The Life of John Marshall (Volume 2 of 4)

This, in rough outline, is Marshall's historic speech which helped to direct a new nation, groping blindly and with infinite clamoring, to a straight and safe pathway. Pickering immediately reported to Hamilton: "Mr. Marshall delivered a very luminous argument on the case, placing the 27th article of the treaty in a clear point of view and giving constructions on the questions arising out of it perfectly satisfactory, but, as it would seem, wholly unthought of when the meaning of the article was heretofore considered. His argument will, I hope, be fully and correctly published; it illustrates an important national question."1070

The Republicans were discomfited; but they were not without the power to sting. Though Marshall had silenced them in Congress, the Republican press kept up the attack. "Mr. Marshall made an ingenious and specious defence of the administration, in relation to executive interference in the case of Robbins," [sic] says the "Aurora," "but he was compelled to admit, what certainly implicates both the President and Judge Bee… He admitted that an American seaman was justifiable, in rescuing himself from impressment, to put to death those who kept him in durance… Robbins [sic] claimed to be an American citizen, and asserted upon his oath, that he had been impressed and yet his claim was not examined into by the Judge, neither did the President advise and request that this should be a subject of enquiry. The enquiry into his citizenship was made after his surrender and execution, and the evidence exhibited has a very suspicious aspect… Town clerks may be found to certify to anything that Timothy Pickering shall desire."1071 Nevertheless, even the "Aurora" could not resist an indirect tribute to Marshall, though paying it by way of a sneer at Samuel W. Dana of Connecticut, who ineffectually followed him.

"In the debate on Mr. Livingston's resolutions, on Friday last," says the "Aurora," "Mr. Marshall made, in the minds of some people, a very satisfactory defense of the conduct of the President and Judge Bee in the case of Jonathan Robbins [sic]. Mr. Dana, however, thought the subject exhausted, and very modestly (who does not know his modesty) resolved with his inward man to shed a few more rays of light on the subject; a federal judge, much admired for his wit and humour, happened to be present, when Mr. Dana began his flourishes.

"The judge thought the seal of conviction had been put upon the case by Mr. Marshall, and discovered symptoms of uneasiness when our little Connecticut Cicero displayed himself to catch Mr. Speaker's vacant eye – 'Sir,' said the wit to a byestander, 'what can induce that man to rise, he is nothing but a shakebag, and can only shake out the ideas that have been put into the members' heads by Mr. Marshall.'"1072

Marshall's argument was conclusive. It is one of the few speeches ever delivered in Congress that actually changed votes from one party to the other in a straight-out party fight. Justice Story says that Marshall's speech "is one of the most consummate juridical arguments which was ever pronounced in the halls of legislation; … equally remarkable for the lucid order of its topics, the profoundness of its logic, the extent of its research,1073 and the force of its illustrations. It may be said of that speech … that it was 'Réponse sans réplique,' an answer so irresistible that it admitted of no reply. It silenced opposition and settled then and forever the points of international law on which the controversy hinged… An unequivocal demonstration of public opinion followed. The denunciations of the Executive, which had hitherto been harsh and clamorous everywhere throughout the land, sunk away at once into cold and cautious whispers only of disapprobation.

"Whoever reads that speech, even at this distance of time, when the topics have lost much of their interest, will be struck with the prodigious powers of analysis and reasoning which it displays, and which are enhanced by the consideration that the whole subject was then confessedly new in many of its aspects."1074

The Republican leaders found their own members declaring themselves convinced by Marshall's demonstration and announcing their intentions of voting with the Administration. Gallatin, Livingston, and Randolph had hard work to hold their followers in line. Even the strongest efforts of these resourceful men would not rally all of their shattered forces. Many Republican members ignored the pleadings of their leaders and supported Marshall's position.

This is not to be wondered at, for Marshall had convinced even Gallatin himself. This gifted native of Switzerland was the Republican leader of the House. Unusually well-educated, perfectly upright, thorough in his industry, and careful in his thinking, Gallatin is the most admirable of all the characters attracted to the Republican ranks. He had made the most effective argument on the anti-Administration side in the debate over the Livingston resolutions, and had been chosen to answer Marshall's speech. He took a place near Marshall and began making notes for his reply; but soon he put his pencil and paper aside and became absorbed in Marshall's reasoning. After a while he arose, went to the space back of the seats, and paced up and down while Marshall proceeded.

When the Virginian closed, Gallatin did not come forward to answer him as his fellow partisans had expected. His Republican colleagues crowded around the brilliant little Pennsylvania Swiss and pleaded with him to answer Marshall's speech without delay. But Gallatin would not do it. "Answer it yourself," exclaimed the Republican leader in his quaint foreign accent; "for my part, I think it unanswerable," laying the accent on the swer.1075

Nicholas of Virginia then tried to reply, but made no impression; Dana spoke to no better purpose, and the House ended the discussion by a vote which was admitted to be a distinctively personal triumph for Marshall. The Republican resolutions were defeated by 61 to 35, in a House where the parties were nearly equal in numbers.1076

For once even Jefferson could not withhold his applause for Marshall's ability. "Livingston, Nicholas & Gallatin distinguished themselves on one side & J. Marshall greatly on the other," he writes in his curt account of the debate and its result.1077 And this grudging tribute of the Republican chieftain is higher praise of Marshall's efforts than the flood of eulogy which poured in upon him; Jefferson's virulence toward an enemy, and especially toward Marshall, was such that he could not see, except on rare occasions, and this was one, any merit whatever in an opponent, much less express it.

Marshall's defense of the army law was scarcely less powerful than his speech in the Robins case; and it reveals much more clearly Marshall's distinctively military temper of mind.

Congress had scarcely organized when the question came up of the reduction of the army. On this there was extended debate. Nicholas of Virginia offered a resolution to repeal the act for the provisional army of which Washington had been the Commander-in-Chief. The expense of this military establishment greatly alarmed Nicholas, who presented an array of figures on which his anxieties fed.1078 It was nonsense, he held, to keep this army law on the statute books for its effect on the negotiations with France.

Marshall promptly answered. "If it was true," said he, "that America, commencing her negotiation with her present military force would appear in the armor which she could only wear for a day, the situation of our country was lamentable indeed. If our debility was really such … our situation was truly desperate." There was "no cheaper mode of self-defense"; to abandon it "amounted to a declaration that we were unable to defend ourselves." It was not necessary to repeal the law entirely or to put it, "not modified," in full effect. Marshall suggested a middle ground by which "the law might be modified so as to diminish the estimated expense, without dismissing the troops already in actual service."1079

Answering the favorite argument made by the opponents of the army, that no power can invade America, he asked: "What assurance have gentlemen that invasion is impracticable?" Who knows the real conditions in Europe? – the "effect of the late decisive victories of France?.. It was by no means certain" that these had not resulted in the release of forces which she "may send across the Atlantic."

Why be precipitate? asked Marshall; by the opening of the next campaign in Europe we should have more information. Let us look the situation in the face: "We are, in fact, at war with France, though it is not declared in form"; commerce is suspended; naval battles are being fought; property is "captured and confiscated"; prisoners are taken and incarcerated. America is of "vast importance to France"; indeed, "the monopoly of our commerce in time of peace" is invaluable to both France and England "for the formation of a naval power."

The Republicans, he said, had "urged not only that the army is useless," but that we could not afford the expense of maintaining it. "Suppose this had been the language of '75!" exclaimed Marshall. "Suppose a gentleman had risen on the floor of Congress, to compare our revenues with our expenses – what would have been the result of the calculation?" It would have shown that we could not afford to strike for our independence! Yet we did strike and successfully. "If vast exertions were then made to acquire independence, will not the same exertions be now made to maintain it?"

The question was, "whether self-government and national liberty be worth the money which must be expended to preserve them?"1080 He exposed the sophistry of an expensive economy. It should never be forgotten that true economy did not content itself with inquiring into the mere saving of the present moment; it should take an enlarged view of the subject, and determine, on correct calculations, whether the consequence of a present saving might not be a much more considerable future expenditure.

Marshall admitted that the reduction of the army would certainly diminish the expense of the present year, but contended that the present saving would bear no proportion to the immense waste of blood, as well as treasure, which it might occasion.1081 "And consider," he exclaimed, "the effect the army already had produced on the mind and conduct of France. While America was humbly supplicating for peace, and that her complaints might be heard, France spurned her contemptuously and refused to enter on a discussion of differences, unless that discussion was preceded by a substantial surrender of the essential attributes of independence."

"America was at length goaded into resistance," asserted Marshall, "and resolved on the system of defense, of which the army now sought to be disbanded forms a part." What was the result? "Immediately the tone of France was changed, and she consented to treat us as an independent nation. Her depredations indeed did not cease; she continued still to bring war upon us; but although peace was not granted, the door to peace was opened."

If "a French army should be crossing the Atlantic to invade our territory," would anybody insist on disbanding our army? "Was it wise, then, to do so while such a probability existed?" In a few months we should know; and, if danger should disappear, "the army expires by the law which gave it being." Meantime the expense would be trifling.1082

In a private letter Marshall states, with even more balance, his views of the conflicting questions of the expense involved in, and the necessity for, military equipment. He regrets that a loan is "absolutely unavoidable"; but "attention must be paid to our defenses": —

"The whole world is in arms and no rights are respected but those that [are] maintained by force. In such a state of things we dare not be totally unmindful of ourselves or totally neglectful of that military position to which, in spite of the prudence and pacific disposition of our government, we may be driven for the preservation of our liberty and national independence.

"Altho' we ought never to make a loan if it be avoidable, yet when forc'd to it much real consolation is to be deriv'd from the future resources of America. These resources, if we do not throw them away [by] dissolving the union, are invaluable. It is not to be doubted that in twenty years from this time the United States would be less burthen'd by a revenue of twenty millions than now by a revenue of ten. It is the plain & certain consequence of our increasing population & our increasing wealth…

"The system of defence which has rendered this measure necessary was not [only] essential to our character as an independent nation, but it has actually sav'd more money to the body of the people than has been expended & has very probably prevented either open war or such national degradation as would make us the objects of general contempt and injury.

"A bill to stop recruiting in the twelve additional regiments has been brought in and will pass without opposition. An attempt was made absolutely to disband them, but [it] was negativ'd. It has been so plainly prov'd to us that french aggression has been greatly increased, & that their contemptuous refusal even to treat with us as an independent nation has been entirely occasioned by a belief that we could not resist them; & it is so clear that their present willingness to treat is occasioned by perceiving our determination to defend ourselves, that it was thought unwise to change materially our system at the commencement of negotiation.

"In addition to this it had much weight, that we should know in a few months the facts of our negotiation & should then be able to judge whether the situation & temper of France rendered an invasion pro[bable]. Then would be the time to decide on diminishing [or] augmenting our military forces. A French 64 has it is said arrived in the west indies & three frigates expected."1083

Although the debate dragged on and the army was attacked and defended with brilliant ability, Marshall's argument remained the Gibraltar of the Administration, upon which all the assaults of the Republicans were centered unavailingly. For his army speech was never answered. Only once more during this debate did Marshall rise and then but briefly, to bring his common sense to bear upon the familiar contention that, if the country is in danger, its citizens will rise spontaneously to defend it. He said that it would be absurd to call men to arms, as had been done, and then "dismiss them before the service was performed … merely because their zeal could be depended on" hereafter. He "hoped the national spirit would never yield to that false policy."1084

The fourth important subject in which Marshall was a decisive influence was the National Bankruptcy Law, passed at this session of Congress. He was the second member of the committee that drafted this legislation.1085 For an entire month the committee worked on the bill and reported it on January 6, 1800.1086 After much debate, which is not given in the official reports, the bill passed the House on February 21 and the Senate March 28.1087

While the "Annals" do not show it, we know from the testimony of the Speaker of the House that Marshall was the vital force that shaped this first National Bankruptcy Act. He was insistent that the law should not be too extensive in its provisions for the curing of bankruptcy, and it was he who secured the trial by jury as to the fact of bankruptcy.

"It [the Bankruptcy Law] is far from being such an one as I wished," writes Sedgwick. "The acts in curing bankruptcy are too restricted, and the trial of the question Bankrupt or not, by jury, will be found inconvenient, embarrassing & dilatory. The mischief was occasioned by Virginia Theory. It was the whim of General Marshall; with him a sine qua non of assent to the measure, & without him the bill must have been lost, for it passed the House by my casting vote."

"Besides the bankrupt bill, we have passed [only] one more of great importance," writes the Speaker of the House in a review of the work of the session.1088 Much of the Speaker's summary is devoted to Marshall. Sedgwick was greatly disappointed with the laws passed, with the exception of the Bankruptcy Bill "and one other."1089 "All the rest we have made here are, as to any permanently beneficial effects, hardly worth the parchment on which they are written. The reason of this feebleness is a real feebleness of character in the house." Sedgwick lays most of this at Marshall's door, and in doing so, draws a vivid picture of Marshall the man, as well as of Marshall the legislator: —

"Marshall was looked up to as the man whose great and commanding genius was to enlighten & direct the national councils. This was the general sentiment, while some, and those of no inconsiderable importance, calculating on his foolish declaration, relative to the alien & sedition laws, thought him temporizing while others deemed him feeble.

"None had in my opinion justly appreciated his character. As his character has stamped itself on the measures of the present session, I am desirous of letting you know how I view it.

"He is a man of a very affectionate disposition, of great simplicity of manners and honest & honorable in all his conduct.

"He is attached to pleasures, with convivial habits strongly fixed.

"He is indolent, therefore; and indisposed to take part in the common business of the house.

"He has a strong attachment to popularity but indisposed to sacrifice to it his integrity; hence it is that he is disposed on all popular subjects to feel the public pulse and hence results indecision and an expression of doubt.

"Doubts suggested by him create in more feeble minds those which are irremovable. He is disposed … to express great respect for the sovereign people, and to quote their opinions as an evidence of truth.

"The latter is of all things the most destructive of personal independence & of that weight of character which a great man ought to possess.

"This gentleman, when aroused, has strong reasoning powers; they are almost unequalled. But before they are excited, he has frequently, nearly, destroyed any impression from them."1090

Such was Marshall's work during his six months' service in Congress, the impression he made, and the estimate of him by his party friends. His "convivial habits, strongly fixed," his great good nature, his personal lovableness, were noted by his associates in the National House of Representatives quite as much as they had been observed and commented on by his fellow members in the Virginia Legislature and by his friends and neighbors in Richmond.

The public qualities which his work in Congress again revealed in brilliant light were his extraordinary independence of thought and action, his utter fearlessness, and his commanding mental power. But his personal character and daily manners applied a soothing ointment to any irritation which his official attitude and conduct on public questions created in the feelings of his associates.

So came the day of adjournment of Congress; and with it the next step which Fate had arranged for John Marshall.

CHAPTER XII

CHIEF JUSTICE OF THE UNITED STATES

I consider General Marshall as more than a secretary – as a state conservator. (Oliver Wolcott.)

To Mr. Jefferson I have felt insuperable objections. The morals of the author of the letter to Mazzei cannot be pure. (Marshall.)

You have given an opinion in exact conformity with the wishes of your party. Come forward and defend it. (George Hay to Marshall.)

"The P. requests Mr. McHenry's company for one minute," wrote President Adams to his Secretary of War on the morning of May 5, 1800.1091 The unsuspicious McHenry at once responded. The President mentioned an unimportant departmental matter; and then, suddenly flying into a rage, abused his astounded Cabinet adviser in "outrageous"1092 fashion and finally demanded his resignation.1093 The meek McHenry resigned. To the place thus made vacant, the harried President, without even consulting him, immediately appointed Marshall, who "as immediately declined."1094 Then Adams tendered the office to Dexter, who accepted.

And resign, too, demanded Adams of his Secretary of State.1095 The doughty Pickering refused1096– "I did not incline to accept this insidious favor,"1097 he reported to Hamilton. Adams dismissed him.1098 Again the President turned to Marshall, who, deeply troubled, considered the offer. The Federalist Cabinet was broken to pieces, and a presidential election was at hand which would settle the fate of the first great political party in American history.

The campaign had already started. The political outlook was dark enough before the President's outburst; this shattering of his Cabinet was a wicked tongue of lightning from the threatening clouds which, after the flash, made them blacker still.1099

Few Presidents have ever faced a more difficult party condition than did John Adams when, by a humiliating majority of only three votes, he was elected in 1796. He succeeded Washington; the ruling Federalist politicians looked to Hamilton as their party chieftain; even Adams's Cabinet, inherited from Washington, was personally unfriendly to the President and considered the imperious New York statesman as their supreme and real commander. "I had all the officers and half the crew always ready to throw me overboard," accurately declared Adams some years later.1100

Adams's temperament was the opposite of Washington's, to which the Federalist leaders had so long been accustomed that the change exasperated them.1101 From the very beginning they bound his hands. The new President had cherished the purpose of calling to his aid the ablest of the Republicans, but found himself helpless. "When I first took the Chair," bitterly records Adams, "I was extremely desirous of availing myself of Mr. Madison's abilities, … and experience. But the violent Party Spirit of Hamilton's Friends, jealous of every man who possessed qualifications to eclipse him, prevented it. I could not do it without quarreling outright with my Ministers whom Washington's appointment had made my Masters."1102

On the other hand, the high Federalist politicians, most of whom were Hamilton's adherents, felt that Adams entertained for their leader exactly the same sentiments which the President ascribed to them. "The jealousy which the P.[resident] has felt of H.[amilton] he now indulges toward P.[inckney], W.[olcott] & to'd very many of their friends who are suspected of having too much influence in the Community, & of not knowing how to appreciate his [Adams's] merits… The Consequence is that his ears are shut to his best real friends & open to Flatterers, to Time servers & even to some Jacobins."1103

Adams, the scholar and statesman, but never the politician, was the last man to harmonize these differences. And Hamilton proved to be as inept as Adams.

After the President had dispatched the second mission to France, Hamilton's followers, including Adams's Cabinet, began intriguing in a furtive and vicious fashion to replace him with some other Federalist at the ensuing election. While, therefore, the President, as a personal matter, was more than justified in dismissing McHenry and Pickering (and Wolcott also1104), he chose a fatal moment for the blow; as a matter of political strategy he should have struck sooner or not at all.

At this late hour the great party task and duty of the President was, by any and every honorable means, to unite all Federalist factions for the impending battle with the eager, powerful, and disciplined Republicans. Frank and full conference, tolerance, and conciliation, were the methods now required. These might not have succeeded, but at least they would not have irritated still more the ragged edges of party dissension. Not only did the exasperated President take the opposite course, but his manner and conduct were acid instead of ointment to the raw and angry wounds.1105

This, then, was the state of the Federalist Party, the frame of mind of the President, and the distracted condition of the Cabinet, when Marshall was asked to become Secretary of State in the late spring of 1800. He was minded to refuse this high station as he had that of Secretary of War. "I incline to think Mr. Marshall will decline this office also," wrote McHenry to his brother.1106 If he accepted, he would be loyal to the President – his nature made anything else impossible. But he was the personal friend of all the Federalist leaders, who, in spite of his disapproval of the Alien and Sedition Laws and of his dissent from his party's plans in Congress, in spite, even, of his support of the President's detested second mission to France,1107 nevertheless trusted and liked him.