old member [Clopton]. + +"The Jacobin presses, which abound with us and only circulate within the +State, teem with publications of which the object is to poison still +further the public opinion and which are level'd particularly at me. +Anything written by me on the subject of French affairs wou'd be +ascrib'd to me, whether it appear'd with or without my signature and +wou'd whet and sharpen up the sting of every abusive scribbler who had +vanity enough to think himself a writer because he cou'd bestow personal +abuse and cou'd say things as malignant as they are ill founded."[868] + +The publication of the American envoys' dispatches from France, which +had put new life into the Federalist Party, had also armed that decaying +organization with enough strength to enact the most imprudent measures +that its infatuated leaders ever devised. During June and July, 1798, +they had succeeded in driving through Congress the famous Alien and +Sedition Laws.[869] + +The Alien Act authorized the President to order out of the country all +aliens whom he thought "dangerous" or "suspected" of any "treasonable or +secret machination against the government" on pain of imprisonment not +to exceed three years and of being forever afterwards incapacitated from +becoming citizens of the United States. But if the alien could prove to +the satisfaction of the President that he was not dangerous, a +presidential "license" might be granted, permitting the alien to remain +in the United States as long as the President saw fit and in such place +as he might designate. If any expelled alien returned without permission +he was to be imprisoned as long as the President thought "the public +safety may require." + +The Sedition Act provided penalties for the crime of unlawful +combination and conspiracy against the Government;[870] a fine not +exceeding two thousand dollars and imprisonment not exceeding two years +for any person who should write, print, publish, or speak anything +"false, scandalous and malicious" against the Government, either House +of Congress, or the President "with intent to defame" the Government, +Congress, or the President, or "to bring them or either of them into +contempt or disrepute; or to excite against them or either or any of +them the hatred of the good people of the United States, or to stir up +sedition within the United States." + +When Jefferson first heard of this proposed stupid legislation, he did +not object to it, even in his intimate letters to his lieutenant +Madison.[871] Later, however, he became the most ferocious of its +assailants. Hamilton, on the other hand, saw the danger in the Sedition +Bill the moment a copy reached him: "There are provisions in this +bill ... highly exceptionable," he wrote. "I hope sincerely the thing +may not be hurried through. Let us not establish a tyranny. Energy is a +very different thing from violence."[872] When Madison got the first +inkling of the Alien Bill, he wrote to Jefferson that it "is a monster +that must forever disgrace its parents."[873] + +As soon as the country learned what the Alien and Sedition Laws +contained, the reaction against the Federalist Party began. In vain did +the Federalists plead to the people, as they had urged in the debate in +Congress, that these laws were justified by events; in vain did they +point out the presence in America of large numbers of foreigners who +were active and bitter against the American Government; in vain did they +read to citizens the abuse published in newspapers against the +Administration and cite the fact that the editors of these libelous +sheets were aliens.[874] + +The popular heart and instinct were against these crowning blunders of +Federalism. Although the patriotic wave started by Marshall's return and +the X. Y. Z. disclosures was still running strong, a more powerful +counter-current was rising. "Liberty of the press," "freedom of speech," +"trial by jury" at once became the watchwords and war-cries of +Republicanism. On the hustings, in the newspapers, at the taverns, the +Alien and Sedition Laws were denounced as unconstitutional--they were +null and void--no man, much less any State, should obey or respect them. + +The Alien Law, said its opponents, merged the Judicial and the Executive +Departments, which the Constitution guaranteed should be separate and +distinct; the Sedition Act denied freedom of speech, with which the +Constitution expressly forbade Congress to interfere; both struck at the +very heart of liberty--so went the Republican argument and appeal.[875] + +In addition to their solid objections, the Republicans made delirious +prophecies. The Alien and Sedition Laws were, they asserted, the +beginning of monarchy, the foundation of absolutism. The fervid +Jefferson indulged, to his heart's content, in these grotesque +predictions: "The alien & sedition laws are working hard," declared the +great Republican. Indeed, he thought them only "an experiment on the +American mind to see how far it will bear an avowed violation of the +constitution. If this goes down, we shall immediately see attempted +another act of Congress declaring that the President shall continue in +office during life, reserving to another occasion the transfer of the +succession to his heirs, and the establishment of the Senate for +life.... That these things are in contemplation, I have no doubt; nor +can I be confident of their failure, after the dupery of which our +countrymen have shewn themselves susceptible."[876] + +Washington was almost as extravagant on the other side. When an opponent +of the Alien and Sedition Acts asked him for his opinion of them, he +advised his questioner to read the opposing arguments "and consider to +what lengths a certain description of men in our country have already +driven and seem resolved further to drive matters" and then decide +whether these laws are not necessary, against those "who acknowledge no +allegiance to this country, and in many instances are sent among us ... +for the express purpose of poisoning the minds of our people,--and to +sow dissensions among them, in order to alienate their affections from +the government of their choice, thereby endeavoring to dissolve the +Union."[877] + +Washington thought that the ferocious Republican attack on the Alien and +Sedition Laws was but a cunning maneuver of politicians, and this, +indeed, for the moment at least, seems to have been the case. "The Alien +and Sedition Laws are now the desiderata of the Opposition.... But any +thing else would have done,--and something there will always be, for +them to torture; and to disturb the public mind with their unfounded and +ill favored forebodings" was his pessimistic judgment.[878] + +He sent "to General Marshall Judge Addison's charge to the grand juries +of the county courts of the Fifth Circuit of the State of +Pennsylvania.... This charge is on the liberty of speech and of the +press and is a justification of the sedition and alien laws. But," wrote +Washington, "I do not believe that ... it ... or ... any other writing +will produce the least change in the conduct of the leaders of the +opposition to the measures of the general government. They have points +to carry from which no reasoning, no consistency of conduct, no +absurdity can divert them. If, however, such writings should produce +conviction in the mind of those who have hitherto placed faith in their +assertions, it will be a fortunate event for this country."[879] + +Marshall had spoken in the same vein soon after his arrival at Richmond. +"The people ... are pretty right as it respects France," he reports to +the Secretary of State. The Republican criticisms of the X. Y. Z. +mission "make so little impression that I believe France will be given +up and the attack upon the government will be supported by the alien and +sedition laws. I am extremely sorry to observe that here they are more +successful and that these two laws, especially the sedition bill, are +viewed by a great many well meaning men, as unwarranted by the +constitution. + +"I am entirely persuaded that with many the hate of Government of our +country is implacable and that if these bills did not exist the same +clamor would be made by them on some other account, but," truthfully and +judicially writes Marshall, "there are also many who are guided by very +different motives, and who tho' less noisy in their complaints are +seriously uneasy on this subject."[880] + +The Republicans pressed Marshall particularly hard on the Alien and +Sedition Laws, but he found a way to answer. Within a few days after he +had become the Federalist candidate, an anonymous writer, signing +himself "Freeholder," published in the Richmond newspapers an open +letter to Marshall asking him whether he was for the Constitution; +whether the welfare of America depended on a foreign alliance; whether a +closer connection with Great Britain was desirable; whether the +Administration's conduct toward France was wise; and, above all, +whether Marshall was "an advocate of the alien and sedition bills or in +the event of your election will you use your influence to obtain a +repeal of these laws?" + +In printing Marshall's answers to "Freeholder," the "Times and Virginia +Advertiser" of Alexandria remarked: "Mr. John Marshall has offered as a +candidate for a representative in the next Congress. He has already +begun his electioneering campaign. The following are answers to some +queries proposed to him. Whether the queries were propounded with a view +of discovering his real sentiments, or whether they were published by +one of his friends to serve electioneering purposes, is immaterial:--The +principles Mr. Marshall professes to possess are such as influence the +conduct of every real American."[881] + +A week later Marshall published his answers. "Every citizen," says he, +"has a right to know the political sentiments of a candidate"; and +besides, the candidate wishes everybody to know his "real principles" +and not "attribute" to him "those with which active calumny has ... +aspersed" him. In this spirit Marshall answers that "in heart and +sentiment, as well as by birth and interest," he is "an American; +attached to the ... Constitution ... which will preserve us if we +support it firmly." + +He is, he asserts, against any alliance, "offensive or defensive," with +Great Britain or "any closer connection with that nation than already +exists.... No man in existence is more decidedly opposed to such an +alliance or more fully convinced of the evils that would result from +it." Marshall declares that he is for American neutrality in foreign +wars; and cites his memorial to Talleyrand as stating his views on this +subject. + +"The whole of my politics respecting foreign nations, are reducible to +this single position: ... Commercial intercourse with all, but political +ties with none ... buy as cheap and sell as dear as possible ... never +connect ourselves politically with any nation whatever." + +He disclaims the right to speak for the Administration, but believes it +to have the same principles. If France, while at war with Great Britain, +should also make war on America, "it would be madness and folly" not to +secure the "aid of the British fleets to prevent our being invaded"; +but, not even for that, would he "make such a sacrifice as ... we should +make by forming a permanent political connection with ... any nation on +earth." + +Marshall says that he believes the Administration's policy as regards +France to have been correct, and necessary to the maintenance "of the +neutrality and independence of our country." Peace with France was not +possible "without sacrificing those great objects," for "the primary +object of France is ... dominion over others." The French accomplish +this purpose by "immense armies on their part and divisions among ... +those whom they wish to subdue." + +Marshall declares that he is "not an advocate of the Alien and Sedition +Bills," and, had he been in Congress, "certainly would have opposed +them," although he does not "think them fraught with all those mischiefs +ascribed to them." But he thinks them "useless ... calculated to create +unnecessary discontents and jealousies"; and that, too, "at a time when +our very existence as a nation may depend on our union." + +He believes that those detested laws "would never have been enacted" if +they had been opposed on these principles by a man not suspected of +intending to destroy the government or being hostile to it." The effort +to repeal them "will be made before he can become a member of Congress"; +if it fails and is renewed after he takes his seat, he "will obey the +voice of his constituents." He thinks, however, it will be unwise to +revive the Alien and Sedition Acts which are, by their own terms, about +to expire; and Marshall pledges that he will "indisputably oppose their +revival."[882] + +Upon Marshall as their favorite candidate for Congress, the eyes of the +Federalist leaders in other States were focused. They were particularly +anxious and uncertain as to his stand on the Alien and Sedition Laws; +for he seems to have privately expressed, while in Philadelphia on his +return from France, a mild disapproval of the wisdom and political +expediency of this absurd legislation. His answers to "Freeholder" were +therefore published everywhere. When the New England Federalists read +them in the "Columbian Centinel" of Saturday, October 20, most of them +were as hot against Marshall as were the rabid Virginia Republicans. + +Ames whetted his rhetoric to razor edge and slashed without mercy. He +describes Republican dismay when Marshall's dispatches were published: +"The wretches [Republicans] looked round, like Milton's devils when +first recovering from the stunning force of their fall from Heaven, to +see what new ground they could take." They chose, says Ames, "the +alien and sedition bills, and the land tax" with which to arouse +discontent and revive their party. So "the implacable foes of the +Constitution--foes before it was made, while it was making, and +since--became full of tender fears lest it should be violated by +the alien and sedition laws." + +The Federalists, complained Ames, "are forever hazarding the cause by +heedless and rash concessions. John Marshall, with all his honors in +blossom and bearing fruit, answers some newspaper queries unfavorably to +these laws.... No correct man,--no incorrect man, even,--whose +affections and feelings are wedded to the government, would give his +name to the base opposers of the law.... This he has done. Excuses may +palliate,--future zeal in the cause may partially atone,--but his +character is done for.... Like a man who in battle receives an ounce +ball in his body--it may heal, it lies too deep to be extracted.... +There let it lie. False Federalists, or such as act wrong from false +fears, should be dealt hardly by, if I were Jupiter Tonans.... The +moderates [like Marshall] are the meanest of cowards, the falsest of +hypocrites."[883] Theodore Sedgwick declared that Marshall's "mysterious +& unpardonable" conduct had aided "french villainy" and that he had +"degraded himself by a mean & paltry electioneering trick."[884] + +At first, the Republicans praised Marshall's stand; and this made the +New England Federalists frantic. Cabot, alone, defended Marshall in the +press, although not over his own name and only as a matter of party +tactics. He procured some one to write to the "Columbian Centinel" under +the name of "A Yankee Freeholder." This contributor tried to explain +away Marshall's offense. + +"General Marshall is a citizen too eminent for his talents, his virtues +and his public services, to merit so severe a punishment as to [receive +the] applause of disorganizers [Republicans]." He should be saved from +the "admiration of the _seditious_"--that much was due to Marshall's +"spirit, firmness and eloquence" in the contest with "the Despots of +_France_." As "drowning men would catch at straws" so "the eagle-eyed +and disheartened sons of faction" had "with forlorn and desperate ... +avidity ... seized on" Marshall's answers to "Freeholder." + +And no wonder; for "even _good men_ have stood appalled, at observing a +man whom they so highly venerate soliciting votes at the expense of +principles which they deem sacred and inviolable." "Yankee Freeholder" +therefore proposes "to vindicate General MARSHALL." + +Marshall was the only Richmond Federalist who could be elected; he +"patriotically" had consented to run only because of "the situation and +danger of his country at this moment." Therefore "it was absolutely +necessary to take all the ordinary steps" to succeed. This "may appear +extraordinary ... to those who are only acquainted with the delicacy of +_New England_ elections where _personal_ solicitation is the +Death-warrant to success"; but it was "not only pardonable but +necessary ... in the Southern States." + +"Yankee Freeholder" reminded his readers that "Calumny had assailed +General MARSHALL, in common with other men of merit." Virginia +newspapers had "slandered him"; politicians had called him +"_Aristocrat_, _Tory_, and _British Agent_. All this abuse ... would +infallibly have rendered him popular in _New-England_"--but not so in +"_Virginia_," where there were "too many ignorant, ill-informed and +inflamed minds." + +Therefore, "it became necessary that General MARSHALL should explicitly +exhibit his political creed." After all, his answers to "Freeholder" +were not so bad--he did not assail the constitutionality of the Alien +and Sedition Laws. "If Gen. MARSHALL thought them unconstitutional or +dangerous to liberty, would he" be content merely to say they were +unnecessary? "Would a man of General MARSHALL'S force of reasoning, +simply denominate _laws useless_," if he thought them unconstitutional? +"No--the idea is too absurd to be indulged.... Time and General +MARSHALL'S conduct will hereafter prove that I am not mistaken in my +opinion of his sentiments."[885] + +Cabot's strategy had little effect on New England, which appeared to +dislike Virginia with a curious intolerance. The Essex County +politician, nevertheless, stood by his guns; and six months later thus +reassures King: "I am ready to join you as well as Ames in reprobating +the publication of Marshall's sentiments on the Sedition & Alien Acts, +but I still _adhere_ to my first opinion that Marshall ought not to be +attacked in the Newspapers, nor too severely condemned anywhere, because +Marshall has not yet learned his whole lesson, but has a mind & +disposition which can hardly fail to make him presently an accomplished +(political) Scholar & a very useful man. + +"Some allowance too should be made," contends Cabot, "for the influence +of the Atmosphere of Virginia which doubtless makes every one who +breathes it visionary &, upon the subject of Free Govt., incredibly +credulous; but it is certain that Marshall at Phila. would become a most +powerful auxiliary to the cause of order & good Govt., & _therefore_ we +ought not to diminish his fame which wou'd ultimately be a loss to +ourselves."[886] + +The experienced practical politician, Sedgwick, correctly judged that +"Freeholder's" questions to Marshall and Marshall's answers were an +"electioneering trick." But Pickering stoutly defended Marshall upon +this charge. "I have not met with one good federalist, who does not +regret his answers to the Freeholder; but I am sorry that it should be +imagined to be an 'electioneering trick.'... General Marshall is +incapable of doing a dishonorable act." Only Marshall's patriotism had +induced him to accept the French mission, said the Secretary of +State.[887] Nothing but "the urging of friends ... overcame his +reluctance to come to Congress.... A man of untainted honor," had +informed Pickering that "Marshall is a _Sterling fellow_."[888] + +The Federalists' complaints of him continued to be so strong and +widespread, however, that they even reached our legations in Europe: "I +too have lamented that John Marshall, after such a mission particularly, +should lend himself thus against a law which the French Jacobinism in +the United States had forced government to adopt. M[arshall] _before_, +was not, that we ever heard of, one of us."[889] + +Toward the end of October Marshall gives his private opinion of the +Virginia Republicans and their real motives, and foretells the Virginia +Resolutions. "The real french party of this country again begins to +show itself," he writes. "There are very many indeed in this part of +Virginia who speak of our own government as an enemy infinitely more +formidable and infinitely more to be guarded against than the French +Directory. Immense efforts are made to induce the legislature of the +state which will meet in Dec'r to take some violent measure which may be +attended with serious consequences. I am not sure that these efforts +will entirely fail. It requires to be in this part of Virginia to know +the degree of irritation which has been excited and the probable extent +of the views of those who excite it."[890] + +The most decent of the attacks on Marshall were contained in a series of +open letters first published in the "Aurora"[891] and signed "Curtius." + +"You have long been regarded," writes Curtius, "as the leader of that +party in this State" which has tried "by audacious efforts to erect a +monarchy or aristocracy upon the ruins of our free constitution. The +energy of your mind and the violence of your zeal have exalted you to +this bad eminence." If you had "employed your talents in defense of the +people ... your history would have been read in a nation's eyes." + +"The publication of your dispatches and the happy exercise of diplomatic +skill has produced a momentary delusion and infatuation in which an +opposition to the administration is confounded with hostility to the +government and treason to the country.... The execrations and yells +against French cruelty and French ambition, are incessantly kept up by +the hirelings of Great Britain and the enemies of liberty." + +But, he cries, "the vengeance of an oppressed and insulted people is +almost as terrible as the wrath of Heaven"; and, like a true partisan, +Curtius predicts that this is about to fall on Marshall. Why, he asks, +is Marshall so vague on the constitutionality of the Alien and Sedition +Laws?[892] "Notwithstanding the magnitude ... of your talents, you are +ridiculously awkward in the arts of dissimulation and hypocrisy.... It +is painful to attack ... a man whose talents are splendid and whose +private character is amiable"; but "sacred duties ... to the cause of +truth and liberty require it." Alas for Marshall! "You have lost +forever," Curtius assures him, "the affection of a nation and the +applause of a world. In vain will you pursue the thorny and rugged path +that leads to fame."[893] + +But while "monarchist," "aristocrat," "British agent," "enemy of free +speech," "destroyer of trial by jury" were among the more moderate +epithets that filled the air from Republican lips; and "anarchist," +"Frenchman," "traitor," "foe of law and order," "hater of government" +were the milder of the counter-blasts from the Federalists, all this was +too general, scattered, and ineffective to suit the leader of the +Republican Party. Jefferson saw that the growing popular rage against +the Alien and Sedition Laws must be gathered into one or two +concentrated thunderbolts and thus hurled at the heads of the already +quaking Federalists. + +How to do it was the question to which Jefferson searched for an answer. +It came from the bravest, most consistent, most unselfish, as well as +one of the very ablest of Republicans, John Taylor "of Caroline," +Virginia. In a letter to Jefferson concerning the Alien and Sedition +Laws, this eminent and disinterested radical suggested that "_the right +of the State governments to expound the constitution_ might possibly be +made the basis of a movement towards its amendment. If this is +insufficient the people in state conventions are incontrovertibly the +contracting parties and, possessing the infringing rights, may proceed +by orderly steps to attain the object."[894] + +So was planted in Jefferson's mind the philosophy of secession. In that +fertile and receptive soil it grew with magic rapidity and bore fatal +fruit. Within two months after he received Taylor's letter, Jefferson +wrote the historic resolutions which produced a situation that, a few +years afterward, called forth Marshall's first great constitutional +opinion, and, not many decades later, gave the battle-cry that rallied +heroic thousands to armed resistance to the National Government.[895] On +October 5, 1798, Nicholas writes Jefferson that he has delivered to "Mr. +John Breckenridge a copy of the resolutions that you sent me."[896] They +were passed by the Legislature of Kentucky on November 14, 1798; and the +tremendous conflict between Nationality and States' Rights, which for so +long had been preparing, at last was formally begun.[897] Jefferson's +"Kentucky Resolutions" declared that parts of the Alien and Sedition +Laws were "altogether void and of no effect."[898] Thus a State +asserted the "right" of any or all States to annul and overthrow a +National law. + +As soon as Kentucky had acted, Jefferson thus writes Madison: "I enclose +you a copy of the draught of the Kentucky resolves. I think we should +distinctly affirm all the important principles they contain so as to +hold that ground in future, and leave the matter in such a train as that +we may not be committed absolutely to push the matter to extremities, & +yet may be free to push as far as events will render prudent."[899] + +Madison accordingly drew the resolutions adopted by the Legislature of +Virginia, December 21, 1798. While declaring the Alien and Sedition Laws +unconstitutional, the Virginia Resolutions merely appealed to the other +States to "co-operate with this state in maintaining unimpaired the +authority, rights, and liberties reserved to the states respectively or +to the people."[900] + +The Legislature promptly adopted them and would gladly have approved far +stronger ones. "The leaders ... were determined upon the overthrow of +the General Government; and if no other measure would effect it, that +they would risk it upon the chance of war.... Some of them talked of +'seceding from the Union,'"[901] Iredell writes his wife: "The General +Assembly of Virginia are pursuing steps which directly lead to a civil +war; but there is a respectable minority struggling in defense of the +General Government, and the Government itself is fully prepared for +anything they can do, resolved, if necessary, to meet force with +force."[902] Marshall declared that he "never saw such intemperance as +existed in the V[irginia] Assembly."[903] + +Following their defiant adoption of Madison's resolutions, the +Republican majority of the Legislature issued a campaign pamphlet, also +written by Madison,[904] under the form of an address to the people. The +"guardians of State Sovereignty would be perfidious if they did not +warn" the people "of encroachments which ... may" result in "usurped +power"; the State Governments would be "precipitated into impotency and +contempt" in case they yielded to such National laws as the Alien and +Sedition Acts; if like "infractions of the Federal Compact" were +repeated "until the people arose ... in the majesty of their strength," +it was certain that "the way for a revolution would be prepared." + +The Federalist pleas "to disregard usurpation until foreign danger shall +have passed" was "an artifice which may be forever used," because those +who wished National power extended "can ever create national +embarrassments to soothe the people to sleep whilst that power is +swelling, silently, secretly and fatally." + +Such was the Sedition Act which "commits the sacrilege of arresting +reason; ... punishes without trial; ... bestows on the President +despotic powers ... which was never expected by the early friends of +the Constitution." But now "Federal authority is deduced by implication" +by which "the states will be stript of every right reserved." Such +"tremendous pretensions ... inflict a death wound on the Sovereignty of +the States." Thus wrote the same Madison who had declared that nothing +short of a veto by the National Government on "any and every act of the +states" would suffice. There was, said Madison's campaign document, no +"specified power" in the National Government "embracing a right against +freedom of the press"--that was a "constitutional" prerogative of the +States. + +"Calumny" could be redressed in the State courts; but "usurpation can +only be controuled by the act of society [revolution]." Here Madison +quotes _verbatim_ and in italics from Marshall's second letter to +Talleyrand in defense of the liberty of the press, without, however, +giving Marshall credit for the language or argument.[905] Madison's +argument is characteristically clear and compact, but abounds in +striking phrases that suggest Jefferson.[906] + +This "Address" of the Virginia Legislature was aimed primarily at +Marshall, who was by far the most important Federalist candidate for +Congress in the entire State. It was circulated at public expense and +Marshall's friends could not possibly get his views before the people so +authoritatively or so widely. But they did their best, for it was plain +that Madison's Jeffersonized appeal, so uncharacteristic of that former +Nationalist, must be answered. Marshall wrote the reply[907] of the +minority of the Legislature, who could not "remain silent under the +unprecedented" attack of Madison. "Reluctantly," then, they "presented +the present crisis plainly before" the people. + +"For ... national independence ... the people of united America" changed +a government by the British King for that of the Constitution. "The will +of the majority produced, ratified, and conducts" this constitutional +government. It was not perfect, of course; but "the best rule for +freemen ... in the opinion of our ancestors, was ... that ... of +obedience to laws enacted by a majority of" the people's +representatives. + +Two other principles "promised immortality" to this fundamental idea: +power of amendment and frequency of elections. "Under a Constitution +thus formed, the prosperity of America" had become "great and +unexampled." The people "bemoaned foreign war" when it "broke out"; but +"they did not possess even a remote influence in its termination." The +true American policy, therefore, was in the "avoiding of the existing +carnage and the continuance of our existing happiness." It was for this +reason that Washington, after considering everything, had proclaimed +American Neutrality. Yet Genêt had "appealed" to the people "with +acrimony" against the Government. This was resented "for a while only" +and "the fire was rekindled as occasion afforded fuel." + +Also, Great Britain's "unjustifiable conduct ... rekindled our ardor for +hostility and revenge." But Washington, averse to war, "made his last +effort to avert its miseries." So came the Jay Treaty by which "peace +was preserved with honor." + +Marshall then reviews the outbursts against the Jay Treaty and their +subsidence. France "taught by the bickerings of ourselves ... reëchoed +American reproaches with French views and French objects"; as a result +"our commerce became a prey to French cruisers; our citizens were +captured" and British outrages were repeated by the French, our "former +friend ... thereby committing suicide on our national and individual +happiness." + +Emulating Washington, Adams had twice striven for "honorable" +adjustment. This was met by "an increase of insolence and affront." Thus +America had "to choose between submission ... and ... independence. What +American," asks Marshall, "could hesitate in the option?" And, "the +choice being made, self-preservation commanded preparations for +self-defense....--the fleet, ... an army, a provision for the removal +of dangerous aliens and the punishment of seditious citizens." Yet +such measures "are charged with the atrocious design of creating a +monarchy ... and violating the constitution." Marshall argues that +military preparation is our only security. + +"Upon so solemn an occasion what curses would be adequate," asks +Marshall, "to the supineness of our government, if militia were the +only resort for safety, against the invasion of a veteran army, flushed +with repeated victories, strong in the skill of its officers, and led by +distinguished officers?" He then continues with the familiar arguments +for military equipment. + +Then comes his attack on the Virginia Resolutions. Had the criticisms of +the Alien and Sedition Laws "been confined to ordinary peaceable and +constitutional efforts to repeal them," no objection would have been +made to such a course; but when "general hostility to our government" +and "proceedings which may sap the foundations of our union" are +resorted to, "duty" requires this appeal to the people. + +Marshall next defends the constitutionality of these acts. "Powers +necessary for the attainment of all objects which are general in their +nature, which interest all America" and "can only be obtained by the +coöperation of the whole ... would be naturally vested in the government +of the whole." It is obvious, he argues, that States must attend to +local subjects and the Nation to general affairs. + +The power to protect "the nation from the intrigues and conspiracies of +dangerous aliens; ... to secure the union from their wicked +machinations, ... which is essential to the common good," belongs to the +National Government in the hands of which "is the force of the nation +and the general power of protection from hostilities of every kind." +Marshall then makes an extended argument in support of his Nationalist +theory. Occasionally he employs almost the exact language which, years +afterwards, appears in those constitutional opinions from the Supreme +Bench that have given him his lasting fame. The doctrine of implied +powers is expounded with all of his peculiar force and clearness, but +with some overabundance of verbiage. In no writing or spoken word, +before he became Chief Justice of the United States, did Marshall so +extensively state his constitutional views as in this unknown +paper.[908] + +The House of Delegates, by a vote of 92 against 52,[909] refused to +publish the address of the minority along with that of the majority. +Thereupon the Federalists printed and circulated it as a campaign +document. It was so admired by the supporters of the Administration in +Philadelphia that, according to the untrustworthy Callender, ten +thousand copies were printed in the Capital and widely distributed.[910] + +Marshall's authorship of this paper was not popularly known; and it +produced little effect. Its tedious length, lighted only by occasional +flashes of eloquence, invited Republican ridicule and derision. It +contained, said Callender, "such quantities of words ... that you turn +absolutely tired"; it abounded in "barren tautology"; some sentences +were nothing more than mere "assemblages of syllables"; and "the +hypocritical canting that so strongly marks it corresponds very well +with the dispatches of X. Y. and Z."[911] + +Marshall's careful but over-elaborate paper was not, therefore, +generally read. But the leading Federalists throughout the country were +greatly pleased. The address was, said Sedgwick, "a masterly performance +for which we are indebted to the pen of General Marshall, who has, by +it, in some measure atoned for his pitiful electioneering epistle."[912] + +When Murray, at The Hague, read the address, he concluded that Marshall +was its author: "He may have been weak enough to declare _against_ those +laws that _might_ be against the _policy_ or necessity, etc., etc., +etc., yet sustain their constitutionality.... I _hope_ J. Marshall did +write the Address."[913] + +The Republican appeal, unlike that of Marshall, was brief, simple, and +replete with glowing catchwords that warmed the popular heart and fell +easily from the lips of the multitude. And the Republican spirit was +running high. The Virginia Legislature provided for an armory in +Richmond to resist "encroachments" of the National Government.[914] +Memorials poured into the National Capital.[915] By February "the tables +of congress were loaded with petitions against" the unpopular Federalist +legislation.[916] + +Marshall's opinion of the motives of the Republican leaders, of the +uncertainty of the campaign, of the real purpose of the Virginia +Resolutions, is frankly set forth in his letter to Washington +acknowledging the receipt of Judge Addison's charge: "No argument," +wrote Marshall, "can moderate the leaders of the opposition.... However +I may regret the passage of one of the acts complained of [Sedition Law] +I am firmly persuaded that the tempest has not been raised by them. Its +cause lies much deeper and is not easily to be removed. Had they [Alien +and Sedition Laws] never been passed, other measures would have been +selected. An act operating on the press in any manner, affords to its +opposers arguments which so captivate the public ear, which so mislead +the public mind that the efforts of reason" are unavailing. + +Marshall tells Washington that "the debates were long and animated" upon +the Virginia Resolutions "which were substantiated by a majority of +twenty-nine." He says that "sentiments were declared and ... views were +developed of a very serious and alarming extent.... There are men who +will hold power by any means rather than not hold it; and who would +prefer a dissolution of the union to a continuance of an administration +not of their own party. They will risk all ills ... rather than permit +that happiness which is dispensed by other hands than their own." + +He is not sure, he says, of being elected; but adds, perhaps +sarcastically, that "whatever the issue ... may be I shall neither +reproach myself, nor those at whose instance I have become a candidate, +for the step I have taken. The exertions against me by" men in Virginia +"and even from other states" are more "active and malignant than +personal considerations would excite. If I fail," concludes Marshall, +"I shall regret the failure more" because it will show "a temper hostile +to our government ... than of" his own "personal mortification."[917] + +The Federalists were convinced that these extreme Republican tactics +were the beginning of a serious effort to destroy the National +Government. "The late attempt of Virginia and Kentucky," wrote Hamilton, +"to unite the State Legislatures in a direct resistance to certain laws +of the Union can be considered in no other light than as an attempt to +change the government"; and he notes the "hostile declarations" of the +Virginia Legislature; its "actual preparation of the means of supporting +them by force"; its "measures to put their militia on a more efficient +footing"; its "preparing considerable arsenals and magazines"; and its +"laying new taxes on its citizens" for these purposes.[918] + +To Sedgwick, Hamilton wrote of the "tendency of the doctrine advanced by +Virginia and Kentucky to destroy the Constitution of the United States," +and urged that the whole subject be referred to a special committee of +Congress which should deal with the Virginia and Kentucky Resolutions +and justify the laws at which they were aimed. "No pains or expense," he +insisted, "should be spared to disseminate this report.... A little +pamphlet containing it should find its way into every house in +Virginia."[919] + +Thus the congressional campaign of 1798-99 drew to a close. Marshall +neglected none of those personal and familiar campaign devices which the +American electorate of that time loved so well. His enemies declared +that he carried these to the extreme; at a rally in Hanover County he +"threw billets into the bonfires and danced around them with his +constituents";[920] he assured the voters that "his sentiments were the +same as those of Mr. Clopton [the Republican candidate]"; he "spent +several thousands of dollars upon barbecues."[921] + +These charges of the besotted Callender,[922] written from his cell in +the jail at Richmond, are, of course, entirely untrue, except the story +of dancing about the bonfire. Marshall's answers to "Freeholder" dispose +of the second; his pressing need of money for the Fairfax purchase shows +that he could have afforded no money for campaign purposes; and, indeed, +this charge was so preposterous that even the reckless Callender +concludes it to be unworthy of belief. + +From the desperate nature of the struggle and the temper and political +habit of the times, one might expect far harder things to have been +said. Indeed, as the violence of the contest mounted to its climax, +worse things were charged or intimated by word of mouth than were then +put into type. Again it is the political hack, John Wood, who gives us a +hint of the baseness of the slanders that were circulated; he describes +a scandal in which Marshall and Pinckney were alleged to have been +involved while in Paris, the unhappy fate of a woman, her desperate +voyage to America, her persecution and sad ending.[923] + +Marshall was profoundly disgusted by the methods employed to defeat him. +Writing to his brother a short time before election day he briefly +refers to the Republican assaults in stronger language than is to be +found in any other letter ever written by him:-- + +"The fate of my election is extremely uncertain. The means us'd to +defeat it are despicable in the extreme and yet they succeed. Nothing I +believe more debases or pollutes the human mind than faction +[party]."[924] + +[Illustration: PART OF LETTER FROM JOHN MARSHALL TO HIS BROTHER, DATED +APRIL 3, 1799 (_Facsimile_)] + +The Republicans everywhere grew more confident as the day of voting drew +near. Neutrality, the Alien and Sedition Laws, the expense of the +provisional army, the popular fear and hatred of a permanent military +force, the high taxes, together with the reckless charges and slanders +against the Federalists and the perfect discipline exacted of the +Republicans by Jefferson--all were rapidly overcoming the patriotic +fervor aroused by the X. Y. Z. disclosures. "The tide is evidently +turning ... from Marshall's romance" was the Republican commander's +conclusion as the end of the campaign approached.[925] + +For the first time Marshall's personal popularity was insufficient to +assure victory. But the animosity of the Republicans caused them to make +a false move which saved him at the very last. They circulated the +report that Patrick Henry, the archenemy of "aristocrats," was against +Marshall because the latter was one of this abhorred class. Marshall's +friend, Archibald Blair, Clerk of the Executive Council, wrote Henry of +this Republican campaign story. + +Instantly both the fighter and the politician in Henry were roused; and +the old warrior, from his retirement at Red Hill, wrote an extraordinary +letter, full of affection for Marshall and burning with indignation at +the Republican leaders. The Virginia Resolutions meant the "dissolution" +of the Nation, wrote Henry; if that was not the purpose of the +Republicans "they have none and act _ex tempore_." As to France, "her +conduct has made it to the interest of the great family of mankind to +wish the downfall of her present government." For the French Republic +threatened to "destroy the great pillars of all government and social +life--I mean virtue, morality, and religion," which "alone ... is the +armour ... that renders us invincible." Also, said Henry, "infidelity, +in its broad sense, under the name of philosophy, is fast spreading ... +under the patronage of French manners and principles." + +Henry makes "these prefatory remarks" to "point out the kind of +character amongst our countrymen most estimable in my [his] eyes." The +ground thus prepared, Henry discharges all his guns against Marshall's +enemies. "General Marshall and his colleagues exhibited the American +character as respectable. France, in the period of her most triumphant +fortune, beheld them as unappalled. Her threats left them as she found +them.... + +"Can it be thought that with these sentiments I should utter anything +tending to prejudice General Marshall's election? Very far from it +indeed. Independently of the high gratification I felt from his public +ministry, he ever stood high in my esteem as a private citizen. His +temper and disposition were always pleasant, his talents and integrity +unquestioned. + +"These things are sufficient to place that gentleman far above any +competitor in the district for congress. But when you add the particular +information and insight which he has gained, and is able to communicate +to our public councils, it is really astonishing, that even blindness +itself should hesitate in the choice.... + +"Tell Marshall I love him, because he felt and acted as a republican, as +an American. The story of the Scotch merchants and old torys voting for +him is too stale, childish, and foolish, and is a French _finesse;_ an +appeal to prejudice, not reason and good sense.... I really should give +him my vote for Congress, preferably to any citizen in the state at this +juncture, one only excepted [Washington]."[926] + +Henry's letter saved Marshall. Not only was the congressional district +full of Henry's political followers, but it contained large numbers of +his close personal friends. His letter was passed from hand to hand +among these and, by election day, was almost worn out by constant +use.[927] + +But the Federalist newspapers gave Henry no credit for turning the tide; +according to these partisan sheets it was the "anarchistic" action of +the Kentucky and Virginia Legislatures that elected Marshall. Quoting +from a letter of Bushrod Washington, who had no more political acumen +than a turtle, a Federalist newspaper declared: "We hear that General +Marshall's election is placed beyond all doubt. I was firmly convinced +that the violent measures of our Legislature (which were certainly +intended to influence the election) would favor the pretensions of the +Federal candidates by disclosing the views of the opposite party."[928] + +Late in April the election was held. A witness of that event in Richmond +tells of the incidents of the voting which were stirring even for that +period of turbulent politics. A long, broad table or bench was placed on +the Court-House Green, and upon it the local magistrates, acting as +election judges, took their seats, their clerks before them. By the side +of the judges sat the two candidates for Congress; and when an elector +declared his preference for either, the favored one rose, bowing, and +thanked his supporter. + +Nobody but freeholders could then exercise the suffrage in +Virginia.[929] Any one owning one hundred acres of land or more in any +county could vote, and this landowner could declare his choice in every +county in which he possessed the necessary real estate. The voter did +not cast a printed or written ballot, but merely stated, in the presence +of the two candidates, the election officials, and the assembled +gathering, the name of the candidate of his preference. There was no +specified form for this announcement.[930] + +"I vote for John Marshall." + +"Thank you, sir," said the lank, easy-mannered Federalist candidate. + +"Hurrah for Marshall!" shouted the compact band of Federalists. + +"And I vote for Clopton," cried another freeholder. + +"May you live a thousand years, my friend," said Marshall's competitor. + +"Three cheers for Clopton!" roared the crowd of Republican enthusiasts. + +Both Republican and Federalist leaders had seen to it that nothing was +left undone which might bring victory to their respective candidates. +The two political parties had been carefully "drilled to move together +in a body." Each party had a business committee which attended to every +practical detail of the election. Not a voter was overlooked. "Sick men +were taken in their beds to the polls; the halt, the lame, and the blind +were hunted up and every mode of conveyance was mustered into service." +Time and again the vote was a tie. No sooner did one freeholder announce +his preference for Marshall than another gave his suffrage to Clopton. + +"A barrel of whisky with the head knocked in," free for everybody, stood +beneath a tree; and "the majority took it straight," runs a narrative of +a witness of the scene. So hot became the contest that fist-fights were +frequent. During the afternoon, knock-down and drag-out affrays became +so general that the county justices had hard work to quell the raging +partisans. Throughout the day the shouting and huzzaing rose in volume +as the whiskey sank in the barrel. At times the uproar was "perfectly +deafening; men were shaking fists at each other, rolling up their +sleeves, cursing and swearing.... Some became wild with agitation." When +a tie was broken by a new voter shouting that he was for Marshall or for +Clopton, insults were hurled at his devoted head. + +"You, sir, ought to have your mouth smashed," cried an enraged +Republican when Thomas Rutherford voted for Marshall; and smashing of +mouths, blacking of eyes, and breaking of heads there were in plenty. +"The crowd rolled to and fro like a surging wave."[931] Never before and +seldom, if ever, since, in the history of Virginia, was any election so +fiercely contested. When this "democratic" struggle was over, it was +found that Marshall had been elected by the slender majority of +108.[932] + +Washington was overjoyed at the Federalist success. He had ridden ten +miles to vote for General Lee, who was elected;[933] but he took a +special delight in Marshall's victory. He hastened to write his +political protégé: "With infinite pleasure I received the news of your +Election. For the honor of the District I wish the majority had been +greater; but let us be content, and hope, as the tide is turning, the +current will soon run strong in your favor."[934] + +Toward the end of the campaign, for the purpose of throwing into the +contest Washington's personal influence, Marshall's enthusiastic friends +had published the fact of Marshall's refusal to accept the various +offices which had been tendered him by Washington. They had drawn a long +bow, though very slightly, and stated positively that Marshall could +have been Secretary of State.[935] Marshall hastened to apologize:-- + +"Few of the unpleasant occurrences" of the campaign "have given me more +real chagrin than this. To make a parade of proffered offices is a +vanity which I trust I do not possess; but to boast of one never in my +power would argue a littleness of mind at which I ought to blush." +Marshall tells Washington that the person who published the report +"never received it directly or indirectly from me." If he had known +"that such a publication was designed" he "would certainly have +suppressed it." It was inspired "unquestionably ... by a wish to serve +me," says Marshall, "and by resentment at the various malignant +calumnies which have been so profusely bestowed on me."[936] + +Washington quickly reassured Marshall: "I am sorry to find that the +publication you allude to should have given you a moment's disquietude. +I can assure you it made no impression on my mind, of the tendency +apprehended by you."[937] + +As soon as all the election returns were in, Marshall reported to +Washington that the defeat of two of the Federalist candidates for +Congress was unexpected and "has reduced us to eight in the legislature +of the Union"; that the Republicans maintained their "majority in the +house of Delegates," which "means an antifederal senator and governor," +and that "the baneful influence of a legislature hostile perhaps to the +Union--or if not so--to all its measures will be kept up."[938] + +Marshall's campaign attracted the attention of the whole country, and +the news of his success deeply interested both Federalists and +Republicans. Pickering, after writing King of the Federalist success in +New York City, declared that "the other domestic intelligence, still +more important, is, that Genl. Marshall is elected a member of Congress +for his district."[939] + +Speaker Sedgwick also informed King of Marshall's election. "General +Marshall you know is a member of the House of Representatives. His +talents, his character and the situation he has been in, will combine to +give him an influence, which will be further aided by the scene which he +immediately represents. He may and probably will give a tone to the +federal politics South of the Susquehannah. I well know the respect he +entertains for you and for your opinions."[940] + +But the Federalist leaders were none too sure of their Virginia +congressional recruit. He was entirely too independent to suit the party +organization. His campaign statement on the Alien and Sedition Laws +angered and troubled them when it was made; and, now that Marshall was +elected, his opinion on this, to the Federalists, vital subject, his +admitted power of mind and character, and his weighty influence over the +Southern wing of the Federalists caused serious apprehension among the +party's Northern leaders. Sedgwick advises King to write Marshall on the +subject of party regularity. + +"I have brought this subject to your mind, that you may decide on the +propriety of a communication of your sentiments to him, which you may do +in season to be useful. Should he, which, indeed, I do not expect, +conform his political conduct generally, to what seems indicated by his +public declaration relative to the alien & sedition acts, it would have +been better that his insignificant predecessor should have been +reëlected. There never has been an instance where the commencement of a +political career was so important as is that of General Marshall."[941] + +Apprehension and uncertainty as to Marshall's course in the House was in +the minds of even the Federalist leaders who were out of the country. +The American Minister at The Hague was as much troubled about Marshall +as were the Federalist politicians at home: "If M[arshall]'s silly +declaration on the _inexpediency_ of the Sedition law does not entangle +him he may be very useful."[942] But Murray was uneasy: "Marshall, I +fear, comes in on middle ground, and when a man plays the amiable in a +body like that [House of Representatives] he cannot be counted [on], but +he will vote generally right. I was amiable the first session! It cannot +last."[943] + +Jefferson, of course, was much depressed by the Federalist congressional +victories, which he felt "are extremely to be regretted." He was +especially irritated by Marshall's election: It "marks a taint in that +part of the State which I had not expected." He was venomous toward +Henry for having helped Marshall: "His [Henry's] apostacy, must be +unaccountable to those who do not know all the recesses of his +heart."[944] + +A week later, however, Jefferson decided that the Federalist success did +not mean a permanent Republican reverse. Spoils and corruption, he +concluded, were the real cause of the Federalist gain. "The Virginia +congressional elections have astonished every one," he informs Tench +Coxe. "This result has proceeded from accidental combinations of +circumstances, & not from an unfavorable change of sentiment.... We are +not incorruptible; on the contrary, corruption is making sensible tho' +silent progress. Offices are as acceptable here as elsewhere, & whenever +a man has cast a longing on them, a rottenness begins in his +conduct."[945] + +Jefferson, with settled and burning hatred, now puts his branding-iron +on Henry: "As to the effect of his name among the people, I have found +it crumble like a dried leaf the moment they become satisfied of his +apostacy."[946] + +During the weeks which immediately followed his election, Marshall was +busy reporting to Washington on the best men to be appointed as officers +in the provisional army; and his letters to the Commander-in-Chief show +a wide and careful acquaintance with Virginians of military training, +and a delicate judgment of their qualities.[947] + +By now the hated Sedition Law was justifying the political hydrophobia +which it had excited among the Republicans.[948] All over the country +men were being indicted and convicted for wholly justifiable political +criticisms,--some of them trivial and even amusing,--as well as for +false and slanderous attacks on public officers. President Adams himself +had begun to urge these prosecutions. He was particularly bitter against +the "Aurora," the Republican organ, which, according to Adams, contained +an "uninterrupted stream of slander on the American government."[949] He +thought that the editor ought to be expelled from the country.[950] + +All this was more fuel to the Republican furnace. Wicked and outrageous +as were some of these prosecutions, they were not so extravagant as the +horrors which Republican politicians declared that the Sedition Laws +would bring to every fireside. + +During the summer after his election Marshall visited his father in +Kentucky. Thomas Marshall was ill, and his son's toilsome journey was +solely for the purpose of comforting him; but Jefferson could see in it +nothing but a political mission. He writes to Wilson Cary Nicholas to +prepare an answer to the States that had opposed the Kentucky and +Virginia Resolutions; but, says Jefferson, "As to the preparing anything +[myself] I must decline it, to avoid suspicions (which were pretty +strong in some quarters on the last occasion) [the Kentucky +Resolutions].... The visit of the apostle Marshall[951] to Kentucky, +excite[s] anxiety. However, we doubt not that his poisons will be +effectually counter-worked."[952] + +Jefferson's suspicions were groundless. Marshall did not even sound +public opinion on the subject. On his return to Richmond he writes the +Secretary of State, who was the most active politician of Adams's +Cabinet, and to whom Marshall freely opened his mind on politics, that +"a visit to an aged & rever'd Father" prevented an earlier answer to a +letter from Pickering; and, although Marshall has much to say, not one +word is written of the Kentucky and Virginia Resolutions. He is obsessed +with the French question and of the advantage the French "party in +America" may secure by the impression that France was not really +hostile. "This will enable her [France's] party in America to attack +from very advantageous ground the government of the United States."[953] + +Now came the public circumstance that made the schism in the Federalist +Party an open and remorseless feud. The President's militant +declaration, that he would "never send another minister to France +without assurances that he will [would] be received, respected, and +honored as the representative of a great, free, powerful, and +independent people,"[954] was perfectly attuned to the warlike spirit of +the hour. The country rang with approval. The Federalist politicians +were exultant. + +Thereupon the resourceful Talleyrand wrote the Secretary of the French +Legation at The Hague to intimate to Murray, the American Minister, that +the French Directory would now receive a minister from the United +States.[955] Murray hastened the news to Adams.[956] It was a frail +assurance, indirect, irregular, unacknowledged to the world; and from +men who had insulted us and who would not hesitate to repudiate Murray's +statement if their purposes so required. Yet the President grasped by +the forelock this possibility for peace, and, against the emphatic +protest of his Cabinet, suddenly sent a second commission to try again +for that adjustment which Marshall and his associates had failed to +secure. It was the wisest and most unpopular act of Adams's troubled +Administration. + +The leading Federalist politicians were enraged. Indeed, "the whole +[Federalist] party were prodigiously alarmed."[957] They thought it a +national humiliation. What! said they, kiss the hand that had slapped +our face! "The new embassy ... disgusts most men here," reported +Ames from New England.[958] Cabot confirmed Ames's doleful +message--"Surprise, indignation, grief, & disgust followed each other in +swift succession in the breasts of the true friends of our country," he +advised King.[959] + +The Federalist leaders really wanted war with France, most of them as a +matter of patriotism; some, undoubtedly, because war would insure party +success in the approaching presidential election. Upon his return +Marshall had prophesied formal declaration of hostilities from the +Republic of France, when news of the dispatches reached Europe; and the +war Federalists were sorely disappointed at the failure of his +prediction. "Genl. Marshall unfortunately held the decided opinion that +France would DECLARE war when the Dispatches should appear; and T. +Sewell with other good men were so strongly impressed with the advantage +of such a declaration by them that they could not be persuaded to +relinquish the belief in it--I was astonished that they should have +attributed to the French such miserable policy." So wrote the able and +balanced Cabot.[960] That France refused to adopt "such miserable +policy" as Marshall had expected was sufficiently exasperating to the +war Federalists; but to meet that country three fourths of the way on +the road to peace was intolerable. + +"The end [peace] being a bad one all means are unwise and indefensible" +was the ultra-Federalist belief.[961] Adams's second mission was, they +said, party surrender to the Republicans; it was "a policy that +threatens ... to revive the Jacobin faction in our bosom."[962] +Federalist members of Congress threatened to resign. "I have sacrificed +as much as most men ... to support this Govt. and root out Democracy, & +French principles, but ... I feel it to be lost and worse ... I can & +will resign if all must be given up to France," cried the enraged +Tracy.[963] + +These "enemies of government" had said all along that things could be +arranged with France; that the X. Y. Z. disclosures were merely a +Federalist plot; and that the army was a wicked and needless expense. +What answer could the Federalists make to these Republican charges now? +Adams's new French mission, the Federalist chieftains declared, was "a +measure to _make_ dangers, and to nullify resources; to make the navy +without object; the army an object of popular terror."[964] + +And the presidential election was coming on! To hold the situation just +as it was might mean Federalist victory. Suppose events did develop a +formal declaration of war with France? That would make Federalist +success more certain. The country would not turn out a party in charge +of the Government when cannon were roaring. Even more important, an open +and avowed conflict with the "bloody Republic" would, reasoned the +Federalist leaders, check the miasmic growth of French revolutionary +ideas among the people. + +In short, a declaration of war with France would do everything which the +Federalists wished and hoped for. "Peace [with France] ... is not +desired as it should not be"[965] was their opinion of the statesmanship +demanded by the times. And now Adams, without one word to the men who +reluctantly had made him President,[966] had not only prevented a +rupture which would have accomplished every Federalist purpose, but had +delivered his party into the hands of the "Jacobins." He had robbed the +Federalists of their supreme campaign "issue." "Peace with France, they +think an evil and holding out the hope of it another, as it tends to +chill the public fervor";[967] and the "public fervor" surely needed no +further reduction of temperature, for Federalist health. + +If Adams did not wish for a formal declaration of war, at least he might +have let things alone. But now! "Government will be weakened by the +friends it loses and betrayed by those it will gain. It will lose ... +the friendship of the sense, and worth, and property of the United +States, and get in exchange the prejudice, vice, and bankruptcy of the +nation,"[968] wrote Ames to Pickering. "In Resistance alone there is +safety,"[969] was Cabot's opinion. "The Jacobin influence is rising, +and has been ever since the mission to France was determined on; ... if +a Treaty be made with France their [Republican] ascendancy will be +sure";[970] and, after that, the deluge. + +The Federalist leaders felt that, even without a declaration of +hostilities by Congress, they might make shift to win the approaching +election. For on the sea we already were waging war on France, while +formally at peace with her. Our newborn navy was taking French +privateers, defeating French men-of-war, and retaliating with pike, +cutlass, and broadside for the piratical French outrages upon American +commerce.[971] As things stood, it was certain that this would continue +until after the election, and with each glorious victory of a Truxton or +a Hull, National pride and popular enthusiasm would mount higher and +grow stronger. So the Federalist politicians thought that "the only +negotiation compatible with our honor or our safety is that begun by +Truxton in the capture of the L'Insurgente."[972] + +Priceless campaign ammunition was this for the Federalist political +guns. Early in the year the bilious but keen-eyed watchman on the +ramparts of New England Federalism had noted the appearance of "a little +patriotism, and the capture of the _Insurgente_ cherishes it."[973] And +now Adams's second mission might spoil everything. "The Jacobins will +rise in consequence of this blunder,"[974] was the doleful prophecy. +Indeed, it was already in fulfillment even with the utterance: "Already +the Jacobins raise their disgraced heads from the mire of +contempt!"[975] The "country gentlemen" were the hands as the business +interests were the brain and heart of the Federalist Party; "the +President destroyed their influence, and ... left them prostrate before +their vindictive adversaries."[976] + +The Republicans were overjoyed. Adams had reversed himself, eaten his +own words, confessed the hypocrisy of the "infamous X. Y. Z. plot." +"This renders their [Federalists'] efforts for war desperate, & silences +all further denials of the sincerity of the French government," +gleefully wrote Jefferson.[977] + +Marshall alone of the commanding Federalists, approved Adams's action. +"I presume it will afford you satisfaction to know that a measure which +excited so much agitation here, has met the approbation of so good a +judge as Mr. Marshall," Lee reported to the President.[978] Marshall's +support cheered the harried Chief Executive. "Esteeming very highly the +opinion and character of your friend General Marshall, I thank you for +inclosing his letter," responded Adams.[979] + +The President had done still worse. Auctioneer John Fries, a militia +captain, had headed an armed mob in resistance to the National officers +who were levying the National direct tax on the houses and lands of the +farmers of eastern Pennsylvania. He had been finally taken prisoner, +tried, and convicted of sedition and treason, and sentenced to death. +Against the unanimous written advice of his Cabinet, formally +tendered,[980] the President pardoned the "traitor" and "his fellow +criminals."[981] And this clemency was granted at the plea of McKean, +the arch-"Jacobin" of Pennsylvania,[982] without even consulting the +judges of the courts in which they were twice tried and convicted.[983] + +What was this, asked the Federalist leaders in dazed and angry +amazement! Paralyze the arm of the law! Unloose the fingers of outraged +authority from the guilty throat which Justice had clutched! What was to +become of "law and order" when the Nation's head thus sanctioned +resistance to both?[984] In his charge to the Federal Grand Jury, April +11, 1799, Justice Iredell declared that if "traitors" are not punished +"anarchy will ride triumphant and all lovers of order, decency, truth & +justice will be trampled under foot."[985] + +How, now, could the Federalists repel Republican assaults on this direct +tax? How, now, could they reply to the Republican attacks upon the army +to support which the tax was provided! In pardoning Fries, Adams had +admitted everything which the hated Jefferson had said against both tax +and army.[986] If Adams was right in pardoning Fries, then Washington +was wrong in suppressing the Whiskey Rebellion. The whole Federalist +system was abandoned.[987] The very roots of the Federalist philosophy +of government and administration were torn from their none too firm hold +upon the scanty soil which Federalist statesmen had laboriously gathered +for their nourishment. And why had Adams done this? Because, said the +Federalist politicians, it was popular in Pennsylvania;[988] that was +the President's motive--the same that moved him to send the new mission +to France.[989] + +Bending under heavy burdens of state, harassed by the politicians, Adams +was enduring a private pain sharper than his public cares. His wife, the +incomparable Abigail, was in Massachusetts and seriously ill. The +President had left her to meet his Cabinet and dispatch the second +mission to France. That done, he hastened back to the bedside of his +sick wife. But the politicians made no allowances. Adams's absence "from +the seat of government ... is a source of much disgust," chronicles the +ardent Troup. "It ... has the air of an abdication."[990] A month later +he records that the President "still continues at Braintree,[991] and +the government, like Pope's wounded snake, drags its slow length +along."[992] + +Such was the condition of the country and the state of political parties +when Marshall took his seat in Congress. For the Federalists, the House +was a very "cave of the winds," with confusion, uncertainty, suspicion, +anger, and all the disintegrating passions blowing this way and that. +But the Republicans were a compact, disciplined, determined body full of +spirit and purpose. + + +FOOTNOTES: + +[856] Marshall to Paulding, April 4, 1835; _Lippincott's Magazine_ +(1868), ii, 624-25. + +[857] Washington to Bushrod Washington, Aug. 27, 1798; _Writings_: Ford, +xiv, 75. + +[858] _Ib._ In September, 1797, when Marshall was absent on the X. Y. Z. +mission, Washington received a letter from one "John Langhorne" of +Albemarle County. Worded with skillful cunning, it was designed to draw +from the retired President imprudent expressions that could be used +against him and the Federalists. It praised him, denounced his +detractors, and begged him to disregard their assaults. (Langhorne to +Washington, Sept. 25, 1797; _Writings_: Sparks, xi, 501.) Washington +answered vaguely. (Washington to Langhorne, Oct. 15, 1797; _Writings_: +Ford, xiii, 428-30.) John Nicholas discovered that the Langhorne letter +had been posted at Charlottesville; that no person of that name lived in +the vicinity; and that Washington's answer was called for at the +Charlottesville post-office (where Jefferson posted and received +letters) by a person closely connected with the master of Monticello. It +was suspected, therefore, that Jefferson was the author of the +fictitious letter. The mystery caused Washington much worry and has +never been cleared up. (See Washington to Nicholas, Nov. 30, 1797; +_ib._, footnote to 429-30; to Bushrod Washington, March 8, 1798; _ib._, +448; to Nicholas, March 8, 1798; _ib._, 449-50.) It is not known what +advice Marshall gave Washington when the latter asked for his opinion; +but from his lifelong conduct in such matters and his strong repugnance +to personal disputes, it is probable that Marshall advised that the +matter be dropped. + +[859] Paulding: _Washington_, ii, 191-92. + +[860] Marshall to Paulding, _supra._ + +[861] Marshall to Paulding, _supra._ This letter was in answer to one +from Paulding asking Marshall for the facts as to Washington's part in +inducing Marshall to run for Congress. + +[862] Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist. +Soc. + +[863] _Ib._ + +[864] Adams to Pickering, Sept. 14, 1798; _Works_: Adams, viii, 595. + +[865] Adams to Pickering, Sept. 26, 1798; _Works_: Adams, viii, 597. + +[866] Adams to Rush, June 25, 1807; _Old Family Letters_, 152. + +[867] Wood, 260. Wood's book was "suppressed" by Aaron Burr, who bought +the plates and printer's rights. It consists of dull attacks on +prominent Federalists. Jefferson's friends charged that Burr suppressed +it because of his friendship for the Federalist leaders. (See Cheetham's +letters to Jefferson, Dec. 29, 1801, Jan. 30, 1802, _Proceedings_, Mass. +Hist. Soc. (April and May, 1907) 51-58.) Soon afterward Jefferson began +his warfare on Burr. + +[868] Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist. +Soc. This campaign was unusually acrimonious everywhere. "This +Electioneering is worse than the Devil." (Smith to Bayard, Aug. 2, 1798; +_Bayard Papers_: Donnan, 69.) + +[869] See Statutes at Large, 566, 570, 577, for Alien Acts of June 18, +June 25, and July 6, and _ib._, 196, for Sedition Law of July 14, 1798. + +[870] This section was not made a campaign issue by the Republicans. + +[871] Jefferson to Madison, May 10, 1798; _Works_: Ford, viii, 417; and +to Monroe, May 21, 1798; _ib._, 423. Jefferson's first harsh word was to +Madison, June 7, 1798; _ib._, 434. + +[872] Hamilton to Wolcott, June 29, 1798; _Works_: Lodge, x, 295. + +[873] Madison to Jefferson, May 20, 1798; _Writings_: Hunt, vi, 320. + +[874] For the Federalists' justification of the Alien and Sedition Laws +see Gibbs, ii, 78 _et seq._ + +[875] As a matter of fact, the anger of Republican leaders was chiefly +caused by their belief that the Alien and Sedition Laws were aimed at +the Republican Party as such, and this, indeed, was true. + +[876] Jefferson to S. T. Mason, Oct. 11, 1798; _Works_: Ford, viii, 450. + +[877] Washington to Spotswood, Nov. 22, 1798; _Writings_: Ford, xiv, +121-22. + +[878] Washington to Murray, Dec. 26, 1798; _Writings_: Ford, xiv, 132. + +[879] Washington to Bushrod Washington, Dec. 31, 1798; _ib._, 135-36. +Judge Addison's charge was an able if intemperate interpretation of the +Sedition Law. The Republican newspapers assailed and ridiculed this very +effectively in the presidential campaign of 1800. "Alexander Addison has +published in a volume a number of his _charges_ to juries--and +_precious_ charges they are--brimstone and saltpetre, assifoetida and +train oil." (_Aurora_, Dec. 6, 1800. See Chief Justice Ellsworth's +comments upon Judge Addison's charge in Flanders, ii, 193.) + +[880] Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist. +Soc. + +[881] Oct. 11, 1798. The questions of "Freeholder" were, undoubtedly, +written with Marshall's knowledge. Indeed a careful study of them leads +one to suspect that he wrote or suggested them himself. + +[882] The _Times and Virginia Advertiser_, Alexandria, Virginia, October +11, 1798. This paper, however, does not give "Freeholder's" questions. +The _Columbian Centinel_, Boston, October 20, 1798, prints both +questions and answers, but makes several errors in the latter. The +correct version is given in Appendix III, _infra_, where "Freeholder's" +questions and Marshall's answers appear in full. + +[883] Ames to Gore, Dec. 18, 1798; _Works_: Ames, i, 245-47. + +[884] Sedgwick to Pickering, Oct. 23, 1798; Pickering MSS., Mass. Hist. +Soc. + +[885] _Columbian Centinel_ (Boston), Oct. 24, 1798. + +[886] Cabot to King, April 26, 1799; King, iii, 9. + +[887] This was not true. The Fairfax embarrassment, alone, caused +Marshall to go to France in 1797. + +[888] Pickering to Sedgwick, Nov. 6, 1798; Pickering MSS., Mass. Hist. +Soc. + +[889] Murray to J. Q. Adams, March 22, 1799; _Letters_: Ford, 530. +Murray had been a member of Congress and a minor Federalist politician. +By "us" he means the extreme Federalist politicians. + +[890] Marshall to Pickering, Oct. 22, 1798; Pickering MSS., Mass. Hist. +Soc. + +[891] Adams: _Gallatin_, 212. + +[892] "Freeholder" had not asked Marshall what he thought of the +constitutionality of these laws. + +[893] Thompson: _The Letters of Curtius._ John Thompson of Petersburg +was one of the most brilliant young men that even Virginia ever +produced. See Adams: _Gallatin_, 212, 227. There is an interesting +resemblance between the uncommon talents and fate of young John Thompson +and those of Francis Walker Gilmer. Both were remarkably intellectual +and learned; the characters of both were clean, fine, and high. Both +were uncommonly handsome men. Neither of them had a strong physical +constitution; and both died at a very early age. Had John Thompson and +Francis Walker Gilmer lived, their names would have been added to that +wonderful list of men that the Virginia of that period gave to the +country. + +The intellectual brilliancy and power, and the lofty character of +Thompson and Gilmer, their feeble physical basis and their early passing +seem like the last effort of that epochal human impulse which produced +Henry, Madison, Mason, Jefferson, Marshall, and Washington. + +[894] Taylor to Jefferson, June 25, 1798; as quoted in _Branch +Historical Papers_, ii, 225. See entire letter, _ib._, 271-76. + +[895] For an excellent treatment of the Kentucky and Virginia +Resolutions see Von Holst: _Constitutional History of the United +States_, i, chap. iv. + +[896] Nicholas to Jefferson, Oct. 5, 1798; quoted by Channing in +"Kentucky Resolutions of 1798"; _Amer. Hist. Rev._, xx, no. 2, Jan., +1915, 333-36. + +[897] Writing nearly a quarter of a century later, Jefferson states that +Nicholas, Breckenridge, and he conferred on the matter; that his draft +of the "Kentucky Resolutions" was the result of this conference; and +that he "strictly required" their "solemn assurance" that no one else +should know that he was their author. (Jefferson to Breckenridge, Dec. +11, 1821; _Works_: Ford, viii, 459-60.) + +Although this letter of Jefferson is positive and, in its particulars, +detailed and specific, Professor Channing has demonstrated that +Jefferson's memory was at fault; that no such conference took place; and +that Jefferson sent the resolutions to Nicholas, who placed them in the +hands of Breckenridge for introduction in the Kentucky Legislature; and +that Breckenridge and Nicholas both thought that the former should not +even see Jefferson, lest the real authorship of the resolutions be +detected. (See "The Kentucky Resolutions": Channing, in _Amer. Hist. +Rev._, xx, no. 2, Jan., 1915, 333-36.) + +[898] See Jefferson's "Rough Draught" and "Fair Copy" of the Kentucky +Resolutions; and the resolutions as the Kentucky Legislature passed them +on Nov. 10, 1798; _Works_: Ford, viii, 458-79. See examination of +Marshall's opinion in Marbury _vs._ Madison, vol. III of this work. + +[899] Jefferson to Madison, Nov. 17, 1798; _Works_: Ford, viii, 457. + +[900] _Writings_: Hunt, vi, 326-31. + +[901] Davie to Iredell, June 17, 1799; quoting from a Virginia +informant--very probably Marshall; McRee, ii, 577. + +[902] Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543. + +[903] Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes, +Dec. 18, 1798; _Letters_: Ford, 534. + +[904] _Writings_: Hunt, vi, 332-40. + +[905] For Marshall's defense of the liberty of the press, quoted by +Madison, see _supra_, chap. VIII. + +[906] Address of the General Assembly to the People of the Commonwealth +of Virginia, Journal, H.D. (Dec., 1798), 88-90. + +[907] Sedgwick to Hamilton, Feb. 7, 1799; _Works_: Hamilton, vi, 392-93; +and to King, March 20, 1799; King, ii, 581. And Murray to J. Q. Adams, +April 5, 1799; _Letters_: Ford, 536. + +[908] Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. Also +printed as a pamphlet. Richmond, 1798. + +[909] Journal, H.D. (1799), 90. + +[910] Callender: _Prospect Before Us_, 91. + +[911] _Ib._, 112 _et seq._ + +[912] Sedgwick to King, March 20, 1799; King, ii, 581. + +[913] Murray to J. Q. Adams, April 5, 1799; _Letters_: Ford, 536. + +[914] Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii, +147-48. + +[915] Jefferson to Pendleton, Feb. 14, 1799; _Works_: Ford, ix, 46; and +to Madison, Jan. 30, 1799; _ib._, 31. + +[916] Jefferson to Bishop James Madison, Feb. 27, 1799; _ib._, 62. + +[917] Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. Cong. + +[918] Hamilton to Dayton, 1799; _Works_: Lodge, x, 330. The day of the +month is not given, but it certainly was early in January. Mr. Lodge +places it before a letter to Lafayette, dated Jan. 6, 1799. + +[919] Hamilton to Sedgwick, Feb. 2, 1799; _Works_: Lodge, x, 340-42. + +[920] This was probably true; it is thoroughly characteristic and fits +in perfectly with his well-authenticated conduct after he became Chief +Justice. (See vol. III of this work.) + +[921] Callender: _Prospect Before Us_, 90 _et seq._ + +[922] See Hildreth, v, 104, 210, 214, 340, 453-55. + +[923] Wood, 261-62. This canard is an example of the methods employed in +political contests when American democracy was in its infancy. + +[924] Marshall to his brother James M., April 3, 1799; MS. Marshall uses +the word "faction" in the sense in which it was then employed. "Faction" +and "party" were at that time used interchangeably; and both words were +terms of reproach. (See _supra_, chap. II.) If stated in the vernacular +of the present day, this doleful opinion of Marshall would read: +"Nothing, I believe, more debases or pollutes the human mind than +partisan politics." + +[925] Jefferson to Pendleton, April 22, 1799; _Works_: Ford, ix, 64-65. + +[926] Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94. + +[927] Henry to Blair, Jan. 8, 1799; Henry, ii, 595. + +[928] _Virginia Herald_ (Fredericksburg), March 5, 1799. + +[929] This was true in most of the States at that period. + +[930] This method of electing public officials was continued until the +Civil War. (See John S. Wise's description of a congressional election +in Virginia in 1855; Wise: _The End of An Era_, 55-56. And see Professor +Schouler's treatment of this subject in his "Evolution of the American +Voter"; _Amer. Hist. Rev._, ii, 665-74.) + +[931] This account of election day in the Marshall-Clopton contest is +from Munford, 208-10. For another fairly accurate but mild description +of a congressional election in Virginia at this period, see Mary +Johnston's novel, _Lewis Rand_, chap. iv. + +[932] Henry, ii, 598. + +[933] Randall, ii, 495. + +[934] Washington to Marshall, May 5, 1799; _Writings_: Ford, xiv, 180. + +[935] As a matter of fact, they were not far wrong. Marshall almost +certainly would have been made Secretary of State if Washington had +believed that he would accept the portfolio. (See _supra_, 147.) The +assertion that the place actually had been offered to Marshall seems to +have been the only error in this campaign story. + +[936] Marshall to Washington, May 1, 1799; _Writings_: Ford, xiv, +footnote to 180-81; also Flanders, ii, 389. + +[937] Washington to Marshall, May 5, 1799; _Writings_: Ford, xiv, 180. + +[938] Marshall to Washington, May 16, 1799; Washington MSS., Lib. Cong. + +[939] Pickering to King, May 4, 1799; King, iii, 13. + +[940] Sedgwick to King, July 26, 1799; King, iii, 69. + +[941] Sedgwick to King, July 26, 1799; King, iii, 69. + +[942] Murray to J. Q. Adams, June 25, 1799; _Letters_: Ford, 566. + +[943] Murray to J. Q. Adams, July 1, 1799; _ib._, 568. + +[944] Jefferson to Stuart, May 14, 1799; _Works_: Ford, ix, 67. + +[945] Jefferson to Coxe, May 21, 1799; _Works_: Ford, ix, 69-70. + +[946] _Ib._, 70. + +[947] For instances of these military letters, see Marshall to +Washington, June 12, 1799; Washington MSS., Lib. Cong. + +[948] See Morison, i, 156-57; also Hudson: _Journalism in the United +States_, 160. Party newspapers and speakers to-day make statements, as a +matter of course, in every political campaign much more violent than +those for which editors and citizens were fined and imprisoned in +1799-1800. (See _ib._, 315; and see summary from the Republican point of +view of these prosecutions in Randall, ii, 416-20.) + +[949] Adams to Pickering, July 24, 1799; _Works_: Adams, ix, 3. + +[950] Adams to Pickering, Aug. 1, 1799; _ib._, 5; and same to same. Aug. +3, 1799; _ib._, 7. + +[951] Professor Washington, in his edition of Jefferson's _Writings_, +leaves a blank after "apostle." Mr. Ford correctly prints Marshall's +name as it is written in Jefferson's original manuscript copy of the +letter. + +[952] Jefferson to Wilson Cary Nicholas, Sept. 5, 1799; _Works_: Ford, +ix, 79-81. + +[953] Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. Hist. +Soc. Marshall had not yet grasped the deadly significance of Jefferson's +States' Rights and Nullification maneuver. + +[954] _Supra._ + +[955] Talleyrand to Pichon, Aug. 28, and Sept. 28; _Am. St. Prs._, ii, +241-42; Murray to Adams, Appendix of _Works_: Adams, viii. For familiar +account of Pichon's conferences with Murray, see Murray's letters to J. +Q. Adams, then U.S. Minister to Berlin, in _Letters_: Ford, 445, 473, +475-76; and to Pickering, _ib._, 464. + +[956] "Murray, I guess, wanted to make himself a greater man than he is +by going to France," was Gallatin's shrewd opinion. Gallatin to his +wife, March 1, 1799; Adams: _Gallatin_, 227-28. + +[957] _Ib._ + +[958] Ames to Dwight, Feb. 27, 1799; _Works_: Ames, i, 252. + +[959] Cabot to King, March 10, 1799; King, ii, 551. + +[960] Cabot to King, Feb. 16, 1799; _ib._, 543. + +[961] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 253. + +[962] Ames to Pickering, Oct. 19, 1799; _ib._, 257. + +[963] Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417. + +[964] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 260-61. + +[965] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 254. + +[966] "Men of principal influence in the Federal party ... began to +entertain serious doubts about his [Adams's] fitness for the station, +yet ... they thought it better to indulge their hopes than to listen to +their fears, [and] ... determined to support Mr. Adams for the Chief +Magistracy." ("Public Conduct, etc., John Adams"; Hamilton: _Works_: +Lodge, vii, 318.) + +[967] Ames to Dwight, Feb. 27, 1799; _Works_: Ames, i, 252. + +[968] Ames to Pickering, Nov. 5, 1799; _ib._, 260. + +[969] Cabot to King, March 10, 1799; King, ii, 552. + +[970] Higginson to Pickering, April 16, 1800; Pickering MSS., Mass. +Hist. Soc., printed in _An. Rept._, Amer. Hist. Assn., 1896, i, 836. + +[971] For an excellent summary of this important episode in our history +see Allen: _Our Naval War with France_. + +[972] Pickering to King, March 6, 1799; King, ii, 548-49. + +[973] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 254. + +[974] Ames to Dwight, Oct. 20, 1799; _ib._, 259. + +[975] Ames to Pickering, Oct. 19, 1799; _ib._, 257. + +[976] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403. + +[977] Jefferson to Pendleton, Feb. 19, 1799; _Works_: Ford, ix, 54. + +[978] Lee to Adams, March 14, 1799; _Works_: Adams, viii, 628. + +[979] Adams to Lee, March 29, 1799; _ib._, 629. + +[980] Cabinet to President, Sept. 7, 1799; _Works_: Adams, ix, 21-23; +and same to same, May 20, 1799; _ib._, 59-60. + +[981] Adams to Lee, May 21, 1800; _ib._, 60. For account of Fries's +Rebellion see McMaster, ii, 435-39. Also Hildreth, v, 313. + +[982] Pickering to Cabot, June 15, 1800; Lodge: _Cabot_, 275. + +[983] "Public Conduct, etc., John Adams"; Hamilton: _Works_: Lodge, vii, +351-55; and see Gibbs, ii, 360-62. + +[984] See Hamilton's arraignment of the Fries pardon in "Public Conduct, +etc., John Adams"; _Works_: Lodge, vii, 351-55. + +[985] McRee, ii, 551. + +[986] "The Aurora, in analyzing the reasons upon which Fries, Hainy, and +Getman have been pardoned brings the President forward as, by this act, +condemning: 1. The tax law which gave rise to the insurrection; 2. The +conduct of the officers appointed to collect the tax; 3. The marshal; 4. +The witnesses on the part of the United States; 5. The juries who tried +the prisoners; 6. The court, both in their personal conduct and in their +judicial decisions. In short, every individual who has had any part in +passing the law--in endeavoring to execute it, or in bringing to just +punishment those who have treasonably violated it." (_Gazette of the +United States_, reviewing bitterly the comment of the Republican organ +on Adams's pardon of Fries.) + +[987] Many Federalists regretted that Fries was not executed by +court-martial. "I suppose military execution was impracticable, but if +some executions are not had, of the most notorious offenders--I shall +regret the events of lenity in '94 & '99--as giving a fatal stroke to +Government.... Undue mercy to villains, is cruelty to all the good & +virtuous. Our people in this State are perfectly astonished, that cost +must continually be incurred for insurrections in Pennsylvania for which +they say they are taxed & yet no punishment is inflicted on the +offenders. I am fatigued & mortified that our Govt. which is weak at +best, would withhold any of its strength when all its energies should be +doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; Steiner, 436.) +And "I am in fear that something will occur to release that fellow from +merited Death." (Same to same, May 20, 1790; _ib._) + +[988] "Public Conduct, etc., John Adams"; Hamilton: _Works_: Lodge, vii, +351-55. + +[989] Ames to Pickering, Nov. 23, 1799; _Works_: Ames, i, 270. + +[990] Troup to King, May 6, 1799; King, iii, 14. + +[991] Adams's home, now Quincy, Massachusetts. + +[992] Troup to King, June 5, 1799; King, iii, 34. + + + + +CHAPTER XI + +INDEPENDENCE IN CONGRESS + + The Constitution is not designed to secure the rights of the + people of Europe or Asia or to direct proceedings against + criminals throughout the universe. (Marshall.) + + The whole world is in arms and no rights are respected but those + that are maintained by force. (Marshall.) + + Marshall is disposed to express great respect for the sovereign + people and to quote their expressions as evidence of truth. + (Theodore Sedgwick.) + + +"I have been much in Company with General Marshall since we arrived in +this City. He possesses great powers and has much dexterity in the +application of them. He is highly & deservedly respected by the friends +of Government [Federalists] from the South. In short, we can do nothing +without him. I believe his intentions are perfectly honorable, & yet I +do believe he would have been a more decided man had his education been +on the other side of the Delaware, and he the immediate representative +of that country."[993] + +So wrote the Speaker of the House of Representatives after three weeks +of association with the Virginia member whom he had been carefully +studying. After another month of Federalist scrutiny, Cabot agreed with +Speaker Sedgwick as to Marshall's qualities. + +"In Congress, you see Genl. M.[arshall] is a leader. He is I think a +virtuous & certainly an able man; but you see in him the faults of a +Virginian. He thinks too much of that State, & he expects the world +will be governed according to the Rules of Logic. I have seen such men +often become excellent legislators after experience has cured their +errors. I hope it will prove so with Genl. M.[arshall], who seems +calculated to act a great part."[994] + +The first session of the Sixth Congress convened in Philadelphia on +December 2, 1799. Marshall was appointed a member of the joint committee +of the Senate and the House to wait upon the President and inform him +that Congress was in session.[995] + +The next day Adams delivered his speech to the Senators and +Representatives. The subject which for the moment now inflamed the minds +of the members of the President's party was Adams's second French +mission. Marshall, of all men, had most reason to resent any new attempt +to try once more where he had failed, and to endeavor again to deal with +the men who had insulted America and spun about our representatives a +network of corrupt intrigue. But if Marshall felt any personal +humiliation, he put it beneath his feet and, as we have seen, approved +the Ellsworth mission. "The southern federalists have of course been +induced [by Marshall] to vindicate the mission, as a sincere, honest, +and politic measure," wrote Wolcott to Ames.[996] + +Who should prepare the answer of the House to the President's speech? +Who best could perform the difficult task of framing a respectful reply +which would support the President and yet not offend the rebellious +Federalists in Congress? Marshall was selected for this delicate work. +"Mr. Marshall, from the committee appointed to draught an Address in +answer to the Speech of the President of the United States ... reported +same."[997] Although written in admirable temper, Marshall's address +failed to please; the result was pallid. + +"Considering the state of the House, it was necessary and proper that +the answer to the speech should be prepared by Mr. Marshall," testifies +Wolcott. "He has had a hard task to perform, and you have seen how it +has been executed. The object was to unite all opinions, at least of the +federalists; it was of course necessary to appear to approve the +mission, and yet to express the approbation in such terms as when +critically analyzed would amount to no approbation at all. No one +individual was really satisfied; all were unwilling to encounter the +danger and heat which a debate would produce and the address passed with +silent dissent; the President doubtless understood the intention, and in +his response has expressed his sense of the dubious compliment in terms +inimitably obscure."[998] Levin Powell, a Federalist Representative from +Virginia, wrote to his brother: "There were members on both sides that +disliked that part of it [Marshall's address] where he spoke of the +Mission to France."[999] + +The mingled depression, excitement, and resentment among Marshall's +colleagues must have been great indeed to have caused them thus to look +upon his first performance in the House; for the address, which, even +now, is good reading, is a strong and forthright utterance. While, with +polite agreement, gliding over the controverted question of the mission, +Marshall's speech is particularly virile when dealing with domestic +politics. In coupling Fries's Pennsylvania insurrection with the +Kentucky and Virginia Resolutions Marshall displayed as clever political +dexterity as even Jefferson himself. + +The address enumerates the many things for which Americans ought to +thank "the benevolent Deity," and laments "that any portion of the +people ... should permit themselves, amid such numerous blessings, to +_be seduced_ by ... _designing men_ into an open resistance to the laws +of the United States.... Under a Constitution where the public burdens +can only be imposed by the people themselves, for their own benefit, and +to promote their own objects, a hope might well have been indulged that +the general interest would have been too well understood, and the +general welfare too highly prized, to have produced in any of our +citizens a disposition to hazard so much felicity, by the criminal +effort of a part, to oppose with lawless violence the will of the +whole."[1000] + +While it augured well that the courts and militia coöperated with "the +military force of the nation" in "restoring order and submission to the +laws," still, this only showed the necessity of Adams's "recommendation" +that "the judiciary system" should be extended. As to the new French +mission, the address "approves the pacific and humane policy" which met, +by the appointment of new envoys, "the first indications on the part of +the French Republic" of willingness to negotiate; and "offers up fervent +prayers to the Supreme Ruler of the Universe for the success of their +embassy." + +Marshall declares "the present period critical and momentous. The +important changes which are occurring, the new and great events which +are every hour preparing ... the spirit of war ... prevalent in almost +every nation ... demonstrate" the need of providing "means of +self-defense." To neglect this duty from "love of ease or other +considerations" would be "criminal and fatal carelessness." No one could +tell how the new mission would terminate: "It depends not on America +alone. The most pacific temper will not ensure peace." Preparation for +"national defense ... is an ... obvious duty. Experience the parent of +wisdom ... has established the truth ... that ... nothing short of the +power of repelling aggression will" save us from "war or national +degradation."[1001] + +Gregg of Pennsylvania moved to strike out the italicized words in +Marshall's address to the President, but after a short debate the motion +was defeated without roll-call.[1002] + +Wolcott gives us a clear analysis of the political situation and of +Marshall's place and power in it at this particular moment: "The federal +party is composed of the old members who were generally re-elected in +the northern, with new members from the southern states. New York has +sent an anti-federal majority; Pennsylvania has done the same; +opposition principles are gaining ground in New Jersey and Maryland, and +in the present Congress, the votes of these states will be fluctuating +and undecided." + +Nothing shows more clearly the intimate gossip of the time than the +similarity of Wolcott's and Cabot's language in describing Marshall. "A +number of distinguished men," continues Wolcott, "appear from the +southward, who are not pledged by any act to support the system of the +last Congress; these men will pay great respect to the opinions of +General Marshall; he is doubtless a man of virtue and distinguished +talents, but he will think much of the State of Virginia, and is too +much disposed to govern the world according to rules of logic; he will +read and expound the constitution as if it were a penal statute, and +will sometimes be embarrassed with doubts of which his friends will not +perceive the importance."[1003] + +Marshall headed the committee to inquire of the President when he would +receive the address of the House, and on December 10, "Mr. Speaker, +attended by the members present, proceeded to the President's house, to +present him their Address in answer to his Speech."[1004] A doleful +procession the hostile, despondent, and irritated Representatives made +as they trudged along Philadelphia's streets to greet the equally +hostile and exasperated Chief Magistrate. + +Presidential politics was much more on the minds of the members of +Congress than was the legislation needed by the country. Most of the +measures and practically all the debates of this remarkable session were +shaped and colored by the approaching contest between the Federalists +and Republicans and, personally, between Jefferson and Adams. Without +bearing this fact in mind the proceedings of this session cannot be +correctly understood. A mere reading of the maze of resolutions, +motions, and debates printed in the "Annals" leaves one bewildered. The +principal topic of conversation was, of course, the impending +presidential election. Hamilton's faction of extreme Federalists had +been dissatisfied with Adams from the beginning. Marshall writes his +brother "in confidence" of the plots these busy politicians were +concocting. + +"I can tell you in confidence," writes Marshall, "that the situation of +our affairs with respect to domestic quiet is much more critical than I +had conjectured. The eastern people are very much dissatisfied with the +President on account of the late [second] Mission to France. They are +strongly disposed to desert him & push some other candidate. King or +Ellsworth with one of the Pinckneys--most probably the General, are +thought of. + +"If they are deter'd from doing this by the fear that the attempt might +elect Jefferson I think it not improbable that they will vote generally +for Adams & Pinckney so as to give the latter gentleman the best chance +if he gets the Southern vote to be President. + +"Perhaps this ill humor may evaporate before the election comes on--but +at present it wears a very serious aspect. This circumstance is rendered +the more unpleasant by the state of our finances. The impost received +this year has been less productive than usual & it will be impossible to +continue the present armament without another loan. Had the impost +produced the sum to which it was calculated, a loan would have been +unavoidable. + +"This difficulty ought to have been foreseen when it was determined to +execute the law for raising the army. It is now conceiv'd that we cannot +at the present stage of our negotiation with France change the defensive +position we have taken without much hazard. + +"In addition to this many influential characters not only contend that +the army ought not now to be disbanded but that it ought to be continued +so long as the war in Europe shall last. I am apprehensive that our +people would receive with very ill temper a system which should keep up +an army of observation at the expense of the annual addition of five +millions to our debt. The effect of it wou'd most probably be that the +hands which hold the reins wou'd be entirely chang'd. You perceive the +perplexities attending our situation. + +"In addition to this there are such different views with respect to the +future, such a rancorous malignity of temper among the democrats,[1005] +such [an ap]parent disposition--(if the Aurora be the index of the +[mind of] those who support it) to propel us to a war with B[ritain] & +to enfold us within the embrace of Fran[ce], [s]uch a detestation & fear +of France among others [that I] look forward with more apprehension than +I have ever done to the future political events of our country."[1006] + +On December 18 a rumor of the death of Washington reached the Capital. +Marshall notified the House. His grief was so profound that even the dry +and unemotional words of the formal congressional reports express it. +"Mr. Marshall," says the "Annals" of Congress, "in a voice that bespoke +the anguish of his mind, and a countenance expressive of the deepest +regret, rose, and delivered himself as follows:-- + +"Mr. Speaker: Information has just been received, that our illustrious +fellow-citizen, the Commander-in-Chief of the American Army, and the +late President of the United States, is no more! + +"Though this distressing intelligence is not certain, there is too much +reason to believe its truth. After receiving information of this +national calamity, so heavy and so afflicting, the House of +Representatives can be but ill fitted for public business. I move, +therefore, they adjourn."[1007] + +The next day the news was confirmed, and Marshall thus addressed the +House:-- + +"Mr. Speaker: The melancholy event which was yesterday announced with +doubt, has been rendered but too certain. + +"Our WASHINGTON is no more! The Hero, the Sage, and the Patriot of +America--the man on whom in times of danger every eye was turned and all +hopes were placed--lives now only in his own great actions, and in the +hearts of an affectionate and afflicted people. + +"If, sir, it has even not been usual openly to testify respect for the +memory of those whom Heaven had selected as its instrument for +dispensing good to men, yet such has been the uncommon worth, and such +the extraordinary incidents, which have marked the life of him whose +loss we all deplore, that the American Nation,[1008] impelled by the +same feelings, would call with one voice for a public manifestation of +that sorrow which is so deep and so universal. + +"More than any other individual, and as much as to one individual was +possible, has he contributed to found this our wide-spread empire,[1009] +and to give to the Western World its independence and its freedom. + +"Having effected the great object for which he was placed at the head of +our armies, we have seen him converting the sword into the plough-share, +and voluntarily sinking the soldier in the citizen. + +"When the debility of our federal system had become manifest, and the +bonds which connected the parts of this vast continent were dissolving, +we have seen him the Chief of those patriots who formed for us a +Constitution, which, by preserving the Union, will, I trust, +substantiate and perpetuate those blessings our Revolution had promised +to bestow. + +"In obedience to the general voice of his country, calling on him to +preside over a great people, we have seen him once more quit the +retirement he loved, and in a season more stormy and tempestuous than +war itself, with calm and wise determination, pursue the true interests +of the Nation, and contribute, more than any other could contribute, to +the establishment of that system of policy which will, I trust, yet +preserve our peace, our honor and our independence. + +"Having been twice unanimously chosen the Chief Magistrate of a free +people, we see him, at a time when his re-election with the universal +suffrage could not have been doubted, affording to the world a rare +instance of moderation, by withdrawing from his high station to the +peaceful walks of private life. However the public confidence may +change, and the public affections fluctuate with respect to others, yet +with respect to him they have in war and in peace, in public and in +private life, been as steady as his own firm mind, and as constant as +his own exalted virtues. + +"Let us, then, Mr. Speaker, pay the last tribute of respect and +affection to our departed friend--let the Grand Council of the Nation +display those sentiments which the Nation feels. For this purpose I +hold in my hand some resolutions which I will take the liberty to offer +to the House."[1010] + +The resolutions offered by Marshall declared that:-- + +"The House of Representatives of the United States, having received +intelligence of the death of their highly valued fellow-citizen, GEORGE +WASHINGTON, General of the Armies of the United States, and sharing the +universal grief this distressing event must produce, _unanimously +resolve_:-- + +"1. That this House will wait on the President of the United States, in +condolence of this national calamity. + +"2. That the Speaker's chair be shrouded with black, and that the +members and officers of the House wear mourning during the session. + +"3. That a joint committee of both Houses be appointed to report +measures suitable to the occasion, and expressive of the profound sorrow +with which Congress is penetrated on the loss of a citizen, first in +war, first in peace, and first in the hearts of his countrymen."[1011] + +Thus it came about that the designation of Washington as "First in war, +first in peace, and first in the hearts of his countrymen" was +attributed to Marshall. But Marshall's colleague, Henry Lee, was the +author of these words. Marshall's refusal to allow history to give him +the credit for this famous description is characteristic. He might +easily have accepted that honor. Indeed, he found it difficult to make +the public believe that he did not originate this celebrated +phraseology. He presented the resolutions; they stand on the record in +Marshall's name; and, for a long time, the world insisted on ascribing +them to him. + +In a last effort to make history place the laurels on General Lee, where +they belong, Marshall, three years before his death, wrote the exact +facts:-- + +"As the stage passed through Philadelphia," says Marshall, "some +passenger mentioned to a friend he saw in the street the death of +General Washington. The report flew to the hall of Congress, and I was +asked to move an adjournment. I did so. + +"General Lee was not at the time in the House. On receiving the +intelligence which he did on the first arrival of the stage, he retired +to his room and prepared the resolutions which were adopted with the +intention of offering them himself. + +"But the House of Representatives had voted on my motion, and it was +expected by all that I on the next day announce the lamentable event and +propose resolutions adapted to the occasion. + +"General Lee immediately called on me and showed me his resolutions. He +said it had now become improper for him to offer them, and wished me to +take them. As I had not written anything myself and was pleased with his +resolutions which I entirely approved, I told him I would offer them the +next day when I should state to the House of Representatives the +confirmation of the melancholy intelligence received the preceding day. +I did so. + +"You will see the fact stated in a note to the preface of the Life of +Washington on p. [441] v. [2] and again in a note to the 5th vol. p. +765. Whenever the subject has been mentioned in my presence," Marshall +adds in a postscript, "I have invariably stated that the resolution was +drawn by General Lee and have referred to these notes in the Life of +Washington."[1012] + +During the first session Marshall was incessantly active, although his +work was done with such ease that he gave to his colleagues the +impression of indolence. Few questions came before the House on which he +did not take the floor; and none, apparently, about which he did not +freely speak his mind in private conversation. The interminable +roll-calls of the first session show that Marshall failed to vote only +six times.[1013] His name is prominent throughout the records of the +session. For example, the Republicans moved to amend the army laws so +that enlistments should not exempt non-commissioned officers and +privates from imprisonment for debt. Marshall spoke against the motion, +which was defeated.[1014] He was appointed chairman of a special +committee to bring in a bill for removing military forces from election +places and "preventing their interference in elections." Marshall drew +this measure, reported it to the House, where it passed, only to be +defeated in the Senate.[1015] + +Early in the session Marshall was appointed chairman of the committee to +report upon the cession by Connecticut to the United States of that +priceless domain known as the Western Reserve. He presented the +committee report recommending the acceptance of the lands and introduced +the bill setting out the terms upon which they could be taken +over.[1016] After much debate, which Marshall led, Gallatin fighting by +his side, the bill was passed by a heavy majority.[1017] + +Marshall's vote against abrogating the power of the Governor of the +Territory of the Mississippi to prorogue the Legislature;[1018] his vote +for the resolution that the impertinence of a couple of young officers +to John Randolph at the theater did not call "for the interposition of +this House," on the ground of a breach of its privileges;[1019] his vote +against that part of the Marine Corps Bill which provided that any +officer, on the testimony of two witnesses, should be cashiered and +incapacitated forever from military service for refusing to help arrest +any member of the service who, while on shore, offended against the +person or property of any citizen,[1020] are fair examples of the level +good sense with which Marshall invariably voted. + +On the Marine Corps Bill a debate arose so suddenly and sharply that the +reporter could not record it. Marshall's part in this encounter reveals +his military bent of mind, the influence of his army experience, and his +readiness in controversy, no less than his unemotional sanity and his +disdain of popular favor if it could be secured only by sacrificing +sound judgment. Marshall strenuously objected to subjecting the Marine +Corps officers to trial by jury in the civil courts; he insisted that +courts-martial were the only tribunals that could properly pass on their +offenses. Thereupon, young John Randolph of Roanoke, whose pose at this +particular time was extravagant hostility to everything military, +promptly attacked him. The incident is thus described by one who +witnessed the encounter "which was incidentally and unexpectedly started +and as suddenly and warmly debated":-- + +"Your representative, Mr. Marshall, was the principal advocate for +_letting the power remain with courts martial and for withholding it +from the courts of law_. In the course of the debate there was some +warmth and personality between him and Mr. Randolph, in consequence of +the latter charging the former with adopting opinions, and using +arguments, which went to sap the mode of trial by jury. + +"Mr. Marshall, with leave, rose a third time, and exerted himself to +repel and invalidate the deductions of Mr. Randolph, who also obtained +permission, and defended the inference he had drawn, by stating that Mr. +Marshall, in the affair of Robbins,[1021] had strenuously argued against +the jurisdiction of the American courts, and had contended that it was +altogether an _Executive_ business; that in the present instance he +strongly contended that the business ought not to be left with the civil +tribunals, but that it ought to be transferred to military tribunals, +and thus the trial by jury would be lessened and frittered away, and +insensibly sapped, at one time by transferring the power to the +Executive, and at another to the military departments; and in other +ways, as occasions might present themselves. The debate happened so +unexpectedly that the shorthand man did not take it down, although its +manner, its matter, and its tendency, made it more deserving of +preservation, than most that have taken place during the session."[1022] + +Marshall's leadership in the fight of the Virginia Revolutionary +officers for land grants from the National Government, strongly resisted +by Gallatin and other Republican leaders, illustrates his unfailing +support of his old comrades. Notwithstanding the Republican opposition, +he was victorious by a vote of more than two to one.[1023] + +But Marshall voted to rebuke a petition of "free men of color" to revive +the slave-trade laws, the fugitive from justice laws, and to take "such +measures as shall in due course" free the slaves.[1024] The debate over +this resolution is important, not only as explaining the vote of +Marshall, who came from Virginia and was himself a slaveholder, as were +Washington and Jefferson, but also as showing the mind of the country on +slavery at that particular time. + +Marshall's colleague, General Lee, said that the petition "contained +sentiments ... highly improper ... to encourage."[1025] John Rutledge of +South Carolina exclaimed: "They now tell the House these people are in +slavery--I thank God they are! if they were not, dreadful would be the +consequences.... Some of the states would never have adopted the Federal +form of government if it had not been secured to them that Congress +never would legislate on the subject of slavery."[1026] + +Harrison Gray Otis of Massachusetts was much disgusted by the +resolution, whose signers "were incapable of writing their names or of +reading the petitions"; he "thought those who did not possess that +species of property [slaves] had better leave the regulation of it to +those who were cursed with it." John Brown of Rhode Island "considered +[slaves] as much personal property as a farm or a ship.... We want +money; we want a navy; we ought therefore to use the means to obtain +it.... Why should we see Great Britain getting all the slave trade to +themselves; why may not our country be enriched by that lucrative +traffic?"[1027] Gabriel Christie of Maryland hoped the petition would +"go under the table instead of upon it."[1028] Mr. Jones of Georgia +thought that the slaves "have been immensely benefited by coming amongst +us."[1029] + +Finally, after two days of debate, in which the cause of freedom for the +blacks was almost unsupported, Samuel Goode of Virginia moved: "That the +parts of the said petition which invite Congress to legislate upon +subjects from which the General Government is precluded by the +Constitution have a tendency to create disquiet and jealousy, and ought +therefore to receive the pointed disapprobation of this House."[1030] On +this motion, every member but one, including John Marshall, voted aye. +George Thacher, a Congregationalist preacher from Massachusetts, alone +voted nay.[1031] Such, in general, and in spite of numerous humanitarian +efforts against slavery, was American sentiment on that subject at the +dawn of the nineteenth century.[1032] + +Five subjects of critical and historic importance came before the +session: the Federalists' Disputed Elections Bill; the Republican attack +on the provisional army raised for the probable emergency of war with +France; the Republican attack on the Executive power in the Jonathan +Robins case; the Republican onslaught upon the Alien and Sedition Laws; +and the National Bankruptcy Bill. In each of these Marshall took a +leading and determining part. + +Early in the session (January 23) the Republicans brought up the vexed +question of the Sedition Law. A resolution to repeal the obnoxious +section of this measure was presented on January 29, and after a hot +debate was adopted by the close vote of 50 to 48. Marshall voted for the +repeal and against his own party.[1033] Had he voted with his party, the +Republican attack would have failed. But no pressure of party regularity +could influence Marshall against his convictions, no crack of the party +whip could frighten him. + +Considering the white heat of partisan feeling at the time, and +especially on the subject of the Alien and Sedition Laws; considering, +too, the fact that these offensive acts were Administration measures; +and taking into account the prominence as a Federalist leader which +Marshall had now achieved, his vote against the reprobated section of +the Sedition Law was a supreme act of independence of political ties and +party discipline. He had been and still was the only Federalist to +disapprove, openly, the Alien and Sedition Laws.[1034] "To make a little +saving for our friend Marshall's address," Chief Justice Ellsworth +sarcastically suggested that, in case of the repeal of the Sedition Law, +"the preamble ... should read thus: 'Whereas the increasing danger and +depravity of the present time require that the law against seditious +practices _should be restored to its full rigor_, therefore,' +etc."[1035] + +From the point of view of its probable effect on Marshall's political +fortunes, his vote appeared to spell his destruction, for it practically +left him outside of either party. He abhorred the doctrine of State +Sovereignty which Jefferson now was making the rallying-point of the +Republican Party; he believed, quite as fervently as had Washington +himself, that the principle of Nationality alone could save the +Republic. So Marshall could have no hopes of any possible future +political advancement through the Republican Party. + +On the other hand, his vote against his own party on its principal +measure killed Marshall's future as a Federalist in the opinion of all +the politicians of his time, both Federal and Republican.[1036] And we +may be certain that Marshall saw this even more clearly than did the +politicians, just as he saw most things more clearly than most men. + +But if Marshall's vote on the Sedition Law was an act of +insubordination, his action on the Disputed Elections Bill was nothing +short of party treason. This next to the last great blunder of the +Federalists was in reality a high-handed attempt to control the coming +presidential election, regardless of the votes of the people. It was +aimed particularly at the anticipated Republican presidential majority +in Pennsylvania which had just elected a Republican Governor over the +Federalist candidate. + +On January 3, Senator Ross of Pennsylvania, the defeated Federalist +candidate for Governor of that State, offered a resolution that a +committee should be appointed to consider a law "for deciding disputed +elections of President and Vice-President ... and ... the legality or +illegality of the votes given for those officers in the different +states." In a brief but pointed debate, the Republicans insisted that +such a law would be unconstitutional. + +The Federalist position was that, since the Constitution left open the +manner of passing upon votes, Congress had the power to regulate that +subject and ought to provide some method to meet anticipated +emergencies. Suppose, said Senator Ross, that "persons should claim to +be Electors who had never been _properly_ appointed [elected], should +their vote be received? Suppose they should vote for a person to be +President who had not the age required by the Constitution or who had +not been long enough a citizen of the United States or for two persons +who were both citizens of the same State?... What situation would the +country be in if such a case was to happen?"[1037] + +So lively was the interest and high the excitement that Marshall did not +go to Richmond when his fifth child was born on February 13, 1800.[1038] +He spoke in the House February 12, and was appointed on an important +committee February 13.[1039] + +On February 14, the bill was reported to the Senate. Five days later the +Republican organ, the "Aurora," made shift to get a copy of the +measure,[1040] and printed it in full with a bold but justifiable attack +upon it and the method of its origin.[1041] On March 28, the bill passed +the Senate by a strict party vote.[1042] It provided that a "Grand +Committee," consisting of six Senators and six Representatives elected +by ballot and the Chief Justice of the Supreme Court, should take charge +of the certificates of electoral votes immediately after they had been +opened and read in the presence of Congress. + +This Grand Committee was to be given power to send for papers and +persons and, in secret session, to consider and _determine_ all +questions concerning the election. Had bribery been employed, had force +been used, had threats or intimidation, persuasion or cajolery polluted +the voters?--the Grand Committee was to decide these questions; it was +to declare what electoral votes should be counted; it was to throw out +electoral votes which it thought to be tainted or improper; and the +report of this Grand Committee was to be final and conclusive. In +short, it was to settle absolutely the Presidency; from its decree +there was to be no appeal.[1043] + +On March 31, this bill reached the House. While no action was taken on +it for more than two weeks, it was almost the sole topic of conversation +among the members. In these cloak-room talks, Marshall, to the intense +disgust and anger of the Federalist leaders, was outspoken against this +attempt to seize the Presidency under the forms of a National law. + +Two weeks later Marshall expressed his opinion on the floor. He thought +that "some salutary mode" to guard against election frauds and to settle +disputed presidential contests should be adopted; but he did not think +that the Senate should appoint the chairman of the Grand Committee, and +he objected especially to the finality of its authority.[1044] He moved +that these portions of the bill be stricken out and offered a +substitute.[1045] + +Opposed as he was to the measure as it came from the Senate, he +nevertheless was against its indefinite postponement and so voted.[1046] +His objections were to the autocratic and definitive power of the Grand +Committee; with this cut from the measure, he was in favor of a joint +committee of the House and Senate to examine into alleged election +frauds and illegalities. The Senate bill was referred to a special +committee of the House,[1047] which reported a measure in accordance +with Marshall's views.[1048] After much debate and several roll-calls, +the bill, as modified by Marshall, passed the House.[1049] + +Marshall's reconstruction of the Senate's Disputed Elections Bill killed +that measure. It no longer served the purpose of the Federalist +presidential conspiracy. By a strict party vote, the Senate disagreed +with the House amendments;[1050] and on the day before adjournment, the +bill was finally disposed of by postponement.[1051] + +Thus did Marshall destroy the careful plans for his party's further +control of the National Government, and increase the probability of the +defeat of his friend, John Adams, and of the election of his enemy, +Thomas Jefferson. Had not Marshall interfered, it seems certain that the +Disputed Elections Bill would have become a law. If it had been enacted, +Jefferson's election would have been impossible. Once again, as we shall +see, Marshall is to save the political life of his great and remorseless +antagonist. + +Yet Jefferson had no words of praise for Marshall. He merely remarks +that "the bill ... has undergone much revolution. Marshall made a +dexterous manoeuver; he declares against the constitutionality of the +Senate's bill, and proposes that the right of decision of their grand +committee should be controllable by the _concurrent_ vote of the two +houses of congress; but to stand good if not rejected by a concurrent +vote. You will readily estimate the amount of this sort of +controul."[1052] + +[Illustration: _Statue of John Marshall By Randolph Rogers_] + +The party leaders labored hard and long with Marshall while the Disputed +Elections Bill was before the House. Speaker Sedgwick thus describes the +Federalist plot and the paralyzing effect of Marshall's private +conversations with his fellow members: "Looking forward to the ensuing +election," writes the disgusted Speaker, "it was deemed indispensable to +prescribe a mode for canvassing the votes, provided there should be a +dispute. There being no law in the state [Pennsylvania], the governor +had declined, and the jacobins [Republicans] propagated the report ... +that he would return their votes. A bill was brought into the Senate & +passed, wisely & effectually providing against the evil, by the +constitution of a committee with ultimate powers of decision. + +"Mr. Marshall in the first place called in question the constitutional +powers of the legislature to delegate such authority to a Committee. On +this question I had a long conversation with him, & he finally confessed +himself (for there is not a more candid man on earth) to be convinced. + +"He then resorted to another ground of opposition. He said the people +having authorized the members to decide, personally, all disputes +relative to those elections, altho' the power was not indelegable, yet +he thought, in its nature, it was too delicate to be delegated, until +experience had demonstrated that great inconveniences would attend its +exercise by the Legislature; altho' he had no doubt such would be the +result of the attempt. + +"This objection is so attenuated and unsubstantial as to be hardly +perceivable by a mind so merely practical as mine. He finally was +convinced that it was so and abandoned it. + +"In the mean time, however, he had dwelt so much, in conversation, on +these subjects that he had dissipated our majority, and it never could +again be compacted. The consequence was that the bill was lost."[1053] + +Marshall's most notable performance while in Congress was his effort in +the celebrated Jonathan Robins case--"a speech," declares that capable +and cautious critic, Henry Adams, "that still stands without a parallel +in our Congressional debates."[1054] In 1797 the crew of the British +ship Hermione mutinied, murdered their officers, took the ship to a +Spanish port, and sold it. One of the murderers was Thomas Nash, a +British subject. Two years later, Nash turned up at Charleston, South +Carolina, as the member of a crew of an American schooner. + +On the request of the British Consul, Nash was seized and held in jail +under the twenty-seventh article of the Jay Treaty. Nash swore that he +was not a British subject, but an American citizen, Jonathan Robins, +born in Danbury, Connecticut, and impressed by a British man-of-war. On +overwhelming evidence, uncontradicted except by Nash, that the accused +man was a British subject and a murderer, President Adams requested +Judge Bee, of the United States District Court of South Carolina, to +deliver Nash to the British Consul pursuant to the article of the treaty +requiring the delivery.[1055] + +Here was, indeed, a campaign issue. The land rang with Republican +denunciation of the President. What servile truckling to Great Britain! +Nay, more, what a crime against the Constitution! Think of it! An +innocent American citizen delivered over to British cruelty. Where now +were our free institutions? When President Adams thus surrendered the +Connecticut "Yankee," Robins, he not only prostituted patriotism, showed +himself a tool of British tyranny, but also usurped the functions of the +courts and struck a fatal blow at the Constitution. So shouted +Republican orators and with immense popular effect. + +The fires kindled by the Alien and Sedition Laws did not heat to greater +fervency the public imagination. Here was a case personal and concrete, +flaming with color, full of human appeal. Jefferson took quick party +advantage of the incident. "I think," wrote he, "no circumstance since +the establishment of our government has affected the popular mind more. +I learn that in Pennsylvania it had a great effect. I have no doubt the +piece you inclosed will run through all the republican papers, & carry +the question home to every man's mind."[1056] + +"It is enough to call a man an _Irishman_, to make it _no murder_ to +pervert the law of nations and to degrade national honor and +character.... Look at what has been done in the case of _Jonathan +Robbins_," [_sic_] exclaimed the "Aurora." "A British lieutenant who +never saw him until he was prisoner at Charleston swears his name is +Thomas Nash." So "The man is hanged!"[1057] + +For the purposes of the coming presidential campaign, therefore, the +Robins affair was made the principal subject of Republican congressional +attack on the Administration. On February 4, the House requested the +President to transmit all the papers in the case. He complied +immediately.[1058] The official documents proved beyond a doubt that the +executed sailor had not been an American citizen, but a subject of the +British King and that he had committed murder while on board a British +vessel on the high seas. + +The selectmen of Danbury, Connecticut, certified that no such person as +Jonathan Robins nor any family of the name of Robins ever had lived in +that town. So did the town clerk. On the contrary, a British naval +officer, who knew Nash well, identified him.[1059] + +Bayard, for the Federalists, took the aggressive and offered a +resolution to the effect that the President's conduct in the Robins case +"was conformable to the duty of the Government and to ... the 27th +article of the Treaty ... with Great Britain."[1060] + +Forced to abandon their public charge that the Administration had +surrendered an innocent American citizen to British cruelty,[1061] the +Republicans based their formal assault in Congress upon the ground that +the President had disobeyed the laws, disregarded the Constitution, and +taken upon himself the discharge of duties and functions which belonged +exclusively to the courts. They contended that, even if Nash were +guilty, even if he were not an American citizen, he should, +nevertheless, have been tried by a jury and sentenced by a court. + +On February 20, Livingston of New York offered the Republican +resolutions to this effect. Not only was the President's conduct in this +serious business a "dangerous interference of the Executive with +judicial decisions," declared the resolution, but the action of the +court in granting the President's request was "a sacrifice of the +Constitutional independence of the judicial power and exposes the +administration thereof to suspicion and reproach."[1062] + +The House decided to consider the Livingston resolutions rather than +those offered by Bayard, the Federalists to a man supporting this method +of meeting the Republicans on the ground which the latter, themselves, +had chosen. Thus the question of constitutional power in the execution +of treaties came squarely before the House, and the great debate was +on.[1063] For two weeks this notable discussion continued. The first day +was frittered away on questions of order. + +The next day the Republicans sought for delay[1064]--there were not +sufficient facts before the House, they said, to justify that body in +passing upon so grave a question. The third day the Republicans proposed +that the House should request the President to secure and transmit the +proceedings before the South Carolina Federal Court on the ground that +the House could not determine the matter until it had the court +proceedings.[1065] + +Marshall's patience was exhausted. He thought this procrastinating +maneuver a Republican trick to keep the whole matter open until after +the coming presidential campaign,[1066] and he spoke his mind sharply to +the House. + +"Let gentlemen recollect the nature of the case," exclaimed Marshall; +"the President of the United States is charged by this House with having +violated the Constitution and laws of his country, by having committed +an act of dangerous interference with a judicial decision--he is so +charged by a member of this House. Gentlemen were well aware how much +the public safety and happiness depended on a well or a misplaced +confidence in the Executive. + +"Was it reasonable or right," he asked, "to receive this charge--to +receive in part the evidence in support of it--to receive so much +evidence as almost every gentleman declared himself satisfied with, and +to leave the charge unexamined, hanging over the head of the President +of the United States ... how long it was impossible to say, but +certainly long enough to work a very bad effect? To him it seemed of +all things the most unreasonable and unjust; and the mischief resulting +therefrom must be very great indeed." + +The House ought to consider the evidence it already had; if, on such +examination, it appeared that more was needed, the matter could then be +postponed. And, in any event, why ask the President to send for the +court proceedings? The House had as much power to procure the papers as +the President had. "Was he [the President] to be a _menial_ to the House +in a business wherein himself was seriously charged?"[1067] + +Marshall was aroused. To his brother he thus denounces the tactics of +the Republicans: "Every stratagem seems to be used to give to this +business an undue impression. On the motion to send for the evidence +from the records of South Carolina altho' it was stated & prov'd that +this would amount to an abandonment of the enquiry during the present +session & to an abandonment under circumstances which would impress the +public mind with the opinion that we really believed Mr. Livingston's +resolutions maintainable; & that the record could furnish no +satisfaction since it could not contain the parol testimony offered to +the Judge & further that it could not be material to the President but +only to the reputation of the Judge what the amount of the testimony +was, yet the debate took a turn as if we were precipitating a decision +without enquiry & without evidence."[1068] + +This Republican resolution was defeated. So was another by Gallatin +asking for the papers in the case of William Brigstock, which the +Republicans claimed was similar to that of Jonathan Robins. Finally the +main question came on. For two hours Gallatin made an ingenious argument +in support of the Livingston resolutions.[1069] + +The next day, March 7, Marshall took the floor and made the decisive +speech which put a period to this partisan controversy. He had carefully +revised his argument,[1070] and it is to this prevision, so unlike +Marshall's usual methods, that we owe the perfection of the reporter's +excellent transcript of his performance. This great address not only +ended the Republican attack upon the Administration, but settled +American law as to Executive power in carrying out extradition treaties. +Marshall's argument was a mingling of impressive oratory and judicial +finality. It had in it the fire of the debater and the calmness of the +judge. + +It is the highest of Marshall's efforts as a public speaker. For many +decades it continued to be published in books containing the +masterpieces of American oratory as one of the best examples of the +art.[1071] It is a landmark in Marshall's career and a monument in the +development of the law of the land. They go far who assert that +Marshall's address is a greater performance than any of the speeches of +Webster, Clay, Sumner, or other American orators of the first class; and +yet so perfect is this speech that the commendation is not extreme. + +The success of a democratic government, said Marshall, depended not only +on its right administration, but also on the public's right +understanding of its measures; public opinion must be "rescued from +those numerous prejudices which ... surround it." Bayard and others had +so ably defended the Administration's course that he would only +"reëstablish" and "confirm" what they had so well said. + +Marshall read the section of the Jay Treaty under which the President +acted: This provided, said he, that a murderer of either nation, fleeing +for "asylum" to the other, when charged with the crime, and his delivery +demanded on such proof as would justify his seizure under local laws if +the murder had been committed in that jurisdiction, must be surrendered +to the aggrieved nation. Thus Great Britain had required Thomas Nash at +the hands of the American Government. He had committed murder on a +British ship and escaped to America. + +Was this criminal deed done in British jurisdiction? Yes; for "the +jurisdiction of a nation extends to the whole of its territory, and to +its own citizens in every part of the world.... The nature of civil +union" involves the "principle" that "the laws of a nation are +rightfully obligatory on its own citizens in every situation where those +laws are really extended to them." + +This "is particularly recognized with respect to the fleets of a nation +on the high seas." By "the opinion of the world ... a fleet at sea is +within the jurisdiction of the nation to which it belongs," and crimes +there committed are punishable by that nation's laws. This is not +contradicted by the right of search for contraband, as Gallatin had +contended, for "in the sea itself no nation has any jurisdiction," and a +belligerent has a right to prevent aid being carried to its enemy. But, +as to its crew, every ship carried the law of its flag. + +Marshall denied that the United States had jurisdiction, concurrent or +otherwise, over the place of the murder; "on the contrary, no nation has +any jurisdiction at sea but over its own citizens or vessels or offenses +against itself." Such "jurisdiction ... is personal, reaching its own +citizens only"; therefore American authority "cannot extend to a murder +committed by a British sailor on board a British frigate navigating the +high seas." There is no such thing as "common [international] +jurisdiction" at sea, said Marshall; and he exhaustively illustrated +this principle by hypothetical cases of contract, dueling, theft, etc., +upon the ocean. "A common jurisdiction ... at sea ... would involve the +power of punishing the offenses ... stated." Piracy was the one +exception, because "against all and every nation ... and therefore +punishable by all alike." For "a pirate ... is an enemy of the human +race." + +Any nation, however, may by statute declare an act to be piratical which +is not so by the law of nations; and such an act is punishable only by +that particular state and not by other governments. But an act +universally recognized as criminal, such as robbery, murder, and the +like, "is an offense against the community of nations." + +The Republican contention was that murder and robbery (seizure of ships) +constituted piracy "by the law of nations," and that, therefore, Nash +should have been indicted and tried by American authority as a pirate; +whereas he had been delivered to Great Britain as a criminal against +that nation. + +But, said Marshall, a single act does not necessarily indicate piratical +intent unless it "manifests general hostility against the world"; if it +shows an "intention to rob generally, then it is piracy." If, however, +"it be merely mutiny and murder in a vessel with the intention of +delivering it up to the enemy, it" is "an offense against a single +nation and not piracy." It was only for such murder and "not piracy" +that "Nash was delivered." And, indisputably, this was covered by the +treaty. Even if Nash had been tried and acquitted for piracy, there +still would have remained the crime of murder over which American courts +had no jurisdiction, because it was not a crime punishable by +international law, but only by the law of the nation in whose +jurisdiction the crime was committed, and to which the criminal +belonged. + +American law and American courts could not deal with such a condition, +insisted Marshall, but British law and courts could and the treaty bound +America to deliver the criminal into British hands. "It was an act to +which the American Nation was bound by a most solemn compact." For an +American court to have convicted Nash and American authorities to have +executed him "would have been murder"; while for them to have "acquitted +and discharged him would have been a breach of faith and a violation of +national duty." + +It was plain, then, said he, that Nash should have been delivered to the +British officers. By whom? The Republicans insisted that this authority +was in the courts. Marshall demonstrated that the President alone could +exercise such power. It was, he said, "a case for Executive and not for +judicial decision." The Republican resolutions declared that the +judicial power extends to _all_ questions arising under the +Constitution, treaties, and laws of the United States; but the +Constitution itself provided that the judicial power extends only to all +cases "_in law and equity_" arising under the Constitution, laws, and +treaties of the United States. + +"The difference was material and apparent," said Marshall. "A case in +law or equity was a term well understood and of limited signification. +It was a controversy between parties which had taken a shape for +judicial decision. If the judicial power extended to every question +under the Constitution, it would involve almost every subject proper for +Legislative discussion and decision; if to every question under the laws +and treaties of the United States, it would involve almost every subject +on which the Executive could act. The division of power ... could exist +no longer, and the other departments would be swallowed up in the +Judiciary." + +The Constitution did not confer on the Judiciary "any political power +whatever." The judicial power covered only cases where there are +"parties to come into court, who can be reached by its process and bound +by its power; whose rights admit of ultimate decision by a tribunal to +which they are bound to submit." Such a case, said Marshall, "may arise +under a treaty where the rights of individuals acquired or secured by a +treaty are to be asserted or defended in court"; and he gave examples. +"But the judicial power cannot extend to political compacts; as the +establishment of the boundary line between American and British +Dominions ... or the case of the delivery of a murderer under the +twenty-seventh article of our present Treaty with Britain.... + +"The clause of the Constitution which declares that 'the trial of all +crimes ... shall be by jury'" did not apply to the decision of a case +like that of Robins. "Certainly this clause ... cannot be thought +obligatory on ... the whole world. It is not designed to secure the +rights of the people of Europe or Asia or to direct and control +proceedings against criminals throughout the universe. It can, then, be +designed only to guide the proceedings of our own courts" in cases "to +which the jurisdiction of the nation may rightfully extend." And the +courts could not "try the crime for which Thomas Nash was delivered up +to justice." The sole question was "whether he should be delivered up to +a foreign tribunal which was alone capable of trying and punishing him." +A provision for the trial of crimes in the courts of the United States +is clearly "not a provision for the surrender to a foreign Government of +an offender against that Government." + +If the murder by Nash were a crime, it is one "not provided for by the +Constitution"; if it were not a crime, "yet it is the precise case in +which his surrender was stipulated by treaty" which the President, +alone, must execute. That in the Executive decision "judicial questions" +must also be determined, argued nothing; for this often must be the +case, as, for instance, in so simple and ordinary matter as issuing +patents for public lands, or in settling whether vessels have been +captured within three miles of our coasts, or in declaring the legality +of prizes taken by privateers or the restoration of such vessels--all +such questions, of which these are familiar examples, are, said +Marshall, "questions of political law proper to be decided by the +Executive and not by the courts." + +This was the Nash case. Suppose that a murder were "committed within the +United States and the murderer should seek an asylum in Great Britain!" +The treaty covered such a case; but no man would say "that the British +courts should decide" it. It is, in its nature, a National demand made +upon the Nation. The parties are two nations. They cannot come into +court to litigate their claims, nor can a court decide on them. "Of +consequence," declares Marshall, "the demand is not a case for judicial +cognizance." + +"The President is the sole organ of the nation in its external +relations"; therefore "the demand of a foreign nation can only be made +on him. He possesses the whole Executive power. He holds and directs the +force of the nation. Of consequence, any act to be performed by the +force of the nation is to be performed through him. He is charged to +execute the laws. A treaty is ... a law. He must, then, execute a +treaty, where he, and he alone, possesses the means of executing it." + +This, in rough outline, is Marshall's historic speech which helped to +direct a new nation, groping blindly and with infinite clamoring, to a +straight and safe pathway. Pickering immediately reported to Hamilton: +"Mr. Marshall delivered a very luminous argument on the case, placing +the 27th article of the treaty in a clear point of view and giving +constructions on the questions arising out of it perfectly satisfactory, +but, as it would seem, wholly unthought of when the meaning of the +article was heretofore considered. His argument will, I hope, be fully +and correctly published; it illustrates an important national +question."[1072] + +The Republicans were discomfited; but they were not without the power to +sting. Though Marshall had silenced them in Congress, the Republican +press kept up the attack. "_Mr. Marshall_ made an ingenious and +_specious_ defence of the administration, in relation to executive +interference in the case of _Robbins_," [_sic_] says the "Aurora," "but +he was compelled to admit, what certainly implicates both the President +and Judge Bee.... He admitted that an American seaman was justifiable, +in rescuing himself from impressment, to put to death those who kept +him in durance.... Robbins [_sic_] claimed to be an American citizen, +and asserted upon his oath, that he had been impressed and yet his claim +was not examined into by the Judge, neither did the President _advise_ +and _request_ that this should be a subject of enquiry. The enquiry into +his citizenship was made _after_ his surrender and execution, and the +evidence exhibited has a very suspicious aspect.... Town clerks may be +found to certify to anything that Timothy Pickering shall desire."[1073] +Nevertheless, even the "Aurora" could not resist an indirect tribute to +Marshall, though paying it by way of a sneer at Samuel W. Dana of +Connecticut, who ineffectually followed him. + +"In the debate on _Mr. Livingston's_ resolutions, on Friday last," says +the "Aurora," "Mr. Marshall made, in the minds of some people, a very +satisfactory defense of the conduct of the _President_ and _Judge Bee_ +in the case of _Jonathan Robbins_ [_sic_]. Mr. Dana, however, thought +the subject exhausted, and very _modestly_ (who does not know his +_modesty_) resolved with his inward man to shed a few more rays of light +on the subject; a federal judge, much admired for his wit and humour, +happened to be present, when Mr. Dana began his flourishes. + +"The judge thought the seal of conviction had been put upon the case by +Mr. Marshall, and discovered symptoms of uneasiness when our little +Connecticut Cicero displayed himself to catch Mr. Speaker's vacant +eye--'Sir,' said the wit to a byestander, 'what can induce that man to +rise, he is nothing but a shakebag, and can only shake out the ideas +that have been put into the members' heads by Mr. Marshall.'"[1074] + +Marshall's argument was conclusive. It is one of the few speeches ever +delivered in Congress that actually changed votes from one party to the +other in a straight-out party fight. Justice Story says that Marshall's +speech "is one of the most consummate juridical arguments which was ever +pronounced in the halls of legislation; ... equally remarkable for the +lucid order of its topics, the profoundness of its logic, the extent of +its research,[1075] and the force of its illustrations. It may be said +of that speech ... that it was '_Réponse sans réplique_,' an answer so +irresistible that it admitted of no reply. It silenced opposition and +settled then and forever the points of international law on which the +controversy hinged.... An unequivocal demonstration of public opinion +followed. The denunciations of the Executive, which had hitherto been +harsh and clamorous everywhere throughout the land, sunk away at once +into cold and cautious whispers only of disapprobation. + +"Whoever reads that speech, even at this distance of time, when the +topics have lost much of their interest, will be struck with the +prodigious powers of analysis and reasoning which it displays, and +which are enhanced by the consideration that the whole subject was then +confessedly new in many of its aspects."[1076] + +The Republican leaders found their own members declaring themselves +convinced by Marshall's demonstration and announcing their intentions of +voting with the Administration. Gallatin, Livingston, and Randolph had +hard work to hold their followers in line. Even the strongest efforts of +these resourceful men would not rally all of their shattered forces. +Many Republican members ignored the pleadings of their leaders and +supported Marshall's position. + +This is not to be wondered at, for Marshall had convinced even Gallatin +himself. This gifted native of Switzerland was the Republican leader of +the House. Unusually well-educated, perfectly upright, thorough in his +industry, and careful in his thinking, Gallatin is the most admirable of +all the characters attracted to the Republican ranks. He had made the +most effective argument on the anti-Administration side in the debate +over the Livingston resolutions, and had been chosen to answer +Marshall's speech. He took a place near Marshall and began making notes +for his reply; but soon he put his pencil and paper aside and became +absorbed in Marshall's reasoning. After a while he arose, went to the +space back of the seats, and paced up and down while Marshall proceeded. + +When the Virginian closed, Gallatin did not come forward to answer him +as his fellow partisans had expected. His Republican colleagues crowded +around the brilliant little Pennsylvania Swiss and pleaded with him to +answer Marshall's speech without delay. But Gallatin would not do it. +"Answer it yourself," exclaimed the Republican leader in his quaint +foreign accent; "for my part, I think it unan_swer_able," laying the +accent on the _swer_.[1077] + +Nicholas of Virginia then tried to reply, but made no impression; Dana +spoke to no better purpose, and the House ended the discussion by a vote +which was admitted to be a distinctively personal triumph for Marshall. +The Republican resolutions were defeated by 61 to 35, in a House where +the parties were nearly equal in numbers.[1078] + +For once even Jefferson could not withhold his applause for Marshall's +ability. "Livingston, Nicholas & Gallatin distinguished themselves on +one side & J. Marshall greatly on the other," he writes in his curt +account of the debate and its result.[1079] And this grudging tribute of +the Republican chieftain is higher praise of Marshall's efforts than the +flood of eulogy which poured in upon him; Jefferson's virulence toward +an enemy, and especially toward Marshall, was such that he could not +see, except on rare occasions, and this was one, any merit whatever in +an opponent, much less express it. + +Marshall's defense of the army law was scarcely less powerful than his +speech in the Robins case; and it reveals much more clearly Marshall's +distinctively military temper of mind. + +Congress had scarcely organized when the question came up of the +reduction of the army. On this there was extended debate. Nicholas of +Virginia offered a resolution to repeal the act for the provisional army +of which Washington had been the Commander-in-Chief. The expense of this +military establishment greatly alarmed Nicholas, who presented an array +of figures on which his anxieties fed.[1080] It was nonsense, he held, +to keep this army law on the statute books for its effect on the +negotiations with France. + +Marshall promptly answered. "If it was true," said he, "that America, +commencing her negotiation with her present military force would appear +in the armor which she could only wear for a day, the situation of our +country was lamentable indeed. If our debility was really such ... our +situation was truly desperate." There was "no cheaper mode of +self-defense"; to abandon it "amounted to a declaration that we were +unable to defend ourselves." It was not necessary to repeal the law +entirely or to put it, "not modified," in full effect. Marshall +suggested a middle ground by which "the law might be modified so as to +diminish the estimated expense, without dismissing the troops already in +actual service."[1081] + +Answering the favorite argument made by the opponents of the army, that +no power can invade America, he asked: "What assurance have gentlemen +that invasion is impracticable?" Who knows the real conditions in +Europe?--the "effect of the late decisive victories of France?... It was +by no means certain" that these had not resulted in the release of +forces which she "may send across the Atlantic." + +Why be precipitate? asked Marshall; by the opening of the next campaign +in Europe we should have more information. Let us look the situation in +the face: "We are, in fact, at war with France, though it is not +declared in form"; commerce is suspended; naval battles are being +fought; property is "captured and confiscated"; prisoners are taken and +incarcerated. America is of "vast importance to France"; indeed, "the +monopoly of our commerce in time of peace" is invaluable to both France +and England "for the formation of a naval power." + +The Republicans, he said, had "urged not only that the army is useless," +but that we could not afford the expense of maintaining it. "Suppose +this had been the language of '75!" exclaimed Marshall. "Suppose a +gentleman had risen on the floor of Congress, to compare our revenues +with our expenses--what would have been the result of the calculation?" +It would have shown that we could not afford to strike for our +independence! Yet we did strike and successfully. "If vast exertions +were then made to acquire independence, will not the same exertions be +now made to maintain it?" + +The question was, "whether self-government and national liberty be worth +the money which must be expended to preserve them?"[1082] He exposed +the sophistry of an expensive economy. It should never be forgotten that +true economy did not content itself with inquiring into the mere saving +of the present moment; it should take an enlarged view of the subject, +and determine, on correct calculations, whether the consequence of a +present saving might not be a much more considerable future expenditure. + +Marshall admitted that the reduction of the army would certainly +diminish the expense of the present year, but contended that the present +saving would bear no proportion to the immense waste of blood, as well +as treasure, which it might occasion.[1083] "And consider," he +exclaimed, "the effect the army already had produced on the mind and +conduct of France. While America was humbly supplicating for peace, and +that her complaints might be heard, France spurned her contemptuously +and refused to enter on a discussion of differences, unless that +discussion was preceded by a substantial surrender of the essential +attributes of independence." + +"America was at length goaded into resistance," asserted Marshall, "and +resolved on the system of defense, of which the army now sought to be +disbanded forms a part." What was the result? "Immediately the tone of +France was changed, and she consented to treat us as an independent +nation. Her depredations indeed did not cease; she continued still to +bring war upon us; but although peace was not granted, the door to peace +was opened." + +If "a French army should be crossing the Atlantic to invade our +territory," would anybody insist on disbanding our army? "Was it wise, +then, to do so while such a probability existed?" In a few months we +should know; and, if danger should disappear, "the army expires by the +law which gave it being." Meantime the expense would be trifling.[1084] + +In a private letter Marshall states, with even more balance, his views +of the conflicting questions of the expense involved in, and the +necessity for, military equipment. He regrets that a loan is "absolutely +unavoidable"; but "attention must be paid to our defenses":-- + +"The whole world is in arms and no rights are respected but those that +[are] maintained by force. In such a state of things we dare not be +totally unmindful of ourselves or totally neglectful of that military +position to which, in spite of the prudence and pacific disposition of +our government, we may be driven for the preservation of our liberty and +national independence. + +"Altho' we ought never to make a loan if it be avoidable, yet when +forc'd to it much real consolation is to be deriv'd from the future +resources of America. These resources, if we do not throw them away [by] +dissolving the union, are invaluable. It is not to be doubted that in +twenty years from this time the United States would be less burthen'd by +a revenue of twenty millions than now by a revenue of ten. It is the +plain & certain consequence of our increasing population & our +increasing wealth.... + +"The system of defence which has rendered this measure necessary was +not [only] essential to our character as an independent nation, but it +has actually sav'd more money to the body of the people than has been +expended & has very probably prevented either open war or such national +degradation as would make us the objects of general contempt and injury. + +"A bill to stop recruiting in the twelve additional regiments has been +brought in and will pass without opposition. An attempt was made +absolutely to disband them, but [it] was negativ'd. It has been so +plainly prov'd to us that french aggression has been greatly increased, +& that their contemptuous refusal even to treat with us as an +independent nation has been entirely occasioned by a belief that we +could not resist them; & it is so clear that their present willingness +to treat is occasioned by perceiving our determination to defend +ourselves, that it was thought unwise to change materially our system at +the commencement of negotiation. + +"In addition to this it had much weight, that we should know in a few +months the facts of our negotiation & should then be able to judge +whether the situation & temper of France rendered an invasion +pro[bable]. Then would be the time to decide on diminishing [or] +augmenting our military forces. A French 64 has it is said arrived in +the west indies & three frigates expected."[1085] + +Although the debate dragged on and the army was attacked and defended +with brilliant ability, Marshall's argument remained the Gibraltar of +the Administration, upon which all the assaults of the Republicans were +centered unavailingly. For his army speech was never answered. Only once +more during this debate did Marshall rise and then but briefly, to bring +his common sense to bear upon the familiar contention that, if the +country is in danger, its citizens will rise spontaneously to defend it. +He said that it would be absurd to call men to arms, as had been done, +and then "dismiss them before the service was performed ... merely +because their zeal could be depended on" hereafter. He "hoped the +national spirit would never yield to that false policy."[1086] + +The fourth important subject in which Marshall was a decisive influence +was the National Bankruptcy Law, passed at this session of Congress. He +was the second member of the committee that drafted this +legislation.[1087] For an entire month the committee worked on the bill +and reported it on January 6, 1800.[1088] After much debate, which is +not given in the official reports, the bill passed the House on February +21 and the Senate March 28.[1089] + +While the "Annals" do not show it, we know from the testimony of the +Speaker of the House that Marshall was the vital force that shaped this +first National Bankruptcy Act. He was insistent that the law should not +be too extensive in its provisions for the curing of bankruptcy, and it +was he who secured the trial by jury as to the fact of bankruptcy. + +"It [the Bankruptcy Law] is far from being such an one as I wished," +writes Sedgwick. "The _acts_ in curing bankruptcy are too restricted, +and the trial of the question Bankrupt or not, by jury, will be found +inconvenient, embarrassing & dilatory. The mischief was occasioned by +Virginia Theory. It was the whim of General Marshall; with him a _sine +qua non_ of assent to the measure, & without him the bill must have been +lost, for it passed the House by my casting vote." + +"Besides the bankrupt bill, we have passed [only] one more of great +importance," writes the Speaker of the House in a review of the work of +the session.[1090] Much of the Speaker's summary is devoted to Marshall. +Sedgwick was greatly disappointed with the laws passed, with the +exception of the Bankruptcy Bill "and one other."[1091] "All the rest we +have made here are, as to any permanently beneficial effects, hardly +worth the parchment on which they are written. The reason of this +feebleness is a real feebleness of character in the house." Sedgwick +lays most of this at Marshall's door, and in doing so, draws a vivid +picture of Marshall the man, as well as of Marshall the legislator:-- + +"Marshall was looked up to as the man whose great and commanding genius +was to enlighten & direct the national councils. This was the general +sentiment, while some, and those of no inconsiderable importance, +calculating on his foolish declaration, relative to the alien & sedition +laws, thought him temporizing while others deemed him feeble. + +"None had in my opinion justly appreciated his character. As his +character has stamped itself on the measures of the present session, I +am desirous of letting you know how I view it. + +"He is a man of a very affectionate disposition, of great simplicity of +manners and honest & honorable in all his conduct. + +"He is attached to pleasures, with convivial habits strongly fixed. + +"He is indolent, therefore; and indisposed to take part in the common +business of the house. + +"He has a strong attachment to popularity but indisposed to sacrifice to +it his integrity; hence it is that he is disposed on all popular +subjects to feel the public pulse and hence results indecision and _an +expression_ of doubt. + +"Doubts suggested by him create in more feeble minds those which are +irremovable. He is disposed ... to express great respect for the +sovereign people, and to quote their opinions as an evidence of truth. + +"The latter is of all things the most destructive of personal +independence & of that weight of character which a great man ought to +possess. + +"This gentleman, when aroused, has strong reasoning powers; they are +almost unequalled. But before they are excited, he has frequently, +nearly, destroyed any impression from them."[1092] + +Such was Marshall's work during his six months' service in Congress, the +impression he made, and the estimate of him by his party friends. His +"convivial habits, strongly fixed," his great good nature, his personal +lovableness, were noted by his associates in the National House of +Representatives quite as much as they had been observed and commented on +by his fellow members in the Virginia Legislature and by his friends and +neighbors in Richmond. + +The public qualities which his work in Congress again revealed in +brilliant light were his extraordinary independence of thought and +action, his utter fearlessness, and his commanding mental power. But his +personal character and daily manners applied a soothing ointment to any +irritation which his official attitude and conduct on public questions +created in the feelings of his associates. + +So came the day of adjournment of Congress; and with it the next step +which Fate had arranged for John Marshall. + + +FOOTNOTES: + +[993] Sedgwick to King, Dec. 29, 1799; King, iii, 163. + +[994] Cabot to King, Jan. 20, 1800; _ib._, 184. + +[995] _Annals_, 6th Cong., 1st Sess., 187. + +[996] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. + +[997] _Annals_, 6th Cong. 1st Sess., 194. The speech as reported passed +with little debate. + +[998] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. And see McMaster, +ii, 452. + +[999] Levin Powell to Major Burr Powell, Dec. 11, 1799; _Branch +Historical Papers_, ii, 232. + +[1000] _Annals_, 6th Cong., 1st Sess., 194. + +[1001] _Annals_, 6th Cong., 1st Sess., 194-97. + +[1002] _Ib._, 194. + +[1003] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. + +[1004] _Annals_, 6th Cong., 1st Sess., 198. + +[1005] The Federalists called the Republicans "Democrats," "Jacobins," +etc., as terms of contempt. The Republicans bitterly resented the +appellation. The word "Democrat" was not adopted as the formal name of a +political party until the nomination for the Presidency of Andrew +Jackson, who had been Jefferson's determined enemy. + +[1006] Marshall to James M. Marshall, Philadelphia, Dec. 16, 1799; MS. + +[1007] _Annals_, 6th Cong., 1st Sess., 203. + +[1008] Marshall appears to have been the first to use the expression +"the American Nation." + +[1009] The word "empire" as describing the United States was employed by +all public men of the time. Washington and Jefferson frequently spoke of +"our empire." + +[1010] _Annals_, 6th Cong., 1st. Sess., 203-04. + +[1011] _Ib._, 204. + +[1012] Marshall to Charles W. Hannan, of Baltimore, Md., March 29, 1832; +MS., N.Y. Pub. Lib.; also Marshall, ii, 441. + +[1013] These were: On the bill to enable the President to borrow money +for the public (_Annals_, 6th Cong., 1st Sess., 632); a bill for the +relief of Rhode Island College (_ib._, 643); a salt duty bill (_ib._, +667); a motion to postpone the bill concerning the payment of admirals +(_ib._, 678); a bill on the slave trade (_ib._, 699-700); a bill for the +additional taxation of sugar (_ib._, 705). + +[1014] _Ib._, 521-22. + +[1015] _Annals_, 6th Cong., 1st Sess., _House_, 522-23, 527, 626; +_Senate_, 151. + +[1016] _Ib._, 633-34. + +[1017] _Ib._, 662. See _ib._, Appendix II, 495, 496. Thus Marshall was +the author of the law under which the great "Western Reserve" was +secured to the United States. The bill was strenuously resisted on the +ground that Connecticut had no right or title to this extensive and +valuable territory. + +[1018] _Ib._, 532. On this vote the _Aurora_ said: "When we hear such +characters as General Lee calling it _innovation_ and _speculation_ to +withhold from the Executive magistrate the dangerous and unrepublican +power of _proroguing_ and dissolving a legislature at his pleasure, what +must be the course of our reflections? When we see men like General +Marshall voting for such a principle in a Government of a portion of the +American people is there no cause for alarm?" (_Aurora_, March 20, +1800.) + +[1019] _Annals_, 6th Cong., 1st Sess., 504-06. + +[1020] _Annals_, 6th Cong., 1st Sess., 623-24. + +[1021] See _infra_, 458 _et seq._ + +[1022] "Copy of a letter from a gentleman in Philadelphia, to his friend +in Richmond, dated 13th March, 1800," printed in _Virginia Gazette and +Petersburg Intelligencer_, April 1, 1800. + +[1023] _Annals_, 6th Cong., 1st Sess., 668-69. + +[1024] _Ib._, 229. + +[1025] _Ib._, 231. + +[1026] _Ib._, 230-32. + +[1027] _Annals_, 6th Cong., 1st Sess., 233. + +[1028] _Ib._, 234. + +[1029] _Ib._, 235. + +[1030] _Ib._, 240. + +[1031] _Ib._, 245. + +[1032] Concerning a similar effort in 1790, Washington wrote: "The +memorial of the Quakers (and a very _malapropos_ one it was) has at +length been put to sleep, and will scarcely awake before the year 1808." +(Washington to Stuart, March 28, 1790; _Writings_: Ford, xi, 474.) + +[1033] _Annals_, 6th Cong., 1st Sess., Resolution and debate, ii, +404-19. + +[1034] Bassett, 260. + +[1035] Ellsworth to Pickering, Dec. 12, 1798; Flanders, ii, 193. + +[1036] Adams: _Gallatin_, 211. And see Federalist attacks on Marshall's +answers to "Freeholder," _supra_. + +[1037] _Annals_, 6th Cong., 1st Sess., 29. + +[1038] James Keith Marshall. + +[1039] _Annals_, 6th Cong., 1st Sess., 520, 522. + +[1040] At this period the Senate still sat behind closed doors and its +proceedings were secret. + +[1041] _Annals_, 6th Cong., 1st Sess., 105. This led to one of the most +notably dramatic conflicts between the Senate and the press which has +occurred during our history. For the prosecution of William Duane, +editor of the _Aurora_, see _ib._, 105, 113-19, 123-24. It was made a +campaign issue, the Republicans charging that it was a Federalist plot +against the freedom of the press. (See _Aurora_, March 13 and 17, 1800.) + +[1042] _Ib._, 146. + +[1043] For a review of this astonishing bill, see McMaster, ii, 462-63, +and Schouler, i, 475. + +[1044] _Annals_, 6th Cong., 1st Sess., 670. + +[1045] Marshall's substitute does not appear in the _Annals_. + +[1046] _Annals_, 6th Cong., 1st Sess., 674. + +[1047] _Ib._, 678. + +[1048] _Annals_, 6th Cong., 1st Sess., 691-92. + +[1049] _Ib._, 687-710. + +[1050] _Ib._, 179. + +[1051] _Ib._, 182. + +[1052] Jefferson to Livingston, April 30, 1800; _Works_: Ford, ix, 132. + +[1053] Sedgwick to King, May 11, 1800; King, iii, 237-38. + +[1054] Adams: _Gallatin_, 232. + +[1055] United States _vs._ Nash _alias_ Robins, Bee's _Reports_, 266. + +[1056] Jefferson to Charles Pinckney, Oct. 29, 1799; _Works_: Ford, ix, +87. + +[1057] _Aurora_, Feb. 12, 1800. + +[1058] _Annals_, 6th Cong., 1st Sess., 511. + +[1059] _Ib._, 515-18. Nash himself confessed before his execution that +he was a British subject as claimed by the British authorities and as +shown by the books of the ship Hermione. + +[1060] _Ib._, 526. + +[1061] The Republicans, however, still continued to urge this falsehood +before the people and it was generally believed to be true. + +[1062] _Annals_, 6th Congress, 1st Sess., 532-33. + +[1063] _Ib._, 541-47. + +[1064] _Ib._, 548. + +[1065] _Annals_, 6th Cong., 1st Sess., 558. + +[1066] This, in fact, was the case. + +[1067] _Annals_, 6th Cong., 1st Sess., 565. + +[1068] Marshall to James M. Marshall, Feb. 28, 1800; MS. + +[1069] _Annals_, 6th Cong., 1st Sess., 595-96. + +[1070] Pickering to James Winchester, March 17, 1800; Pickering MSS., +Mass. Hist. Soc. Also Binney, in Dillon, iii, 312. + +[1071] See Moore: _American Eloquence_, ii, 20-23. The speech also +appears in full in _Annals_, 6th Cong., 1st Sess., 596-619; in Benton: +_Abridgment of the Debates of Congress_; in Bee's _Reports_, 266; and in +the Appendix to Wharton: _State Trials_, 443. + +[1072] Pickering to Hamilton, March 10, 1800; Pickering MSS., Mass. +Hist. Soc. + +[1073] _Aurora_, March 10, 1800. + +[1074] _Aurora_, March 14, 1800. + +[1075] Marshall's speech on the Robins case shows some study, but not so +much as the florid encomium of Story indicates. The speeches of Bayard, +Gallatin, Nicholas, and others display evidence of much more research +than that of Marshall, who briefly refers to only two authorities. + +[1076] Story, in Dillon, iii, 357-58. + +[1077] Grigsby, i, 177; Adams: _Gallatin_, 232. + +[1078] _Annals_, 6th Cong., 1st Sess., 619. + +[1079] Jefferson to Madison, March 8, 1800; _Works_: Ford, ix, 121. In +sending the speeches on both sides to his brother, Levin Powell, a +Virginia Federalist Representative, says: "When you get to Marshall's it +will be worth a perusal." (Levin Powell to Major Burr Powell, March 26, +1800; _Branch Historical Papers_, ii, 241.) + +[1080] _Annals_, 6th Cong., 1st Sess., 247-50. + +[1081] _Ib._, 252. + +[1082] _Annals_, 6th Cong., 1st Sess., 253-54. + +[1083] _Ib._ + +[1084] _Annals_, 6th Cong., 1st Sess., 254, 255. + +[1085] Marshall to Dabney, Jan. 20, 1800; MS. Colonel Charles Dabney of +Virginia was commander of "Dabney's Legion" in the Revolution. He was an +ardent Federalist and a close personal and political friend of Marshall. + +[1086] _Annals_, 6th Cong., 1st Sess., 395-96. + +[1087] _Ib._, 191. + +[1088] _Ib._, 247. + +[1089] _Ib._, 126; see law as passed, 1452-71. + +[1090] Sedgwick to King, May 11, 1800; King, iii, 236. + +[1091] The act requiring the Secretary of the Treasury to lay before +Congress at each session a report of financial conditions with his +recommendations. (_Annals_, 6th Cong., 1st Sess., Appendix, 1523.) The +Speaker thought this law important because it "will give splendor to the +officer [Secretary of the Treasury] and respectability to the Executive +Department of the Govt." (Sedgwick to King, _supra_.) Yet the session +passed several very important laws, among them the act accepting the +cession of the Western Reserve (_Annals_, 6th Cong., 1st Sess., +Appendix, 1495-98) and the act prohibiting American citizens "or other +persons residing within the United States" to engage in the slave trade +between foreign countries (_ib._, 1511-14.) + +[1092] Sedgwick to King, May 11, 1800; King, iii, 237. + + + + +CHAPTER XII + +CHIEF JUSTICE OF THE UNITED STATES + + I consider General Marshall as more than a secretary--as a state + conservator. (Oliver Wolcott.) + + To Mr. Jefferson I have felt insuperable objections. The morals of + the author of the letter to Mazzei cannot be pure. (Marshall.) + + You have given an opinion in exact conformity with the wishes of + your party. Come forward and defend it. (George Hay to Marshall.) + + +"The P. requests Mr. McHenry's company for one minute," wrote President +Adams to his Secretary of War on the morning of May 5, 1800.[1093] The +unsuspicious McHenry at once responded. The President mentioned an +unimportant departmental matter; and then, suddenly flying into a rage, +abused his astounded Cabinet adviser in "outrageous"[1094] fashion and +finally demanded his resignation.[1095] The meek McHenry resigned. To +the place thus made vacant, the harried President, without even +consulting him, immediately appointed Marshall, who "as immediately +declined."[1096] Then Adams tendered the office to Dexter, who accepted. + +And resign, too, demanded Adams of his Secretary of State.[1097] The +doughty Pickering refused[1098]--"I did not incline to accept this +insidious favor,"[1099] he reported to Hamilton. Adams dismissed +him.[1100] Again the President turned to Marshall, who, deeply troubled, +considered the offer. The Federalist Cabinet was broken to pieces, and a +presidential election was at hand which would settle the fate of the +first great political party in American history. + +The campaign had already started. The political outlook was dark enough +before the President's outburst; this shattering of his Cabinet was a +wicked tongue of lightning from the threatening clouds which, after the +flash, made them blacker still.[1101] + +Few Presidents have ever faced a more difficult party condition than did +John Adams when, by a humiliating majority of only three votes, he was +elected in 1796. He succeeded Washington; the ruling Federalist +politicians looked to Hamilton as their party chieftain; even Adams's +Cabinet, inherited from Washington, was personally unfriendly to the +President and considered the imperious New York statesman as their +supreme and real commander. "I had all the officers and half the crew +always ready to throw me overboard," accurately declared Adams some +years later.[1102] + +Adams's temperament was the opposite of Washington's, to which the +Federalist leaders had so long been accustomed that the change +exasperated them.[1103] From the very beginning they bound his hands. +The new President had cherished the purpose of calling to his aid the +ablest of the Republicans, but found himself helpless. "When I first +took the Chair," bitterly records Adams, "I was extremely desirous of +availing myself of Mr. Madison's abilities, ... and experience. But the +violent Party Spirit of Hamilton's Friends, jealous of every man who +possessed qualifications to eclipse him, prevented it. I could not do it +without quarreling outright with my Ministers whom Washington's +appointment had made my Masters."[1104] + +On the other hand, the high Federalist politicians, most of whom were +Hamilton's adherents, felt that Adams entertained for their leader +exactly the same sentiments which the President ascribed to them. "The +jealousy which the P.[resident] has felt of H.[amilton] he now indulges +toward P.[inckney], W.[olcott] & to'd _very many of their friends_ who +are suspected of having too much influence in the Community, & of not +knowing how to appreciate his [Adams's] merits.... The Consequence is +that his ears are shut to his best real friends & open to Flatterers, to +Time servers & even to some Jacobins."[1105] + +Adams, the scholar and statesman, but never the politician, was the last +man to harmonize these differences. And Hamilton proved to be as inept +as Adams. + +After the President had dispatched the second mission to France, +Hamilton's followers, including Adams's Cabinet, began intriguing in a +furtive and vicious fashion to replace him with some other Federalist at +the ensuing election. While, therefore, the President, as a personal +matter, was more than justified in dismissing McHenry and Pickering (and +Wolcott also[1106]), he chose a fatal moment for the blow; as a matter +of political strategy he should have struck sooner or not at all. + +At this late hour the great party task and duty of the President was, by +any and every honorable means, to unite all Federalist factions for the +impending battle with the eager, powerful, and disciplined Republicans. +Frank and full conference, tolerance, and conciliation, were the methods +now required. These might not have succeeded, but at least they would +not have irritated still more the ragged edges of party dissension. Not +only did the exasperated President take the opposite course, but his +manner and conduct were acid instead of ointment to the raw and angry +wounds.[1107] + +This, then, was the state of the Federalist Party, the frame of mind of +the President, and the distracted condition of the Cabinet, when +Marshall was asked to become Secretary of State in the late spring of +1800. He was minded to refuse this high station as he had that of +Secretary of War. "I incline to think Mr. Marshall will decline this +office also," wrote McHenry to his brother.[1108] If he accepted, he +would be loyal to the President--his nature made anything else +impossible. But he was the personal friend of all the Federalist +leaders, who, in spite of his disapproval of the Alien and Sedition Laws +and of his dissent from his party's plans in Congress, in spite, even, +of his support of the President's detested second mission to +France,[1109] nevertheless trusted and liked him. + +The President's selection of Marshall had been anticipated by the +Republicans. "General Marshall ... has been nominated to hold the +station of Secretary of War," said the "Aurora," in an article heavy +with abuse of Pickering. "This ... however, is said to be but +preparatory to General Marshall's appointment to succeed Mr. Pickering +who is expected to resign."[1110] + +Strangely enough the news of his elevation to the head of the Cabinet +called forth only gentle criticism from the Republican press. "From what +is said of Mr. Marshall," the "Aurora" thought that he was "as little +likely to conciliate" France as Pickering. He "is well known to have +been the disingenuous writer of all the X. Y. Z. Dispatches," which the +Federalists had "confessed to be one of the best and most successful +political _tricks_ that was ever _played off_.... General Marshall's +fineering and var[ni]shing capacity" was "well known," said the +"Aurora." "General Marshall consequently has been nominated and +appointed.... In genuine federal principles, General Marshall is as +inflexible as Mr. Pickering; but in the negotiation with France, the +General may not have imbibed so strong prejudices--and, having been one +of the Envoys to that Republic, he may be supposed to be more conversant +with some of the points in dispute, than Col. Pickering, and +consequently to be preferred. + +"We find him very well spoken of in the _reformed Gazettes of France_," +continues the "Aurora," "which being now under guardianship[1111] may +be considered as speaking the language of the government--'_Le Bien +Informé_,' after mentioning the motion Gen. M. made in announcing to +Congress the death of Gen. Washington, adds--'This is the gentleman +who some time since came as Envoy from the _United States_; and who so +virtuously and so spiritedly refused to fill the pockets of some of +_our gentry_ with Dutch inscriptions, and millions of livres.'"[1112] + +For nearly two weeks Marshall pondered over the President's offer. The +prospect was not inviting. It was unlikely that he could hold the place +longer than three quarters of a year, for Federalist defeat in the +presidential election was more than probable; and it seemed certain that +the head of the Cabinet would gather political cypress instead of laurel +in this brief and troubled period. Marshall consulted his friends among +the Federalist leaders; and, finally, accepted the proffered portfolio. +Thereupon the "Aurora," quoting Pickering's statement that the office of +Secretary of State "was never better filled than by General Marshall," +hopes that "Gen. Marshall will take care of his _accounts_," which that +Republican paper had falsely charged that Pickering had manipulated +corruptly.[1113] + +Expressing the Republican temper the "Aurora" thus analyzes the new +Federalist Cabinet: "The Secretary of the Treasury [Oliver Wolcott]" was +"scarcely qualified to hold the second desk in a Mercantile +Counting-House"; the Attorney-General [Charles Lee] was "without +talents"; the Secretary of the Navy [Benjamin Stoddert] was "a small +Georgetown politician ... cunning, gossiping, ... of no ... character +or ... principles"; the Secretary of War [Samuel Dexter] was no more fit +for the place than "his MOTHER"; and Marshall, Secretary of State, was +"more distinguished as a _rhetorician_ and a _sophist_ than as a +_lawyer_ and a _statesman_--sufficiently pliant to succeed in a corrupt +court, too insincere to command respect, or confidence in a republic." +However, said the "Aurora," Adams was "able to teach Mr. Marshall 'l'art +diplomatique.'"[1114] + +Some of the Federalist leaders were not yet convinced, it appears, of +Marshall's party orthodoxy. Pinckney reassures them. Writing from +Virginia, he informs McHenry that "Marshall with reluctance accepts, but +you may rely on his federalism, & be certain that he will not unite with +Jefferson & the Jacobins."[1115] Two months later even the Guy Fawkes of +the Adams Cabinet declares himself more than satisfied: "If the +gentlemen now in office [Marshall and Dexter] had declined," declares +Wolcott, "rage, vexation & despair would probably have occasioned the +most extravagant conduct[1116] [on the part of the President]." After +Marshall had been at the head of the Cabinet for four months, Cabot +writes that "Mr. Wolcott thinks Mr. Marshall accepted the secretaryship +from good motives, and with a view of preserving union, and that he and +Dexter, by _accepting_, have rendered the nation great service; for, if +they had refused, we should have had--_Heaven alone knows whom!_ He +thinks, however, as all must, that under the present chief they will be +disappointed in their hopes, and that if Jefferson is President they +will probably resign."[1117] + +In view of "the temper of his [Adams's] mind," which, asserts the +unfaithful Wolcott, was "revolutionary, violent, and vindictive, ... +their [Marshall's and Dexter's] acceptance of their offices is the best +evidence of their patriotism.... I consider Gen. Marshall and Mr. Dexter +as more than secretaries--as state conservators--the value of whose +services ought to be estimated, not only by the good they do, but by the +mischief they have prevented. If I am not mistaken, however, Gen. +Marshall will find himself out of his proper element."[1118] + +No sooner was Marshall in the Secretary's chair than the President +hastened to his Massachusetts home and his afflicted wife. Adams's part +in directing the Government was done by correspondence.[1119] Marshall +took up his duties with his characteristically serious, yet nonchalant, +patience. + +The National Capital had now been removed to Washington; and here, +during the long, hot summer of 1800, Marshall remained amidst the +steaming swamps and forests where the "Federal City" was yet to be +built.[1120] Not till October did he leave his post, and then but +briefly and on urgent private business.[1121] + +The work of the State Department during this period was not onerous. +Marshall's chief occupation at the Capital, it would appear, was to act +as the practical head of the Government; and even his political enemies +admitted that he did this well. Jefferson's most partial biographer says +that "under the firm and steady lead [of Marshall and Dexter] ... the +Government soon acquired an order, system, and character which it never +had before possessed."[1122] Still, enough routine business came to his +desk to give the new Secretary of State something to do in his own +department. + +Office-seeking, which had so annoyed Washington, still vexed Adams, +although but few of these hornets' nests remained for him to deal with. +"Your knowledge of persons, characters, and circumstances," wrote the +President to Marshall concerning the applications for the office of +United States Marshal for Maryland, "are so much better than mine, and +my confidence in your judgment and impartiality so entire, that I pray +you ... give the commission to him whom you may prefer."[1123] Adams +favored the son of Judge Chase; but, on the advice of Stoddert of +Maryland, who was Secretary of the Navy, Marshall decided against him: +"Mr. Chase is a young man who has not yet acquired the public confidence +and to appoint him in preference to others who are generally known and +esteem'd, might be deem'd a mere act of favor to his Father. Mr. +Stoddert supposes it ineligible to accumulate, without superior +pretensions, offices in the same family." + +Marshall generally trimmed his sails, however, to the winds of +presidential preference. He undoubtedly influenced the Cabinet, in +harmony with the President's wish, to concur in the pardon of Isaac +Williams, convicted, under the Jay Treaty, of waging war on the high +seas against Great Britain. Williams, though sailing under a French +commission, was a pirate, and accumulated much wealth from his +indiscriminate buccaneering.[1125] But the President wrote Marshall that +because of "the man's generosity to American prisoners," and "his +present poverty and great distress," he desired to pardon +Williams.[1126] + +Marshall informed the President that "repeated complaints are made to +this department of the depredations committed by the Spaniards on the +American commerce."[1127] The French outrages were continuing; indeed, +our naval war with France had been going on for months and Spain was +aiding the French. An American vessel, the Rebecca Henry, had been +captured by a French privateer. Two Yankee sailors killed the French +prize master in recapturing the vessel, which was taken again by another +French sea rover and conveyed into a Spanish port. The daring Americans +were imprisoned and threatened with death. Marshall thought "proper to +remonstrate and to threaten retaliation if the prisoners should be +executed."[1128] + +The French ship Sandwich was captured by Captain Talbot, an American +officer, in a Spanish port which Spain had agreed to transfer to France. +Marshall considered this a violation of our treaty with Spain. "I have +therefore directed the Sandwich to be given up to the minister of his +Catholic Majesty,"[1129] he advised the President. The Spanish Minister +thanked Marshall for his "justice" and "punctuality."[1130] + +But Talbot would not yield his prize; the United States Marshal +declined to act. Marshall took "measures[1131] which will," he reported +to the President, "I presume occasion the delivery of this vessel, +unless ... the government has no right to interpose, so far as captors +are interested." Talbot's attitude perplexed Marshall; for, wrote he, +"if the Executive of the United States cannot restore a vessel captured +by a national ship, in violation of the law of nations, ... cause for +war may be given by those who, of all others, are, perhaps, most apt to +give it, and that department of the government, under whose orders they +are plac'd will be unable to correct the mischief."[1132] + +That picturesque adventurer, Bowles, whose plots and activities among +the Indians had been a thorn to the National Government since the early +part of Washington's Administration,[1133] again became annoying. He was +stirring up the Indians against the Spanish possessions in Florida and +repeated his claim of having the support of Great Britain. The Spaniards +eagerly seized on this as another pretext for annoying the American +Government. Measures were taken to break Bowles's influence with the +Indians and to suppress the adventurer's party.[1134] + +But, although the President was of the opinion that "the military +forces ... should join [the Spaniards] in an expedition against +Bowles,"[1135] Marshall did not think "that the Spaniards require any +military aid; nor," continues he, "do I suppose they would be willing to +receive it.... American troops in either of the Floridas wou'd excite +very much their jealousy, especially when no specific requisition for +them has been made, and when their own force is entirely competent to +the object."[1136] + +Liston, the British Minister, assured Marshall that the British +Government had no connection with Bowles.[1137] But, irritated by gossip +and newspaper stories, he offensively demanded that Marshall "meet these +insidious calumnies by a flat and formal contradiction."[1138] Without +waiting for the President's approval, Marshall quickly retorted:[1139] +the "suspicions ... were not entirely unsupported by appearances." +Newspaper "charges and surmises ... are always causes of infinite +regret" to the Government "and wou'd be prevented if the means of +prevention existed." But, said Marshall, the British Government itself +was not blameless in that respect; "without going far back you may find +examples in your own of the impunity with which a foreign friendly +nation [America] may be grossly libel'd." As to the people's hostility +to Great Britain, he tartly reminded the British Minister that "in +examining the practice of your officers employ'd in the business of +impressment, and of your courts of Vice Admiralty, you will perceive at +least some of the causes, by which this temper may have been +produc'd."[1140] + +Sweden and Denmark proposed to maintain, jointly with the United States, +a naval force in the Mediterranean to protect their mutual commerce from +the Barbary Powers. Marshall declined because of our treaties with those +piratical Governments; and also because, "until ... actual hostilities +shall cease between" France and America, "to station American frigates +in the Mediterranean would be a hazard, to which our infant Navy ought +not perhaps to be exposed."[1141] + +Incidents amusing, pathetic, and absurd arose, such as announcements of +the birth of princes, to which the Secretary of State must prepare +answers;[1142] the stranding of foreign sailors on our shores, whose +plight we must relieve;[1143] the purchase of jewels for the Bey of +Tunis, who was clamoring for the glittering bribes.[1144] + +In such fashion went on the daily routine work of his department while +Marshall was at the head of the Cabinet. + +The only grave matters requiring Marshall's attention were the +perplexing tangle of the British debts and the associated questions of +British impressment of American seamen and interference with American +commerce. + +Under the sixth article of the Jay Treaty a joint commission of five +members had been appointed to determine the debts due British subjects. +Two of the Commissioners were British, two Americans, and the fifth +chosen by lot. Chance made this deciding member British also. This +Commission, sitting at Philadelphia, failed to agree. The treaty +provided, as we have seen, that the United States should pay such +British debts existing at the outbreak of the Revolutionary War as the +creditors were not able to collect because of the sequestration laws and +other "legal impediments," or because, during the operation of these +statutes, the debtor had become insolvent. + +Having a majority of the Commission, the British members made rules +which threw the doors wide open.[1145] "They go the length to make the +United States at once the debtor for all the _outstanding_ debts of +British subjects contracted before the peace of 1783.... The amount of +the claims presented exceeds nineteen millions of dollars."[1146] And +this was done by the British representatives with overbearing personal +insolence. Aside from the injustice of the British contention, this +bullying of the American members[1147] made the work of the Commission +all but impossible. + +A righteous popular indignation arose. "The construction put upon the +Treaty by the British Commissioners ... will never be submitted to by +this country.... The [British] demand ... excites much ill blood."[1148] +The American Commissioners refused to attend further sittings of the +Board. Thereupon, the British Government withdrew its members of the +associate Commission sitting in London, under the seventh article of the +treaty, to pass upon claims of American citizens for property destroyed +by the British. + +The situation was acute. It was made still sharper by the appointment of +our second mission to France. For, just as France had regarded Jay's +mission and treaty as offensive, so now Great Britain looked upon the +Ellsworth mission as unfriendly. As a way out of the difficulty, the +American Government insisted upon articles explanatory of the sixth +article of the Jay Treaty which would define exactly what claims the +Commission should consider.[1149] The British Government refused and +suggested a new commission.[1150] + +This was the condition that faced Marshall when he became Secretary of +State. War with Great Britain was in the air from other causes and the +rupture of the two Commissions made the atmosphere thicker. On June 24, +1800, Marshall wrote the President that we ought "still to press an +amicable explanation of the sixth article of our treaty"; perhaps during +the summer or autumn the British Cabinet might feel "more favorable to +an accommodation." But he "cannot help fearing that ... the British +Ministry" intends "to put such a construction on the law of nations ... +as to throw into their hands some equivalent to the probable claims of +British creditors on the United States."[1151] + +Lord Grenville then suggested to Rufus King, our Minister at London, +that the United States pay a gross sum to Great Britain in settlement of +the whole controversy.[1152] Marshall wondered whether this simple way +out of the tangle could "afford just cause of discontent to +France?"[1153] Adams thought not. "We surely have a right to pay our +honest debts in the manner least inconvenient to ourselves and no +foreign power has anything to do with it," said the President. Adams, +however, foresaw many other difficulties;[1154] but Marshall concluded +that, on the whole, a gross payment was the best solution in case the +British Government could not be induced to agree to explanatory +articles.[1155] + +Thereupon Marshall wrote his memorable instructions to our Minister to +Great Britain. In this, as in his letters to Talleyrand two years +earlier, and in the notable one on British impressment, contraband, and +freedom of the seas,[1156] he shows himself an American in a manner +unusual at that period. Not the least partiality does he display for any +foreign country; he treats them with exact equality and demands from all +that they shall deal with the American Government as a _Nation_, +independent of and unconnected with any of them.[1157] + +The United States, writes Marshall, "can never submit to" the +resolutions adopted by the British Commissioners, which put "new and +injurious burthens" upon the United States "unwarranted by compact," and +to which, if they had been stated in the treaty, "this Government never +could and never would have assented." Unless the two Governments can +"forget the past," arbitration cannot be successful; it is idle to +discuss who committed the first fault, he says, when two nations are +trying to adjust their differences. + +The American Commissioners, declares Marshall, withdrew from the Board +because the hostile majority established rules under which "a vast mass +of cases never submitted to their consideration" could and would be +brought in against American citizens. The proceedings of the British +Commissioners were not only "totally unauthorized," but "were conducted +in terms and in a spirit only calculated to destroy all harmony between +the two nations." + +The cases which the Board could consider were distinctly and +specifically stated in the fifth article of the treaty. Let the two +Governments agree to an explanation, instead of leaving the matter to +wrangling commissioners. But, if Minister King finds that the British +Government will not agree to explanatory articles, he is authorized to +substitute "a gross sum in full compensation of all claims made or to be +made on this Government." + +It would, of course, be difficult to agree upon the amount. "The +extravagant claims which the British creditors have been induced to +file," among which "are cases ... so notoriously unfounded that no +commissioners retaining the slightest degree of self-respect can +establish them; ... others where the debt has been fairly and +voluntarily compromised by agreement between creditor and debtor"; +others "where the money has been paid in specie, and receipts in full +given"; and still others even worse, all composing that "enormous mass +of imagined debt," will, says Marshall, make it hard to agree on a +stated amount.[1158] + +The British creditors, he asserts, had been and then were proceeding to +collect their debts through the American courts, and "had they not been +seduced into the opinion that the trouble and expense inseparable from +the pursuit of the old debts, might be avoided by one general resort to +the United States, it is believed they would have been still more +rapidly proceeding in the collection of the very claims, so far as they +are just, which have been filed with the commissioners. They meet with +no objection, either of law or fact, which are not common to every +description of creditors, in every country.... Our judges are even +liberal in their construction of the 4th article of the treaty of peace" +and have shown "no sort of partiality for the debtors." + +Marshall urges this point with great vigor, and concludes that, if a +gross amount can be agreed upon, the American Minister must see to it, +of course, that this sum is made as small as possible, not "to exceed +one million sterling" in any event.[1159] In a private letter, Marshall +informs King that "the best opinion here is that not more than two +million Dollars could justly be chargeable to the United States under +the treaty."[1160] + +Adams was elated by Marshall's letter. "I know not," he wrote, "how the +subject could have been better digested."[1161] + +Almost from the exchange of ratifications of the Jay compact, +impressment of American seamen by the British and their taking from +American ships, as contraband, merchandise which, under the treaty, was +exempt from seizure, had injured American commerce and increasingly +irritated the American people.[1162] The brutality with which the +British practiced these depredations had heated still more American +resentment, already greatly inflamed.[1163] + +In June, 1799, Marshall's predecessor had instructed King "to +persevere ... in denying the right of British Men of War to take from +our Ships of War any men whatever, and from our merchant vessels any +Americans, or foreigners, or even Englishmen."[1164] But the British had +disregarded the American Minister's protests and these had now been +entirely silenced by the break-up of the British Debts Commissions. + +Nevertheless, Marshall directed our Minister at the Court of St. James +to renew the negotiations. In a state paper which, in ability, dignity, +and eloquence, suggests his famous Jonathan Robins speech and equals his +memorial to Talleyrand, he examines the vital subjects of impressment, +contraband, and the rights of neutral commerce. + +It was a difficult situation that confronted the American Secretary of +State. He had to meet and if possible modify the offensive, determined, +and wholly unjust British position by a statement of principles based on +fundamental right; and by an assertion of America's just place in the +world. + +The spirit of Marshall's protest to the British Government is that +America is an independent nation, a separate and distinct political +entity, with equal rights, power, and dignity with all other +nations[1165]--a conception then in its weak infancy even in America +and, apparently, not entertained by Great Britain or France. These +Powers seemed to regard America, not as a sovereign nation, but as a +sort of subordinate state, to be used as they saw fit for their plans +and purposes. + +But, asserts Marshall, "the United States do not hold themselves in any +degree responsible to France or to Britain for their negotiations with +the one or the other of these Powers, but are ready to make amicable and +reasonable explanations with either.... An exact neutrality ... between +the belligerent Powers" is the "object of the American Government.... +Separated far from Europe, we mean not to mingle in their quarrels.... +We have avoided and we shall continue to avoid any ... connections not +compatible with the neutrality we profess.... The aggressions, sometimes +of one and sometimes of another belligerent power have forced us to +contemplate and prepare for war as a probable event.... But this is a +situation of necessity, not of choice." France had compelled us to +resort to force against her, but in doing so "our preference for peace +was manifest"; and now that France makes friendly advances, "America +meets those overtures, and, in doing so, only adheres to her pacific +system." + +Marshall lays down those principles of international conduct which have +become the traditional American policy. Reviewing our course during the +war between France and Great Britain, he says: "When the combination +against France was most formidable, when, if ever, it was dangerous to +acknowledge her new Government" and maintain friendly relations with the +new Republic, "the American Government openly declared its determination +to adhere to that state of impartial neutrality which it has ever since +sought to maintain; nor did the clouds which, for a time, lowered over +the fortunes of the [French] Republic, in any degree shake this +resolution. When victory changed sides and France, in turn, threatened +those who did not arrange themselves under her banners, America, +pursuing with undeviating step the same steady course," nevertheless +made a treaty with Great Britain; "nor could either threats or artifices +prevent its ratification." + +"At no period of the war," Marshall reminds the British Government, "has +France occupied such elevated ground as at the very point of time when +America armed to resist her: triumphant and victorious everywhere, she +had dictated a peace to her enemies on the continent and had refused one +to Britain." On the other hand, "in the reverse of her fortune, when +defeated both in Italy and on the Rhine, in danger of losing Holland, +before the victory of Massena had changed the face of the last campaign, +and before Russia had receded from the coalition against her, the +present negotiation [between America and France] was resolved on. During +this pendency," says Marshall, "the state of the war has changed, but +the conduct of the United States" has not. + +"Our terms remain the same: we still pursue peace. We still embrace it, +if it can be obtained without violating our national honor or our +national faith; but we will reject without hesitation all propositions +which may compromit the one or the other." + +All this, he declares, "shows how steadily it [the American Government] +pursues its system [Neutrality and peace] without regarding the dangers +from the one side or the other, to which the pursuit may be exposed. The +present negotiation with France is a part of this system, and ought, +therefore, to excite in Great Britain no feelings unfriendly to the +United States." + +Marshall then takes up the British position as to contraband of war. He +declares that even under the law of nations, "neutrals have a right to +carry on their usual commerce; belligerents have a right to prevent them +from supplying the enemy with instruments of war." But the eighteenth +article of the treaty itself covered the matter in express terms, and +specifically enumerated certain things as contraband and also "generally +whatever may serve _directly_ to the equipment of vessels." Yet Great +Britain had ruthlessly seized and condemned American vessels regardless +of the treaty--had actually plundered American ships of farming material +upon the pretense that these articles might, by some remote possibility, +be used "to equip vessels." The British contention erased the word +"_directly_"[1166] from the express terms of the treaty. "This +construction we deem alike unfriendly and unjust," he says. Such +"garbling a compact ... is to substitute another agreement for that of +the parties...." + +"It would swell the list of contraband to" suit British convenience, +contrary to "the laws and usages of nations.... It would prohibit ... +articles ... necessary for the ordinary occupations of men in peace" and +require "a surrender, on the part of the United States, of rights in +themselves unquestionable, and the exercise of which is essential to +themselves.... A construction so absurd and so odious ought to be +rejected."[1167] + +Articles, "even if contraband," should not be confiscated, insists +Marshall, except when "they are attempted to be carried to an enemy." +For instance, "vessels bound to New Orleans and laden with cargoes +proper for the ordinary use of the citizens of the United States who +inhabit the Mississippi and its waters ... cannot be justly said to +carry those cargoes to an enemy.... Such a cargo is not a just object of +confiscation, although a part of it should also be deemed proper for the +equipment of vessels, because it is not attempted to be carried to an +enemy." + +On the subject of blockade, Marshall questions whether "the right to +confiscate vessels bound to a blockaded port ... can be applied to a +place not completely invested by land as well as by sea." But waiving +"this departure from principle," the American complaint "is that ports +not effectually blockaded by a force capable of completely investing +them, have yet been declared in a state of blockage, and vessels +attempting to enter therein have been seized, and, on that account, +confiscated." This "vexation ... may be carried, if not resisted, to a +very injurious extent." + +If neutrals submit to it, "then every port of the belligerent powers may +at all times be declared in that [blockaded] state and the commerce of +neutrals be thereby subjected to universal capture." But if complete +blockage be required, then "the capacity to blockade will be limited by +the naval force of the belligerent, and, of consequence, the mischief to +neutral commerce can not be very extensive. It is therefore of the last +importance to neutrals that this principle be maintained unimpaired." + +The British Courts of Vice-Admiralty, says Marshall, render "unjust +decisions" in the case of captures. "The temptation which a rich neutral +commerce offers to unprincipled avarice, at all times powerful, becomes +irresistible unless strong and efficient restraints be imposed by the +Government which employs it." If such restraints are not imposed, the +belligerent Government thereby "causes the injuries it tolerates." Just +this, says Marshall, is the case with the British Government. + +For "the most effectual restraint is an impartial judiciary, which will +decide impartially between the parties and uniformly condemn the captor +in costs and damages, where the seizure has been made without probable +cause." If this is not done, "indiscriminate captures will be made." If +an "unjust judge" condemns the captured vessel, the profit is the +captor's; if the vessel is discharged, the loss falls upon the owner. +Yet this has been and still is the indefensible course pursued against +American commerce. + +"The British Courts of Vice Admiralty, whatever may be the case, seldom +acquit and when they do, costs and damages for detention are never +awarded." Marshall demands that the British Government shall "infuse a +spirit of justice and respect for law into the Courts of Vice +Admiralty"--this alone, he insists, can check "their excessive and +irritating vexations.... This spirit can only be infused by uniformly +discountenancing and punishing those who tarnish alike the seat of +justice and the honor of their country, by converting themselves from +judges into mere instruments of plunder." And Marshall broadly intimates +that these courts are corrupt. + +As to British impressment, "no right has been asserted to impress" +Americans; "yet they are impressed, they are dragged on board British +ships of war with the evidence of citizenship in their hands, and forced +by violence there to serve until conclusive testimonials of their birth +can be obtained." He demands that the British Government stop this +lawless, violent practice "by punishing and frowning upon those who +perpetrate it. The mere release of the injured, after a long course of +service and of suffering, is no compensation for the past and no +security for the future.... The United States therefore require +positively that their seamen ... be exempt from impressments." Even +"alien seamen, not British subjects, engaged in our merchant service +ought to be equally exempt with citizens from impressments.... Britain +has no pretext of right to their persons or to their service. To tear +them, then, from our possession is, at the same time, an insult and an +injury. It is an act of violence for which there exists no palliative." + +Suppose, says Marshall, that America should do the things Great Britain +was doing? "Should we impress from the merchant service of Britain not +only Americans but foreigners, and even British subjects, how long would +such a course of injury, unredressed, be permitted to pass unrevenged? +How long would the [British] Government be content with unsuccessful +remonstrance and unavailing memorials?" + +Or, were America to retaliate by inducing British sailors to enter the +more attractive American service, as America might lawfully do, how +would Great Britain look upon it? Therefore, concludes Marshall, "is it +not more advisable to desist from, and to take effectual measures to +prevent an acknowledged wrong, than be perseverant in that wrong, to +excite against themselves the well founded resentment of America, and to +force our Government into measures which may possibly terminate in an +open rupture?"[1168] + +Thus boldly and in justifiably harsh language did Marshall assert +American rights as against British violation of them, just as he had +similarly upheld those rights against French assault. Although France +desisted from her lawless practices after Adams's second mission +negotiated with Bonaparte an adjustment of our grievances,[1169] Great +Britain persisted in the ruthless conduct which Marshall and his +successors denounced until, twelve years later, America was driven to +armed resistance. + +Working patiently in his stuffy office amidst the Potomac miasma and +mosquitoes during the sweltering months, it was Marshall's unhappy fate +to behold the beginning of the break-up of that great party which had +built our ship of state, set it upon the waters, navigated it for twelve +tempestuous years, through the storms of domestic trouble and foreign +danger.[1170] He was powerless to stay the Federalist disintegration. +Even in his home district Marshall's personal strength had turned to +water, and at the election of his successor in Congress, his party was +utterly crushed. "Mr. Mayo, who was proposed to succeed Gen. Marshall, +lost his election by an immense majority," writes the alert Wolcott; +"was grossly insulted in public by a brother-in-law of the late Senator +Taylor, and was afterwards wounded by him in a duel. This is a specimen +of the political influence of the Secretary of State in his own +district."[1171] + +Marshall himself was extremely depressed. "Ill news from Virginia," he +writes Otis. "To succeed me has been elected by an immense majority one +of the most decided democrats[1172] in the union." Upon the political +horizon Marshall beheld only storm and blackness: "In Jersey, too, I am +afraid things are going badly. In Maryland the full force of parties +will be tried but the issue I should feel confident would be right if +there did not appear to be a current setting against us of which the +force is incalculable. There is a tide in the affairs of nations, of +parties, and of individuals. I fear that of real Americanism is on the +ebb."[1173] Never, perhaps, in the history of political parties was +calm, dispassionate judgment and steady courage needed more than they +were now required to avert Federalist defeat. + +Yet in all the States revenge, apprehension, and despair blinded the +eyes and deranged the councils of the supreme Federalist managers.[1174] +The voters in the party were confused and angered by the dissensions of +those to whom they looked for guidance.[1175] The leaders agreed that +Jefferson was the bearer of the flag of "anarchy and sedition," captain +of the hordes of "lawlessness," and, above all, the remorseless +antagonist of Nationalism. What should be done "by the friends of order +and true liberty to keep the [presidential] chair from being occupied by +an enemy [Jefferson] of both?" was the question which the distressed +Federalist politicians asked one another.[1176] + +In May, Hamilton thought that "to support _Adams_ and _Pinckney_ equally +is the only thing that can save us from the fangs of _Jefferson_."[1177] +Yet, six days later, Hamilton wrote that "_most_ of the most +_influential men_ of that [Federalist] party consider him [Adams] as a +very _unfit_ and _incapable_ character.... My mind is made up. I will +never more be responsible for him by any direct support, even though the +consequence should be the election of _Jefferson_.... If the cause is to +be sacrificed to a weak and perverse man, I withdraw from the +party."[1178] + +As the summer wore on, so acrimonious grew the feeling of Hamilton's +supporters toward the President that they seriously considered whether +his reëlection would not be as great a misfortune as the success of the +Republican Party.[1179] Although the Federalist caucus had agreed to +support Adams and Pinckney equally as the party's candidates for +President,[1180] yet the Hamiltonian faction decided to place Pinckney +in the presidential chair.[1181] + +But, blindly as they groped, their failing vision was still clear enough +to discern that the small local leaders in New England, which was the +strong Federalist section of the country, were for Adams;[1182] and that +everywhere the party's rank and file, though irritated and perplexed, +were standing by the President. His real statesmanship had made an +impression on the masses of his party: Dayton declared that Adams was +"the most popular man in the United States."[1183] Knox assured the +President that "the great body of the federal sentiment confide +implicitly in your knowledge and virtue.... They will ... cling to you +in preference to all others."[1184] + +Some urged Adams to overthrow the Hamiltonian cabal which opposed him. +"Cunning half Jacobins assure the President that he can combine the +virtuous and moderate men of both parties, and that all our difficulties +are owing to an oligarchy which it is in his power to crush, and thus +acquire the general support of the nation,"[1185] testifies Wolcott. + +The President heeded this mad counsel. Hamilton and his crew were not +the party, said Adams; they were only a faction and a "British faction" +at that.[1186] He would "rip it up."[1187] The justly angered +President, it appears, thought of founding a new party, an American +Party, "a constitutionalist party."[1188] It was said that the astute +Jefferson so played upon him that Adams came to think the engaging but +crafty Virginian aspired only to be and to be known as the first +lieutenant of the Massachusetts statesman.[1189] Adams concluded that he +could make up any Federalist loss at the polls by courting the +Republicans, whose "friendship," wrote Ames, "he seeks for +himself."[1190] + +But the Republicans had almost recovered from the effect of the X. Y. Z. +disclosures. "The _rabies canina_ of Jacobinism has gradually spread ... +from the cities, where it was confined to docks and mob, to the +country,"[1191] was the tidings of woe that Ames sent to Gore. The +Hamiltonian leaders despaired of the continuance of the Government and +saw "a convulsion of revolution" as the result of "excessive +democracy."[1192] The union of all Federalist votes was "the only +measure by which the government can be preserved."[1193] But Federalist +union! As well ask shattered glass to remould itself! + +The harmonious and disciplined Republicans were superbly led. Jefferson +combined their battle-cries of the last two years into one mighty +appeal--simple, affirmative, popular. Peace, economy, "freedom of the +press, freedom of religion, trial by jury, ... no standing armies," were +the issues he announced, together with the supreme issue of all, States' +Rights. Upon this latter doctrine Jefferson planted all the Republican +guns and directed their fire on "centralization" which, said he, would +"monarchise" our Government and make it "the most corrupt on earth," +with increased "stock-jobbing, speculating, plundering, office-holding, +and office-hunting."[1194] + +The Federalists could reply but feebly. The tax-gatherer's fingers were +in every man's pockets; and Adams had pardoned the men who had resisted +the collectors of tribute. The increased revenue was required for the +army and navy, which, thought the people, were worse than needless[1195] +if there were to be no war and the President's second mission made +hostilities improbable (they had forgotten that this very preparation +had been the principal means of changing the haughty attitude of +France). The Alien and Sedition Laws had infuriated the "foreign" +voters[1196] and alarmed thousands of American-born citizens. Even that +potent bribe of free institutions, the expectation of office, could no +longer be employed effectively with the party workers, who, testifies +Ebenezer Huntington, were going over "to Jefferson in hopes to partake +of the loaves and fishes, which are to be distributed by the new +President."[1197] + +The Federalist leaders did nothing, therefore, but write letters to one +another denouncing the "Jacobins" and prophesying "anarchy." "Behold +France--what is theory here is fact there."[1198] Even the tractable +McHenry was disgusted with his stronger associates. "Their conduct," +said he, "is tremulous, timid, feeble, deceptive & cowardly. They write +private letters. To whom? To each other. But they do nothing.... If the +party recover its pristine energy & splendor, shall I ascribe it to such +cunning, paltry, indecisive, backdoor conduct?"[1199] + +What had become of the French mission?[1200] Would to God it might fail! +That outcome might yet save the Federalist fortunes. "If Mr. Marshall +has any [news of the second French mission] beg him to let it out," +implored Chauncey Goodrich.[1201] But Marshall had none for public +inspection. The envoys' dispatches of May 17,[1202] which had reached +him nearly seven weeks afterward, were perplexing. Indeed, Marshall was +"much inclined to think that ... the French government may be inclined +to protract it [the negotiation] in the expectation that events in +America[1203] may place them on higher ground than that which they now +occupy."[1204] To Hamilton, he cautiously wrote that the dispatches +contained nothing "on which a positive opinion respecting the result of +that negotiation can be formed."[1205] + +But he told the President that he feared "the impression which will +probably be made by the New York Election,"[1206] and that European +military developments might defeat the mission's purpose. He advised +Adams to consider what then should be done. Should "hostilities against +France with the exception of their West India privateers ... be +continued if on their part a change of conduct shall be +manifest?"[1207] Adams was so perturbed that he asked Marshall whether, +in case the envoys returned without a treaty, Congress ought not to be +asked to declare war, which already it had done in effect. For, said +Adams, "the public mind cannot be held in a state of suspense; public +opinion must be always a decided one whether right or not."[1208] + +Marshall counseled patience and moderation. Indeed, he finally informed +Adams that he hoped for an adjustment: "I am greatly disposed to think," +he advised the President, "that the present [French] government is much +inclined to correct, at least in part, the follies of the past. Of +these, none were perhaps more conspicuous or more injurious to the +french nation, than their haughty and hostile conduct to neutrals. +Considerable retrograde steps in this respect have already been taken, +and I expect the same course will be continued." If so, "there will +exist no cause for war, but to obtain compensation for past injuries"; +and this, Marshall is persuaded, is not "a sufficient motive" for +war.[1209] + +To others, however, Marshall was apprehensive: "It is probable that +their [the French] late victories and the hope which many of our papers +[Republican] are well calculated to inspire, that America is disposed +once more to crouch at her [France's] feet may render ineffectual our +endeavors to obtain peace."[1210] + +But the second American mission to France had dealt with Bonaparte +himself, who was now First Consul. The man on horseback had arrived, as +Marshall had foreseen; a statesman as well as a soldier was now the +supreme power in France. Also, as we have seen, the American Government +had provided for an army and was building a navy which, indeed, was even +then attacking and defeating French ships. "America in arms was treated +with some respect," as Marshall expresses it.[1211] At any rate, the +American envoys did not have to overcome the obstacles that lay in the +way two years earlier and the negotiations began without difficulty and +proceeded without friction. + +Finally a treaty was made and copies sent to Marshall, October 4, +1800.[1212] The Republicans were rejoiced; the Federalist politicians +chagrined.[1213] Hamilton felt that in "the general politics of the +world" it "is a make-weight in the wrong scale," but he favored its +ratification because "the contrary ... would ... utterly ruin the +federal party," and "moreover it is better to close the thing where it +is than to leave it to a Jacobin to do much worse."[1214] + +Marshall also advised ratification, although he was "far, very far, from +approving"[1215] the treaty. The Federalists in the Senate, however, +were resolved not to ratify it; they were willing to approve only with +impossible amendments. They could not learn the President's opinion of +this course; as to that, even Marshall was in the dark. "The Secretary +of State knows as little of the intentions of the President as any other +person connected with the government."[1216] Finally the Senate rejected +the convention; but it was so "extremely popular," said the Republicans, +that the Federalist Senators were "frightened" to "recant."[1217] They +reversed their action and approved the compact. The strongest influence +to change their attitude, however, was not the popularity of the treaty, +but the pressure of the mercantile interests which wanted the +business-destroying conflict settled.[1218] + +The Hamiltonian group daily became more wrathful with the President. In +addition to what they considered his mistakes of policy and party +blunders, Adams's charge that they were a "British faction" angered them +more and more as the circulation of it spread and the public credited +it. Even "General M[arshall] said that the hardest thing for the +Federalists to bear was the charge of British influence."[1219] That was +just what the "Jacobins" had been saying all along.[1220] "If this +cannot be counteracted, our characters are the sacrifice," wrote +Hamilton in anger and despair.[1221] Adams's adherents were quite as +vengeful against his party enemies. The rank and file of the Federalists +were more and more disgusted with the quarrels of the party leaders. "I +cannot describe ... how broken and scattered your federal friends are!" +lamented Troup. "We have no rallying-point; and no mortal can divine +where and when we shall again collect our strength.... Shadows, clouds, +and darkness rest on our future prospects."[1222] The "Aurora" +chronicles that "the disorganized state of the anti-Republican +[Federalist] party ... is scarcely describable."[1223] + +Marshall, alone, was trusted by all; a faith which deepened, as we shall +see, during the perplexing months that follow. He strove for Federalist +union, but without avail. Even the most savage of the President's party +enemies felt that "there is not a man in the U. S. of better intentions +[than Marshall] and he has the confidence of all good men--no man +regrets more than he does the disunion which has taken place and no one +would do more to heal the wounds inflicted by it. In a letter ... he +says 'by union we can securely maintain our ground--without it we must +sink & with us all sound correct American principle.' His efforts +will ... prove ineffectual."[1224] + +It seems certain, then, that Hamilton did not consult the one strong man +in his party who kept his head in this hour of anger-induced madness. +Yet, if ever any man needed the advice of a cool, far-seeing mind, +lighted by a sincere and friendly heart, Hamilton required it then. And +Marshall could and would have given it. But the New York Federalist +chieftain conferred only with those who were as blinded by hate as he +was himself. At last, in the midst of an absurd and pathetic confusion +of counsels,[1225] Hamilton decided to attack the President, and, in +October, wrote his fateful and fatal tirade against Adams.[1226] It was +an extravaganza of party folly. It denounced Adams's "extreme egotism," +"terrible jealousy," "eccentric tendencies," "violent rage"; and +questioned "the solidity of his understanding." Hamilton's screed went +back to the Revolution to discover faults in the President. Every act of +his Administration was arraigned as a foolish or wicked mistake. + +This stupid pamphlet was not to be made public, but to be circulated +privately among the Federalist leaders in the various States. The +watchful Burr secured a copy[1227] and published broadcast its bitterest +passages. The Republican politicians shook with laughter; the Republican +masses roared with glee.[1228] The rank and file of the Federalists were +dazed, stunned, angered; the party leaders were in despair. Thus +exposed, Hamilton made public his whole pamphlet. Although its purpose +was to further the plan to secure for Pinckney more votes than would be +given Adams, it ended with the apparent advice to support both. Absurd +conclusion! There might be intellects profound enough to understand why +it was necessary to show that Adams was not fit to be President and yet +that he should be voted for; but the mind of the average citizen could +not fathom such ratiocination. Hamilton's influence was irreparably +impaired.[1229] The "Washington Federalist" denounced his attack as +"the production of a disappointed man" and declared that Adams was "much +his superior as a statesman."[1230] + +The campaign was a havoc of virulence. The Federalists' hatred for one +another increased their fury toward the compact Republicans, who +assailed their quarreling foes with a savage and unrestrained ferocity. +The newspapers, whose excesses had whipped even the placid Franklin into +a rage a few years before, now became geysers spouting slander, +vituperation, and unsavory[1231] insinuations. "The venal, servile, +base and stupid"[1232] "newspapers are an overmatch for any government," +cried Ames. "They will first overawe and then usurp it."[1233] And Noah +Webster felt that "no government can be durable ... under the +licentiousness of the press that now disgraces our country."[1234] +Discordant Federalists and harmonious Republicans resorted to shameful +methods.[1235] "Never ... was there such an Election in America."[1236] + +As autumn was painting the New England trees, Adams, still tarrying at +his Massachusetts home, wrote Marshall to give his "sentiments as soon +as possible in writing" as to what the President should say to Congress +when it met December 3.[1237] Three days later, when his first request +was not yet halfway to Washington, Adams, apparently forgetful of his +first letter, again urged Marshall to advise him as President in regard +to his forthcoming farewell address to the National Legislature.[1238] + +[Illustration: _Statue of John Marshall_ +_By W. W. Story, at the Capitol, Washington, D. C._] + +Marshall not only favored the President with his "sentiments"--he wrote +every word of the speech which Adams delivered to Congress and sent it +to the distressed Chief Magistrate in such haste that he did not +even make a copy.[1239] This presidential address, the first ever made +to Congress in Washington, was delivered exactly as Marshall wrote it, +with a change of only one word "much" for "such" and the omission of an +adjective "great."[1240] + +The address is strong on the necessity for military and naval +preparation. It would be "a dangerous imprudence to abandon those +measures of self-protection ... to which ... violence and the injustice +of others may again compel us to resort.... Seasonable and systematic +arrangements ... for a defensive war" are "a wise and true economy." The +navy is described as particularly important, coast defenses are urged, +and the manufacture of domestic arms is recommended in order to +"supercede the necessity of future importations." The extension of the +national Judiciary is pressed as of "primary importance ... to the +public happiness."[1241] + +The election, at last, was over. The Republicans won, but only by a +dangerously narrow margin. Indeed, outside of New York, the Federalists +secured more electoral votes in 1800 than in the election of Adams four +years earlier.[1242] The great constructive work of the Federalist Party +still so impressed conservative people; the mercantile and financial +interests were still so well banded together; the Federalist revival of +1798, brought about by Marshall's dispatches, was, as yet, so strong; +the genuine worth of Adams's statesmanship[1243] was so generally +recognized in spite of his unhappy manner, that it would seem as though +the Federalists might have succeeded but for the quarrels of their +leaders and Burr's skillful conduct of the Republican campaign in New +York. + +Jefferson and Burr each had seventy-three votes for President. Under +the Constitution, as it stood at that time, the final choice for +President was thus thrown into the House of Representatives.[1244] By +united and persistent effort, it was possible for the Federalists to +elect Burr, or at least prevent any choice and, by law, give the +Presidency to one of their own number until the next election. This, +Jefferson advises Burr, "they are strong enough to do."[1245] The +Federalists saw their chance; the Republicans realized their +danger.[1246] Jefferson writes of the "great dismay and gloom on the +republican gentlemen here and equal exultation on the federalists who +openly declare they will prevent an election."[1247] This "opens upon us +an abyss, at which every sincere patriot must shudder."[1248] + +Although Hamilton hated Burr venomously, he advised the Federalist +managers in Washington "to throw out a lure for him, in order to tempt +him to start for the plate, and then lay the foundation of dissension +between" him and Jefferson.[1249] The Federalists, however, already were +turning to Burr, not according to Hamilton's unworthy suggestion, but in +deadly earnest. At news of this, the fast-weakening New York Federalist +chieftain became frantic. He showered letters upon the party leaders in +Congress, and upon all who might have influence, appealing, arguing, +persuading, threatening.[1250] + +But the Federalists in Congress were not to be influenced, even by the +once omnipotent Hamilton. "The Federalists, almost with one Mind, from +every Quarter of the Union, say elect Burr" because "they must be +disgraced in the Estimation of the People if they vote for Jefferson +having told Them that He was a Man without Religion, the Writer of the +Letter to Mazzei, a Coward, &c., &c."[1251] Hamilton's fierce warnings +against Burr and his black prophecies of "the _Cataline_ of +America"[1252] did not frighten them. They knew little of Burr, +personally, and the country knew less. What was popularly known of this +extraordinary man was not unattractive to the Federalists. + +Burr was the son of the President of Princeton and the grandson of the +celebrated Jonathan Edwards, the greatest theologian America had +produced. He had been an intrepid and efficient officer in the +Revolutionary War, and an able and brilliant Senator of the United +States. He was an excellent lawyer and a well-educated, polished man of +the world. He was a politician of energy, resourcefulness, and decision. +And he was a practical man of affairs. If he were elected by Federalist +votes, the fury with which Jefferson and his friends were certain to +assail Burr[1253] would drive that practical politician openly into +their camp; and, as President, he would bring with him a considerable +Republican following. Thus the Federalists would be united and +strengthened and the Republicans divided and weakened.[1254] + +This was the reasoning which drew and bound the Federalists together in +their last historic folly; and they felt that they might succeed. +"It is ... certainly within the compass of possibility that Burr may +ultimately obtain nine States," writes Bayard.[1255] In addition to the +solid Federalist strength in the House, there were at least three +Republican members, two corrupt and the other light-minded, who might by +"management" be secured for Burr.[1256] The Federalist managers felt +that "the high Destinies ... of this United & enlightened people are +up";[1257] and resolved upon the hazard. Thus the election of Burr, or, +at least, a deadlock, faced the Republican chieftain. + +At this critical hour there was just one man who still had the +confidence of all Federalists from Adams to Hamilton. John Marshall, +Secretary of State, had enough influence to turn the scales of +Federalist action. Hamilton approached Marshall indirectly at first. +"You may communicate this letter to _Marshall_," he instructed Wolcott, +in one of his most savage denunciations of Burr.[1258] Wolcott obeyed +and reported that Marshall "has yet expressed no opinion."[1259] +Thereupon Hamilton wrote Marshall personally. + +This letter is lost; but undoubtedly it was in the same vein as were +those to Wolcott, Bayard, Sedgwick, Morris, and other Federalists. But +Hamilton could not persuade Marshall to throw his influence to +Jefferson. The most Marshall would do was to agree to keep hands off. + +"To Mr. Jefferson," replies Marshall, "whose political character is +better known than that of Mr. Burr, I have felt almost insuperable +objections. His foreign prejudices seem to me totally to unfit him for +the chief magistracy of a nation which cannot indulge those prejudices +without sustaining deep and permanent injury. + +"In addition to this solid and immovable objection, Mr. Jefferson +appears to me to be a man, who will embody himself with the House of +Representatives.[1260] By weakening the office of President, he will +increase his personal power. He will diminish his responsibility, sap +the fundamental principles of the government, and become the leader of +that party which is about to constitute the majority of the legislature. +The morals of the author of the letter to Mazzei[1261] cannot be +pure.... + +"Your representation of Mr. Burr, with whom I am totally unacquainted, +shows that from him still greater danger than even from Mr. Jefferson +may be apprehended. Such a man as you describe is more to be feared, and +may do more immediate, if not greater mischief. + +"Believing that you know him well, and are impartial, my preference +would certainly not be for him, but I can take no part in this business. +I cannot bring myself to aid Mr. Jefferson. Perhaps respect for myself +should, in my present situation, deter me from using any influence (if, +indeed I possessed any) in support of either gentleman. + +"Although no consideration could induce me to be the Secretary of State +while there was a President whose political system I believed to be at +variance with my own; yet this cannot be so well known to others, and it +might be suspected that a desire to be well with the successful +candidate had, in some degree, governed my conduct."[1262] + +Marshall had good personal reasons for wishing Burr to be elected, or at +least that a deadlock should be produced. He did not dream that the +Chief Justiceship was to be offered to him; his law practice, neglected +for three years, had passed into other hands; the head of the Cabinet +was then the most important[1263] office in the Government, excepting +only the Presidency itself; and rumor had it that Marshall would remain +Secretary of State in case Burr was chosen as Chief Magistrate. If the +tie between Jefferson and Burr were not broken, Marshall might even be +chosen President.[1264] + +"I am rather inclined to think that Mr. Burr will be preferred.... +General Marshall will then remain in the department of state; but if Mr. +Jefferson be chosen, Mr. Marshall will retire," writes Pickering.[1265] +But if Marshall cherished the ambition to continue as Secretary of +State, as seems likely, he finally stifled it and stood aloof from the +struggle. It was a decision which changed Marshall's whole life and +affected the future of the Republic. Had Marshall openly worked for +Burr, or even insisted upon a permanent deadlock, it is reasonably +certain that the Federalists would have achieved one of their alternate +purposes. + +Although Marshall refrained from assisting the Federalists in their plan +to elect Burr, he did not oppose it. The "Washington Federalist," which +was the Administration organ[1266] in the Capital, presented in glowing +terms the superior qualifications of Burr over Jefferson for the +Presidency, three weeks after Marshall's letter to Hamilton.[1267] The +Republicans said that Marshall wrote much that appeared in this +newspaper.[1268] If he was influential with the editor, he did not +exercise his power to exclude the paper's laudation of the New York +Republican leader. + +It was reported that Marshall had declared that, in case of a deadlock, +Congress "may appoint a Presidt. till another election is made."[1269] +The rumor increased Republican alarm and fanned Republican anger. From +Richmond came the first tidings of the spirit of popular resistance to +"such a usurpation,"[1270] even though it might result in the election +of Marshall himself to the Presidency. If they could not elect Burr, +said Jefferson, the Federalists planned to make Marshall or Jay the +Chief Executive by a law to be passed by the expiring Federalist +Congress.[1271] + +Monroe's son-in-law, George Hay, under the _nom de guerre_ of +"Hortensius," attacked Marshall in an open letter in the "Richmond +Examiner," which was copied far and wide in the Republican press. +Whether Congress will act on Marshall's opinion, says Hay, "is a +question which has already diffused throughout America anxiety and +alarm; a question on the decision of which depends not only the peace of +the nation, but the existence of the Union." Hay recounts the many +indications of the Federalists' purpose and says: "I understand that +you, Sir, have not only examined the Constitution, but have given an +opinion in exact conformity with the wishes of your party." He +challenges Marshall to "come forward ... and defend it." If a majority +of the House choose Burr the people will submit, says Hay, because such +an election, though contrary to their wishes, would be constitutional. +But if, disregarding the popular will and also violating the +Constitution, Congress "shall elect a stranger to rule over us, peace +and union are driven from the land.... The usurpation ... will be +instantly and firmly repelled. The government will be at an end."[1272] + +Although the "Washington Federalist" denounced as "a lie"[1273] the +opinion attributed to him, Marshall, personally, paid no attention to +this bold and menacing challenge. But Jefferson did. After waiting a +sufficient time to make sure that this open threat of armed revolt +expressed the feeling of the country, he asserted that "we thought best +to declare openly and firmly, one & all, that the day such an act +passed, the Middle States would arm, & that no such usurpation, even for +a single day, should be submitted to."[1274] The Republicans determined +not only to resist the "usurpation ... by arms," but to set aside the +Constitution entirely and call "a convention to reorganize and amend the +government."[1275] + +The drums of civil war were beating. Between Washington and Richmond "a +chain of expresses" was established, the messengers riding "day and +night."[1276] In Maryland and elsewhere, armed men, wrought up to the +point of bloodshed, made ready to march on the rude Capital, sprawling +among the Potomac hills and thickets. Threats were openly made that any +man appointed President by act of Congress, pursuant to Marshall's +reputed opinion, would be instantly assassinated. The Governor of +Pennsylvania prepared to lead the militia into Washington by the 3d of +March.[1277] + +To this militant attitude Jefferson ascribed the final decision of the +Federalists to permit his election. But no evidence exists that they +were intimidated in the least, or in any manner influenced, by the +ravings of Jefferson's adherents. On the contrary, the Federalists +defied and denounced the Republicans and met their threats of armed +interference with declarations that they, too, would resort to the +sword.[1278] + +The proof is overwhelming and decisive that nothing but Burr's refusal +to help the Federalists in his own behalf,[1279] his rejection of their +proposals,[1280] and his determination, if chosen, to go in as a +Republican untainted by any promises;[1281] and, on the other hand, the +assurances which Jefferson gave Federalists as to offices and the +principal Federalist policies--Neutrality, the Finances, and the +Navy[1282]--only all of these circumstances combined finally made +Jefferson president. Indeed, so stubborn was the opposition that, in +spite of his bargain with the Federalists and Burr's repulsion of their +advances, nearly all of them, through the long and thrillingly dramatic +days and nights of balloting,[1283] with the menace of physical violence +hanging over them, voted against Jefferson and for Burr to the very +end. + +The terms concluded with Jefferson, enough Federalists cast blank +ballots[1284] to permit his election; and so the curtain dropped on this +comedy of shame.[1285] "Thus has ended the most wicked and absurd +attempt ever tried by the Federalists," said the innocent +Gallatin.[1286] So it came about that the party of Washington, as a +dominant and governing force in the development of the American Nation, +went down forever in a welter of passion, tawdry politics, and +disgraceful intrigue. All was lost, including honor. + +But no! All was not lost. The Judiciary remained. The newly elected +House and President were Republican and in two years the Senate also +would be "Jacobin"; but no Republican was as yet a member of the +National Judiciary. Let that branch of the Government be extended; let +new judgeships be created, and let new judges be made while Federalists +could be appointed and confirmed, so that, by means, at least, of the +National Courts, States' Rights might be opposed and retarded, and +Nationalism defended and advanced--thus ran the thoughts and the plans +of the Federalist leaders. + +Adams, in the speech to Congress in December of the previous year, had +urged the enactment of a law to this end as "indispensably +necessary."[1287] In the President's address to the expiring Federalist +Congress on December 3, 1800, which Marshall wrote, the extension of the +National Judiciary, as we have seen, was again insistently urged.[1288] +Upon that measure, at least, Adams and all Federalists agreed. "Permit +me," wrote General Gunn to Hamilton, "to offer for your consideration, +the policy of the federal party _extending the influence of our +judiciary_; if neglected by the federalists the ground will be occupied +by the enemy, the very next session of Congress, and, sir, we shall see +---- and many other scoundrels placed on the seat of justice."[1289] + +Indeed, extension of the National Judiciary was now the most cherished +purpose of Federalism.[1290] A year earlier, after Adams's first +recommendation of it, Wolcott narrates that "the steady men" in the +Senate and House were bent upon it, because "there is no other way to +combat the state opposition [to National action] but by an efficient and +extended organization of judges."[1291] + +Two weeks after Congress convened, Roger Griswold of Connecticut +reported the eventful bill to carry out this Federalist plan.[1292] It +was carefully and ably drawn and greatly widened the practical +effectiveness of the National Courts. The Supreme Court was reduced, +after the next vacancy, to five members--to prevent, said the +Republicans, the appointment of one of their party to the Nation's +highest tribunal.[1293] Many new judgeships were created. The Justices +of the Supreme Court, who had sat as circuit judges, were relieved of +this itinerant labor and three circuit judges for each circuit were to +assume these duties. At first, even the watchful and suspicious +Jefferson thought that "the judiciary system will not be pushed, as the +appointments, if made, by the present administration, could not fall on +those who create them."[1294] + +But Jefferson underestimated the determination of the Federalists. +Because they felt that the bill would "greatly extend the judiciary +power and of course widen the basis of government," they were resolved, +writes Rutledge, to "profit of our shortlived majority, and do as much +good as we can before the end of this session"[1295] by passing the +Judiciary Bill. + +In a single week Jefferson changed from confidence to alarm. After all, +he reflected, Adams could fill the new judgeships, and these were life +appointments. "I dread this above all the measures meditated, because +appointments in the nature of freehold render it difficult to undo what +is done,"[1296] was Jefferson's second thought. + +The Republicans fought the measure, though not with the vigor or +animosity justified by the political importance they afterwards attached +to it. Among the many new districts created was an additional one in +Virginia. The representatives from that State dissented; but, in the +terms of that period, even their opposition was not strenuous. They said +that, in Virginia, litigation was declining instead of increasing. "At +the last term the docket was so completely cleared in ... ten days ... +that the court ... had actually decided on several [suits] returnable to +the ensuing term."[1297] + +That, replied the Federalists, was because the courts were too far away +from the citizens. As for the National revenues, they could be collected +only through National tribunals; for this purpose,[1298] two Federal +Courts in Virginia, as provided by the bill, were essential. But, of +course, sneered the Federalists, "Virginia would be well satisfied with +one court in preference to two or with no court whatever in preference +to one."[1299] + +But there was a defect in the bill, intimated the Virginia Republicans, +that affected tenants and landowners of the Northern Neck. A clause of +section thirteen gave the newly established National Court jurisdiction +of all causes arising under the Constitution where original or exclusive +jurisdiction was not conferred upon the Supreme Court or Admiralty +Courts.[1300] The National Court of the new Virginia District was to be +held at Fredericksburg. Thus all suits for quitrents or other claims +against those holding their lands under the Fairfax title could be +brought in this near-by National Court, instead of in State Courts. This +criticism was so attenuated and so plainly based on the assumption that +the State Courts would not observe the law in such actions, that it was +not pressed with ardor even by the impetuous and vindictive Giles. + +But Nicholas went so far as to move that the jurisdiction of National +Courts should be limited to causes exceeding five hundred dollars. This +would cut out the great mass of claims which the present holders of the +Fairfax title might lawfully have against tenants or owners. The +Marshalls were the Fairfax assignees, as we have seen. No Republican, +however, mentioned them in debate; but some one procured the insertion +in the record of an insinuation which nobody made on the floor. In +brackets, the "Annals," after the brief note of Nicholas's objection, +states: "[It is understood that the present assignees of the claims of +Lord Fairfax, are General Marshall, General Lee, and a third individual +and that they maintain their claims under the British Treaty.]"[1301] + +For three weeks the debate in the House dragged along. Republican +opposition, though united, was languid.[1302] At last, without much +Republican resistance, the bill passed the House on January 20, 1801, +and reached the Senate the next day.[1303] Two weeks later the Senate +Republicans moved a substitute providing for fewer circuits, fewer +judges, and a larger Supreme Court, the members of which were to act as +circuit judges as formerly.[1304] It was defeated by a vote of 17 to +13.[1305] The next day the bill was passed by a vote of 16 to 11.[1306] + +When the debate began, the National Judiciary was without a head. +Ellsworth, broken in health, had resigned. Adams turned to Jay, the +first Chief Justice, and, without asking his consent, reappointed him. +"I have nominated you to your old station,"[1307] wrote the President. +"This is as independent of the inconstancy of the people, as it is of +the will of a President." But Jay declined.[1308] Some of the Federalist +leaders were disgruntled at Jay's appointment. "Either Judge Paterson +[of New Jersey] or General Pinckney ought to have been appointed; but +both these worthies were your friends,"[1309] Gunn reported to Hamilton. +The Republicans were relieved by Jay's nomination--they "were afraid of +something worse."[1310] + +Then, on January 20, 1801, with no herald announcing the event, no +trumpet sounding, suddenly, and without previous notification even to +himself, John Marshall was nominated as Chief Justice of the United +States a few weeks before the Federalists went out of power forever. His +appointment was totally unexpected. It was generally thought that Judge +Paterson was the logical successor to Ellsworth.[1311] Marshall, indeed, +had recommended his selection.[1312] The letters of the Federalist +leaders, who at this period were lynx-eyed for any office, do not so +much as mention Marshall's name in connection with the position of Chief +Justice. + +Doubtless the President's choice of Marshall was influenced by the fact +that his "new minister, Marshall, did all to" his "entire +satisfaction."[1313] Federalist politicians afterward caviled at this +statement of Adams. It was quite the other way around, they declared. +"Every one who knew that great man [Marshall] knew that he possessed to +an extraordinary degree the faculty of putting his own ideas into the +minds of others, unconsciously to them. The secret of Mr. Adams's +satisfaction [with Marshall] was, that he obeyed his Secretary of State +without suspecting it."[1314] + +The President gave Marshall's qualifications as the reason of his +elevation. Boudinot reported to Adams that the New Jersey bar hailed +with "the greatest pleasure" a rumor that "the office of Chief +Justice ... may be filled by" Adams himself "after the month of March +next." The President, who admitted that he was flattered, answered: +"I have already, by the nomination of a gentleman in the full vigor of +middle age, in the full habits of business, and whose reading of the +science is fresh in his head,[1315] to this office, put it wholly out of +my power as it never was in my hopes or wishes."[1316] + +Marshall's appointment as Chief Justice was not greeted with applause +from any quarter; there was even a hint of Federalist resentment because +Paterson had not been chosen. "I see it denied in your paper that Mr. +Marshall was nominated Chief Justice of the U.S. The fact is so and he +will without doubt have the concurrence of the Senate, tho' some +hesitation was at first expressed from respect for the pretensions of +Mr. Paterson."[1317] The Republican politicians were utterly +indifferent; and the masses of both parties neither knew nor cared about +Marshall's elevation. + +The Republican press, of course, criticized the appointment, as it felt +bound to attack any and every thing, good or bad, that the Federalists +did. But its protests against Marshall were so mild that, in view of the +recklessness of the period, this was a notable compliment. "The vacant +Chief Justiceship is to be conferred on John Marshall, one time General, +afterwards ambassador to X. Y. and Z., and for a short time incumbent of +the office of Secretary of State.... Who is to receive the salary of the +Secretary of State, after Mr. Marshall's resignation, we cannot +foretell, because the wisdom of our wise men surpasseth +understanding."[1318] Some days later the "Aurora," in a long article, +denounced the Judiciary Law as a device for furnishing defeated +Federalist politicians with offices,[1319] and declared that the act +would never be "carried into execution, ... unless" the Federalists +still meant to usurp the Presidency. But it goes on to say:-- + +"We cannot permit ourselves to believe that _John Marshall_ has been +called to the bench to foster such a plot.... Still, how can we account +for the strange mutations which have passed before us--Marshall for a +few weeks Secretary of State ascends the bench of the Chief +Justice."[1320] The principal objection of the Republican newspapers to +Marshall, however, was that he, "before he left the office [of Secretary +of State], made provision for all the Federal printers to the extent of +his power.... He employed the _aristocratic presses alone_ to publish +laws ... for ... one year."[1321] + +Only the dissipated and venomous Callender, from his cell in prison, +displayed that virulent hatred of Marshall with which an increasing +number of Jefferson's followers were now obsessed. "We are to have that +precious acquisition John Marshall as Chief Justice.... The very sound +of this man's name is an insult upon truth and justice"; and the +dissolute scribbler then pours the contents of his ink-pot over +Marshall's X. Y. Z. dispatches, bespatters his campaign for election to +Congress, and continues thus:-- + +"John Adams first appointed John Jay in the room of Ellsworth. A strong +suspicion exists that John did this with the previous certainty that +John Jay would refuse the nomination. It was then in view to name John +Marshall: first, because President Jefferson will not be able to turn +him out of office, unless by impeachment; and in the second place that +the faction [Federalist Party] who burnt the war office might, with +better grace, attempt, forsooth, to set him up as a sort of president +himself. _Sus ad Minervam!_"[1322] + +That the voice of this depraved man, so soon to be turned against his +patron Jefferson, who had not yet cast him off, was the only one raised +against Marshall's appointment to the highest judicial office in the +Nation, is a striking tribute, when we consider the extreme partisanship +and unrestrained abuse common to the times. + +Marshall himself, it appears, was none too eager to accept the position +which Ellsworth had resigned and Jay refused; the Senate delayed the +confirmation of his nomination;[1323] and it was not until the last day +of the month that his commission was executed. + +On January 31, 1801, the President directed Dexter "to execute the +office of Secretary of State so far as to affix the seal of the United +States to the inclosed commission to the present Secretary of State, +John Marshall, of Virginia, to be Chief Justice of the United States, +and to certify in your own name on the commission as executing the +office of Secretary of State _pro hac vice_."[1324] + +It was almost a week before Marshall formally acknowledged and accepted +the appointment. "I pray you to accept my grateful acknowledgments for +the honor conferred on me in appointing me Chief Justice of the United +States. This additional and flattering mark of your good opinion has +made an impression on my mind which time will not efface. I shall enter +immediately on the duties of the office, and hope never to give you +occasion to regret having made this appointment."[1325] Marshall's +acceptance greatly relieved the President, who instantly acknowledged +his letter: "I have this moment received your letter of this morning, +and am happy in your acceptance of the office of Chief Justice."[1326] + +Who should be Secretary of State for the remaining fateful four weeks? +Adams could think of no one but Marshall, who still held that office +although he had been appointed, confirmed, and commissioned as Chief +Justice. Therefore, wrote Adams, "the circumstances of the times ... +render it necessary that I should request and authorize you, as I do by +this letter, to continue to discharge all the duties of Secretary of +State until ulterior arrangements can be made."[1327] + +Thus Marshall was at the same time Chief Justice of the Supreme Court +and Secretary of State. Thus for the second time these two highest +appointive offices of the National Government were held simultaneously +by the same man.[1328] He drew but one salary, of course, during this +period, that of Chief Justice,[1329] the salary of Secretary of State +remaining unpaid. + +The President rapidly filled the newly created places on the Federal +Bench. Marshall, it appears, was influential in deciding these +appointments. "I wrote for you to Dexter, requesting him to show it +to Marshall,"[1330] was Ames's reassuring message to an aspirant to +the Federal Bench. With astounding magnanimity or blindness, Adams +bestowed one of these judicial positions upon Wolcott, and Marshall +"transmits ... the commission ... with peculiar pleasure. Permit me," he +adds, "to express my sincere wish that it may be acceptable to you." His +anxiety to make peace between Adams and Wolcott suggests that he induced +the President to make this appointment. For, says Marshall, "I will +allow myself the hope that this high and public evidence, given by the +President, of his respect for your services and character, will efface +every unpleasant sensation respecting the past, and smooth the way to a +perfect reconciliation."[1331] + +Wolcott "cordially thanks" Marshall for "the obliging expressions of" +his "friendship." He accepts the office "with sentiments of gratitude +and good will," and agrees to Marshall's wish for reconciliation with +Adams, "not only without reluctance or reserve but with the highest +satisfaction."[1332] Thus did Marshall end one of the feuds which so +embarrassed the Administration of John Adams.[1333] + +Until nine o'clock[1334] of the night before Jefferson's inauguration, +Adams continued to nominate officers, including judges, and the Senate +to confirm them. Marshall, as Secretary of State, signed and sealed the +commissions. Although Adams was legally within his rights, the only +moral excuse for his conduct was that, if it was delayed, Jefferson +would make the appointments, control the National Judiciary, and through +it carry out his States' Rights doctrine which the Federalists believed +would dissolve the Union; if Adams acted, the most the Republicans +could do would be to oust his appointees by repealing the law.[1335] + +The angry but victorious Republicans denounced Adams's appointees as +"midnight judges." It was a catchy and clever phrase. It flew from +tongue to tongue, and, as it traveled, it gathered force and volume. +Soon a story grew up around the expression. Levi Lincoln, the incoming +Attorney-General, it was said, went, Jefferson's watch in his hand, to +Marshall's room at midnight and found him signing and sealing +commissions. Pointing to the timepiece, Lincoln told Marshall that, by +the President's watch, the 4th of March had come, and bade him instantly +lay down his nefarious pen; covered with humiliation, Marshall rose from +his desk and departed.[1336] + +This tale is, probably, a myth. Jefferson never spared an enemy, and +Marshall was his especial aversion. Yet in his letters denouncing these +appointments, while he savagely assails Adams, he does not mention +Marshall.[1337] Jefferson's "Anas," inspired by Marshall's "Life of +Washington," omits no circumstance, no rumor, no second, third, or +fourth hand tale that could reflect upon an enemy. Yet he never once +refers to the imaginary part played by Marshall in the "midnight judges" +legend.[1338] + +Jefferson asked Marshall to administer to him the presidential oath of +office on the following day. Considering his curiously vindictive +nature, it is unthinkable that Jefferson would have done this had he +sent his newly appointed Attorney-General, at the hour of midnight, to +stop Marshall's consummation of Adams's "indecent"[1339] plot. + +Indeed, in the flush of victory and the multitude of practical and +weighty matters that immediately claimed his entire attention, it is +probable that Jefferson never imagined that Marshall would prove to be +anything more than the learned but gentle Jay or the able but innocuous +Ellsworth had been. Also, as yet, the Supreme Court was, comparatively, +powerless, and the Republican President had little cause to fear from it +that stern and effective resistance to his anti-national principles, +which he was so soon to experience. Nor did the Federalists themselves +suspect that the Virginia lawyer and politician would reveal on the +Supreme Bench the determination, courage, and constructive genius which +was presently to endow that great tribunal with life and strength and +give to it the place it deserved in our scheme of government. + +In the opinions of those who thought they knew him, both friend and foe, +Marshall's character was well understood. All were agreed as to his +extraordinary ability. No respectable person, even among his enemies, +questioned his uprightness. The charm of his personality was admitted by +everybody. But no one had, as yet, been impressed by the fact that +commanding will and unyielding purpose were Marshall's chief +characteristics. His agreeable qualities tended to conceal his +masterfulness. Who could discern in this kindly person, with "lax, +lounging manners," indolent, and fond of jokes, the heart that dared all +things? And all overlooked the influence of Marshall's youth, his +determinative army life, his experience during the disintegrating years +after Independence was achieved and before the Constitution was adopted, +the effect of the French Revolution on his naturally orderly mind, and +the part he had taken and the ineffaceable impressions necessarily made +upon him by the tremendous events of the first three Administrations of +the National Government. + +Thus it was that, unobtrusively and in modest guise, Marshall took that +station which, as long as he lived, he was to make the chief of all +among the high places in the Government of the American Nation. + + +FOOTNOTES: + +[1093] Adams to McHenry, May 5, 1800; Steiner, 453. + +[1094] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348. + +[1095] According to McHenry, Adams's complaints were that the Secretary +of War had opposed the sending of the second mission to France, had not +appointed as captain a North Carolina elector who had voted for Adams, +had "EULOGIZED GENERAL WASHINGTON ... attempted to praise Hamilton," +etc. (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348; and see +Hamilton's "Public Conduct, etc., of John Adams"; Hamilton: _Works_: +Lodge, vii, 347-49.) + +[1096] Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to +Hamilton, May 7, 1800; _Works_: Hamilton, vi, 437-38. + +[1097] Adams to Pickering, May 10, 1800; _Works_: Adams, ix, 53. + +[1098] Pickering to Adams, May 11, 1800; _ib._, 54. + +[1099] Pickering to Hamilton, May 15, 1800; _Works_: Hamilton, vi, 443. + +[1100] Adams to Pickering, May 12, 1800; _Works_: Adams, ix, 55. + +[1101] Sedgwick to Hamilton, May 13, 1800; _Works_: Hamilton, vi, 442. + +[1102] Adams to Rush, March 4, 1809; _Old Family Letters_, 219. + +[1103] "There never was perhaps a greater contrast between two +characters than between those of the present President & his +predecessor.... The one [Washington] cool, considerate, & cautious, the +other [Adams] headlong & kindled into flame by every spark that lights +on his passions; the one ever scrutinizing into the public opinion and +ready to follow where he could not lead it; the other insulting it by +the most adverse sentiments & pursuits; W. a hero in the field, yet +overweighing every danger in the Cabinet--A. without a single pretension +to the character of a soldier, a perfect Quixotte as a statesman." +(Madison to Jefferson, Feb., 1798; _Writings_: Hunt, vi, 310.) And +[Adams] "always an honest man, often a wise one, but sometimes wholly +out of his senses." (Madison to Jefferson, June 10, 1798; _ib._, 325.) + +[1104] Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 76. + +[1105] Cabot to King, April 26, 1799; King, iii, 8. + +[1106] Wolcott was as malicious as, but more cautious than, Pickering in +his opposition to the President. + +[1107] "He [Adams] is liable to gusts of passion little short of +frenzy.... I speak of what I have seen." (Bayard to Hamilton, Aug. 18, +1800; _Works_: Hamilton, vi, 457.) "He would speak in such a manner ... +as to persuade one that he was actually insane." (McHenry to John +McHenry, May 20, 1800; Gibbs, ii, 347.) "Mr. Adams had conducted +strangely and unaccountably." (Ames to Hamilton, Aug. 26, 1800; _Works_: +Ames, i, 280.) These men were Adams's enemies; but the extreme +irritability of the President at this time was noted by everybody. +Undoubtedly this was increased by his distress over the illness of his +wife. + +[1108] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. + +[1109] See preceding chapter. + +[1110] _Aurora_, May 9, 1800; the _Aurora_ had been attacking Pickering +with all the animosity of partisanship. + +[1111] The French press had been quite as much under the control of the +Revolutionary authorities as it was under that of Bonaparte as First +Consul or even under his rule when he had become Napoleon I. + +[1112] _Aurora_, May 27, 1800. + +[1113] _Ib._, June 4, 1800; and June 17, 1800. The _Aurora_ now made a +systematic campaign against Pickering. It had "_substantial and damning +facts_" which it threatened to publish if Adams did not subject +Pickering to a "scrutiny" (_ib._, May 21, 1800). Pickering was a +"disgrace to his station" (_ib._, May 23); several hundred thousand +dollars were "unaccounted for" (_ib._, June 4, and 17). + +The attack of the Republican newspaper was entirely political, every +charge and innuendo being wholly false. Adams's dismissal of his +Secretary of State was not because of these charges, but on account of +the Secretary's personal and political disloyalty. Adams also declared, +afterwards, that Pickering lacked ability to handle the grave questions +then pending and likely to arise. (_Cunningham Letters_, nos. xii, xiii, +and xiv.) But that was merely a pretense. + +[1114] _Aurora_, June 12, 1800. + +[1115] Pinckney to McHenry, June 10, 1800; Steiner, 460. + +[1116] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 402. + +[1117] Cabot to Gore, Sept. 30, 1800; Lodge: _Cabot_, 291. + +[1118] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 401-02. + +[1119] Adams's correspondence shows that the shortest time for a letter +to go from Washington to Quincy, Massachusetts, was seven days, although +usually nine days were required. "Last night I received your favor of +the 4th." (Adams at Quincy to Dexter at Washington, Aug. 13, 1800; +_Works_: Adams, ix, 76; and to Marshall, Aug. 14; _ib._, 77; and Aug. +26; _ib._, 78; and Aug. 30; _ib._, 80.) + +[1120] Washington at this time was forest, swamp, and morass, with only +an occasional and incommodious house. Georgetown contained the only +comfortable residences. For a description of Washington at this period, +see chap. I, vol. III, of this work. + +[1121] Marshall to Adams, Sept. 17, 1800; Adams MSS. This trip was to +argue the case of Mayo _vs._ Bentley (4 Call, 528), before the Court of +Appeals of Virginia. (See _supra_, chap. VI.) + +[1122] Randall, ii, 547. Although Randall includes Dexter, this tribute +is really to Marshall who was the one dominating character in Adams's +reconstructed Cabinet. + +[1123] Adams to Marshall, July 30, 1800; _Works_: Adams, ix, 66; also +Marshall to Adams, Aug. 1, Aug. 2, and July 29, 1800; Adams MSS. + +[1124] Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams the +support of young Chase's powerful father. (McHenry to John McHenry, Aug. +24, 1800; Gibbs, ii, 408.) + +[1125] McMaster, ii, 448. + +[1126] Adams to Marshall, Aug. 7, 1800; _Works_: Adams, ix, 72; and +Marshall to Adams, Aug. 16, 1800; Adams MSS. Chief Justice Ellsworth +presided at the trial of Williams, who was fairly convicted. (Wharton: +_State Trials_, 652-58.) The Republicans, however, charged that it was +another "political" conviction. It seems probable that Adams's habitual +inclination to grant the request of any one who was his personal friend +(Adams's closest friend, Governor Trumbull, had urged the pardon) caused +the President to wish to extend clemency to Williams. + +[1127] Marshall to Adams, June 24, 1800; Adams MSS. + +[1128] Marshall to Adams, Aug. 2, 1800; _ib._ + +[1129] Marshall to Adams, July 26, 1800; _ib._ + +[1130] De Yrujo to Marshall, July 31, 1800; _ib._ + +[1131] Marshall does not state what these measures were. + +[1132] Marshall to Adams, Sept. 6, 1800; Adams MSS. + +[1133] _Am. St. Prs._, v, _Indian Affairs_, i, 184, 187, 246. For +picturesque description of Bowles and his claim of British support see +Craig's report, _ib._, 264; also, 305. Bowles was still active in 1801. +(_Ib._, 651.) + +[1134] Adams to Marshall, July 31, 1800; _Works_: Adams, ix, 67; +Marshall to De Yrujo, Aug. 15, 1800; Adams MSS. + +[1135] Adams to Marshall, Aug. 11, 1800; _Works_: Adams, ix, 73. + +[1136] Marshall to Adams, Aug. 12, 1800; Adams MSS. + +[1137] _Ib._ + +[1138] Liston to Marshall, Aug. 25, 1800; _ib._ + +[1139] Marshall to Adams, Sept. 6, 1800; _ib._ + +[1140] Marshall to Liston, Sept. 6, 1800; Adams MSS. + +[1141] Marshall to J. Q. Adams, July 24, 1800; MS. It is incredible that +the Barbary corsairs held the whole of Europe and America under tribute +for many years. Although our part in this general submission to these +brigands of the seas was shameful, America was the first to move against +them. One of Jefferson's earliest official letters after becoming +President was to the Bey of Tripoli, whom Jefferson addressed as "Great +and Respected Friend ... Illustrious & honored ... whom God preserve." +Jefferson's letter ends with this fervent invocation: "I pray God, very +great and respected friend, to have you always in his holy keeping." +(Jefferson to Bey of Tripoli, May 21, 1801; _Am. St. Prs., For. Rel._, +ii, 349.) + +And see Jefferson to Bey of Tunis (Sept. 9, 1801; _ib._, 358), in which +the American President addresses this sea robber and holder of Americans +in slavery, as "Great and Good Friend" and apologizes for delay in +sending our tribute. In Jefferson's time, no notice was taken of such +expressions, which were recognized as mere forms. But ninety years later +the use of this exact expression, "Great and Good Friend," addressed to +the Queen of the Hawaiian Islands, was urged on the stump and in the +press against President Cleveland in his campaign for re-election. For +an accurate and entertaining account of our relations with the Barbary +pirates see Allen: _Our Navy and the Barbary Corsairs_. + +[1142] Marshall to Adams, Aug. 1, 1800; Adams MSS. + +[1143] Marshall to Adams, June 24, 1800; Adams MSS. + +[1144] Marshall to Adams, Aug. 16, 1800; July 24, 1800; _Ib._ and see +Adams to Marshall, Aug. 2, and to Secretary of State, May 25; King, iii, +243-46. The jewels were part of our tribute to the Barbary pirates. + +[1145] King to Secretary of State, Oct. 11, 1799; note to Grenville; +King, iii, 129. + +[1146] Secretary of State to King, Feb. 5, 1799; _Am. St. Prs., For. +Rel._, ii, 383. Hildreth says that the total amount of claims filed was +twenty-four million dollars. (Hildreth, v, 331; and see Marshall to +King, _infra_.) + +[1147] Secretary of State to King, Sept. 4, 1799; _Am. St. Prs., For. +Rel._, ii, 383. + +[1148] Troup to King, Sept. 2, 1799; King, iii, 91. + +[1149] Secretary of State to King, Dec. 31, 1799; _Am. St. Prs._, _For. +Rel._, ii, 384-85. + +[1150] King to Secretary of State, April 7, 1800; King, iii, 215. + +[1151] Marshall to Adams, June 24, 1800; Adams MSS. + +[1152] King to Secretary of State, April 22, 1800; King, iii, 222. + +[1153] Marshall to Adams, July 21, 1800; Adams MSS. + +[1154] Adams to Marshall, Aug. 1, 1800; _Works_: Adams, ix, 68-69. + +[1155] Marshall to Adams, Aug. 12, 1800; Adams MSS. + +[1156] _Infra_, 507 _et seq._ + +[1157] _Am. St. Prs._, _For. Rel._, ii, 386. + +[1158] _Am. St. Prs., For. Rel._, ii, 387. + +[1159] _Am. St. Prs., For. Rel._, ii, 387. + +[1160] Marshall to Adams, Sept. 9, 1800; Adams MSS. + +[1161] Adams to Marshall, Sept. 18, 1800; _Works_: Adams, ix, 84. After +Jefferson became President and Madison Secretary of State, King settled +the controversy according to these instructions of Marshall. But the +Republicans, being then in power, claimed the credit. + +[1162] Secretary of State to King, Oct. 26, 1796; King, ii, 102. + +[1163] For a comprehensive though prejudiced review of British policy +during this period see Tench Coxe: _Examination of the Conduct of Great +Britain Respecting Neutrals_. Coxe declares that the purpose and policy +of Great Britain were to "monopolize the commerce of the world.... She +denies the lawfulness of supplying and buying from her enemies, and, in +the face of the world, enacts statutes to enable her own subjects to do +these things. (_Ib._, 62.) ... She now aims at the Monarchy of the +ocean.... Her trade is war.... The spoils of neutrals fill her +warehouses, while she incarcerates their bodies in her floating castles. +She seizes their persons and property as the rich fruit of bloodless +victories over her unarmed friends." (_Ib._, 72.) + +This was the accepted American view at the time Marshall wrote his +protest; and it continued to be such until the War of 1812. Coxe's book +is packed closely with citations and statistics sustaining his position. + +[1164] Secretary of State to King, June 14, 1799; King, iii, 47; and see +King to Secretary of State, July 15, 1799; _ib._, 58-59; and King to +Grenville, Oct. 7, 1799; _ib._, 115-21. + +[1165] This complete paper is in _Am. St. Prs., For. Rel._, ii, 486-90. + +[1166] At one place the word "distinctly" is used and at another the +word "directly," in the _American State Papers_ (ii, 487 and 488). The +word "directly" is correct, the word "distinctly" being a misprint. This +is an example of the inaccuracies of these official volumes, which must +be used with careful scrutiny. + +[1167] _Am. St. Prs., For. Rel._, ii, 488. + +[1168] _Am. St. Prs., For. Rel._, ii, 490. + +[1169] _Infra_, 524. + +[1170] While political parties, as such, did not appear until the close +of Washington's first Administration, the Federalist Party of 1800 was +made up, for the most part, of substantially the same men and interests +that forced the adoption of the Constitution and originated all the +policies and measures, foreign and domestic, of the first three +Administrations. + +[1171] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 404. + +[1172] During this period, the word "Democrat" was used by the +Federalists as a term of extreme condemnation, even more opprobrious +than the word "Jacobin." For many years most Republicans hotly resented +the appellation of "Democrat." + +[1173] Marshall to Otis, Aug. 5, 1800; Otis MSS. + +[1174] For a vivid review of factional causes of the Federalists' +decline see Sedgwick to King, Sept. 26, 1800; King, iii, 307-10; and +Ames to King, Sept. 24, 1800; _ib._, 304. + +[1175] "The Public mind is puzzled and fretted. People don't know what +to think of measures or men; they are mad because they are in the dark." +(Goodrich to Wolcott, July 28, 1800; Gibbs, ii, 394.) + +[1176] Ames to Hamilton, Aug. 26, 1800; _Works_: Ames, i, 280. + +[1177] Hamilton to Sedgwick, May 4, 1800; _Works_: Lodge, x, 371. + +[1178] Same to same, May 10, 1800; _ib._, 375. + +[1179] "In our untoward situation we should do as well with Jefferson +for President and Mr. Pinckney Vice President as with anything we can +now expect. Such an issue of the election, if fairly produced, is the +only one that will keep the Federal Party together." (Cabot to Wolcott, +Oct. 5, 1800; Lodge: _Cabot_, 295.) + +"If Mr. Adams should be reëlected, I fear our constitution would be more +injured by his unruly passions, antipathies, & jealousy, than by the +whimsies of Jefferson." (Carroll to McHenry, Nov. 4, 1800; Steiner, +473.) + +"He [Adams] has palsied the sinews of the party, and" another four years +of his administration "would give it its death wound." (Bayard to +Hamilton, Aug. 18, 1800; _Works_: Hamilton, vi, 457.) + +[1180] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. According +to the caucus custom, two candidates were named for President, one of +whom was understood really to stand for Vice-President, the Constitution +at that time not providing for a separate vote for the latter officer. + +[1181] "You may rely upon my co-operation in every reasonable measure +for effecting the election of General Pinckney." (Wolcott to Hamilton, +July 7, 1800; _Works_: Hamilton, vi, 447-48.) + +"The affairs of this government will not only be ruined but ... the +disgrace will attach to the federal party if they permit the re-election +of Mr. Adams." (_Ib._) "In Massachusetts almost all the leaders of the +first class are dissatisfied with Mr. Adams and enter heartily into the +policy of supporting General Pinckney." (Hamilton to Bayard, Aug. 6, +_ib._, 452 (also in _Works_: Lodge, x, 384); and see Jefferson to +Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.) + +[1182] Hamilton to Carroll, July 1, 1800; _Works_: Lodge, x, 378; and +see Hamilton to Bayard, Aug. 6, 1800; _ib._, 384. + +[1183] Sedgwick to Hamilton, May 7, 1800, quoting "our friend D.[ayton] +who is not perfectly right" (_Works_: Hamilton, vi, 437; and see Cabot +to Hamilton, Aug. 10, 1800; _ib._, 454; also Cabot to Wolcott, July 20, +1800; Lodge: _Cabot_, 282.) + +[1184] Knox to Adams, March 5, 1799; _Works_: Adams, viii, 626-27. Knox +had held higher rank than Hamilton in the Revolutionary War and Adams +had tried to place him above Hamilton in the provisional army in 1798. +But upon the demand of Washington Knox was given an inferior rank and +indignantly declined to serve. (Hildreth, v, 242-44. And see Washington +to Knox, July 16, 1798; _Writings_: Ford, xiv, 43-46.) Thereafter he +became the enemy of Hamilton and the ardent supporter of Adams. + +[1185] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 315. + +[1186] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382, and see +390; Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396; Wolcott to Ames, +Dec. 29, 1799; _ib._, 315. + +The public discussion of Adams's charge of a "British faction" against +his party enemies began with the publication of a foolish letter he had +written to Coxe, in May of 1792, insinuating that Pinckney's appointment +to the British Court had been secured by "much British influence." +(Adams to Coxe, May, 1792; Gibbs, ii, 424.) The President gave vitality +to the gossip by talking of the Hamiltonian Federalists as a "British +faction." He should have charged it publicly and formally or else kept +perfectly silent. He did neither, and thus only enraged his foe within +the party without getting the advantage of an open and aggressive +attack. (See Steiner, footnote 3, to 468.) + +[1187] Phelps to Wolcott, July 15, 1800; relating Noah Webster's +endorsement of Adams's opinions; Gibbs, ii, 380. + +[1188] Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396. + +[1189] In the summer of 1800, Jefferson dined with the President. Adams +was utterly unreserved to the Republican leader. After dinner, General +Henry Lee, also a guest, remonstrated with the President, who responded +that "he believed Mr. Jefferson never had the ambition, or desire to +aspire to any higher distinction than to be his [Adams's] first +Lieutenant." (Lee to Pickering, 1802; Pickering MSS., Mass. Hist. Soc.; +also partly quoted in Gibbs, ii, 366; and see Ames to Wolcott, June 12, +1800; Gibbs, ii, 368; and to King, Sept. 24, 1800; King, iii, 304.) + +[1190] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 261. + +[1191] Ames to Gore, Nov. 10, 1799; _ib._, 265. + +[1192] Ames to Gore, Nov. 10, 1799; Ames, i, 268. + +[1193] Cabot to Wolcott, June 14, 1800; Lodge: _Cabot_, 274. + +[1194] Jefferson to Granger, Aug. 13, 1800; _Works_: Ford, ix, 138-41; +and see Jefferson to Gerry, January 26, 1799; _ib._, 17-19. + +[1195] "The Jacobins and the half federalists are ripe for attacking the +permanent force, as expensive, and unnecessary, and dangerous to +liberty." (Ames to Pickering, Oct. 19, 1799; _Works_: Ames, i, 258.) + +[1196] "In my lengthy journey through this State [Pennsylvania] I have +seen many, very many Irishmen and with very few exceptions, they are +United Irishmen, Free Masons, and the most God-provoking Democrats on +this side of Hell," who, "with the joy and ferocity of the damned, are +enjoying the mortification of the few remaining honest men and +Federalists, and exalting their own hopes of preferment, and that of +their friends, in proportion as they dismiss the fears of the +gallows.... The Democrats are, without doubt, increasing." (Uriah Tracy +to Wolcott, Aug. 7, 1800; Gibbs, ii, 399.) + +[1197] Huntington to Wolcott, Aug. 6, 1800; _ib._, 398. + +[1198] Ames to Wolcott, June 12, 1800; _ib._, 369. + +[1199] McHenry to Wolcott, July 22, 1800; Steiner, 462. "Your very wise +political correspondents will tell you anything sooner than the truth. +For not one of them will look for anything but profound reasons of state +at the bottom of the odd superstructure of parties here. There is +nothing of the kind at the bottom." (Ames to King, Aug. 19, 1800; King, +iii, 294.) + +[1200] The Republicans were making much political capital out of the +second mission. They had "saved the country from war," they said, by +forcing Adams to send the envoys: "What a roaring and bellowing did this +excite among all the hungry gang that panted for blood only to obtain +pelf in every part of the country." (_Aurora_, March 4, 1800.) + +[1201] Goodrich to Wolcott, Aug. 26, 1800; Gibbs, ii, 412. + +[1202] _Am. St. Prs., For. Rel._, ii, 325. + +[1203] Republican success in the approaching election. + +[1204] Marshall to Adams, July 21, 1800; Adams MSS. + +[1205] Marshall to Hamilton, Aug. 23, 1800; _Works_: Hamilton, vi, 460. + +[1206] A Republican victory. + +[1207] Marshall to Adams, Aug. 25, 1800; Adams MSS. + +[1208] Adams to Marshall, Sept. 4 and 5, 1800; _Works_: Adams, ix, +80-82. + +[1209] Marshall to Adams, Sept. 17, 1800; Adams MSS. The "retrograde +steps" to which Marshall refers were the modification of the French +_arrêts_ and decrees concerning attacks on our commerce. + +[1210] Marshall to Tinsley, Sept. 13, 1800; MS., Mass. Hist. Soc. + +[1211] Marshall, ii, 438. + +[1212] _Am. St. Prs., For. Rel._, ii, 342 _et seq._ + +[1213] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492; and +Rutledge to Hamilton, Jan. 10, 1801; _ib._, 511; Ames to Gore, Nov. 10, +1799; _Works_: Ames, i, 265. + +[1214] Hamilton to Sedgwick, Dec. 22, 1800; _Works_: Lodge, x, 397; +also, to Morris, Dec. 24, 1800; _ib._, 398. + +[1215] Marshall to Hamilton, Jan. 1, 1801; _Works_: Hamilton, vi, +502-03; and see Brown: _Ellsworth_, 314-15. The principal American +demand was compensation for the immense spoliation of American commerce +by the French. The treaty not only failed to grant this, but provided +that we should restore the French ships captured by American vessels +during our two years' maritime war with France, which, though formally +undeclared, was vigorous and successful. "One part of the treaty +abandons all our rights, and the other part makes us the dupes of France +in the game she means to play against the maritime power of England.... +We lose our honor, by restoring the ships we have taken, and by so +doing, perhaps, make an implicit acknowledgment of the injustice of our +hostile operations." (Rutledge to Hamilton, Jan. 10, 1801; _Works_: +Hamilton, vi, 511.) + +[1216] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, +121. + +[1217] Gallatin to his wife, Feb. 5, 1801; Adams: _Gallatin_, 259. + +[1218] _Ib._, 254. + +[1219] Ames to Gore, Dec. 29, 1800; reviewing political events of the +year; _Works_: Ames, i, 286-87. + +[1220] Hamilton to Wolcott, Aug. 3, 1800; _Works_: Lodge, x, 383; and +Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 400. + +[1221] Hamilton to Wolcott, Sept. 26, 1800; _Works_: Lodge, x, 389 (also +in Gibbs, ii, 422); and see same to same, Aug. 3, 1800; _Works_: Lodge, +x, 883. + +[1222] Troup to King, Oct. 1, 1800; King, iii, 315. + +[1223] _Aurora_, May 20, 1800. + +[1224] Sedgwick to King, Sept. 26, 1800; King, iii, 309. + +[1225] Ames to Hamilton, Aug. 26, 1800; _Works_: Hamilton, vi, 463; also +Cabot to Hamilton, Aug. 21, 1800; ib., 458; and Aug. 23, 1800; _ib._, +460 (also in Lodge: _Cabot_, 284-88); and to Wolcott, Aug. 23, 1800; +Lodge: _Cabot_, 288-89. + +The local politicians were loyal to the President; Ames bitterly +complains of "the small talk among the small politicians, about +disrespect to the President, &c., &c." (Ames to Pickering, Nov. 23, +1799; _Works_: Ames, i, 272.) + +[1226] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382; and same +to same, Oct. 1, 1800; _ib._, 390. Wolcott supplied most of the material +and revised Hamilton's manuscript. (Wolcott to Hamilton, Oct. 1, 2, +1800; _Works_: Hamilton, vi, 470-71.) For entire attack see Hamilton: +"Public Conduct and Character of John Adams"; _Works_: vii, 687-726 +(also in _Works_: Lodge, vii, 309-65.) + +[1227] Parton: _Burr_, 256-57; Davis: _Burr_, ii, 65 _et seq._ + +[1228] "This pamphlet has done more mischief to the parties concerned +than all the labors of the _Aurora_!" (Duane to Collot; Parton: _Burr_, +258.) + +[1229] "Our friends ... lamented the publication.... Not a man ... but +condemns it.... Our enemies are universally in triumph.... His +[Hamilton's] usefulness hereafter will be greatly lessened." (Troup to +King, Nov. 9, 1800; King, iii, 331.) "All ... blame ... Mr. Hamilton." +(Carroll to McHenry, Nov. 4, 1800; Steiner, 476.) + +Some Federalist politicians, however, observed Hamilton's wishes. For +example: "You must at all events secure to the Genr. [Pinckney] a +majority in Cong., it may there be done with _safety_, his success +depends on the accomplishment of this measure. You know a friend of ours +who can arrange this necessary business with the utmost perfect +suavity." (Dickinson to McHenry, Oct. 7, 1800; Steiner, 471.) + +Again Dickinson writes of "the absolute necessity of obtaining a +_majority_ (if it should only be by a _single_ vote) in Cong. to favor +the man who interests us most" and hopes "Hamilton's publication ... +will produce the desired effect." (Oct. 31, 1800; _ib._, 472.) + +[1230] _Washington Federalist_, Nov. 29, 1800. + +[1231] For instance see the _Aurora's_ editorial on women in the army, +January 14, 1800; and see titles of imaginary books editorially +suggested for use by the various Federalist leaders, especially +Hamilton, Harper, and Gouverneur Morris, in _ib._, May 10, 1800. On +August 21 it described some Federalist leaders as "completely bankrupt +of character as well as fortune." + +Although it did not equal the extravagance of the Republican newspapers, +the Federalist press was also violent. See, for instance, a satirical +poem "by an Hibernian and an Alien" in the _Alexandria Advertiser_, +reprinted in the _Washington Federalist_ of February 12, 1801, of which +the last verse runs:-- + + "With J[effer]son, greatest of men, + Our President next we will dash on. + Republican marriages then, + And drowning boats will be in fashion. + Co-alitions, tri-color we'll form + 'Twixt white Men, Mulattos, and Negroes. + The banks of the treasury we'll storm-- + Oh! how we'll squeeze the old Quakers, + _Philosophy is a fine thing_!" + +The familiar campaign arguments were, of course, incessantly reiterated +as: "The Government" cost only "FIVE MILLION dollars ... before the +British treaty"; now it costs "FIFTEEN MILLIONS. Therefore every man who +paid _one dollar_ taxes then pays _three_ dollars now." (_Aurora_, Oct. +30, 1800.) + +[1232] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 264. + +[1233] Ames to Dwight, March 19, 1801; _ib._, 294. + +[1234] Webster to Wolcott, June 23, 1800; Gibbs, ii, 374. + +[1235] The _Washington Federalist_, Jan. 12, 1801, charged that, in +Virginia, public money was used at the election and that a resolution to +inquire into its expenditures was defeated in the Legislature. + +[1236] Charles Pinckney to Jefferson, Oct. 12, 1800; _Amer. Hist. Rev._, +iv, 117. For election arguments and methods see McMaster, ii, 499 _et +seq._ + +[1237] Adams to Marshall, Sept. 27, 1800; _Works_: Adams, ix, 85; and +see Graydon, footnote to 362. + +[1238] Adams to Marshall, Sept. 30, 1800; Adams MSS. + +[1239] Marshall to Adams, without date; Adams MSS. + +[1240] Adams MSS. Marshall wrote two speeches for Adams. Both are in +Marshall's handwriting. The President selected and delivered the one +which appears in Adams's _Works_ and in Richardson. The undelivered +speech was the better, although it was written before the French treaty +arrived, and was not applicable to the state of our relations with +France when Congress convened. Marshall also wrote for Adams the two +brief separate addresses to the Senate and the House. (_Ib._) + +[1241] The original manuscripts of these speeches, in Marshall's +handwriting, are in the Adams MSS. They are notable only as an evidence +of Adams's confidence in Marshall at this, the most irritating period of +his life. + +[1242] Beard: _Econ. O. J. D._, chap. xiii. + +[1243] When it was certain that Adams had been defeated, "Solon," in the +_Washington Federalist_ of Jan. 9, 1801, thus eulogized him:-- + +"The die is cast!... Our beloved ADAMS will now close his bright +career.... Immortal sage! May thy counsels continue to be our saving +Angel! Retire and receive ... the ... blessings of all _good_ men.... + +"Sons of faction [party]! demagogues and high priests of anarchy, now +have you cause to triumph. Despots and tyrants! now may you safely +pronounce 'ingratitude is the common vice of all republics. Envy and +neglect are the only reward of superior merit. Calumny, persecution and +banishment are the laurels of the hoary patriot.'... + +"... We have to contend ... for national existence. Magistrates and +rulers, be firm.... Our constitution is our last fortress. Let us +entrench it against every innovation. When this falls, our country is +lost forever." + +This editorial, as well as all political matter appearing in the +_Washington Federalist_ during 1800-01, is important because of +Marshall's reputed influence over that paper. (See _infra_, 541.) + +At news of Jefferson's success the leading Federalist journal declared +that some Republicans in Philadelphia "huzzaed until they were seized +with lockjaw ... and three hundred are now drunk beyond hope of +recovery. Gin and whiskey are said to have risen in price 50 per cent +since nine o'clock this morning. The bells have been ringing, guns +firing, dogs barking, cats meuling, children crying, and jacobins +getting drunk, ever since the news of Mr. Jefferson's election arrived +in this city." (_Gazette of the United States_, Feb. 19, 1801.) + +[1244] At that time, the presidential electors did not vote for a +Vice-President, but only for President. The person receiving the largest +number of electoral votes became President and the one for whom the +second largest number of votes were cast became Vice-President. When +Jefferson and Burr each had seventy-three votes for President, the +election was thrown into the House of Representatives. + +Thus, although, in casting their ballots for electors, the people really +voted for Jefferson for President and for Burr for Vice-President, the +equal number of votes received by each created a situation where it was +possible to defeat the will of the people. Indeed, as appears in the +text, that result was almost accomplished. It was this constitutional +defect that led to the Twelfth Amendment which places the election of +President and Vice-President on its present basis. (See "The Fifth Wheel +in our Government"; Beveridge: _Century Magazine_, December, 1909.) + +[1245] Jefferson to Burr, Dec. 15, 1800; _Works_: Ford, ix, 155. + +[1246] "Jefferson & Burr have each 73 votes and ... the Democrats are in +a sweat." (Uriah Tracy to McHenry, Dec. 30, 1800; Steiner, 483.) + +[1247] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 158. + +[1248] Jefferson to Breckenridge, Dec. 18, 1800; _ib._, 157. + +[1249] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392. + +[1250] See these letters in _ib._, 392 _et seq._; and to Bayard, Jan. +16, 1801; _ib._, 412 (also in _Works_: Hamilton, vi, 419, but misplaced +and misdated). + +[1251] Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; and see +Carroll to Hamilton, April 18, 1800; _Works_: Hamilton, vi, 434-35. + +The _Washington Federalist_, even when the balloting was in progress, +thus stimulated the members of its party in the House: "_Unworthy_ +will he be and consecrate his name to infamy, who ... has hitherto +opposed ... Mr. Jefferson ... and shall now meanly and inconsistently +lend his aid to promote it [Jefferson's election].... Will they confer +on Mr. Jefferson the Federal suffrage in reward for the calumnies he +has indiscriminately cast upon the Federal character; or will they +remunerate him ... for the very honorable epithets of _pander, to the +whore of England, 'timid men, office hunters, monocrats, speculators and +plunderers'_ which he has missed no opportunity to bestow upon them." +(_Washington Federalist_, Feb. 12, 1801.) + +[1252] Hamilton to Wolcott, Dec. 17, 1800; _Works_: Lodge, x, 395. + +[1253] Jefferson rightly attributed to Burr Republican success in the +election. "He has certainly greatly merited of his country, & the +Republicans in particular, to whose efforts his have given a chance of +success." (Jefferson to Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.) + +[1254] Sedgwick to Hamilton, Jan. 10, 1800; _Works_: Hamilton, vi, +511-14; Cabot to Hamilton, Aug. 10, 1800; _ib._, 453 (also in Lodge: +_Cabot_, 284); Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; +Morris to Hamilton, Jan. 5, 1801; Morris, ii, 398; and same to same, +Jan. 26, 1801; _ib._, 402 (also in _Works_: Hamilton, vi, 503); Carroll +to McHenry, Nov. 4, 1800; Steiner, 473-76; Rutledge to Hamilton, Jan. +10, 1801; _Works_: Hamilton, vi, 510. + +[1255] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, +121. + +[1256] Bayard to Hamilton, March 8, 1801; _Works_: Hamilton, vi, 524. + +[1257] Tracy to McHenry, Jan. 15, 1801; Steiner, 488-99; and see Bayard +to Andrew Bayard, Jan. 26, 1801; _supra_. + +[1258] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392. + +[1259] Wolcott to Hamilton, Dec. 25, 1800; _Works_: Hamilton, vi, 498. + +[1260] See Chief Justice Ellsworth's statement of the conservative +opinion of Jefferson. (Brown: _Ellsworth_, 324-25.) + +[1261] Jefferson to Mazzei, April 24, 1796; _Works_: Ford, viii, 237-41. +The letter as published in America, although it had undergone three +translations (from English into Italian, from Italian into French, and +from French into English again), does not materially differ from +Jefferson's original. + +It greatly angered the Federalist leaders. Jefferson calls the +Federalists "an Anglican, monarchical & aristocratical party." The +Republicans had "the landed interests and men of talent"; the +Federalists had "the Executive, the Judiciary," the office-holders and +office-seekers--"all timid men who prefer the calm of despotism to the +boisterous sea of liberty, British merchants & Americans trading on +British capital, speculators & holders in the banks & public funds, a +contrivance invented for the purposes of corruption," etc. + +Jefferson thus refers to Washington: "It would give you a fever were I +to name to you the apostates who have gone over to these heresies, men +who were Samsons in the field & Solomons in the council, but who have +had their heads shorn by the whore England." It was this insult to +Washington which Marshall resented most bitterly. + +Jefferson must have known that Mazzei would probably publish this +letter. Writing at Paris, in 1788, of Mazzei's appointment by the French +King as "intelligencer," Jefferson said: "The danger is that he will +overact his part." (Jefferson to Madison, July 31, 1788; _Works_: Ford, +v, 425.) + +The Republicans frankly defended the Mazzei letter; both its facts and +"predictions" were correct, said the _Aurora_, which found scarcely "a +line in it which does not contain something to admire for elegance of +expression, striking fact, and profound and accurate penetration." +(_Aurora_, May 26, 1800.) + +[1262] Marshall to Hamilton, January 1, 1801; _Works_: Hamilton, vi, +501-03. + +[1263] Following is a list of the annual salaries of different +officers:-- + + President $25,000 + Vice-President 5,000 + Chief Justice 4,000 + Associate Justices 3,500 + Attorney-General 1,500 + Secretary of the Treasury 3,500 + Secretary of State 3,500 + Secretary of War 3,000 + (_Annals_, 1st Cong., 1st Sess., Appendix, 2233-38.) + +[1264] At the very beginning of the movement in his favor, Burr refused +to encourage it. "Every man who knows me ought to know that I disclaim +all competition. Be assured that the Federalist party can entertain no +wish for such a change.... My friends would dishonor my views and insult +my feelings by a suspicion that I would submit to be instrumental in +counteracting the wishes and expectations of the United States. And I +now constitute you my proxy to declare these sentiments if the occasion +shall require." (Burr to Smith, Dec. 16, 1800; _Washington Federalist_, +Dec. 31, 1800.) + +[1265] Pickering to King, Jan. 5, 1801; King, iii, 366. + +[1266] See _Aurora_, Jan. 21, 1801. + +[1267] "Lucius," of Fredericksburg, Virginia, in the _Washington +Federalist_, Jan. 21, 25, and Feb. 6, 1801. + +The following extracts from the first of these articles reveal the +temper and beliefs of the Federalists: "Burr never _penned_ a +declaration of independence; ... but he ... has _engraved that +declaration_ in _capitals_ with the point of his sword: It is yet +_legible_ on the _walls of Quebeck_. He has _fought_ for that +_independency_, for which Mr. _Jefferson_ only _wrote_. _He_ has +gallantly exposed his life in support of that declaration and for the +_protection_ of its _penn-man_. He has been _liberal_ of his _blood_, +_while_ Mr. _Jefferson_ has _only hazarded_ his _ink_.... + +"_He never shrank from the post of danger._ _He_ is _equally fitted for_ +service in the _field_ and in the _public counsels_: He has been _tried_ +in _both_: in the one we have seen him _an able and distinguished +Senator_;--in the _other_ a _brave_ and _gallant officer_.... + +"_Mr. Jefferson_ is better qualified to give the description of a +butterfly's wing or to write an essay on the bones of the Mammouth; ... +but Mr. Burr ... in ... knowledge ... necessary to form the _great and +enlightened statesman_, is _much superior_ to Mr. Jefferson.... + +"Mr. Burr is not ... _consecrated_ to the _French_; ... nor has he +unquenchable hatred to ... Great Britain. Unlike the _penn-man_ of the +declaration he feels the _full force_ of the expression, 'in _war +enemies_, in _peace friends_'... Mr. Burr ... will _only_ consult +_national honor_ and _national_ happiness, having no improper passions +to gratify. + +"Mr. Burr is ... a friend of the Constitution ... a friend of the +commercial interests ... the firm and decided friend of the _navy_ ... +the _Eastern_ States have had a President and Vice President; So have +the _Southern_. It is proper that the _middle_ states should also be +respected.... + +"Mr. Burr has never procured or encouraged those infamous Calumnies +against those who have filled the Executive departments ... which we +long have witnessed: Nor have those polluted _Sinks_, the Aurora, the +Argus, the Press, the Richmond Examiner, and the like, poured forth +their _impure_ and _foetid streams_ at the influence of Mr. Burr, or +to subserve his vanity or his ambition. + +"If Mr. Burr is elected, the _Federalists_ have nothing to _fear_.... +The vile calumniators ... of all who have ... supported our government, +and the _foreign incendiaries_, who, having no interest in _Heaven_, +have called _Hell_ to their assistance, ... from Mr. Burr have nothing +to _hope_.... + +"Mr. Burr can be raised to the Presidency without any _insult_ to the +feelings of the Federalists, the friends of Government; ... WITHOUT an +_insult_ to the _Memory_ of _our_ Washington; for it was not by Mr. +_Burr_, nor was it by _his_ friends, nor to _serve him that the great, +the good, the immortal_ Washington was charged with having, by his name, +given a sanction to corruption, with being meanly jealous of the fame of +even that contemptible wretch Tom Paine, with being an unprincipled +Hypocrite and with being a foul murderer! a murderer under circumstances +of such peculiar atrocity as to shock with horror the merciless savages, +and to cause them indignantly to fly from his blood polluted banner!" + +[1268] "John Marshall ... is the reputed author of a great part of the +[rubbish] in the Washington Federalist." (Scots Correspondent +[Callender] in _Richmond Examiner_, Feb. 24, 1801.) There is no proof of +Callender's assertion; but some of the matter appearing in the +_Washington Federalist_ is characteristic of Marshall's style and +opinions. See, for instance, the editorial on the prosecution of +Theodore Dwight, denouncing "party spirit" (_Washington Federalist_, +March 1, 1801). The _Aurora_ of March 26, 1801, denounced "John +Marshall's Federal Gazette at Washington." + +[1269] Monroe to Jefferson, Jan. 18, 1801; Monroe's _Writings_: +Hamilton, iii, 256. An article signed "Horatius" in the _Washington +Federalist_ of Jan. 6, 1801, stated this position with great ability. +The argument is able and convincing; and it is so perfectly in +Marshall's method of reasoning and peculiar style of expression that his +authorship would appear to be reasonably certain. + +"Horatius's" opinion concluded that the power of Congress "is completely +adequate ... to provide by law for the vacancy that may happen by the +removal of both President and Vice President on the 3d of March next, +and the non-election of a successor in the manner prescribed by the +constitution." + +[1270] Monroe to Jefferson, Jan. 18, 1801; Monroe's _Writings_: +Hamilton, iii, 256. + +[1271] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161-62. + +[1272] "Hortensius" to John Marshall, Secretary of State, in the +_Richmond Examiner_; reprinted in the _Aurora_, Feb. 9, 1801. George +Hay, the writer of this letter, was a lawyer in Richmond. Jefferson +appointed him United States Attorney for the District of Virginia, and, +as such, he conducted the prosecution of Aaron Burr for treason before +John Marshall, who, as Chief Justice of the United States, presided at +the trial. (See vol. III of this work.) + +Marshall was again attacked in two open letters, signed "Lucius," in the +_Richmond Examiner_, Feb. 10, 13, 1801. His reported opinion, said +"Lucius," alarmed "the active friends of freedom"; Marshall was "the +Idol of his party" and knew the influence of his views: unless he +publicly disclaimed the one now attributed to him, "Lucius" proposed to +"unveil" Marshall's "motives" and "expose" him "uncovered to the sight +of the people"--his "depravity shall excite their odium," etc. +"Lucius's" attacks ended with Jefferson's election. + +[1273] The paper criticized "the intemperate counsel of a certain _would +be attorney-general_ of the United States (George Hay, _Esq._ of the +antient dominion) ... under the signature of Hortensius, and addressed +to General Marshall, in consequence of a lie fabricated against him +relative to an opinion said to have been given by him upon the late +presidential election, which the honorable attorney knew to be a lie as +well as we did, but was fearful of being forgot, and despaired of +getting a better opportunity to shew himself!!!" (_Washington +Federalist_, Feb. 12, 1801.) + +[1274] Jefferson to Monroe, Feb. 15, 1801; _Works_: Ford, ix, 178-79; +and see Jefferson to McKean, March 9, 1801; _ib._, 206. + +[1275] Jefferson to Madison, Feb. 18, 1801; _ib._, 182. + +[1276] Monroe to Hoomes, Feb. 14, 1801; Monroe's _Writings_: Hamilton, +iii, 259; and Monroe to Nicholas, Feb. 18, 1801; _ib._, 260. + +[1277] For these incidents and reports see Gallatin to his wife, May 8, +1801; Adams: _Gallatin_, 249. + +[1278] Thus, for example, the _Washington Federalist_ of Feb. 12, 1801, +after the House had balloted "upwards of 30 times":-- + +"But say the bold and impetuous partisans of Mr. Jefferson, and that, +too, _in the Teeth of the Assembled Congress of America_--'_Dare_ to +designate any officer whatever, even temporarily, to administer the +government in the event of a non-agreement on the part of the House of +Representatives, and we will march and _dethrone him as an usurper_. +_Dare_ (_in fact_) to exercise the right of opinion, and place in the +presidential chair any other than the philosopher of Monticello, and ten +thousand republican _swords will instantly leap from their scabbards_, +in defence of the violated rights of the _People_!!! + +"Can our Countrymen be caught by so flimsy a pretext? + +"Can it possibly interest either their feelings or their judgment? + +"Are they, then, ripe for civil war, and ready to imbrue their hands in +kindred blood? + +"If the tumultuous meetings of a set of factious foreigners in +Pennsylvania or a few _fighting_ bacchanals of Virginia, mean the +_people_, and are to dictate to the Congress of the United States whom +to elect as President--if the constitutional rights of this body are so +soon to become the prey of anarchy and faction--... it would be prudent +to prepare for the contest: the woeful experiment if tried at all could +never be tried at a more favorable conjuncture! + +"With the militia of Massachusetts consisting of 70,000 (_regulars let +us call them_) in arms--with those of New Hampshire and Connecticut +united almost to a man, with half the number at least of the citizens of +eleven other States ranged under the federal banner in support of the +Constitution, what could Pennsylvania aided by Virginia--the militia of +the latter untrained and farcically performing the manual exercise with +_corn-stalks_ instead of muskets--... What, may it be asked, would be +the issue of the struggle?" + +[1279] "The means existed of electing Burr, but this required his +co-operation. By deceiving one man (a great blockhead) and tempting two +(not incorruptible) he might have secured a majority of the States." +(Bayard to Hamilton, March 8, 1801; _Works_: Hamilton, vi, 522-24.) + +"The Federalists were confident at first, they could debauch Col. +B.[urr].... His conduct has been honorable and decisive, and greatly +embarrasses them." (Jefferson to his daughter, Jan. 4, 1801; _Works_: +Ford, ix, 166.) + +[1280] "I was enabled soon to discover that he [Burr] was determined not +to shackle himself with federal principles.... When the experiment was +fully made, and acknowledged upon all hands, ... that Burr was resolved +not to commit himself, ... I came out ... for Jefferson." (Bayard to +Hamilton, March 8, 1801; _Works_: Hamilton, vi, 523.) + +[1281] The Federalist managers were disgusted with Burr because he +refused to aid them in their plot to elect him. "Burr has acted a +miserable paultry part," writes Bayard. "The election was in his power, +but he was determined to come in as a Democrat.... We have been +counteracted in the whole business by letters he has written to this +place." (Bayard to Bassett, Feb. 16, 1801; _Bayard Papers_: Donnan; +126.) + +Burr had not "used the least influence" to be elected. (Bayard's +Deposition; Davis: _Burr_, ii, 127.) + +"_Had Burr done anything, for himself, he would, long ere this, have +been President._" (Cooper to Morris, Feb. 13, 1801; Davis: _Burr_, ii, +113.) + +[1282] Depositions of Bayard and Smith, in Gillespie _vs._ Smith; +Randall, ii, 613-17; and Davis: _Burr_, ii, 135-37; also Baer to Bayard, +April 19, 1830; _ib._, 118; and see Bayard's account; Remarks in the +Senate, Jan. 31, 1835; also, Bayard to McLane, Feb. 17, 1801; _Bayard +Papers_: Donnan, 126 _et seq._ + +In his "Anas" (_Works_: Ford, i, 392-93) Jefferson flatly denied his +deal with the Federalists, and this, afterwards, provoked much +controversy. It now is established that the bargain was made. See +Professor McMaster's conclusion: "The price settled ... the Republicans +secured ten states." (McMaster, ii, 526.) + +[1283] For accounts by participants in this exciting and historic +contest, see Gallatin's letters to his wife and to Nicholson from Feb. 5 +to Feb. 19, 1801; Adams: _Gallatin_, 257-63; Dana to Wolcott, Feb. 11, +1801; Gibbs, ii, 489-90; Bayard to several friends, Feb. 22, 1801; +_Bayard Papers_, _supra_. + +[1284] Jefferson to Madison, Feb. 18, 1801; _Works_: Ford, ix, 183. + +[1285] After Jefferson's election, for many days the _Washington +Federalist_ carried in italics at the head of its editorial columns a +sentiment characteristic of Marshall: "_May he discharge its duties in +such a manner as to merit and receive the blessings of all good men and +without redding the cheek of the American Patriot with blushes for his +country!!!_" + +[1286] Gallatin to his wife, Feb. 17, 1801; Adams: _Gallatin_, 262. + +[1287] Adams to Congress, Dec. 3, 1799; _Annals_, 6th Cong., 1st Sess., +187-88; and Richardson, i, 289. Yet at this period the business of the +courts was actually decreasing. (See Brown: _Ellsworth_, 198.) But the +measure was demanded by the bar generally and insisted upon by the +Justices of the Supreme Court. (See Gibbs, ii, 486.) + +[1288] Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams +MSS. + +[1289] Gunn to Hamilton, Dec. 13, 1800; _Works_: Hamilton, vi, 483. + +[1290] The Federalist attitude is perfectly expressed in the following +toast drunk at a banquet to Wolcott, attended by "the heads of +departments" and the Justices of the Supreme Court: "_The Judiciary of +the United States! Independent of party, independent of power and +independent of popularity._" (_Gazette of the United States_, Feb. 7, +1801.) + +[1291] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 316. + +[1292] _Annals_, 6th Cong., 1st Sess., Dec. 19, 837-38. + +[1293] _Richmond Examiner_, Feb. 6, 1801. + +[1294] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. The +Republicans were chiefly alarmed because, in the extension of the +National Judiciary, offices would be provided for Federalists. Even +Jefferson then saw nothing but patronage in the Judiciary Act. + +The "evident" purpose of the bill, said the _Aurora_, Feb. 4, 1801, was +to "increase the influence of the present Executive and provide a +_comfortable retreat_ for some of those _good federalists_ who have +found it convenient to resign from their offices or been dismissed from +them by the people." + +In comparison to this objection little attention was paid to the more +solid ground that the National Judiciary would be used to "force the +introduction of the common law of England as a part of the law of the +United States"; or even to the objection that, if the Judiciary was +extended, it would "strengthen the system of terror by the increase of +prosecutions under the Sedition law"; or to the increase of the +"enormous influence" given the National Courts by the Bankruptcy Law. + +The _Aurora_, March 18, 1801, sounded the alarm on these and other +points in a clanging editorial, bidding "_the people beware_," for "the +hell hounds of persecution may be let loose ... and the people be +ROASTED into implicit acquiescence with every measure of the 'powers +that be.'" But at this time it was the creation of offices that the +Federalists would fill to which the Republicans chiefly objected. + +[1295] Rutledge to Hamilton, Jan. 10, 1801; _Works_: Hamilton, vi, 511. + +[1296] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161. + +[1297] _Annals_, 6th Cong., 1st Sess., 878. + +[1298] _Annals_, 6th Cong., 1st Sess., 879. + +[1299] _Ib._ The person who made this absurd speech is not named in the +official report. + +[1300] _Ib._, 896. + +[1301] _Annals_, 6th Cong., 1st Sess., 897. This curious entry is, +plainly, the work of some person who wished to injure Marshall and Lee. +Nicholas's motion was lost, but only by the deciding vote of the +Speaker. (_Ib._) The bill, as finally passed, limited the jurisdiction +of the National Courts to causes exceeding four hundred dollars. (_Ib._) + +[1302] _Ib._, 900, 901, 903, and 905. + +[1303] _Ib._, 734. + +[1304] _Ib._, 740-41. + +[1305] _Ib._, 741. + +[1306] _Ib._, 742. + +[1307] Adams to Jay, Dec. 19, 1800; _Works_: Adams, ix, 91. + +[1308] Jay to Adams, Jan. 2, 1801; _Jay_: Johnston, iv, 284. Jay refused +the reappointment because he believed the Supreme Court to be fatally +lacking in power. See chap. I, vol. III, of this work. + +[1309] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492. + +[1310] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. It +is impossible to imagine what this "something worse" was. It surely was +not Marshall, who was in nobody's mind for the Chief Justiceship when +Jay was named. + +[1311] Pickering to King, Jan. 12, 1801; King, iii, 367. + +[1312] Story, in Dillon, iii, 359. + +[1313] Adams to William Cunningham, Nov. 7, 1808; _Cunningham Letters_, +no. xiv, 44; also mentioned in Gibbs, ii, 349. + +[1314] Gibbs, ii, 349, 350. + +[1315] As we have seen, Marshall's "reading of the science," "fresh" or +stale, was extremely limited. + +[1316] Adams to Boudinot, Jan. 26, 1801; _Works_: Adams, ix, 93-94. +Adams's description of Marshall's qualifications for the Chief +Justiceship is by way of contrast to his own. "The office of Chief +Justice is too important for any man to hold of sixty-five years of age +who has wholly neglected the study of the law for six and twenty years." +(_Ib._) Boudinot's "rumor" presupposes an understanding between +Jefferson and Adams. + +[1317] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan, +122. + +[1318] _Aurora_, Jan. 22, 1801. + +[1319] It is worthy of repetition that practically all the emphasis in +their attacks on this act was laid by the Republicans on the point that +offices were provided for Federalists whose characters were bitterly +assailed. The question of the law's enlargement of National power was, +comparatively, but little mentioned; and the objections enlarged upon in +recent years were not noticed by the fierce partisans of the time. + +[1320] _Aurora_, Feb. 3, 1801. + +[1321] _Baltimore American_; reprinted in the _Aurora_, April 2, 1801. + +[1322] _Richmond Examiner_, Feb. 6, 1801. + +[1323] Marshall's nomination was confirmed January 27, 1801, a week +after the Senate received it. Compare with the Senate's quick action on +the nomination of Marshall as Secretary of State, May 12, 1800, +confirmed May 13. (Executive Journal of the Senate, iii.) + +[1324] Adams to Dexter, Jan. 31, 1801; _Works_: Adams, ix, 95-96. + +[1325] Marshall to Adams, Feb. 4, 1801; _ib._, 96. + +[1326] Adams to Marshall, Feb. 4, 1801; _ib._, 96. + +[1327] Same to same, Feb. 4, 1801; _ib._, 96-97. + +[1328] Jay held both offices for six months. + +[1329] Auditor's Files, Treasury Department, no. 12, 166. This fact is +worthy of mention only because Marshall's implacable enemies intimated +that he drew both salaries. He could have done so, as a legal matter, +and would have been entirely justified in doing so for services actually +rendered. But he refused to take the salary of Secretary of State. + +[1330] Ames to Smith, Feb. 16, 1801; _Works_: Ames, i, 292. + +[1331] Marshall to Wolcott, Feb. 24, 1801; Gibbs, ii. 495. + +[1332] Wolcott to Marshall, March 2, 1801; Gibbs, ii, 496. + +[1333] The irresponsible and scurrilous Callender, hard-pressed for some +pretext to assail Marshall, complained of his having procured the +appointment of relatives to the Judiciary establishment. "Mr. John +Marshall has taken particular care of his family," writes Jefferson's +newspaper hack, in a characteristically partisan attack upon Adams's +judicial appointments. (Scots Correspondent, in _Richmond Examiner_, +March 13, 1801.) + +Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed +United States Attorney for the District of Kentucky; George Keith +Taylor, another brother-in-law, was appointed United States Judge of the +Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed +Assistant Judge of the Territory (District) of Columbia. These +appointments were made, however, before the new Judiciary Act was +passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender +appears to have been the only person to criticize these appointments. +Even Jefferson did not complain of them or blame Marshall for them. The +three appointees were competent men, well fitted for the positions; and +their appointment, it seems, was commended by all. + +[1334] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 231. + +[1335] The Republicans did so later. "This outrage on decency should not +have its effect, except in life appointments [judges] which are +irremovable." (Jefferson to Knox, March 27, 1801; _Works_: Ford, ix, +237.) + +[1336] Parton: _Jefferson_, 585-86. Parton relates this absurd tale on +the authority of Jefferson's great-granddaughter. Yet this third-hand +household gossip has been perpetuated by serious historians. The only +contemporary reference is in the address of John Fowler of Kentucky to +his constituents published in the _Aurora_ of April 9, 1801: "This +disgraceful abuse was continued to the latest hour of the President's +holding his office." The "shameful abuse" was thus set forth: "It +[Judiciary Law of 1801] creates a host of judges, marshalls, attorneys, +clerks, &c, &c, and is calculated, if it could endure, to unhinge the +state governments and render the state courts contemptible, while it +places the courts of law in the hands of creatures of those who have +lost the confidence of the people by their misconduct. The insidiousness +of its design has been equalled only by the shameless manner of its +being carried into execution. The Constitution disables any member of +Congress from filling an office created during his period of service. +The late President [Adams] removed persons from other branches of the +Judiciary, to the offices created by this law & then put members of +Congress into the thus vacated offices.... This law can be considered in +no other light than as providing pensions for the principals and +adherents of a party [Federalist]. The evil however will not I trust be +durable and as it was founded in fraud the return of a wiser system will +release the country from the shame and imposition." (Fowler to his +constituents in the _Aurora_, April 9, 1801.) + +[1337] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 230-31; to +Knox, March 27, 1801; _ib._, 237; to Mrs. Adams, June 13, 1804; _ib._, +x, 85. + +[1338] Neither Randall nor Tucker, Jefferson's most complete and +detailed biographers, both partisans of the great Republican, mentions +the Lincoln-Marshall story, although, if it had even been current at the +time they wrote, it is likely that they would have noticed it. + +[1339] Jefferson to Knox, _supra_. + + +END OF VOLUME II + + + + +APPENDIX + + + + +I. LIST OF CASES + + +ARGUED BY MARSHALL BEFORE THE COURT OF APPEALS OF VIRGINIA + + _Case_ _Date_ _Reported_ + + Joseph Cutchin _v._ William + Wilkinson Spring Term, 1797 1 Call, 1 + + William Fairclaim, lessee, _v._ + Richardand Elizabeth Guthrie Spring Term, 1797 1 Call, 5 + + Cabell _et al._ _v._ Hardwick Fall Term, 1798 1 Call, 301 + + Hopkins _v._ Blane Fall Term, 1798 1 Call, 315 + + Pryor _v._ Adams Fall Term, 1798 1 Call, 332 + + Proudfit _v._ Murray Fall Term, 1798 1 Call, 343 + + Harrison _v._ Harrison, _et al._ Fall Term, 1798 1 Call, 364 + + Shaw _et al._ _v._ Clements Fall Term, 1798 1 Call, 373 + + Graves _v._ Webb Fall Term, 1798 1 Call, 385 + + Jones _v._ Jones Fall Term, 1798 1 Call, 396 + + Auditor of Public Accounts _v._ + Graham Fall Term, 1798 1 Call, 411 + + Beverley _v._ Fogg Spring Term, 1799 1 Call, 421 + + Rowe _et al._ _v._ Smith Spring Term, 1799 1 Call, 423 + + Ritchie & Co. _v._ Lyne Spring Term, 1799 1 Call, 425 + + Eckhols _v._ Graham, _et al._ Spring Term, 1799 1 Call, 428 + + Noel _v._ Sale Spring Term, 1799 1 Call, 431 + + Lee _v._ Love & Co. Spring Term, 1799 1 Call, 432 + + Wilson _v._ Rucker Spring Term, 1799 1 Call, 435 + + Garlington _v._ Clutton Spring Term, 1799 1 Call, 452 + + Taliaferro _v._ Minor Spring Term, 1799 1 Call, 456 + + Hacket _v._ Alcock Spring Term, 1799 1 Call, 463 + + Rose _v._ Shore Spring Term, 1799 1 Call, 469 + + Smith _v._ Dyer Spring Term, 1799 1 Call, 488 + + Macon _v._ Crump Spring Term, 1799 1 Call, 500 + + Flemings _v._ Willis _et ux._ Fall Term, 1799 2 Call, 5 + + Eppes, Ex'r, _v._ DeMoville, Adm'r Fall Term, 1799 2 Call, 19 + + Cooke _v._ Simms Fall Term, 1799 2 Call, 33 + + Lawrason, Adm'r _v._ Davenport + _et al._ Fall Term, 1799 2 Call, 79 + + Price _et al._ _v._ Campbell Fall Term, 1799 2 Call, 92 + + Eppes _et al._, Ex'rs, _v._ Randolph Fall Term, 1799 2 Call, 103 + + Taliaferro _v._ Minor Fall Term, 1799 2 Call, 156 + + Anderson _v._ Anderson Fall Term, 1799 2 Call, 163 + + Crump _et al._ _v._ Dudley _et ux._ June, 1790 3 Call, 439 + + Beall _v._ Edmondson June, 1790 3 Call, 446 + + Johnsons _v._ Meriwether July, 1790 3 Call, 454 + + Barrett _et al._ _v._ Floyd _et al._ July, 1790 3 Call, 460 + + Syme _v._ Johnston December, 1790 3 Call, 482 + + Ross _v._ Pynes December, 1790 3 Call, 490 + + Rev. John Bracken _v._ The Visitors + of William and Mary College December, 1790 3 Call, 495 + + Hite _et al._ _v._ Fairfax _et al._ May, 1786 4 Call, 42 + + Pickett _v._ Claiborne October, 1787 4 Call, 99 + + Beall _v._ Cockburn July, 1790 4 Call, 162 + + Hamilton _v._ Maze June, 1791 4 Call, 196 + + Calvert _v._ Bowdoin June, 1791 4 Call, 217 + + Tabb _v._ Gregory April, 1792 4 Call, 225 + + Ross _v._ Gill et ux. April, 1794 4 Call, 250 + + White _v._ Jones October, 1792 4 Call, 253 + + Marshall _et al._ _v._ Clark November, 1791 4 Call, 268 + + Foushee _v._ Lea April, 1795 4 Call, 279 + + Braxton _et al._ _v._ Winslow + _et al._ April, 1791 4 Call, 308 + + Commonwealth _v._ Cunningham & Co. October, 1793 4 Call, 331 + + Johnston _v._ Macon December, 1790 4 Call, 367 + + Hooe _v._ Marquess October, 1798 4 Call, 416 + + Chapman _v._ Chapman April, 1799 4 Call, 430 + + Mayo _v._ Bentley October, 1800 4 Call, 528 + + Turberville _v._ Self April, 1795 4 Call, 580 + + Executors of William Hunter and + the Executors of Herndon _v._ + Alexander Spotswood Fall Term, 1792 1 Wash. 145 + + Stevens _v._ Taliaferro, Adm'r Spring Term, 1793 1 Wash. 155 + + Kennedy _v._ Baylor Spring Term, 1793 1 Wash. 162 + + Baird and Briggs _v._ Blaigove, Ex'r Spring Term, 1793 1 Wash. 170 + + Bannister's Ex'rs _v._ Shore Spring Term, 1793 1 Wash. 173 + + Clayborn, Ex'r _v._ Hill Spring Term, 1793 1 Wash. 177 + + Anderson _v._ Bernard Spring Term, 1793 1 Wash. 186 + + Johnson _v._ Bourn Spring Term, 1793 1 Wash. 187 + + Eustace _v._ Gaskins, Ex'r Spring Term, 1793 1 Wash. 188 + + Wilson and McRae _v._ Keeling Fall Term, 1793 1 Wash. 195 + + Payne, Ex'r, _v._ Dudley, Ex'r Fall Term, 1793 1 Wash. 196 + + Hawkins _v._ Berkley Fall Term, 1793 1 Wash. 204 + + Hooe & Harrison _et al._ _v._ Mason Fall Term, 1793 1 Wash. 207 + + Thweat & Hinton _v._ Finch Fall Term, 1793 1 Wash. 217 + + Brown's Adm'r _v._ Garland _et al._ Fall Term, 1793 1 Wash. 221 + + Jones _v._ Williams & Tomlinson Fall Term, 1793 1 Wash. 230 + + Coleman _v._ Dick & Pat Fall Term, 1793 1 Wash. 233 + + Taylor's Adm'rs _v._ Peyton's + Adm'rs Spring Term, 1794 1 Wash. 252 + + Smith and Moreton _v._ Wallace Spring Term, 1794 1 Wash. 254 + + Carr _v._ Gooch Spring Term, 1794 1 Wash. 260 + + Cole _v._ Clayborn Spring Term, 1794 1 Wash. 262 + + Shermer _v._ Shermer Fall Term, 1794 1 Wash. 266 + + Ward _v._ Webber _et ux._ Fall Term, 1794 1 Wash. 274 + + Applebury _et al._ _v._ + Anthony's Ex'rs Fall Term, 1794 1 Wash. 287 + + Smallwood _v._ Mercer _et al._ Fall Term, 1794 1 Wash. 290 + + Minnis Ex'r, _v._ Philip Aylett Fall Term, 1794 1 Wash. 300 + + Brown's Ex'rs _v._ Putney Fall Term, 1794 1 Wash. 302 + + Leftwitch _et ux._ _v._ Stovall Fall Term, 1794 1 Wash. 303 + + Lee, Ex'r, _v._ Cooke Fall Term, 1794 1 Wash. 306 + + Burnley _v._ Lambert Fall Term, 1794 1 Wash. 308 + + Cooke _v._ Beale's Ex'rs Fall Term, 1794 1 Wash. 313 + + Dandridge _v._ Harris Fall Term, 1794 1 Wash. 326 + + Nicolas _v._ Fletcher Fall Term, 1794 1 Wash. 330 + + Watson & Hartshorne _v._ Alexander Fall Term, 1794 1 Wash. 340 + + Wroe _v._ Washington _et al._ Fall Term, 1794 1 Wash. 357 + + Cosby, Ex'r, _v._ Hite Fall Term, 1794 1 Wash. 365 + + Hewlett _v._ Chamberlayne Fall Term, 1794 1 Wash. 367 + + Pendleton _v._ Vandevier Fall Term, 1794 1 Wash. 381 + + Walden, Ex'r, _v._ Payne Fall Term, 1794 2 Wash. 1 + + James Roy _et al._ _v._ Muscoe + Garnett Fall Term, 1794 2 Wash. 9 + + James Ferguson _et al._ _v._ Moore Spring Term, 1795 2 Wash. 54 + + Currie _v._ Donald Spring Term, 1795 2 Wash. 58 + + Shelton _v._ Barbour Spring Term, 1795 2 Wash. 64 + + Brock _et al._ _v._ Philips Spring Term, 1795 2 Wash. 68 + + Turner _v._ Moffett Spring Term, 1795 2 Wash. 70 + + Turberville _v._ Self Spring Term, 1795 2 Wash. 71 + + Brydie _v._ Langham Spring Term, 1795 2 Wash. 72 + + Bernard _v._ Brewer Fall Term, 1795 2 Wash. 76 + + Philip McRae _v._ Richard Woods Fall Term, 1795 2 Wash. 80 + + Newell _v._ The Commonwealth Fall Term, 1795 2 Wash. 88 + + White _v._ Atkinson Fall Term, 1795 2 Wash. 94 + + Martin & William Picket _v._ James + Dowdall Fall Term, 1795 2 Wash. 106 + + Claiborne _v._ Parrish Fall Term, 1795 2 Wash. 146 + + Brown _et al._ _v._ Adm'r, Thomas + Brown, dec'd Fall Term, 1795 2 Wash. 151 + + Harrison, Ex'r, _v._ Sampson Fall Term, 1795 2 Wash. 155 + + Harvey _et ux._ _v._ Borden Fall Term, 1795 2 Wash. 156 + + Lee _v._ Turberville Fall Term, 1795 2 Wash. 162 + + Jordan _v._ Neilson Fall Term, 1795 2 Wash. 164 + + Ruffin _v._ Pendleton & Courtney Spring Term, 1796 2 Wash. 184 + + Pearpoint _v._ Henry Spring Term, 1796 2 Wash. 192 + + Sarah Walker & Thomas Walker, + Ex'rs, _v._ Thomas Walke[r] Spring Term, 1796 2 Wash. 195 + + Davenport _v._ Mason Spring Term, 1796 2 Wash. 200 + + Lewis Stephens _v._ Alexander White Fall Term, 1796 2 Wash. 203 + + Picket _v._ Morris Fall Term, 1796 2 Wash. 255 + + Booth's Ex'rs _v._ Armstrong Fall Term, 1796 2 Wash. 301 + + + + +II. GENERAL MARSHALL'S ANSWER TO AN ADDRESS OF THE CITIZENS OF RICHMOND, +VIRGINIA + + +I will not, Gentlemen, attempt to describe the emotions of joy which my +return to my native country, and particularly to this city, has excited +in my mind; nor can I paint the sentiments of affection and gratitude +towards you which my heart has ever felt, and which the kind and partial +reception now given me by my fellow citizens cannot fail to increase. He +only who has been ... absent from a much loved country, and from friends +greatly and deservedly esteemed--whose return is welcomed with +expressions, which, di[rec]ted by friendship, surpass his merits or his +ho[pes,] will judge of feelings to which I cannot do justice. + +The situation in which the late Envoys from [the] United States to the +_French Republic_ found themselves in _Paris_ was, indeed, attended with +the unpleasant circumstances which you have traced.--Removed far from +the councils of their country, and receiving no intelligence concerning +it, the scene before them could not fail to produce the most anxious and +disquieting sensations. Neither the ambition, the power, nor the hostile +temper of _France_, was concealed from them; nor could they be +unacquainted with the earnest and unceasing solicitude felt by the +government and people of the _United States_ for peace. But midst these +difficulties, they possessed, as guides, clear and explicit +instructions, a conviction of the firmness and magnanimity, as well as +of the justice and pacific temper of their government, and a strong +reliance on that patriotism and love of liberty, which can never cease +to glow in the American bosom. With these guides, however thorny the +path of duty might be, they could not mistake it. It was their duty, +unmindful of personal considerations, to pursue peace with unabating +zeal, through all the difficulties with which the pursuit was +embarrassed by a haughty and victorious government, holding in perfect +contempt the rights of others, but to repel, with unhesitating decision, +any propositions, an acceptance of which would subvert the independence +of the _United States_.--This they have endeavoured to do. I delight to +believe that their endeavours have not dissatisfied their government or +country, and it is most grateful to my mind to be assured that they +receive the approbation of my fellow-citizens in _Richmond_, and its +vicinity. + +I rejoice that I was not mistaken in the opinion I had formed of my +countrymen. I rejoice to find, though they know how to estimate, and +therefore seek to avoid the horrors and dangers of war, yet they know +also how to value the blessings of liberty and national +independence:--They know that peace would be purchased at too high a +price by bending beneath a foreign yoke, and that peace so purchased +could be but of short duration. The nation thus submitting would be soon +involved in the quarrels of its master, and would be compelled to +exhaust its blood and its treasure, not for its own liberty, its own +independence, or its own rights, but for the aggrandizement of its +oppressor. The modern world unhappily exhibits but too plain a +demonstration of this proposition. I pray heaven that _America_ may +never contribute its still further elucidation. + +Terrible to her neighbors on the continent of _Europe_, as all must +admit _France_ to be, I believe that the _United States_, if indeed +united, if awake to the impending danger, if capable of employing their +whole, their undivided force--are so situated as to be able to preserve +their independence. An immense ocean placed by a gracious Providence, +which seems to watch over this rising empire, between us and the +European world, opposes of itself such an obstacle to an invading +ambition, must so diminish the force which can be brought to bear upon +us, that our resources, if duly exerted, must be adequate to our +protection, and we shall remain free if we do not deserve to be slaves. + +You do me justice, gentlemen, when you suppose that consolation must be +derived from a comparison of the Administration of the American +Government, with that which I have lately witnessed. To a citizen of the +_United States_, so familiarly habituated to the actual possession of +liberty, that he almost considers it as the inseparable companion of +man, a view of the despotism, which borrowing the garb and usurping the +name of freedom, tyrannizes over so large and so fair a proportion of +the earth, must teach the value which he ought to place on the solid +safety and real security he enjoys at home. In support of these, all +temporary difficulties, however great, ought to be encountered, and I +agree with you that the loss of them would poison and embitter every +other joy; and that deprived of them, men who aspire to the exalted +character of freemen, would turn with loathing and disgust from every +other comfort of life. + +To me, gentlemen, the attachment you manifest to the government of your +choice affords the most sincere satisfaction. Having no interests +separate from or opposed to those of the people, being themselves +subject in common with others, to the laws they make, being soon to +return to that mass from which they are selected for a time in order to +conduct the affairs of the nation, it is by no means probable that those +who administer the government of the _United States_ can be actuated by +other motives than the sincere desire of promoting the real prosperity +of those, whose destiny involves their own, and in whose ruin they must +participate. Desirable as it is at all times, a due confidence in our +government, it is peculiarly so in a moment of peril like the present, +in a moment when the want of that confidence must impair the means of +self defence, must increase a danger already but too great, and furnish, +or at least give the appearance of furnishing, to a foreign real enemy, +those weapons, which have so often been so successfully used. + +Accept, gentlemen, my grateful acknowledgments for your kind expressions +concerning myself, and do me the justice to believe, that your +prosperity, and that of the city of _Richmond_ and its vicinity, will +ever be among the first wishes of my heart. + + (From _Columbian Centinel_, Saturday, Sept. 22, 1798.) + + + + +III. FREEHOLDER'S QUESTIONS TO GENERAL MARSHALL + + +VIRGINIA. Fredericksburg, Oct. 2 + +POLITICAL QUESTIONS + +_Addressed to General_ MARSHALL _with his Answer thereto_ + +To J. MARSHALL, Esq. + + RICHMOND, Sept. 12. + +DEAR SIR, + +Under a conviction that it will be of utility, should the answers to the +following questions be such as I anticipate, I state them with a +confidence of your readiness to give replies. They will, at all events, +greatly satisfy my mind. + +_1st._ Do you not in heart, and sentiment, profess yourself an +American--attached to the genuine principles of the Constitution, as +sanctioned by the will of the people, for their general liberty, +prosperity and happiness? + +_2d._ Do you conceive that the true interest and prosperity of +_America_, is materially, or at all, dependent upon an alliance with any +foreign nation? If you do, please state the causes, and a preference, if +any exists, with the reasons for that preference. + +_3d._ Are you in favor of an alliance, offensive and defensive, with +_Great Britain_? In fine, are you disposed to advocate any other, or a +closer connection with that nation, than exists at the ratification of +the treaty of 1794? If so, please state your reasons. + +_4th._ By what general principles, in your view, have the measures of +our Administration and Government, in respect to _France_, been +consistent with true policy or necessity? And could not the consequences +have been avoided by a different line of conduct on our part? + +_5th._ Are you an advocate for the Alien and Sedition Bills? Or, in the +event of your election, will you use your influence to obtain a appeal +of these laws? + + A FREEHOLDER + + (_Columbian Centinel_, Boston, Mass., Saturday, October 20, 1798.) + + +MARSHALL'S ANSWERS TO FREEHOLDER'S QUESTIONS + + RICHMOND, Sept. 20, '98. + +DEAR SIR:-- + +I have just received your letter of yesterday, [_sic_] and shall with +equal candor and satisfaction, answer all your queries. Every citizen +has a right to know the political sentiments of the man who is proposed +as his representative; and mine have never been of a nature to shun +examination. To those who think another gentleman more capable of +serving the district than myself, it would be useless to explain my +opinions because whatever my opinions may be, they will, and ought, to +vote for that other; but I cannot help wishing that those who think +differently, would know my real principles, and not attribute to me +those I never possessed; and with which active calumny has been pleased +to asperse me. + +_Answ._ 1. In heart and sentiment, as well as by birth and interest, I +am an American, attached to the genuine principles of the constitution, +as sanctioned by the will of the people, for their general liberty, +prosperity and happiness. I consider that constitution as the rock of +our political salvation, which has preserved us from misery, division +and civil wars; and which will yet preserve us if we value it rightly +and support it firmly. + +_2._ I do not think the interest and prosperity of America, at all +dependent on the alliance with any foreign nation; nor does the man +exist who would regret more than myself the formation of such an +alliance. In truth, America has, in my opinion, no motive for forming +such connection, and very powerful motives for avoiding them. Europe is +eternally engaged in wars in which we have no interest; and with which +the fondest policy forbids us to intermeddle. + +We ought to avoid any compact which may endanger our being involved in +them. My sentiments on this subject are detailed at large in the +beginning of the memorial addressed by the late envoys from the United +States to the minister of foreign affairs of the French Republic, where +the neutrality of the United States is justified, and the reasons for +that neutrality stated. + +_3rd._ I am not in favor of an alliance offensive and defensive with +Great Britain nor for closer connection with that nation than already +exists. No man in existence is more decidedly opposed to such an +alliance, or more fully convinced of the evils that would result from +it. I never have, in thought, word, or deed, given the smallest reason +to suspect I wished it; nor do I believe any man acquainted with me does +suspect it. Those who originate and countenance such an idea, may (if +they know me) design to impose on others, but they do not impose on +themselves. + +The whole of my politics respecting foreign nations are reducible to +this single position. We ought to have commercial intercourse with all, +but political ties with none. Let us buy cheap and sell as dear as +possible. Let commerce go wherever individual, and consequently national +interest, will carry it; but let us never connect ourselves politically +with any nation whatever. + +I have not a right to say, nor can I say positively, what are the +opinions of those who administer the Government of the United States; +but I believe firmly that neither the President, nor any one of those +with whom he advises, would consent to form a close and permanent +political connection with any nation upon earth. + +Should France continue to wage an unprovoked war against us, while she +is also at war with Britain, it would be madness and folly not to +endeavor to make such temporary arrangements as would give us the aid of +the British fleets to prevent our being invaded; but I would not, even +to obtain so obvious a good, make such a sacrifice as I think we should +make, by forming a permanent political connection with that, or any +other nation on earth. + +_4th._ The measures of the administration and government of the United +States with respect to France have in my opinion been uniformly directed +by a sincere and unequivocal desire to observe, faithfully, the treaties +existing between the two nations and to preserve the neutrality and +independence of our country.--Had it been possible to maintain peace +with France without sacrificing those great objects, I am convinced that +our government would have maintained it. + +Unfortunately it has been impossible. I do not believe that any +different line of conduct on our part, unless we would have relinquished +the rights of self government, and have become the colonies of France, +could have preserved peace with that nation.--But be assured that the +primary object of France is and for a long time past has been, dominion +over others. This is a truth only to be disbelieved by those who shut +their eyes on the history and conduct of that nation. + +The grand instruments by which they effect this end, to which all their +measures tend, are immense armies on their part, and divisions, which a +variety of circumstances have enabled them to create, among those whom +they wish to subdue. Whenever France has exhibited a disposition to be +just toward the United States, an accurate attention to facts now in +possession of the public, will prove that this disposition was manifest +in the hope of involving us in her wars, as a dependent and subordinate +nation. + +_5th._ I am not an advocate for the alien and sedition bills; had I been +in Congress when they passed, I should, unless my judgment could have +been changed, certainly have opposed them. Yet, I do not think them +fraught with all those mischiefs which many gentlemen ascribe to them. I +should have opposed them because I think them useless; and because they +are calculated to create unnecessary discontents and jealousies at a +time when our very existence, as a nation, may depend on our union-- + +I believe that these laws, had they been opposed on these principles by +a man, not suspected of intending to destroy the government, or being +hostile to it, would never have been enacted. With respect to their +repeal, the effort will be made before I can become a member of +Congress. + +If it succeeds there will be an end of the business--if it fails, I +shall on the question of renewing the effort, should I be chosen to +represent the district, obey the voice of my constituents. My own +private opinion is, that it will be unwise to renew it for this reason: +the laws will expire of themselves, if I recollect rightly the time for +which they are enacted, during the term of the ensuing Congress. I shall +indisputably oppose their revival; and I believe that opposition will be +more successful, if men's minds are not too much irritated by the +struggle about a repeal of laws which will, at the time, be expiring of +themselves. + + J. MARSHALL. + + (From _Times and Virginia Advertiser_, Alexandria, Va., Oct. 11, + 1798.) + + + + +WORKS CITED IN THIS VOLUME + + + + +WORKS CITED IN THIS VOLUME + +_The material given in parentheses and following certain titles +indicates the form in which those titles have been cited in the +footnotes._ + + +ADAMS, CHARLES FRANCIS, _editor_. _See_ Adams, John. Works. + +ADAMS, HENRY. The Life of Albert Gallatin. Philadelphia. 1879. (Adams: +_Gallatin_.) + +_See also_ Gallatin, Albert. Writings. + +ADAMS, JOHN. Works. Edited by Charles Francis Adams. 10 vols. Boston. +1856. (_Works_: Adams.) + +---- Old Family Letters. Copied from the originals for Alexander Biddle. +Philadelphia. 1892. (_Old Family Letters._) + +---- Correspondence between the Honorable John Adams, late President of +the United States, and the late William Cunningham. Boston. 1823. +(_Cunningham Letters._) + + _See also_ Wood, John. History of Administration of John Adams. + +ADAMS, JOHN QUINCY. Writings. Edited by Worthington Chauncey Ford. 5 +vols. New York. 1913. (_Writings, J. Q. A._: Ford.) + +ALLEN, GARDNER WELD. Our Naval War with France. Boston. 1909. (Allen: +_Our Naval War With France_.) + +---- Our Navy and the Barbary Corsairs. Boston. 1905. (Allen: _Our Navy +and the Barbary Corsairs_.) + +AMBLER, CHARLES HENRY. Sectionalism in Virginia, from 1776 to 1861. +Chicago. 1910. (Ambler.) + +_American Historical and Literary Curiosities._ _See_ Smith, John Jay, +and Watson, John Fanning, _joint editors_. + +_American Historical Review._ Managing editor, J. Franklin Jameson. +Vols. 1-21. New York. 1896-1916. (_Amer. Hist. Rev._) + +_American Remembrancer, The_; or An Impartial Collection of Essays, +Resolves, Speeches, &c., Relative, or Having Affinity to, the Treaty +with Great Britain. 3 vols. Philadelphia. 1795. (_American +Remembrancer._) + +_American State Papers._ Documents, Legislative and Executive, of +Congress of the United States. Selected and Edited under the Authority +of Congress. 38 vols. Washington, D.C. 1832-61. [All citations in this +work are from Foreign Relations, Class I, unless otherwise stated in the +notes.] (_Am. St. Prs._) + +AMES, FISHER. Works, from his Speeches and Correspondence. Edited by his +son, Seth Ames. 2 vols. Boston. 1854. (_Works_: Ames.) + +ANDERSON, DICE ROBINS. William Branch Giles: A Study in the Politics of +Virginia and the Nation from 1790 to 1830. Menasha, Wisconsin. 1914. +(Anderson.) + +AUSTIN, JAMES T. The Life of Elbridge Gerry, with Contemporary Letters. +2 vols. Boston. 1828-29. (Austin: _Gerry_.) + +AVERY, ELROY MCKENDREE. A History of the United States and its people. 7 +vols. Cleveland. 1904-10. (Avery.) + + +BASSETT, JOHN SPENCER. The Federalist System, 1789-1801. [Volume 2 of +The American Nation.] New York. 1906. (Bassett.) + +BAYARD, JAMES A. Papers, from 1796 to 1815. Edited by Elizabeth Donnan. +Washington. 1915. [Volume 2 of _Annual Report of the American Historical +Association_ for 1913.] (_Bayard Papers_: Donnan.) + +BEARD, CHARLES A. An Economic Interpretation of the Constitution of the +United States. New York. 1913. (Beard: _Econ. I. C._) + +---- Economic Origins of Jeffersonian Democracy. New York. 1915. (Beard: +_Econ. O. J. D._) + +BEAUMARCHAIS, PIERRE AUGUSTIN CARON DE. Beaumarchais et son temps. _See_ +Loménie, Louis de. + +BEE, THOMAS. Reports of Cases Decided in the District Court of South +Carolina and Cases Determined in Other Districts of the United States. +Philadelphia. 1810. (Bee's _Reports_.) + +BENTON, THOMAS HART. _See_ United States. Congress. Abridgment of the +Debates. + +BINNEY, HORACE. Eulogy on John Marshall, reprinted. _See_ Dillon, John +F. + +BLENNERHASSETT, CHARLOTTE JULIA [VON LEYDEN], _Lady_. Talleyrand. By +Lady Blennerhassett (Gräfin Leyden). Translated from the German by +Frederick Clarke. 2 vols. London. 1894. (Blennerhassett: _Talleyrand_.) + +BONAPARTE, NAPOLEON. Life. _See_ Sloane, William Milligan. + + _Also see_ Lanfrey, Pierre. History of Napoleon First. + +BRACKENRIDGE, HENRY M. History of the Western Insurrection in +Pennsylvania, commonly called the Whiskey Insurrection, 1794. +Pittsburgh. 1859. (Brackenridge: _History of the Western Insurrection_.) + +BRANCH, JOHN P. Historical Papers, issued by the Randolph-Macon College, +Ashland, Virginia. Richmond. 1901. (_Branch Historical Papers._) + +BRISSOT DE WARVILLE, JEAN PIERRE. New Travels in the United States of +America, performed in 1788. Dublin. 1792. (De Warville.) + +BROGLIE, _Duc_ DE, _editor_. _See_ Talleyrand, Prince de. Memoirs. + +BROWN, WILLIAM GARROTT. The Life of Oliver Ellsworth. New York. 1905. +(Brown: _Ellsworth_.) + +BURK, JOHN DALY. The History of Virginia, from its First Settlement to +the Present Day. Continued by Skelton Jones and Louis Hue Girardin. 4 +vols. Richmond. 1804-16. (Burk.) + +BURKE, EDMUND. Works, with a Memoir. 3 vols. New York. 1849. (_Works_: +Burke.) + +BURR, AARON. Memoirs. _See_ Davis, Matthew L. + + _Also see_ Parton, James. Life and Times of Aaron Burr. + + +CABOT, GEORGE. _See_ Lodge, Henry Cabot. Life and Letters of George +Cabot. + +_Calendar of Virginia State Papers and Other Manuscripts._ Preserved in +the Capitol at Richmond. Vols. 1-11. Richmond. 1875-93. (_Cal. Va. St. +Prs._) + +CALLENDER, JOHN THOMAS. The Prospect Before Us. Richmond. 1800. +(Callender: _The Prospect Before Us_.) + +CHANNING, EDWARD. A History of the United States. [Vols. 1-3.] New York. +1912-16. (Channing.) + +CHASTELLUX, _Marquis_ F. J. DE. Travels in North America in the years +1780-81-82. New York. 1828. (Chastellux.) + +CHRISTIAN, WILLIAM ASBURY. Richmond, Her Past and Present. Richmond. +1912. (Christian.) + +COBBETT, WILLIAM. Porcupine's Works, 1783 to 1801. 12 vols. London. +1801. (Cobbett.) + +CONWAY, MONCURE DANIEL. Omitted Chapters of History, disclosed in the +Life and Papers of Edmund Randolph. New York. 1888. (Conway.) + + _Also see_ Paine, Thomas. Writings. + +COXE, TENCH. An Examination of the Conduct of Great Britain Respecting +Neutrals. Philadelphia. 1807. (Coxe: _An Examination of the Conduct of +Great Britain Respecting Neutrals_.) + +CUNNINGHAM, WILLIAM. _See_ Adams, John. Correspondence. + + +DALLAS, A. J. _See_ United States. Supreme Court Reports. + +DAVIS, JOHN. Travels of Four Years and a half in the United States of +America. 1798-1802. London. 1803. (Davis.) + +DAVIS, MATTHEW L. Memoirs of Aaron Burr, with miscellaneous selections +from his correspondence. 2 vols. New York. 1838. (Davis: _Burr_.) + +_Dedham [Mass.] Historical Register._ Vols. 1-14. Dedham Historical +Society, Dedham, Mass. 1890-1903. (_Dedham Historical Register._) + +DE WARVILLE. _See_ Brissot de Warville, Jean Pierre. + +DILLON, JOHN F., _compiler_. John Marshall, Life, Character, and +Judicial Services. (Including the Classic Orations of Binney, Story, +Phelps, Waite, and Rawle.) 3 vols. Chicago. 1903. (Story, in Dillon; and +Binney, in Dillon.) + +DODD, WILLIAM E. Statesmen of the Old South, or From Radicalism to +Conservative Revolt. New York. 1911. (Dodd.) + +DONNAN, ELIZABETH, _editor_. _See_ Bayard, James A. Papers. + + +ECKENRODE, H. J. The Revolution in Virginia. Boston. 1916. (Eckenrode: +_R. V._) + +---- Separation of Church and State in Virginia. A Study in the +Development of the Revolution. Richmond. 1910. [Special Report of the +Department of Archives and History of the Virginia State Library.] +(Eckenrode: _S. of C. and S._) + +ELLSWORTH, _Chief Justice_ OLIVER. Life. _See_ Brown, William Garrott. + + +FINDLEY, WILLIAM. History of the Insurrection, in the Four Western +Counties of Pennsylvania, in the year 1794. Philadelphia. 1796. +(Findley: _History of the Western Insurrection_.) + +FLANDERS, HENRY. The Lives and Times of the Chief Justices of the +Supreme Court of the United States. 2 vols. Philadelphia. 1881. +(Flanders.) + +FORD, PAUL LEICESTER, _editor_. _See_ Jefferson, Thomas. Works. + +FORD, WORTHINGTON CHAUNCEY, _editor_. _See_ Jefferson, Thomas. +Correspondence. + + _Also see_ Washington, George. Writings. + And _see also_ Adams, John Quincy. Writings. + _Also see_ Vans Murray, William. Letters. + +FRENEAU, PHILIP. Poems of Philip Freneau. Edited by Fred Lewis Pattee. 3 +vols. Princeton. 1902-07. (Freneau.) + +FUNCK-BRENTANO, FRANTZ. Legends of the Bastille, translated by George +Maidment. London. 1899. (Funck-Brentano: _Legends of the Bastille_.) + + +GALLATIN, ALBERT. Writings. Edited by Henry Adams. 3 vols. Philadelphia. +1879. (Gallatin's _Writings_: Adams.) + + _See also_ Adams, Henry. Life of Albert Gallatin. + +GARLAND, HUGH A. Life of John Randolph of Roanoke. 2 vols. New York. +1851. (Garland: _Randolph_.) + +GAY, SYDNEY HOWARD. James Madison. [American Statesmen Series.] Boston. +1895. + +GIBBS, GEORGE, _editor_. _See_ Wolcott, Oliver. Memoirs of the +Administrations of Washington and John Adams. (Gibbs.) + +GILMAN, DANIEL C. James Monroe, in his Relations to the Public Service +During Half a Century. 1776 to 1826. [American Statesmen Series.] +Boston. 1895. + +GILMER, FRANCIS WALKER. Sketches, Essays, and Translations. Baltimore. +1828. (Gilmer.) + +GRAYDON, ALEXANDER. Memoirs of His Own Time, with Reminiscences of the +Men and Events of the Revolution. Edited by John Stockton Littell. +Philadelphia. 1846. (Graydon.) + +_Green Bag, The_; an Entertaining Magazine for Lawyers. Edited by Horace +W. Fuller. Vols. 1-26. Boston. 1889-1914. [After 1914 consolidated with +_The Central Law Journal_.] (_Green Bag._) + +GRIGSBY, HUGH BLAIR. The History of the Virginia Federal Convention of +1788. Virginia Historical Society. Richmond. 1815. [Volume 1 is volume +9, new series. Volume 2 is volume 10, new series.] (Grigsby.) + + +HAMILTON, ALEXANDER. Works. Edited by John C. Hamilton. 7 vols. New +York. 1851. (_Works_: Hamilton.) + +---- Works. Edited by Henry Cabot Lodge. [Federal Edition.] 12 vols. New +York. 1904. (_Works_: Lodge.) + +HAMILTON, JOHN C., _editor_. History of the Republic of the United +States, as traced in the Writings of Alexander Hamilton and his +Contemporaries. 6 vols. New York. 1857-60. (Hamilton: _History of the +Republic_.) + + _See also_ Hamilton, Alexander. Works. + +HAMILTON, STANISLAUS MURRAY, _editor_. _See_ Monroe, James. Writings. + +HAZEN, CHARLES DOWNER. Contemporary American Opinion of the French +Revolution. Baltimore. 1897. (Hazen.) + +HENING, WILLIAM WALLER. _See_ Virginia. Laws. + +HENRY, PATRICK. Life, Correspondence, and Speeches. Edited by William +Wirt Henry. 3 vols. New York. 1891. (Henry.) + + _See also_ Wirt, William. Sketches of Life and Character of Patrick + Henry. + +HENRY, WILLIAM WIRT, _editor_. _See_ Henry, Patrick. Life, +Correspondence, and Speeches. + +HILDRETH, RICHARD. History of the United States. 6 vols. New York. +1854-55. (Hildreth.) + +_Historical Magazine and Notes and Queries Concerning the Antiquities, +History, and Biography of America._ [1st Series.] Vols. 1-10. New York. +1857-75. (_Hist. Mag._) + +HOWE, HENRY. Historical Collections of Virginia. Charleston, S.C. 1845. +(Howe.) + +HUDSON, FREDERIC. Journalism in the United States from 1690 to 1872. New +York. 1873. (Hudson: _Journalism in the United States_.) + +HUNT, GAILLARD, _editor_. _See_ Madison, James. Writings. + + +_Interesting State Papers_, from President Washington, M. Fauchet, and +M. Adet, etc.; quoted by Edmund Randolph, Secretary of State, in his +Defense of his Resignation of that Office. Philadelphia. 1796. +(_Interesting State Papers._) + +IREDELL, JAMES. _See_ McRee, Griffith J. Life and Correspondence of +James Iredell. + + +JAY, JOHN. Correspondence and Public Papers. Edited by Henry P. +Johnston. 4 vols. New York. 1890. (_Jay_: Johnston.) + +JEFFERSON, THOMAS. Works. Edited by Paul Leicester Ford. Federal +Edition. 12 vols. New York. 1904. (_Works_: Ford.) + + _See_ Morse, John T. Thomas Jefferson. + _And see_ Randall, Henry S. Life of Thomas Jefferson. + _Also see_ Tucker, George. Life of Thomas Jefferson. + _And see_ Parton, James. Life of Thomas Jefferson. + +JOHNSTON, HENRY P., _editor_. _See_ Jay, John. Correspondence and Public +Papers. + +JOHNSTON, MARY. Lewis Rand. Boston. 1908. + +JONES, HUGH. The Present State of Virginia. London. 1724. (Jones.) + + +KENNEDY, JOHN P. Memoirs of the Life of William Wirt. 2 vols. +Philadelphia. 1860. (Kennedy.) + +KING, CHARLES R., _editor_. _See_ King, Rufus. Life and Correspondence. + +KING, RUFUS. Life and Correspondence. Edited by Charles R. King. 6 vols. +New York. 1894. (King.) + + +LANCASTER, ROBERT A., JR. Historic Virginia Homes and Churches, with 316 +Illustrations. Philadelphia. 1915. + +LANFREY, PIERRE. The History of Napoleon the First. 4 vols. London. +1871-79. (Lanfrey: _Napoleon_.) + +LA ROCHEFOUCAULD-LIANCOURT, FRANÇOIS ALEXANDRE FRÉDÉRIC, _Duc_ DE. +Travels through the United States of North America. 4 vols. London. +1800. (La Rochefoucauld.) + +_Lippincott's Monthly Magazine._ A Popular Journal of General +Literature. [1st Series.] Vols. 1-62. Philadelphia. 1868-98. +(_Lippincott's Magazine._) + +LODGE, HENRY CABOT. Life and Letters of George Cabot. Boston. 1878. +(Lodge: _Cabot_.) + +---- George Washington. 2 vols. Boston. 1889. [American Statesmen.] +(Lodge: _Washington_.) + + _See also_ Hamilton, Alexander. Works. + +LOLIÉE, FRÉDÉRIC. Prince Talleyrand and His Times. Adapted by Bryan +O'Donnell. London. 1911. (Loliée: _Talleyrand and His Times_.) + +LOMÉNIE, LOUIS DE. Beaumarchais et son temps. 2 vols. Paris. 1856. +(Loménie: _Beaumarchais et son temps_.) + +LORING, JAMES SPEAR. The Hundred Boston Orators. Boston. 1855. (Loring: +_Hundred Boston Orators_.) + +_Louisiana Law Journal._ Edited by Gustavus Schmidt. [1 vol.] New +Orleans. 1841-42. + +LYMAN, THEODORE, JR. The Diplomacy of the United States. 2 vols. Boston. +1828. (Lyman: _Diplomacy of the United States_.) + + +MACCABE, JOSEPH. Talleyrand, A Biographical Study. London. 1906. +(MacCabe: _Talleyrand_.) + +MCHENRY, JAMES. Life and Correspondence. _See_ Steiner, Bernard C. + +MCMASTER, JOHN BACH. A History of the People of the United States. 8 +vols. New York. 1914. (McMaster.) + +MCREE, GRIFFITH, J. Life and Correspondence of James Iredell. 2 vols. +New York. 1857. (McRee.) + +MADISON, JAMES. Writings. Edited by Gaillard Hunt. 9 vols. New York. +1900. (_Writings_: Hunt.) + + _See also_ Rives, William C. History of Life and Times. + _And see_ Gay, Sydney Howard. James Madison. + +MARSHALL, HUMPHREY. The History of Kentucky. 2 vols. Frankfort. 1824. +(Humphrey Marshall.) + +MARSHALL, JOHN. Autobiography. _See_ Smith, John Jay _and_ Watson, John +Fanning, _joint editors_. American Historical and Literary Curiosities. +(_Autobiography._) + +---- Same. In National Portrait Gallery of Eminent Americans. Paintings +by Alonzo Chappel, and Biographical and Historical Narratives by Evert +A. Duyckinck. 2 vols. New York. 1862. + +---- Same, reprinted. _See_ Dillon, John F. + +---- Life of George Washington. [1st Edition.] 5 vols. Philadelphia. +1805. [2d Edition.] 2 vols. Philadelphia. 1840. [The 2d Edition is cited +in this work unless otherwise stated in the notes.] (Marshall.) + + _See also_ Thayer, James Bradley. John Marshall. + _And see_ Flanders, Henry. Lives of the Chief Justices. + _Also see_ Van Santvoord, George. Sketches of the Lives of the + Chief-Justices. + +MASON, GEORGE. Life. _See_ Rowland, Kate Mason. + +_Massachusetts Historical Society._ Collections. [Series vii.] Vols. +1-10. Boston. 1792-1915. (Mass. Hist. Soc. Coll.) + +MEADE, _Bishop_ WILLIAM. Old Churches, Ministers, and Families of +Virginia. 2 vols. Richmond. 1910. (Meade.) + +MONROE, JAMES. Writings. Edited by Stanislaus Murray Hamilton. 7 vols. +[Unfinished work.] New York. 1898-1903. (Monroe's _Writings_: Hamilton.) + +MOORE, FRANK. American Eloquence, A Collection of Speeches and Addresses +by the most Eminent Orators of America. 2 vols. New York. 1857. (Moore: +_American Eloquence_.) + +MORDECAI, SAMUEL. Richmond in By-Gone Days, Being Reminiscences of An +Old Citizen. Richmond. 1856. (Mordecai.) + +MORISON, SAMUEL ELIOT. The Life and Letters of Harrison Gray Otis, +Federalist, 1765-1848. 2 vols. Boston. 1913. (Morison.) + +MORRIS, GOUVERNEUR. Diary and Letters. Edited by Anne Cary Morris. 2 +vols. London. 1889. (Morris.) + +MORRIS, ROBERT. _See_ Oberholtzer, Ellis Paxton. Robert Morris. + +MORSE, JOHN T. Thomas Jefferson. Boston. 1795. [American Statesmen.] +(Morse.) + +MUNFORD, GEORGE WYTHE. The Two Parsons; Cupid's Sports; The Dream; and +the Jewels of Virginia. Richmond. 1884. (Munford.) + + +_New Jersey Historical Society._ Proceedings. Vols. 1-10. Newark. +1847-1905. (_Proc._, N.J. Hist. Soc.) + +_North American Review._ Vols. 1-202. Boston. 1815-1915. + + +OBERHOLTZER, ELLIS PAXTON. Robert Morris, Patriot and Financier. New +York. 1903. (Oberholtzer.) + +OTIS, HARRISON GRAY. Life and Letters. _See_ Morison, Samuel Eliot. + + +PAINE, ROBERT TREAT, JR. Works, in Verse and Prose, with Sketches of His +Life, Character, and Writings. Boston. 1812. (_Works of Robert Treat +Paine._) + +PAINE, THOMAS. Writings. Edited by Moncure Daniel Conway. 4 vols. New +York. 1894-96. (_Writings_: Conway.) + +PARTON, JAMES. The Life and Times of Aaron Burr. [Fourteenth Edition.] +New York. 1861. (Parton: _Burr_.) + +---- Life of Thomas Jefferson. Boston. 1874. + +PAULDING, JAMES K. A Life of Washington. 2 vols. 1835. [Harper's Family +Library. Stereotype Edition, 1836.] (Paulding.) + +PAXTON, WILLIAM M. The Marshall Family, or a Genealogical Chart of the +Descendants of John Marshall and Elizabeth Markham. Cincinnati. 1885. +(Paxton.) + +PECQUET DU BELLET, LOUISE. Some Prominent Virginia Families. 4 vols. +Lynchburg, Va. 1909. (Pecquet du Bellet.) + +_Pennsylvania Magazine of History and Biography._ Published by the +Historical Society of Pennsylvania. Vols. 1-40. Philadelphia. 1877-1916. +(_Pa. Mag. Hist. and Biog._) + +PERKINS, JAMES BRECK. France in the American Revolution. Boston. 1911. +(Perkins: _France in the American Revolution_.) + +PICKERING, OCTAVIUS. Life of Timothy Pickering, by his son and continued +by Charles W. Upham. 4 vols. Boston. 1867-73. (Pickering: _Pickering_.) + +PICKERING, TIMOTHY. Life. _See_ Pickering, Octavius. + + +RANDALL, HENRY S. Life of Thomas Jefferson. 3 vols. New York. 1858. +(Randall.) + +RANDOLPH, EDMUND. Life and Papers. _See_ Conway, Moncure Daniel. + +RANDOLPH, JOHN. Life. _See_ Garland, Hugh A. + +RICHARDSON, JAMES D. A Compilation of the Messages and Papers of the +Presidents. 1789-1897. 10 vols. Washington, D.C. 1896-99. (Richardson.) + +RIVES, WILLIAM C. The History of the Life and Times of James Madison. 3 +vols. Boston. 1859. (Rives.) + +ROWLAND, KATE MASON. Life of George Mason. 2 vols. New York. 1892. +(Rowland.) + + +SCHMIDT, GUSTAVUS, _editor_. _See_ Louisiana Law Journal. + +SCHOEPF, JOHANN DAVID. Travels in the Confederation, 1783-1784. +Translated and edited by Alfred J. Morrison. 2 vols. Philadelphia. 1911. +(Schoepf.) + +SCHOULER, JAMES. History of the United States of America under the +Constitution. 1783-1877. 7 vols. Washington, D.C. 1895-1913. (Schouler.) + +SCOTT, JOHN, of Fauquier County, Va. The Lost Principle. By "Barbarossa" +[_pseud._]. Richmond. 1860. (Scott.) + +SLOANE, WILLIAM MILLIGAN. Life of Napoleon Bonaparte. 4 vols. New York. +1796-1897. (Sloane: _Life of Napoleon_.) + +SMITH, JOHN JAY, _and_ WATSON, JOHN FANNING, _joint editors_. _American +Historical and Literary Curiosities._ New York. 1852. (_Am. Hist. and +Lit. Curiosities._) + +_Southern Literary Messenger._ Vols. 1-38. New York and Washington. +1834-64. + +SPARKS, JARED. Correspondence of the American Revolution [being letters +of eminent men to George Washington]. 4 vols. Boston. 1853. (_Cor. +Rev._: Sparks.) + + _See also_ Washington, George. Writings. + +STEINER, BERNARD C. The Life and Correspondence of James McHenry. +Cleveland. 1907. (Steiner.) + +STORY, JOSEPH. Discourse on John Marshall, reprinted. + + _See_ Dillon, John F. + _Also see_ Story, William Wirt. + +STORY, WILLIAM WIRT. Life and Letters of Joseph Story. 2 vols. Boston. +1851. (Story.) + + +TALLEYRAND-PÉRIGORD, CHARLES MAURICE DE, _Prince_ DE BÉNEVÉNT. Memoirs. +Edited by the Duc de Broglie. 5 vols. New York. 1891. (_Memoirs of +Talleyrand_: Broglie's Ed.) + +---- Memoirs. [Edited] by [---- Stewarton] the author of the +Revolutionary Plutarch. 2 vols. London. 1805. (_Memoirs of Talleyrand_: +Stewarton.) + + _See_ Loliée, Frédéric. Talleyrand and His Times. + _Also see_ Blennerhassett, Charlotte Julia, _Lady_. Talleyrand. + _And see_ MacCabe, Joseph. Life. + +THAYER, JAMES BRADLEY. John Marshall. Boston. 1904. [Riverside +Biographical Series, No. 9.] (Thayer.) + +THOMPSON, JOHN, of Petersburg, Virginia. The Letters of Curtius. +Richmond. 1804. (Thompson: _Letters of Curtius_.) + +TICKNOR, ANNA, _and_ HILLARD, GEORGE S., _joint editors_. _See_ Ticknor, +George. Life, Letters, and Journals. + +TICKNOR, GEORGE. Life, Letters, and Journals. Edited by Anna Ticknor and +George S. Hillard. 2 vols. Boston. 1876. (Ticknor.) + +TUCKER, GEORGE. Life of Thomas Jefferson. 2 vols. Philadelphia. 1837. +(Tucker.) + + +_United States._ Congress. Debates and Proceedings in the Congress of +the United States. [1st Congress, 1st Session, to 18th Congress, 1st +Session; Mar. 3, 1789 to May 27, 1824.] 41 vols. Washington, D.C. +1834-56. + +---- Benton, Thomas Hart. Abridgment of the Debates of Congress from +1789 to 1856. 16 vols. New York. 1857-61. + +UNITED STATES. State Trials. State Trials of the United States during +the Administrations of Washington and Adams. By Francis Wharton. +Philadelphia. 1849. (Wharton: _State Trials_.) + +UNITED STATES. Supreme Court Reports. Dallas, A. J. Reports of the Cases +Ruled and Adjudged in the Courts of Pennsylvania before and since the +Revolution. Philadelphia. 4 vols. 1806-07. + + +VAN SANTVOORD, GEORGE. Sketches of the Lives and Judicial Services of +the Chief-Justices of the Supreme Court of United States. New York. +1854. (Van Santvoord.) + +VAN TYNE, CLAUDE HALSTEAD. The Loyalists in the American Revolution. New +York. 1902. + +VANS MURRAY, WILLIAM. Letters to John Quincy Adams, 1797-1803. Edited by +Worthington Chauncey Ford. [Reprinted from the _Annual Report of the +American Historical Association_ for 1912, pp. 341-715.] Washington. +1914. (_Letters_: Ford.) + +VIRGINIA. House of Delegates. Journal of the Virginia House of +Delegates. 1776-1916. Now in the Archives of the Virginia State Library. +(Journal, H.D.) + +VIRGINIA. Laws. Hening, William Waller. The Statutes at Large. Being a +Collection of the Laws of Virginia from 1619 to 1808. 13 vols. New York. +1819-23. (Hening.) + +VIRGINIA. Laws. Revised Code, of the Laws of Virginia, being a +Collection of all such Acts of the General Assembly. [By William Waller +Hening.] 2 vols. Richmond. 1819. (Laws of Virginia, Revised Code, 1819.) + +VIRGINIA. Law Reports. Call, Daniel. Reports of Cases Argued and +Adjudged in the Court of Appeals of Virginia. 6 vols. Richmond. 1824-33. +(Call.) + +VIRGINIA. Law Reports. Washington, Bushrod. Reports of Cases Argued and +Determined in the Court of Appeals of Virginia. 2 vols. Richmond. +1798-99. + +_Virginia Magazine of History and Biography._ Published by the Virginia +Historical Society. Vols. 1-24. Richmond. 1893-1916. (_Va. Mag. Hist. +and Biog._) + +VON HOLST, H. The Constitutional and Political History of the United +States, by Dr. H. von Holst. [Translated from the German by John J. +Lalor, and Alfred B. Mason.] 7 vols. Chicago. 1876. (Von Holst: +_Constitutional History of the United States_.) + + +WARVILLE. _See_ Brissot de Warville. + +WASHINGTON, BUSHROD. _See_ Virginia. Law Reports. + +WASHINGTON, GEORGE. Diary from 1789 to 1791. Edited by Benson J. +Lossing. New York. 1860. (Washington's _Diary_: Lossing.) + +---- Writings. Edited by Worthington Chauncey Ford. 14 vols. New York. +1889-93. (_Writings_: Ford.) + +---- Writings. Edited by Jared Sparks. 12 vols. Boston. 1834-37. +(_Writings_: Sparks.) + + _And_ Lodge, Henry Cabot. George Washington. + _Also_ Marshall, John. Life of George Washington. + _Also see_ Paulding, James K. Life of Washington. + +WASHINGTON, H. A., _editor_. _See_ Jefferson, Thomas. Writings. + +WATSON, JOHN FANNING. Annals of Philadelphia and Pennsylvania, In the +Olden Time. 3 vols. Philadelphia. 1877-79. (Watson: _Annals of +Philadelphia_.) + +WELD, ISAAC. Travels Through the States of North America, and the +Provinces of Upper and Lower Canada During the Years 1795, 1796, and +1797. [3d Edition.] 2 vols. London. 1800. (Weld.) + +WHARTON, FRANCIS. _See_ United States. State Trials. + +WIRT, WILLIAM. The Letters of the British Spy. [9th Edition.] Baltimore. +1831. (Wirt: _British Spy_.) + +---- Sketches of the Life and Character of Patrick Henry. Philadelphia. +1818. (Wirt.) + + _See_ Kennedy, John P. Memoirs of William Wirt. + +WISE, JOHN SERGEANT. The End of An Era. Boston. 1899. (Wise: _The End of +An Era_.) + +WOLCOTT, OLIVER. Memoirs of the Administrations of Washington and John +Adams. Edited from the papers of Oliver Wolcott, by George Gibbs. 2 +vols. New York. 1846. (Gibbs.) + +WOOD, JOHN. History of Administration of John Adams, Esq. Late President +of the United States. New York. 1802. (Wood.) + + + * * * * * + + +Transcriber's Notes: + +1. Passages in italics are surrounded by _underscores_. + +2. Obvious errors in spelling and punctuation have been corrected. + +3. Footnotes have been renumbered and moved from the page end to the +end of their respective chapters. + +4. Images have been moved from the middle of a paragraph to the closest +paragraph break. + +5. Certain words use an oe ligature in the original. + +6. Carat character (^) followed by a single letter or a set of letters +in curly brackets is indicative of subscript in the original book. + + + + + + +End of the Project Gutenberg EBook of The Life of John Marshall (Volume 2 of +4), by Albert J. Beveridge + +*** END OF THE PROJECT GUTENBERG EBOOK 40389 *** |