The Life of John Marshall Volume III Part 16

The President was amazed when the news reached him. He did not want Louisiana[404]--nothing was further from his mind than the purchase of it.[405] The immorality of the acquisition affected him not at all; but the inconvenience did. He did not know what to do with Louisiana. Worse still, the treaty of cession required that the people living in that territory should be admitted into the Union, "according to the principles of the Federal Const.i.tution."

So, to his infinite disgust, Jefferson was forced to deal with the Louisiana Purchase by methods as vigorous as any ever advocated by the abhorred Hamilton--methods more autocratic than those which, when done by others, he had savagely denounced as unconst.i.tutional and destructive of liberty.[406] The President doubted whether, under the Const.i.tution, we could acquire, and was sure that we could not govern, Louisiana, and he actually prepared amendments authorizing the incorporation into the Republic of the purchased territory.[407] No such legal mistiness dimmed the eyes of John Marshall who, in time, was to announce as the decision of the Supreme Court that the Republic could acquire territory with as much right as any monarchical government.[408]

To add to his perturbations, the high priest of popular rights found himself compelled to abandon his adored phrase, "the consent of the governed," upon which he had so carefully erected the structure of his popularity, and to drive through Congress a form of government over the people of Louisiana without consulting their wishes in the least.[409]

The Jeffersonian doctrine had been that the Union was merely a compact between sovereign States, and that new territory and alien peoples could not be added to it without the consent of all the partners. The Federalists now took their stand upon this indefensible ground,[410] and openly threatened the secession at which they had hinted when the Federalist Judiciary Act was repealed.

Jefferson was alive to the danger: "Whatever Congress shall think it necessary to do [about Louisiana]," he cautioned one of the Republican House leaders, "should be done with as little debate as possible."[411]

A month earlier he wrote: "The Const.i.tution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive ... have done an act beyond the Const.i.tution."[412]

Therefore, he declared, "the less we say about const.i.tutional difficulties respecting Louisiana the better ... What is necessary for surmounting them must be done sub-silentio."[413] The great radical favored publicity in affairs of state only when such a course was helpful to his political plans. On other occasions no autocrat was ever more secretive than Thomas Jefferson.[414] Seemingly, however, the President was concerned only with his influence on the destiny of the world.[415]

At first the Federalist leaders were too dazed to do more than grumble.

"The cession of Louisiana ... is like selling us a Ship after she is surrounded by a British Fleet," shrewdly observed George Cabot, when the news was published in Boston.[416] Fisher Ames, of course, thought that "the acquiring of territory by money is mean and despicable,"

especially when done by Republicans. "The less of it [territory] the better.... By adding an unmeasured world beyond that river [Mississippi], we rush like a comet into infinite s.p.a.ce."[417]

Soon, however, their dissatisfaction blew into flame the embers of secession which never had become cold in their bosoms. "I am convinced,"

wrote Uriah Tracy, "that the accession of Louisiana will accelerate a division of these States; whose whenabouts is uncertain, but somewhen is inevitable."[418] Senator Plumer thought that the Eastern States should form a new nation: "Adopt this western world into the Union," he said, "and you destroy at once the weight and importance of the Eastern States, and compel them to establish a separate and independent empire."[419] A few days' reflection brought Ames to the conclusion that "our country is too big for union, too sordid for patriotism, too democratic for liberty."[420] Tapping Reeve of Connecticut made careful inquiry among the Federalists in his vicinity and informed Tracy that "all ... believe that we must separate, and that this is the most favorable moment."[421]

Louisiana, however, was not the only motive of the foremost New England Federalists for their scheme of breaking up the Republic. As we have seen, the threat of secession was repeatedly made during the Republican a.s.sault on the Judiciary; and now, as a fundamental cause for disunion, the Northern Federalists speedily harked back to Jefferson's purpose of subverting the National courts. The Republicans were ruling the Nation, Virginia was ruling the Republicans, Jefferson was ruling all. Louisiana would permanently turn the balance against the Northern and Eastern States, already outweighed in the National scales; and the conquest of the National Judiciary would remove from that section its last protection against the pillaging hands of the Huns and Vandals of Republicanism. So reasoned the Federalists.

What could be done to save the rights and the property of "the wise, the rich and the good"? By what pathway could the chosen escape their doom?

"The principles of our Revolution point to the remedy," declared the soured and flint-hearted Pickering. "The independence of the judges is now directly a.s.sailed.... I am not willing to be sacrificed by such popular tyrants.... I do not believe in the practicability of a long-continued union."[422]

For the same reasons, Roger Griswold of Connecticut avowed that "there can be no safety to the Northern States _without a separation from the confederacy_."[423] The Reverend Jedediah Morse of New Hampshire wrote Senator Plumer that "our empire ... must ... break in pieces. Some think the sooner the better."[424] And the New Hampshire Senator replied: "I hope the time is not far distant when ... the sound part will separate from the corrupt."[425]

With the exception of John Adams, only one eminent New England Federalist kept his head steady and his patriotism undefiled: George Cabot, while sympathizing with his ancient party friends, frankly opposed their mad project. Holding that secession was impracticable, he declared: "I am not satisfied that the thing itself is to be desired. My habitual opinions have been always strongly against it."[426]

But the expressions of such men as Pickering, Ames, and Griswold indicated the current of New England Federalist thought and comment.

Their secession sentiment, however, did not appeal to the young men, who hailed with joy the opportunity to occupy these new, strange lands which accident, or Providence, or Jefferson had opened to them. Knowledge of this was indeed one cause of the anger of some Federalist managers who owned immense tracts in New England and in the Ohio Valley and wanted them purchased and settled by those now turning their eyes to the alluring farther western country.[427] They saw with something like fury the shifting of political power to the South and West.

The management of the unwelcome Louisiana windfall, the conduct of the National campaign, the alarming reports from New England, left Jefferson no time to rail at Marshall or to attack that "subtle corps of sappers and miners" who were then beginning "to undermine ... our confederated fabric," as Jefferson declared seventeen years later.[428] For the present the great public duty of exposing Marshall's decision in Marbury _vs._ Madison must be deferred.

But the mills of democracy were grinding, and after he was reelected certain impeachments would be found in the grist that would make all right. The defiant Marshall would at least be humbled, perhaps--probably--removed from office. But all in good time! For the present Jefferson had other work to do. He himself must now exercise powers which, according to his philosophy and declarations, were far beyond those conferred upon him by the Const.i.tution.

So it came about that the first of Marshall's great Const.i.tutional opinions received scant notice at the time of its delivery. The newspapers had little to say about it. Even the bench and the bar of the country, at least in the sections remote from Washington, appear not to have heard of it,[429] or, if they had, to have forgotten it amid the thrilling events that filled the times.

Because popular interest had veered toward and was concentrated upon the Louisiana Purchase and the renewal of war in Europe, Republican newspapers, until then so alert to discover and eager to attack every judicial "usurpation," had almost nothing to say of Marshall's daring a.s.sertion of judicial supremacy which later was execrated as the very parent of Const.i.tutional evil. An empire had been won under Jefferson; therefore Jefferson had won it--another proof of the far-seeing statesmanship of "The Man of the People." Of consequence he must be reelected. Such was the popular logic; and reelected Jefferson was--triumphantly, almost unanimously.

Circ.u.mstances which had shackled his hands now suddenly freed them.

Henceforth the President could do as he liked, both personally and politically. No longer should John Marshall, the abominated head of the National Judiciary, rest easy on the bench which his audacity had elevated above President and Congress. The opinion of the "usurping"

Chief Justice in Marbury _vs._ Madison should have answer at last. So on with the impeachment trial of Samuel Chase! Let him be deposed, and then, if Marshall would not bend the knee, that obdurate judicial defender of Nationalism should follow Chase into desuetude and disgrace.

The incessant clamor of the Federalist past-statesmen, unheard by the popular ear, had nevertheless done some good--all the good it ought to have done. It had aroused misgivings in the minds of certain Northern Republican Senators as to the expediency, wisdom, and justice of the Republican plan to shackle or overthrow the National Judiciary. This hesitation was, however, unknown to the masters of the Republican organization in Congress. The Federalists themselves were totally unaware of it. Only Jefferson, with his abnormal sensibility, had an indistinct impression that somewhere, in the apparently perfect alignment of the Republican forces, there was potential weakness.

Marshall was gifted with no such divination. He knew only the fate that had been prepared for him. A crisis was reached in his career and a determinative phase of American history entered upon. His place as Chief Justice was to be made secure and the stability of American inst.i.tutions saved by as narrow a margin as that by which the National Const.i.tution had been established.

FOOTNOTES:

[308] Marshall to his wife, Jan. 2, 1803, MS.

[309] See vol. II, 502-05, of this work.

[310] Marshall to King, May 5, 1802, King, IV, 116-18.

[311] Since the adoption of the Kentucky and Virginia Resolutions in 1798. (See vol. II, chaps. X, XI, XII, of this work.)

[312] Since the Republican repeal of the Federalist Judiciary Act was proposed. See _supra_, 51.

[313] Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont, New Hampshire, Ma.s.sachusetts, Connecticut, Rhode Island.

[314] The Federalist majority in Vermont resolved that: "It belongs not to _State Legislatures_ to decide on the const.i.tutionality of laws made by the general government; this power being exclusively vested in the _Judiciary Courts of the Union_." (_Records of Governor and Council of Vermont_, IV, 529.)

The Federalist majority in the Maryland Legislature a.s.serted that "no state government ... is competent to declare an act of the federal government unconst.i.tutional, ... that jurisdiction ... is exclusively vested in the courts of the United States." (Anderson, in _Am. Hist.

Rev._ V, 248.)

The New York Federalists were slow to act, but finally resolved "that the right of deciding on the const.i.tutionality of all laws pa.s.sed by Congress ... appertains to the judiciary department." (_Ib._ 248-49.)

Connecticut Federalists declared that the Kentucky and Virginia plan was "hostile to the existence of our national Union." (_Ib._ 247.)

In Delaware the then dominant party decided that the Kentucky and Virginia Resolutions were "not a fit subject" for their consideration.

(_Ib._ 246.)

The Pennsylvania Federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the const.i.tutionality of all legislative acts." (Anderson, in _Am. Hist. Rev._ V, 245.)

On February 8, 1799, Ma.s.sachusetts replied to the Virginia Resolutions that: "This legislature are persuaded that the decision of all cases in law or equity, arising under the Const.i.tution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the Judicial Courts of the U. States." (_Ma.s.s.

Senate Journal, 1798-99_, XIX, 238, MS. volume Ma.s.s. State Library.)

Such was the general tenor of the Federalists' p.r.o.nouncements upon this grave problem. But because the people believed the Sedition Law to be directed against free speech, the Federalist supremacy in many of the States that insisted upon these sound Nationalist principles was soon overthrown.

The resolutions of the Republican minorities in the Legislatures of the Federalist States were emphatic a.s.sertions that any State might declare an act of Congress unconst.i.tutional and disregard it, and _that the National Judiciary did not have supervisory power over legislation_.

[315] See vol. II, 387-89, of this work.

[316] Referring to Marshall's conduct in the French Mission. (See vol.

II, chaps. VII, VIII, IX, of this work.)

[317] Anderson, in _Am. Hist. Rev._ V, 249.

[318] _Ib._ 235-37.

[319] The questions raised by the Kentucky and Virginia Resolutions were princ.i.p.al themes of debate in State Legislatures, in the press, in Congressional campaigns, and in the Presidential contest of 1800. The Judiciary debate of 1802 was, in part, a continuance of these popular discussions.

[320] See _supra_, 52.

[321] Within a year after Marbury _vs._ Madison was decided, Albert Moore, one of the Federalist a.s.sociate Justices of the Supreme Court, resigned because of ill health and his place was filled by William Johnson, a Republican of South Carolina.

[322] See vol. I, 410, of this work.