The Life of John Marshall Volume II Part 15

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 const.i.tuents, 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 hara.s.sed 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]

[Ill.u.s.tration: _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 a.s.sure us of his discountenancing calumny of every description & disorder,"[366] meaning that Henry was hostile to the Republicans.

In the rancorous a.s.saults 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 ma.s.ses 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 att.i.tude 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 acc.u.mulations of debt, in violation of the const.i.tution, 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 superst.i.tion 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 a.n.a.lyzed the treaty with ability. In common with opponents of the treaty everywhere, he laid strongest emphasis on its unconst.i.tutionality 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 a.s.sembly 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 a.s.sembly.

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 a.s.sembly." 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 princ.i.p.al one, as we have seen, was that it violated the Const.i.tution. The treaty regulated commerce; the Const.i.tution 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 Const.i.tution.... What article of the Const.i.tution 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 const.i.tutional 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 const.i.tutionality 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 const.i.tution" for the National House to refuse support after ratification than to have a treaty "stifled in embryo" by the House pa.s.sing 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 a.s.sent 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 a.s.sent and advice of the Senate, as if sanctioned by the House of Representatives also, under a const.i.tution 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]