The Life of John Marshall (Volume 2 of 4)

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;868 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.869 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."870 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."871

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.872

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.873

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."874

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."875

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.876

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."877

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."878

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."879

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."880

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."881 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."882

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."883

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."884

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.885 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."886

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."887

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."888

The most decent of the attacks on Marshall were contained in a series of open letters first published in the "Aurora"889 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?890 "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."891

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."892

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.893 On October 5, 1798, Nicholas writes Jefferson that he has delivered to "Mr. John Breckenridge a copy of the resolutions that you sent me."894 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.895 Jefferson's "Kentucky Resolutions" declared that parts of the Alien and Sedition Laws were "altogether void and of no effect."896 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."897

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."898