The Life of John Marshall (Volume 2 of 4)

The American democratic societies, like their French originals, declared that theirs was the voice of "the people," and popular clamor justified the claim.82 Everybody who dissented from the edicts of the clubs was denounced as a public robber or monarchist. "What a continual yelping and barking are our Swindlers, Aristocrats, Refugees, and British Agents making at the Constitutional Societies" which were "like a noble mastiff … with … impotent and noisy puppies at his heels," cried the indignant editor of the "Independent Chronicle" of Boston,83 to whom the democratic societies were "guardians of liberty."

While these organizations strengthened radical opinion and fashioned American sympathizers of the French Revolution into disciplined ranks, they also solidified the conservative elements of the United States. Most viciously did the latter hate these "Jacobin Clubs," the principles they advocated, and their interference with public affairs. "They were born in sin, the impure offspring of Genêt," wrote Fisher Ames.

"They are the few against the many; the sons of darkness (for their meetings are secret) against those of the light; and above all, it is a town cabal, attempting to rule the country."84 This testy New Englander thus expressed the extreme conservative feeling against the "insanity which is epidemic":85 "This French mania," said Ames, "is the bane of our politics, the mortal poison that makes our peace so sickly."86 "They have, like toads, sucked poison from the earth. They thirst for vengeance."87 "The spirit of mischief is as active as the element of fire and as destructive."88 Ames describes the activities of the Boston Society and the aversion of the "better classes" for it: "The club is despised here by men of right heads," he writes. "But … they [the members of the Club] poison every spring; they whisper lies to every gale; they are everywhere, always acting like Old Nick and his imps… They will be as busy as Macbeth's witches at the election."89

In Virginia the French Revolution and the American "Jacobins" helped to effect that change in Patrick Henry's political sentiments which his increasing wealth had begun. "If my Country," wrote Henry to Washington, "is destined in my day to encounter the horrors of anarchy, every power of mind or body which I possess will be exerted in support of the government under which I live."90 As to France itself, Henry predicted that "anarchy will be succeeded by despotism" and Bonaparte, "Caesar-like, subvert the liberties of his country."91

Marshall was as much opposed to the democratic societies as was Washington, or Cabot, or Ames, but he was calmer in his opposition, although vitriolic enough. When writing even ten years later, after time had restored perspective and cooled feeling, Marshall says that these "pernicious societies"92 were "the resolute champions of all the encroachments attempted by the agents of the French republic on the government of the United States, and the steady defamers of the views and measures of the American executive."93 He thus describes their decline: —

"The colossean power of the [French] clubs, which had been abused to an excess that gives to faithful history the appearance of fiction, fell with that of their favourite member, and they sunk into long merited disgrace. The means by which their political influence had been maintained were wrested from them; and, in a short time, their meetings were prohibited. Not more certain is it that the boldest streams must disappear, if the fountains which fed them be emptied, than was the dissolution of the democratic societies of America, when the Jacobin clubs were denounced by France. As if their destinies depended on the same thread, the political death of the former was the unerring signal for that of the latter."94

Such was the effect of the French Revolution on American thought at the critical period of our new Government's first trials. To measure justly the speech and conduct of men during the years we are now to review, this influence must always be borne in mind. It was woven into every great issue that arose in the United States. Generally speaking, the debtor classes and the poorer people were partisans of French revolutionary principles; and the creditor classes, the mercantile and financial interests, were the enemies of what they called "Jacobin philosophy." In a broad sense, those who opposed taxes, levied to support a strong National Government, sympathized with the French Revolution and believed in its ideas; those who advocated taxes for that purpose, abhorred that convulsion and feared its doctrines.

Those who had disliked government before the Constitution was established and who now hated National control, heard in the preachings of the French revolutionary theorists the voice of their hearts; while those who believed that government is essential to society and absolutely indispensable to the building of the American Nation, heard in the language and saw in the deeds of the French Revolution the forces that would wreck the foundations of the state even while they were but being laid and, in the end, dissolve society itself. Thus were the ideas of Nationality and localism in America brought into sharper conflict by the mob and guillotine in France.

All the passion for irresponsible liberty which the French Revolution increased in America, as well as all the resentment aroused by the financial measures and foreign policy of the "Federal Administrations," were combined in the opposition to and attacks upon a strong National Government. Thus provincialism in the form of States' Rights was given a fresh impulse and a new vitality. Through nearly all the important legislation and diplomacy of those stirring and interpretative years ran, with ever increasing clearness, the dividing line of Nationalism as against localism.

Such are the curious turns of human history. Those whom Jefferson led profoundly believed that they were fighting for human rights; and in their view and as a practical matter at that particular time this sacred cause meant State Rights. For everything which they felt to be oppressive, unjust, and antagonistic to liberty, came from the National Government. By natural contrast in their own minds, as well as by assertions of their leaders, the State Governments were the sources of justice and the protectors of the genuine rights of man.

In the development of John Marshall as well as of his great ultimate antagonist, Thomas Jefferson, during the formative decade which we are now to consider, the influence of the French Revolution must never be forgotten. Not a circumstance of the public lives of these two men and scarcely an incident of their private experience but was shaped and colored by this vast series of human events. Bearing in mind the influence of the French Revolution on American opinion, and hence, on Marshall and Jefferson, let us examine the succeeding years in the light of this determining fact.

CHAPTER II

A VIRGINIA NATIONALIST

Lace Congress up straitly within the enumerated powers. (Jefferson.)

Construe the constitution liberally in advancement of the common good. (Hamilton.)

To organize government, to retrieve the national character, to establish a system of revenue, to create public credit, were among the duties imposed upon them. (Marshall.)

I trust in that Providence which has saved us in six troubles, yea, in seven, to rescue us again. (Washington.)

The Constitution's narrow escape from defeat in the State Conventions did not end the struggle against the National principle that pervaded it.95 The Anti-Nationalists put forth all their strength to send to the State Legislatures and to the National House and Senate as many antagonists of the National idea as possible.96 "Exertions will be made to engage two thirds of the legislatures in the task of regularly undermining the government" was Madison's "hint" to Hamilton.97

Madison cautioned Washington to the same effect, suggesting that a still more ominous part of the plan was "to get a Congress appointed in the first instance that will commit suicide on their own Authority."98 Not yet had the timorous Madison personally felt the burly hand of the sovereign people so soon to fall upon him. Not yet had he undergone that familiar reversal of principles wrought in those politicians who keep an ear to the ground. But that change was swiftly approaching. Even then the vox populi was filling the political heavens with a clamor not to be denied by the ambitious. The sentiment of the people required only an organizer to become formidable and finally omnipotent.

Such an artisan of public opinion was soon to appear. Indeed, the master political potter was even then about to start for America where the clay for an Anti-Nationalist Party was almost kneaded for the moulder's hands. Jefferson was preparing to leave France; and not many months later the great politician landed on his native soil and among his fellow citizens, who, however, welcomed him none too ardently.99

No one knew just where Jefferson stood on the fundamental question of the hour when, with his two daughters, he arrived in Virginia in 1789. The brilliant Virginian had uttered both Nationalist and Anti-Nationalist sentiments. "I am not of the party of the Federalists," he protested, "but I am much farther from that of the Antifederalists." Indeed, declared Jefferson, "If I could not go to heaven but with a party, I would not go there at all."100

His first opinions of the Constitution were, as we have seen, unfavorable. But after he had learned that the new Government was to be a fact, Jefferson wrote Washington: "I have seen with infinite pleasure our new constitution accepted." Careful study had taught him, he said, "that circumstances may arise, and probably will arise, wherein all the resources of taxation will be necessary for the safety of the state." He saw probability of war which "requires every resource of taxation & credit." He thought that "the power of making war often prevents it."101

Thus Jefferson could be quoted on both sides and claimed by neither or by both. But, because of his absence in France and of the reports he had received from the then extreme Nationalist, Madison, he had not yet apprehended the people's animosity to National rule. Upon his arrival in Virginia, however, he discovered that "Antifederalism is not yet dead in this country."102 That much, indeed, was clear at first sight. The Legislature of Virginia, which met three months after her Convention had ratified the Constitution, was determined to undo that work, as Madison had foreseen.103

John Marshall

From a painting by E. F. Petticolas

That body was militantly against the new Government as it stood. "The conflict between the powers of the general and state governments was coeval with those governments," declares Marshall. "The old line of division was still as strongly marked as ever." The enemies of National power thought that "liberty could be endangered only by encroachments upon the states; and that it was the great duty of patriotism to restrain the powers of the general government within the narrowest possible limits." On the other hand, the Nationalists, says Marshall, "sincerely believed that the real danger which threatened the republic was to be looked for in the undue ascendency of the states."104

Patrick Henry was supreme in the House of Delegates. Washington was vastly concerned at the prospect. He feared that the enemies of Nationalism would control the State Legislature and that it would respond to New York's appeal for a new Federal Constitutional Convention. He was "particularly alarmed" that the General Assembly would elect Senators "entirely anti-Federal."105 His apprehension was justified. Hardly a week passed after the House convened until it passed resolutions, drawn by Henry,106 to answer Clinton's letter, to ask Congress to call a new Federal Convention, and to coöperate with other States in that business.

In vain did the Nationalist members strive to soften this resolution. An amendment which went so far as to request Congress to recommend to the several States "the ratification of a bill of rights" and of the twenty amendments proposed by the Virginia Convention, was defeated by a majority of 46 out of a total vote of 124.107 Swiftly and without mercy the triumphant opposition struck its next blow. Washington had urged Madison to stand for the Senate,108 and the Nationalists exerted themselves to elect him. Madison wrote cleverly in his own behalf.109 But he had no hope of success because it was "certain that a clear majority of the assembly are enemies to the Govṭ."110 Madison was still the ultra-Nationalist, who, five years earlier, had wanted the National Government to have an absolute veto on every State law.111

Henry delivered "a tremendous philippic" against Madison as soon as his name was placed before the General Assembly.112 Madison was badly beaten, and Richard Henry Lee and William Grayson were chosen as the first Senators from Virginia under the new National Government.113 The defeated champion of the Constitution attributed Henry's attack and his own misfortune to his Nationalist principles: Henry's "enmity was levelled … agst the whole system; and the destruction of the whole system, I take to be the secret wish of his heart."114

In such fashion did Madison receive his first chastisement for his Nationalist views and labors. He required no further discipline of a kind so rough and humiliating; and he sought and secured election to the National House of Representatives,115 with opinions much subdued and his whole being made pliant for the wizard who so soon was to invoke his spell over that master mind.

Though Marshall was not in the Virginia Legislature at that session, it is certain that he worked with its members for Madison's election as Senator. But even Marshall's persuasiveness was unavailing. "Nothing," wrote Randolph to Madison, "is left undone which can tend to the subversion of the new government."116

Hard upon its defeat of Madison the Legislature adopted an ominous address to Congress. "The sooner … the [National] government is possessed of the confidence of the people … the longer its duration" – such was the language and spirit of Virginia's message to the lawmakers of the Nation, even before they had assembled.117 The desperate Nationalists sought to break the force of this blow. They proposed a substitute which even suggested that the widely demanded new Federal Convention should be called by Congress if that body thought best. But all to no purpose. Their solemn118 amendment was beaten by a majority of 22 out of a total vote of 122.119

Thus again was displayed that hostility to Nationalism which was to focus upon the newborn National Government every burning ray of discontent from the flames that sprang up all over the country during the constructive but riotous years that followed. Were the people taxed to pay obligations incurred in our War for Independence? – the National Government was to blame. Was an excise laid on whiskey, "the common drink of the nation"120– it was the National Government which thus wrung tribute from the universal thirst. Were those who owed debts compelled, at last, to pay them? – it was the National Government which armed the creditor with power to recover his own.

Why did we not aid French Republicans against the hordes of "despotism"? Because the National Government, with its accursed Neutrality, would not let us! And who but the National Government would dare make a treaty with British Monarchy, sacrificing American rights? Speculation and corruption, parade and ostentation, – everything that could, reasonably or unreasonably, be complained of, – were, avowed the Anti-Nationalists, the wretched but legitimate offspring of Nationalism. The remedy, of course, was to weaken the power of the Nation and strengthen that of the States. Such was the course pursued by the foes of Nationalism, that we shall trace during the first three administrations of the Government of the United States.

Thus, the events that took place between 1790 and 1800, supplemented and heated by the French Revolution, developed to their full stature those antagonistic theories of which John Marshall and Thomas Jefferson were to become the chief expounders. Those events also finished the preparation of these two men for the commanding stations they were to occupy. The radical politician and States' Rights leader on the one hand, and the conservative politician and Nationalist jurist on the other hand, were finally settled in their opinions during these developing years, at the end of which one of them was to occupy the highest executive office and the other the highest judicial office in the Government.

It was under such circumstances that the National Government, with Washington at its head, began its uncertain career. If the Legislature of Virginia had gone so far before the infant National establishment was under way, how far might not succeeding Legislatures go? No one knew. But it was plain to all that every act of the new Administration, even with Washington at the helm, would be watched with keen and jealous eyes; and that each Nationalist turn of the wheel would meet with prompt and stern resistance in the General Assembly of the greatest of American Commonwealths. Mutiny was already aboard.

John Marshall, therefore, determined again to seek election to the House of Delegates.

Immediately upon the organization of the National Government, Washington appointed Marshall to be United States Attorney for the District of Virginia. The young lawyer's friends had suggested his name to the President, intimating that he wished the place.121 Marshall, high in the esteem of every one, had been consulted as to appointments on the National bench,122 and Washington gladly named him for District Attorney. But when notified of his appointment, Marshall declined the honor.

A seat in the Virginia Legislature, was, however, quite another matter. Although his work as a legislator would interfere with his profession much more than would his duties as United States Attorney, he could be of practical service to the National Government in the General Assembly of the State where, it was plain, the first battle for Nationalism must be fought.

The Virginia Nationalists, much alarmed, urged him to make the race. The most popular man in Richmond, he was the only Nationalist who could be elected by that constituency; and, if chosen, would be the ablest supporter of the Administration in the Legislature. Although the people of Henrico County were more strongly against a powerful National Government than they had been when they sent Marshall to the Constitutional Convention the previous year, they nevertheless elected him; and in 1789 Marshall once more took his seat as a member of Virginia's law-making and law-marring body.

He was at once given his old place on the two principal standing committees;123 and on special committees to bring in various bills,124 among them one concerning descents, a difficult subject and of particular concern to Virginians at that time.125 As a member of the Committee of Privileges and Elections, he passed on a hotly contested election case.126 He was made a member of the important special committee to report upon the whole body of laws in force in Virginia, and helped to draw the committee's report, which is comprehensive and able.127 The following year he was appointed a member of the committee to revise the tangled laws of the Commonwealth.128

The irrepressible subject of paying taxes in something else than money soon came up. Marshall voted against a proposition to pay the taxes in hemp and tobacco, which was defeated by a majority of 37 out of a total vote of 139; and he voted for the resolution "that the taxes of the present year ought to be paid in specie only or in warrants equivalent thereto," which carried.129 He was added to the committee on a notable divorce case.130

Marshall was, of course, appointed on the special committee to bring in a bill giving statehood to the District of Kentucky.131 Thus he had to do with the creation of the second State to be admitted after the Constitution was adopted. A bill was passed authorizing a lottery to raise money to establish an academy in Marshall's home county, Fauquier.132 He voted with the majority against the perennial Baptist petition to democratize religion;133 and for the bill to sell lands for taxes.134

Marshall was appointed on the committee to bring in bills for proceeding against absent debtors;135 on another to amend the penal code;136 and he was made chairman of the special committee to examine the James River Company,137 of which he was a stockholder. Such are examples of his routine activities in the Legislature of 1789.

The Legislature instructed the Virginia Senators in Congress "to use their utmost endeavors to procure the admission of the citizens of the United States to hear the debates of their House, whenever they are sitting in their legislative capacity."138

An address glowing with love, confidence, and veneration was sent to Washington.139 Then Jefferson came to Richmond; and the Legislature appointed a committee to greet him with polite but coldly formal congratulations.140 No one then foresaw that a few short years would turn the reverence and affection for Washington into disrespect and hostility, and the indifference toward Jefferson into fiery enthusiasm.

The first skirmish in the engagement between the friends and foes of a stronger National Government soon came on. On November 30, 1789, the House ratified the first twelve amendments to the Constitution,141 which the new Congress had submitted to the States; but three days later it was proposed that the Legislature urge Congress to reconsider the amendments recommended by Virginia which Congress had not adopted.142 An attempt to make this resolution stronger was defeated by the deciding vote of the Speaker, Marshall voting against it.143

The Anti-Nationalist State Senate refused to concur in the House's ratification of the amendments proposed by Congress;144 and Marshall was one of the committee to hold a conference with the Senate committee on the subject.

After Congress had passed the laws necessary to set the National Government in motion, Madison had reluctantly offered his summary of the volume of amendments to the Constitution recommended by the States "in order," as he said, "to quiet that anxiety which prevails in the public mind."145 The debate is illuminating. The amendments, as agreed to, fell far short of the radical and extensive alterations which the States had asked and were understood to be palliatives to popular discontent.146

Randolph in Richmond wrote that the amendments were "much approved by the strong federalists … being considered as an anodyne to the discontented. Some others … expect to hear, … that a real amelioration of the Constitution was not so much intended, as a soporific draught to the restless. I believe, indeed," declared Randolph, "that nothing – nay, not even the abolishment of direct taxation – would satisfy those who are most clamorous."147

The amendments were used by many, who changed from advocates to opponents of broad National powers, as a pretext for reversed views and conduct; but such as were actually adopted were not a sufficient justification for their action.148

The great question, however, with which the First Congress had to deal, was the vexed and vital problem of finance. It was the heart of the whole constitutional movement.149 Without a solution of it the National Government was, at best, a doubtful experiment. The public debt was a chaos of variegated obligations, including the foreign and domestic debts contracted by the Confederation, the debts of the various States, the heavy accumulation of interest on all.150 Public and private credit, which had risen when the Constitution finally became an accomplished fact, was now declining with capital's frail timidity of the uncertain.

In his "First Report on the Public Credit," Hamilton showed the way out of this maddening jungle. Pay the foreign debt, said Hamilton, assume as a National obligation the debts of the States and fund them, together with those of the Confederation. All had been contracted for a common purpose in a common cause; all were "the price of liberty." Let the owners of certificates, both State and Continental, be paid in full with arrears of interest, without discrimination between original holders and those who had purchased from them. And let this be done by exchanging for the old certificates those of the new National Government bearing interest and transferable. These latter then would pass as specie;151 the country would be supplied with a great volume of sound money, so badly needed,152 and the debt be in the process of extinguishment.153