The Life of John Marshall Volume II Part 56

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 antic.i.p.ated 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 Informe_,' 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 a.n.a.lyzes 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 rea.s.sures 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, a.s.serts 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 Ma.s.sachusetts 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 circ.u.mstances," 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 acc.u.mulate, 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 acc.u.mulated 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 att.i.tude 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, a.s.sured 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 sh.o.r.es, 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 a.s.sociated 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 a.s.sociate Commission sitting in London, under the seventh article of the treaty, to pa.s.s 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 a.s.sented." 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 ma.s.s 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 subst.i.tute "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 ma.s.s of imagined debt," will, says Marshall, make it hard to agree on a stated amount.[1158]

The British creditors, he a.s.serts, 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."