The Life of John Marshall (Volume 2 of 4)

Washington quickly reassured Marshall: "I am sorry to find that the publication you allude to should have given you a moment's disquietude. I can assure you it made no impression on my mind, of the tendency apprehended by you."935

As soon as all the election returns were in, Marshall reported to Washington that the defeat of two of the Federalist candidates for Congress was unexpected and "has reduced us to eight in the legislature of the Union"; that the Republicans maintained their "majority in the house of Delegates," which "means an antifederal senator and governor," and that "the baneful influence of a legislature hostile perhaps to the Union – or if not so – to all its measures will be kept up."936

Marshall's campaign attracted the attention of the whole country, and the news of his success deeply interested both Federalists and Republicans. Pickering, after writing King of the Federalist success in New York City, declared that "the other domestic intelligence, still more important, is, that Genl. Marshall is elected a member of Congress for his district."937

Speaker Sedgwick also informed King of Marshall's election. "General Marshall you know is a member of the House of Representatives. His talents, his character and the situation he has been in, will combine to give him an influence, which will be further aided by the scene which he immediately represents. He may and probably will give a tone to the federal politics South of the Susquehannah. I well know the respect he entertains for you and for your opinions."938

But the Federalist leaders were none too sure of their Virginia congressional recruit. He was entirely too independent to suit the party organization. His campaign statement on the Alien and Sedition Laws angered and troubled them when it was made; and, now that Marshall was elected, his opinion on this, to the Federalists, vital subject, his admitted power of mind and character, and his weighty influence over the Southern wing of the Federalists caused serious apprehension among the party's Northern leaders. Sedgwick advises King to write Marshall on the subject of party regularity.

"I have brought this subject to your mind, that you may decide on the propriety of a communication of your sentiments to him, which you may do in season to be useful. Should he, which, indeed, I do not expect, conform his political conduct generally, to what seems indicated by his public declaration relative to the alien & sedition acts, it would have been better that his insignificant predecessor should have been reëlected. There never has been an instance where the commencement of a political career was so important as is that of General Marshall."939

Apprehension and uncertainty as to Marshall's course in the House was in the minds of even the Federalist leaders who were out of the country. The American Minister at The Hague was as much troubled about Marshall as were the Federalist politicians at home: "If M[arshall]'s silly declaration on the inexpediency of the Sedition law does not entangle him he may be very useful."940 But Murray was uneasy: "Marshall, I fear, comes in on middle ground, and when a man plays the amiable in a body like that [House of Representatives] he cannot be counted [on], but he will vote generally right. I was amiable the first session! It cannot last."941

Jefferson, of course, was much depressed by the Federalist congressional victories, which he felt "are extremely to be regretted." He was especially irritated by Marshall's election: It "marks a taint in that part of the State which I had not expected." He was venomous toward Henry for having helped Marshall: "His [Henry's] apostacy, must be unaccountable to those who do not know all the recesses of his heart."942

A week later, however, Jefferson decided that the Federalist success did not mean a permanent Republican reverse. Spoils and corruption, he concluded, were the real cause of the Federalist gain. "The Virginia congressional elections have astonished every one," he informs Tench Coxe. "This result has proceeded from accidental combinations of circumstances, & not from an unfavorable change of sentiment… We are not incorruptible; on the contrary, corruption is making sensible tho' silent progress. Offices are as acceptable here as elsewhere, & whenever a man has cast a longing on them, a rottenness begins in his conduct."943

Jefferson, with settled and burning hatred, now puts his branding-iron on Henry: "As to the effect of his name among the people, I have found it crumble like a dried leaf the moment they become satisfied of his apostacy."944

During the weeks which immediately followed his election, Marshall was busy reporting to Washington on the best men to be appointed as officers in the provisional army; and his letters to the Commander-in-Chief show a wide and careful acquaintance with Virginians of military training, and a delicate judgment of their qualities.945

By now the hated Sedition Law was justifying the political hydrophobia which it had excited among the Republicans.946 All over the country men were being indicted and convicted for wholly justifiable political criticisms, – some of them trivial and even amusing, – as well as for false and slanderous attacks on public officers. President Adams himself had begun to urge these prosecutions. He was particularly bitter against the "Aurora," the Republican organ, which, according to Adams, contained an "uninterrupted stream of slander on the American government."947 He thought that the editor ought to be expelled from the country.948

All this was more fuel to the Republican furnace. Wicked and outrageous as were some of these prosecutions, they were not so extravagant as the horrors which Republican politicians declared that the Sedition Laws would bring to every fireside.

During the summer after his election Marshall visited his father in Kentucky. Thomas Marshall was ill, and his son's toilsome journey was solely for the purpose of comforting him; but Jefferson could see in it nothing but a political mission. He writes to Wilson Cary Nicholas to prepare an answer to the States that had opposed the Kentucky and Virginia Resolutions; but, says Jefferson, "As to the preparing anything [myself] I must decline it, to avoid suspicions (which were pretty strong in some quarters on the last occasion) [the Kentucky Resolutions]… The visit of the apostle Marshall949 to Kentucky, excite[s] anxiety. However, we doubt not that his poisons will be effectually counter-worked."950

Jefferson's suspicions were groundless. Marshall did not even sound public opinion on the subject. On his return to Richmond he writes the Secretary of State, who was the most active politician of Adams's Cabinet, and to whom Marshall freely opened his mind on politics, that "a visit to an aged & rever'd Father" prevented an earlier answer to a letter from Pickering; and, although Marshall has much to say, not one word is written of the Kentucky and Virginia Resolutions. He is obsessed with the French question and of the advantage the French "party in America" may secure by the impression that France was not really hostile. "This will enable her [France's] party in America to attack from very advantageous ground the government of the United States."951

Now came the public circumstance that made the schism in the Federalist Party an open and remorseless feud. The President's militant declaration, that he would "never send another minister to France without assurances that he will [would] be received, respected, and honored as the representative of a great, free, powerful, and independent people,"952 was perfectly attuned to the warlike spirit of the hour. The country rang with approval. The Federalist politicians were exultant.

Thereupon the resourceful Talleyrand wrote the Secretary of the French Legation at The Hague to intimate to Murray, the American Minister, that the French Directory would now receive a minister from the United States.953 Murray hastened the news to Adams.954 It was a frail assurance, indirect, irregular, unacknowledged to the world; and from men who had insulted us and who would not hesitate to repudiate Murray's statement if their purposes so required. Yet the President grasped by the forelock this possibility for peace, and, against the emphatic protest of his Cabinet, suddenly sent a second commission to try again for that adjustment which Marshall and his associates had failed to secure. It was the wisest and most unpopular act of Adams's troubled Administration.

The leading Federalist politicians were enraged. Indeed, "the whole [Federalist] party were prodigiously alarmed."955 They thought it a national humiliation. What! said they, kiss the hand that had slapped our face! "The new embassy … disgusts most men here," reported Ames from New England.956 Cabot confirmed Ames's doleful message – "Surprise, indignation, grief, & disgust followed each other in swift succession in the breasts of the true friends of our country," he advised King.957

The Federalist leaders really wanted war with France, most of them as a matter of patriotism; some, undoubtedly, because war would insure party success in the approaching presidential election. Upon his return Marshall had prophesied formal declaration of hostilities from the Republic of France, when news of the dispatches reached Europe; and the war Federalists were sorely disappointed at the failure of his prediction. "Genl. Marshall unfortunately held the decided opinion that France would declare war when the Dispatches should appear; and T. Sewell with other good men were so strongly impressed with the advantage of such a declaration by them that they could not be persuaded to relinquish the belief in it – I was astonished that they should have attributed to the French such miserable policy." So wrote the able and balanced Cabot.958 That France refused to adopt "such miserable policy" as Marshall had expected was sufficiently exasperating to the war Federalists; but to meet that country three fourths of the way on the road to peace was intolerable.

"The end [peace] being a bad one all means are unwise and indefensible" was the ultra-Federalist belief.959 Adams's second mission was, they said, party surrender to the Republicans; it was "a policy that threatens … to revive the Jacobin faction in our bosom."960 Federalist members of Congress threatened to resign. "I have sacrificed as much as most men … to support this Govt. and root out Democracy, & French principles, but … I feel it to be lost and worse … I can & will resign if all must be given up to France," cried the enraged Tracy.961

These "enemies of government" had said all along that things could be arranged with France; that the X. Y. Z. disclosures were merely a Federalist plot; and that the army was a wicked and needless expense. What answer could the Federalists make to these Republican charges now? Adams's new French mission, the Federalist chieftains declared, was "a measure to make dangers, and to nullify resources; to make the navy without object; the army an object of popular terror."962

And the presidential election was coming on! To hold the situation just as it was might mean Federalist victory. Suppose events did develop a formal declaration of war with France? That would make Federalist success more certain. The country would not turn out a party in charge of the Government when cannon were roaring. Even more important, an open and avowed conflict with the "bloody Republic" would, reasoned the Federalist leaders, check the miasmic growth of French revolutionary ideas among the people.

In short, a declaration of war with France would do everything which the Federalists wished and hoped for. "Peace [with France] … is not desired as it should not be"963 was their opinion of the statesmanship demanded by the times. And now Adams, without one word to the men who reluctantly had made him President,964 had not only prevented a rupture which would have accomplished every Federalist purpose, but had delivered his party into the hands of the "Jacobins." He had robbed the Federalists of their supreme campaign "issue." "Peace with France, they think an evil and holding out the hope of it another, as it tends to chill the public fervor";965 and the "public fervor" surely needed no further reduction of temperature, for Federalist health.

If Adams did not wish for a formal declaration of war, at least he might have let things alone. But now! "Government will be weakened by the friends it loses and betrayed by those it will gain. It will lose … the friendship of the sense, and worth, and property of the United States, and get in exchange the prejudice, vice, and bankruptcy of the nation,"966 wrote Ames to Pickering. "In Resistance alone there is safety,"967 was Cabot's opinion. "The Jacobin influence is rising, and has been ever since the mission to France was determined on; … if a Treaty be made with France their [Republican] ascendancy will be sure";968 and, after that, the deluge.

The Federalist leaders felt that, even without a declaration of hostilities by Congress, they might make shift to win the approaching election. For on the sea we already were waging war on France, while formally at peace with her. Our newborn navy was taking French privateers, defeating French men-of-war, and retaliating with pike, cutlass, and broadside for the piratical French outrages upon American commerce.969 As things stood, it was certain that this would continue until after the election, and with each glorious victory of a Truxton or a Hull, National pride and popular enthusiasm would mount higher and grow stronger. So the Federalist politicians thought that "the only negotiation compatible with our honor or our safety is that begun by Truxton in the capture of the L'Insurgente."970

Priceless campaign ammunition was this for the Federalist political guns. Early in the year the bilious but keen-eyed watchman on the ramparts of New England Federalism had noted the appearance of "a little patriotism, and the capture of the Insurgente cherishes it."971 And now Adams's second mission might spoil everything. "The Jacobins will rise in consequence of this blunder,"972 was the doleful prophecy. Indeed, it was already in fulfillment even with the utterance: "Already the Jacobins raise their disgraced heads from the mire of contempt!"973 The "country gentlemen" were the hands as the business interests were the brain and heart of the Federalist Party; "the President destroyed their influence, and … left them prostrate before their vindictive adversaries."974

The Republicans were overjoyed. Adams had reversed himself, eaten his own words, confessed the hypocrisy of the "infamous X. Y. Z. plot." "This renders their [Federalists'] efforts for war desperate, & silences all further denials of the sincerity of the French government," gleefully wrote Jefferson.975

Marshall alone of the commanding Federalists, approved Adams's action. "I presume it will afford you satisfaction to know that a measure which excited so much agitation here, has met the approbation of so good a judge as Mr. Marshall," Lee reported to the President.976 Marshall's support cheered the harried Chief Executive. "Esteeming very highly the opinion and character of your friend General Marshall, I thank you for inclosing his letter," responded Adams.977

The President had done still worse. Auctioneer John Fries, a militia captain, had headed an armed mob in resistance to the National officers who were levying the National direct tax on the houses and lands of the farmers of eastern Pennsylvania. He had been finally taken prisoner, tried, and convicted of sedition and treason, and sentenced to death. Against the unanimous written advice of his Cabinet, formally tendered,978 the President pardoned the "traitor" and "his fellow criminals."979 And this clemency was granted at the plea of McKean, the arch-"Jacobin" of Pennsylvania,980 without even consulting the judges of the courts in which they were twice tried and convicted.981

What was this, asked the Federalist leaders in dazed and angry amazement! Paralyze the arm of the law! Unloose the fingers of outraged authority from the guilty throat which Justice had clutched! What was to become of "law and order" when the Nation's head thus sanctioned resistance to both?982 In his charge to the Federal Grand Jury, April 11, 1799, Justice Iredell declared that if "traitors" are not punished "anarchy will ride triumphant and all lovers of order, decency, truth & justice will be trampled under foot."983

How, now, could the Federalists repel Republican assaults on this direct tax? How, now, could they reply to the Republican attacks upon the army to support which the tax was provided! In pardoning Fries, Adams had admitted everything which the hated Jefferson had said against both tax and army.984 If Adams was right in pardoning Fries, then Washington was wrong in suppressing the Whiskey Rebellion. The whole Federalist system was abandoned.985 The very roots of the Federalist philosophy of government and administration were torn from their none too firm hold upon the scanty soil which Federalist statesmen had laboriously gathered for their nourishment. And why had Adams done this? Because, said the Federalist politicians, it was popular in Pennsylvania;986 that was the President's motive – the same that moved him to send the new mission to France.987

Bending under heavy burdens of state, harassed by the politicians, Adams was enduring a private pain sharper than his public cares. His wife, the incomparable Abigail, was in Massachusetts and seriously ill. The President had left her to meet his Cabinet and dispatch the second mission to France. That done, he hastened back to the bedside of his sick wife. But the politicians made no allowances. Adams's absence "from the seat of government … is a source of much disgust," chronicles the ardent Troup. "It … has the air of an abdication."988 A month later he records that the President "still continues at Braintree,989 and the government, like Pope's wounded snake, drags its slow length along."990

Such was the condition of the country and the state of political parties when Marshall took his seat in Congress. For the Federalists, the House was a very "cave of the winds," with confusion, uncertainty, suspicion, anger, and all the disintegrating passions blowing this way and that. But the Republicans were a compact, disciplined, determined body full of spirit and purpose.

CHAPTER XI

INDEPENDENCE IN CONGRESS

The Constitution is not designed to secure the rights of the people of Europe or Asia or to direct proceedings against criminals throughout the universe. (Marshall.)

The whole world is in arms and no rights are respected but those that are maintained by force. (Marshall.)

Marshall is disposed to express great respect for the sovereign people and to quote their expressions as evidence of truth. (Theodore Sedgwick.)

"I have been much in Company with General Marshall since we arrived in this City. He possesses great powers and has much dexterity in the application of them. He is highly & deservedly respected by the friends of Government [Federalists] from the South. In short, we can do nothing without him. I believe his intentions are perfectly honorable, & yet I do believe he would have been a more decided man had his education been on the other side of the Delaware, and he the immediate representative of that country."991

So wrote the Speaker of the House of Representatives after three weeks of association with the Virginia member whom he had been carefully studying. After another month of Federalist scrutiny, Cabot agreed with Speaker Sedgwick as to Marshall's qualities.

"In Congress, you see Genl. M.[arshall] is a leader. He is I think a virtuous & certainly an able man; but you see in him the faults of a Virginian. He thinks too much of that State, & he expects the world will be governed according to the Rules of Logic. I have seen such men often become excellent legislators after experience has cured their errors. I hope it will prove so with Genl. M.[arshall], who seems calculated to act a great part."992

The first session of the Sixth Congress convened in Philadelphia on December 2, 1799. Marshall was appointed a member of the joint committee of the Senate and the House to wait upon the President and inform him that Congress was in session.993

The next day Adams delivered his speech to the Senators and Representatives. The subject which for the moment now inflamed the minds of the members of the President's party was Adams's second French mission. Marshall, of all men, had most reason to resent any new attempt to try once more where he had failed, and to endeavor again to deal with the men who had insulted America and spun about our representatives a network of corrupt intrigue. But if Marshall felt any personal humiliation, he put it beneath his feet and, as we have seen, approved the Ellsworth mission. "The southern federalists have of course been induced [by Marshall] to vindicate the mission, as a sincere, honest, and politic measure," wrote Wolcott to Ames.994

Who should prepare the answer of the House to the President's speech? Who best could perform the difficult task of framing a respectful reply which would support the President and yet not offend the rebellious Federalists in Congress? Marshall was selected for this delicate work. "Mr. Marshall, from the committee appointed to draught an Address in answer to the Speech of the President of the United States … reported same."995 Although written in admirable temper, Marshall's address failed to please; the result was pallid.

"Considering the state of the House, it was necessary and proper that the answer to the speech should be prepared by Mr. Marshall," testifies Wolcott. "He has had a hard task to perform, and you have seen how it has been executed. The object was to unite all opinions, at least of the federalists; it was of course necessary to appear to approve the mission, and yet to express the approbation in such terms as when critically analyzed would amount to no approbation at all. No one individual was really satisfied; all were unwilling to encounter the danger and heat which a debate would produce and the address passed with silent dissent; the President doubtless understood the intention, and in his response has expressed his sense of the dubious compliment in terms inimitably obscure."996 Levin Powell, a Federalist Representative from Virginia, wrote to his brother: "There were members on both sides that disliked that part of it [Marshall's address] where he spoke of the Mission to France."997

The mingled depression, excitement, and resentment among Marshall's colleagues must have been great indeed to have caused them thus to look upon his first performance in the House; for the address, which, even now, is good reading, is a strong and forthright utterance. While, with polite agreement, gliding over the controverted question of the mission, Marshall's speech is particularly virile when dealing with domestic politics. In coupling Fries's Pennsylvania insurrection with the Kentucky and Virginia Resolutions Marshall displayed as clever political dexterity as even Jefferson himself.

The address enumerates the many things for which Americans ought to thank "the benevolent Deity," and laments "that any portion of the people … should permit themselves, amid such numerous blessings, to be seduced by … designing men into an open resistance to the laws of the United States… Under a Constitution where the public burdens can only be imposed by the people themselves, for their own benefit, and to promote their own objects, a hope might well have been indulged that the general interest would have been too well understood, and the general welfare too highly prized, to have produced in any of our citizens a disposition to hazard so much felicity, by the criminal effort of a part, to oppose with lawless violence the will of the whole."998

While it augured well that the courts and militia coöperated with "the military force of the nation" in "restoring order and submission to the laws," still, this only showed the necessity of Adams's "recommendation" that "the judiciary system" should be extended. As to the new French mission, the address "approves the pacific and humane policy" which met, by the appointment of new envoys, "the first indications on the part of the French Republic" of willingness to negotiate; and "offers up fervent prayers to the Supreme Ruler of the Universe for the success of their embassy."