The Life of John Marshall Volume II Part 5

Construe the const.i.tution 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 Const.i.tution'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 Const.i.tution 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 const.i.tution accepted." Careful study had taught him, he said, "that circ.u.mstances 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 Const.i.tution, 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]

[Ill.u.s.tration: _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 Const.i.tutional Convention. He was "particularly alarmed" that the General a.s.sembly would elect Senators "entirely anti-Federal."[105] His apprehension was justified. Hardly a week pa.s.sed after the House convened until it pa.s.sed resolutions, drawn by Henry,[106] to answer Clinton's letter, to ask Congress to call a new Federal Convention, and to cooperate 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 a.s.sembly 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 a.s.sembly.[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 Const.i.tution 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 chastis.e.m.e.nt 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 a.s.sembled.[117] The desperate Nationalists sought to break the force of this blow. They proposed a subst.i.tute 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 circ.u.mstances 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 a.s.sembly 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 a.s.sembly 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 const.i.tuency; 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 Const.i.tutional 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 princ.i.p.al 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 pa.s.sed 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 Const.i.tution was adopted. A bill was pa.s.sed 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 pet.i.tion 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 Const.i.tution,[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 pa.s.sed the laws necessary to set the National Government in motion, Madison had reluctantly offered his summary of the volume of amendments to the Const.i.tution 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 Const.i.tution 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 const.i.tutional 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 acc.u.mulation of interest on all.[150] Public and private credit, which had risen when the Const.i.tution 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, a.s.sume 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 pa.s.s 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 a.s.sailed 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 a.s.sumption of State debts a dishonest trick. The whole was a plot designed to array the moneyed interests in support of the National Government.[154] a.s.sumption 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 a.s.sumption of State debts was the strategic point of attack, especially for the Virginia politicians; and upon a.s.sumption, 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 acc.u.mulated in the North and East;[158] and these sections were determined that the debt should be a.s.sumed 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 pa.s.s the a.s.sumption Bill.