The Life of John Marshall (Volume 2 of 4)

Marshall declares "the present period critical and momentous. The important changes which are occurring, the new and great events which are every hour preparing … the spirit of war … prevalent in almost every nation … demonstrate" the need of providing "means of self-defense." To neglect this duty from "love of ease or other considerations" would be "criminal and fatal carelessness." No one could tell how the new mission would terminate: "It depends not on America alone. The most pacific temper will not ensure peace." Preparation for "national defense … is an … obvious duty. Experience the parent of wisdom … has established the truth … that … nothing short of the power of repelling aggression will" save us from "war or national degradation."999

Gregg of Pennsylvania moved to strike out the italicized words in Marshall's address to the President, but after a short debate the motion was defeated without roll-call.1000

Wolcott gives us a clear analysis of the political situation and of Marshall's place and power in it at this particular moment: "The federal party is composed of the old members who were generally re-elected in the northern, with new members from the southern states. New York has sent an anti-federal majority; Pennsylvania has done the same; opposition principles are gaining ground in New Jersey and Maryland, and in the present Congress, the votes of these states will be fluctuating and undecided."

Nothing shows more clearly the intimate gossip of the time than the similarity of Wolcott's and Cabot's language in describing Marshall. "A number of distinguished men," continues Wolcott, "appear from the southward, who are not pledged by any act to support the system of the last Congress; these men will pay great respect to the opinions of General Marshall; he is doubtless a man of virtue and distinguished talents, but he will think much of the State of Virginia, and is too much disposed to govern the world according to rules of logic; he will read and expound the constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not perceive the importance."1001

Marshall headed the committee to inquire of the President when he would receive the address of the House, and on December 10, "Mr. Speaker, attended by the members present, proceeded to the President's house, to present him their Address in answer to his Speech."1002 A doleful procession the hostile, despondent, and irritated Representatives made as they trudged along Philadelphia's streets to greet the equally hostile and exasperated Chief Magistrate.

Presidential politics was much more on the minds of the members of Congress than was the legislation needed by the country. Most of the measures and practically all the debates of this remarkable session were shaped and colored by the approaching contest between the Federalists and Republicans and, personally, between Jefferson and Adams. Without bearing this fact in mind the proceedings of this session cannot be correctly understood. A mere reading of the maze of resolutions, motions, and debates printed in the "Annals" leaves one bewildered. The principal topic of conversation was, of course, the impending presidential election. Hamilton's faction of extreme Federalists had been dissatisfied with Adams from the beginning. Marshall writes his brother "in confidence" of the plots these busy politicians were concocting.

"I can tell you in confidence," writes Marshall, "that the situation of our affairs with respect to domestic quiet is much more critical than I had conjectured. The eastern people are very much dissatisfied with the President on account of the late [second] Mission to France. They are strongly disposed to desert him & push some other candidate. King or Ellsworth with one of the Pinckneys – most probably the General, are thought of.

"If they are deter'd from doing this by the fear that the attempt might elect Jefferson I think it not improbable that they will vote generally for Adams & Pinckney so as to give the latter gentleman the best chance if he gets the Southern vote to be President.

"Perhaps this ill humor may evaporate before the election comes on – but at present it wears a very serious aspect. This circumstance is rendered the more unpleasant by the state of our finances. The impost received this year has been less productive than usual & it will be impossible to continue the present armament without another loan. Had the impost produced the sum to which it was calculated, a loan would have been unavoidable.

"This difficulty ought to have been foreseen when it was determined to execute the law for raising the army. It is now conceiv'd that we cannot at the present stage of our negotiation with France change the defensive position we have taken without much hazard.

"In addition to this many influential characters not only contend that the army ought not now to be disbanded but that it ought to be continued so long as the war in Europe shall last. I am apprehensive that our people would receive with very ill temper a system which should keep up an army of observation at the expense of the annual addition of five millions to our debt. The effect of it wou'd most probably be that the hands which hold the reins wou'd be entirely chang'd. You perceive the perplexities attending our situation.

"In addition to this there are such different views with respect to the future, such a rancorous malignity of temper among the democrats,1003 such [an ap]parent disposition – (if the Aurora be the index of the [mind of] those who support it) to propel us to a war with B[ritain] & to enfold us within the embrace of Fran[ce], [s]uch a detestation & fear of France among others [that I] look forward with more apprehension than I have ever done to the future political events of our country."1004

On December 18 a rumor of the death of Washington reached the Capital. Marshall notified the House. His grief was so profound that even the dry and unemotional words of the formal congressional reports express it. "Mr. Marshall," says the "Annals" of Congress, "in a voice that bespoke the anguish of his mind, and a countenance expressive of the deepest regret, rose, and delivered himself as follows: —

"Mr. Speaker: Information has just been received, that our illustrious fellow-citizen, the Commander-in-Chief of the American Army, and the late President of the United States, is no more!

"Though this distressing intelligence is not certain, there is too much reason to believe its truth. After receiving information of this national calamity, so heavy and so afflicting, the House of Representatives can be but ill fitted for public business. I move, therefore, they adjourn."1005

The next day the news was confirmed, and Marshall thus addressed the House: —

"Mr. Speaker: The melancholy event which was yesterday announced with doubt, has been rendered but too certain.

"Our Washington is no more! The Hero, the Sage, and the Patriot of America – the man on whom in times of danger every eye was turned and all hopes were placed – lives now only in his own great actions, and in the hearts of an affectionate and afflicted people.

"If, sir, it has even not been usual openly to testify respect for the memory of those whom Heaven had selected as its instrument for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents, which have marked the life of him whose loss we all deplore, that the American Nation,1006 impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal.

"More than any other individual, and as much as to one individual was possible, has he contributed to found this our wide-spread empire,1007 and to give to the Western World its independence and its freedom.

"Having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the plough-share, and voluntarily sinking the soldier in the citizen.

"When the debility of our federal system had become manifest, and the bonds which connected the parts of this vast continent were dissolving, we have seen him the Chief of those patriots who formed for us a Constitution, which, by preserving the Union, will, I trust, substantiate and perpetuate those blessings our Revolution had promised to bestow.

"In obedience to the general voice of his country, calling on him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the true interests of the Nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, I trust, yet preserve our peace, our honor and our independence.

"Having been twice unanimously chosen the Chief Magistrate of a free people, we see him, at a time when his re-election with the universal suffrage could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life. However the public confidence may change, and the public affections fluctuate with respect to others, yet with respect to him they have in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues.

"Let us, then, Mr. Speaker, pay the last tribute of respect and affection to our departed friend – let the Grand Council of the Nation display those sentiments which the Nation feels. For this purpose I hold in my hand some resolutions which I will take the liberty to offer to the House."1008

The resolutions offered by Marshall declared that: —

"The House of Representatives of the United States, having received intelligence of the death of their highly valued fellow-citizen, George Washington, General of the Armies of the United States, and sharing the universal grief this distressing event must produce, unanimously resolve: —

"1. That this House will wait on the President of the United States, in condolence of this national calamity.

"2. That the Speaker's chair be shrouded with black, and that the members and officers of the House wear mourning during the session.

"3. That a joint committee of both Houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen."1009

Thus it came about that the designation of Washington as "First in war, first in peace, and first in the hearts of his countrymen" was attributed to Marshall. But Marshall's colleague, Henry Lee, was the author of these words. Marshall's refusal to allow history to give him the credit for this famous description is characteristic. He might easily have accepted that honor. Indeed, he found it difficult to make the public believe that he did not originate this celebrated phraseology. He presented the resolutions; they stand on the record in Marshall's name; and, for a long time, the world insisted on ascribing them to him.

In a last effort to make history place the laurels on General Lee, where they belong, Marshall, three years before his death, wrote the exact facts: —

"As the stage passed through Philadelphia," says Marshall, "some passenger mentioned to a friend he saw in the street the death of General Washington. The report flew to the hall of Congress, and I was asked to move an adjournment. I did so.

"General Lee was not at the time in the House. On receiving the intelligence which he did on the first arrival of the stage, he retired to his room and prepared the resolutions which were adopted with the intention of offering them himself.

"But the House of Representatives had voted on my motion, and it was expected by all that I on the next day announce the lamentable event and propose resolutions adapted to the occasion.

"General Lee immediately called on me and showed me his resolutions. He said it had now become improper for him to offer them, and wished me to take them. As I had not written anything myself and was pleased with his resolutions which I entirely approved, I told him I would offer them the next day when I should state to the House of Representatives the confirmation of the melancholy intelligence received the preceding day. I did so.

"You will see the fact stated in a note to the preface of the Life of Washington on p. [441] v. [2] and again in a note to the 5th vol. p. 765. Whenever the subject has been mentioned in my presence," Marshall adds in a postscript, "I have invariably stated that the resolution was drawn by General Lee and have referred to these notes in the Life of Washington."1010

During the first session Marshall was incessantly active, although his work was done with such ease that he gave to his colleagues the impression of indolence. Few questions came before the House on which he did not take the floor; and none, apparently, about which he did not freely speak his mind in private conversation. The interminable roll-calls of the first session show that Marshall failed to vote only six times.1011 His name is prominent throughout the records of the session. For example, the Republicans moved to amend the army laws so that enlistments should not exempt non-commissioned officers and privates from imprisonment for debt. Marshall spoke against the motion, which was defeated.1012 He was appointed chairman of a special committee to bring in a bill for removing military forces from election places and "preventing their interference in elections." Marshall drew this measure, reported it to the House, where it passed, only to be defeated in the Senate.1013

Early in the session Marshall was appointed chairman of the committee to report upon the cession by Connecticut to the United States of that priceless domain known as the Western Reserve. He presented the committee report recommending the acceptance of the lands and introduced the bill setting out the terms upon which they could be taken over.1014 After much debate, which Marshall led, Gallatin fighting by his side, the bill was passed by a heavy majority.1015

Marshall's vote against abrogating the power of the Governor of the Territory of the Mississippi to prorogue the Legislature;1016 his vote for the resolution that the impertinence of a couple of young officers to John Randolph at the theater did not call "for the interposition of this House," on the ground of a breach of its privileges;1017 his vote against that part of the Marine Corps Bill which provided that any officer, on the testimony of two witnesses, should be cashiered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on shore, offended against the person or property of any citizen,1018 are fair examples of the level good sense with which Marshall invariably voted.

On the Marine Corps Bill a debate arose so suddenly and sharply that the reporter could not record it. Marshall's part in this encounter reveals his military bent of mind, the influence of his army experience, and his readiness in controversy, no less than his unemotional sanity and his disdain of popular favor if it could be secured only by sacrificing sound judgment. Marshall strenuously objected to subjecting the Marine Corps officers to trial by jury in the civil courts; he insisted that courts-martial were the only tribunals that could properly pass on their offenses. Thereupon, young John Randolph of Roanoke, whose pose at this particular time was extravagant hostility to everything military, promptly attacked him. The incident is thus described by one who witnessed the encounter "which was incidentally and unexpectedly started and as suddenly and warmly debated": —

"Your representative, Mr. Marshall, was the principal advocate for letting the power remain with courts martial and for withholding it from the courts of law. In the course of the debate there was some warmth and personality between him and Mr. Randolph, in consequence of the latter charging the former with adopting opinions, and using arguments, which went to sap the mode of trial by jury.

"Mr. Marshall, with leave, rose a third time, and exerted himself to repel and invalidate the deductions of Mr. Randolph, who also obtained permission, and defended the inference he had drawn, by stating that Mr. Marshall, in the affair of Robbins,1019 had strenuously argued against the jurisdiction of the American courts, and had contended that it was altogether an Executive business; that in the present instance he strongly contended that the business ought not to be left with the civil tribunals, but that it ought to be transferred to military tribunals, and thus the trial by jury would be lessened and frittered away, and insensibly sapped, at one time by transferring the power to the Executive, and at another to the military departments; and in other ways, as occasions might present themselves. The debate happened so unexpectedly that the shorthand man did not take it down, although its manner, its matter, and its tendency, made it more deserving of preservation, than most that have taken place during the session."1020

Marshall's leadership in the fight of the Virginia Revolutionary officers for land grants from the National Government, strongly resisted by Gallatin and other Republican leaders, illustrates his unfailing support of his old comrades. Notwithstanding the Republican opposition, he was victorious by a vote of more than two to one.1021

But Marshall voted to rebuke a petition of "free men of color" to revive the slave-trade laws, the fugitive from justice laws, and to take "such measures as shall in due course" free the slaves.1022 The debate over this resolution is important, not only as explaining the vote of Marshall, who came from Virginia and was himself a slaveholder, as were Washington and Jefferson, but also as showing the mind of the country on slavery at that particular time.

Marshall's colleague, General Lee, said that the petition "contained sentiments … highly improper … to encourage."1023 John Rutledge of South Carolina exclaimed: "They now tell the House these people are in slavery – I thank God they are! if they were not, dreadful would be the consequences… Some of the states would never have adopted the Federal form of government if it had not been secured to them that Congress never would legislate on the subject of slavery."1024

Harrison Gray Otis of Massachusetts was much disgusted by the resolution, whose signers "were incapable of writing their names or of reading the petitions"; he "thought those who did not possess that species of property [slaves] had better leave the regulation of it to those who were cursed with it." John Brown of Rhode Island "considered [slaves] as much personal property as a farm or a ship… We want money; we want a navy; we ought therefore to use the means to obtain it… Why should we see Great Britain getting all the slave trade to themselves; why may not our country be enriched by that lucrative traffic?"1025 Gabriel Christie of Maryland hoped the petition would "go under the table instead of upon it."1026 Mr. Jones of Georgia thought that the slaves "have been immensely benefited by coming amongst us."1027

Finally, after two days of debate, in which the cause of freedom for the blacks was almost unsupported, Samuel Goode of Virginia moved: "That the parts of the said petition which invite Congress to legislate upon subjects from which the General Government is precluded by the Constitution have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this House."1028 On this motion, every member but one, including John Marshall, voted aye. George Thacher, a Congregationalist preacher from Massachusetts, alone voted nay.1029 Such, in general, and in spite of numerous humanitarian efforts against slavery, was American sentiment on that subject at the dawn of the nineteenth century.1030

Five subjects of critical and historic importance came before the session: the Federalists' Disputed Elections Bill; the Republican attack on the provisional army raised for the probable emergency of war with France; the Republican attack on the Executive power in the Jonathan Robins case; the Republican onslaught upon the Alien and Sedition Laws; and the National Bankruptcy Bill. In each of these Marshall took a leading and determining part.

Early in the session (January 23) the Republicans brought up the vexed question of the Sedition Law. A resolution to repeal the obnoxious section of this measure was presented on January 29, and after a hot debate was adopted by the close vote of 50 to 48. Marshall voted for the repeal and against his own party.1031 Had he voted with his party, the Republican attack would have failed. But no pressure of party regularity could influence Marshall against his convictions, no crack of the party whip could frighten him.

Considering the white heat of partisan feeling at the time, and especially on the subject of the Alien and Sedition Laws; considering, too, the fact that these offensive acts were Administration measures; and taking into account the prominence as a Federalist leader which Marshall had now achieved, his vote against the reprobated section of the Sedition Law was a supreme act of independence of political ties and party discipline. He had been and still was the only Federalist to disapprove, openly, the Alien and Sedition Laws.1032 "To make a little saving for our friend Marshall's address," Chief Justice Ellsworth sarcastically suggested that, in case of the repeal of the Sedition Law, "the preamble … should read thus: 'Whereas the increasing danger and depravity of the present time require that the law against seditious practices should be restored to its full rigor, therefore,' etc."1033

From the point of view of its probable effect on Marshall's political fortunes, his vote appeared to spell his destruction, for it practically left him outside of either party. He abhorred the doctrine of State Sovereignty which Jefferson now was making the rallying-point of the Republican Party; he believed, quite as fervently as had Washington himself, that the principle of Nationality alone could save the Republic. So Marshall could have no hopes of any possible future political advancement through the Republican Party.

On the other hand, his vote against his own party on its principal measure killed Marshall's future as a Federalist in the opinion of all the politicians of his time, both Federal and Republican.1034 And we may be certain that Marshall saw this even more clearly than did the politicians, just as he saw most things more clearly than most men.

But if Marshall's vote on the Sedition Law was an act of insubordination, his action on the Disputed Elections Bill was nothing short of party treason. This next to the last great blunder of the Federalists was in reality a high-handed attempt to control the coming presidential election, regardless of the votes of the people. It was aimed particularly at the anticipated Republican presidential majority in Pennsylvania which had just elected a Republican Governor over the Federalist candidate.

On January 3, Senator Ross of Pennsylvania, the defeated Federalist candidate for Governor of that State, offered a resolution that a committee should be appointed to consider a law "for deciding disputed elections of President and Vice-President … and … the legality or illegality of the votes given for those officers in the different states." In a brief but pointed debate, the Republicans insisted that such a law would be unconstitutional.

The Federalist position was that, since the Constitution left open the manner of passing upon votes, Congress had the power to regulate that subject and ought to provide some method to meet anticipated emergencies. Suppose, said Senator Ross, that "persons should claim to be Electors who had never been properly appointed [elected], should their vote be received? Suppose they should vote for a person to be President who had not the age required by the Constitution or who had not been long enough a citizen of the United States or for two persons who were both citizens of the same State?.. What situation would the country be in if such a case was to happen?"1035

So lively was the interest and high the excitement that Marshall did not go to Richmond when his fifth child was born on February 13, 1800.1036 He spoke in the House February 12, and was appointed on an important committee February 13.1037