The Life of John Marshall (Volume 2 of 4)

97

Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong. Madison adds this cryptic sentence: "This hint may not be unworthy of your attention."

98

Madison to Washington, June 27, 1788; Writings: Hunt, v, 234. Madison here refers to the project of calling a new Federal Convention for the purpose of amending the Constitution or making a new one.

Randolph was still more apprehensive. "Something is surely meditated against the new Constitution more animated, forcible, and violent than a simple application for calling a Convention." (Randolph to Madison, Oct. 23, 1788; Conway, 118.)

99

When Jefferson left Virginia for France, his political fortunes were broken. (Eckenrode: R. V., chap. viii; and Dodd, 63-64; and Ambler, 35-36.) The mission to France at the close of the American Revolution, while "an honor," was avoided rather than sought by those who were keen for career. (Dodd, 36-39.)

Seldom has any man achieved such a recovery as that of Jefferson in the period now under review. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the depths of disfavor this genius of party management climbed to the heights of popularity and fame.

100

Jefferson to Hopkinson, March 13, 1789; Works: Ford, v, 456.

101

Jefferson to Washington, Paris, Dec. 4, 1788; Works: Ford, v, 437-38. Compare with Jefferson's statements when the fight was on against ratifying the Constitution. (See vol. i, chap. viii; also Jefferson to Humphreys, Paris, March 18, 1789; Works: Ford, v, 470.)

102

Jefferson to Short, Dec. 14, 1789; Works: Ford, vi, 24.

103

The Legislature which met on the heels of the Virginia Constitutional Convention hastened to adjourn in order that its members might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; Monroe's Writings: Hamilton, i, 188.) But at its autumn session, it made up for lost time in its practical display of antagonism to the Nationalist movement.

104

Marshall, ii, 205-26. Throughout this chapter the terms "Nationalist" and "Anti-Nationalist" are used instead of the customary terms "Federalist" and "Anti-Federalist," the latter not clearly expressing the fundamental difference between the contending political forces at that particular time.

105

Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.

106

Ib., 416-18.

107

Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also see the vivid description of the debate under these resolutions in Henry, ii, 418-23.

108

Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.

109

Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788; Writings: Hunt, v, 269-79.

110

Madison to Randolph, Nov. 2, 1788; Writings: Hunt, v, 296.

111

See vol. i of this work.

112

Henry, ii, 427; see also Scott, 172.

113

Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and Henry, ii, 427-28.

114

Madison to Randolph, Nov. 2, 1788; Writings: Hunt, v, 295.

115

Monroe became a candidate against Madison and it was "thought that he [would] … carry his election." (Mason to John Mason, Dec. 18, 1788; Rowland, ii, 304.) But so ardent were Madison's assurances of his modified Nationalist views that he was elected. His majority, however, was only three hundred. (Monroe to Jefferson, Feb. 15, 1789; Monroe's Writings: Hamilton, i, 199.)

116

Randolph to Madison, Nov. 10, 1788; Conway, 121.

117

Journal, H.D. (Nov. 14, 1788), 42-44. Also see Annals, 1st Cong., 1st Sess., 259.

118

The Nationalist substitute is pathetic in its apprehensive tone. It closes with a prayer "that Almighty God in his goodness and wisdom will direct your councils to such measures as will establish our lasting peace and welfare and secure to our latest posterity the blessings of freedom; and that he will always have you in his holy keeping." (Journal, H.D. (Nov. 14, 1788), 43.)

119

Ib., 44.

120

Pennsylvania Resolutions: Gallatin's Writings: Adams, i, 3. This was unjust to New England, where rum was "the common drink of the nation" and played an interesting part in our tariff laws and New England trade.

121

Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong.

122

Randolph to Madison, July 19, 1789; Conway, 127.

123

Journal, H.D. (Oct. 20, 1789), 4.

124

Ib., 7-16.

125

Ib., 16. Marshall probably drew the bill that finally passed. He carried it from the House to the Senate. (Ib., 136.)

126

Ib. (Oct. 28, 1790), 19-22. Whether or not a voter owned land was weighed in delicate scales. Even "treating" was examined.

127

Journal, H.D. (Oct. 28, 1790), 24-29.

128

Ib., 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For extent of this revision see Conway, 130.

129

Journal, H.D. (1789), 57-58.

130

Ib., 78. See report of the committee in this interesting case. (Ib., 103.) The bill was passed. (Ib., 141.) At that time divorces in Virginia could be had only by an act of the Legislature. Contrast the above case, where the divorce was granted for cruelty, abandonment, waste of property, etc., with that of the Mattauer case (ib. (1793), 112, 126), where the divorce was refused for admitted infidelity on the part of the wife who bore a child by the brother of her husband while the latter was abroad.

131

Ib. (1789), 96. Kentucky was then a part of Virginia and legislation by the latter State was necessary. It is more than probable that Marshall drew this important statute, which passed. (Ib., 115, 131, 141.)

132

Journal, H.D. (1789), 112. At this period, lotteries were the common and favorite methods of raising money for schools, and other public institutions and enterprises. Even the maintenance of cemeteries was provided for in this way. The Journals of the House of Delegates are full of resolutions and Hening's Statutes contain many acts concerning these enterprises. (See, for example, Journal, H.D. (1787), 16-20; (1797), 39.)

133

An uncommonly able state paper was laid before the House of Delegates at this session. It was an arraignment of the Virginia Constitution of 1776, and mercilessly exposed, without the use of direct terms, the dangerous political machine which that Constitution made inevitable; it suggested "that as harmony with the Federal Government … is to be desired our own Constitution ought to be compared with that of the United States and retrenched where it is repugnant"; and it finally recommended that the people instruct their representatives in the Legislature to take the steps for reform. The author of this admirable petition is unknown. (Journal, H.D. (1789), 113.)

From this previous vote for a new Constitution, it is probable that Marshall warmly supported this resolution. But the friends of the old and vicious system instantly proposed an amendment "that the foregoing statement contains principles repugnant to Republican Government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this House or be recommended to the consideration of the people"; and so strong were they that the whole subject was dropped by postponement, without further contest. (Journal, H.D. (1789), 108-09.)

134

Ib. (Nov. 17, 1789), 20.

135

Ib. (Nov. 13, 1789), 12.

136

Ib. (Nov. 16, 1789), 14.

137

Ib. (Nov. 27, 1789), 49. The James River Company was formed in 1784. Washington was its first president. (Randolph to Washington, Aug. 8, 1784; Conway, 58.) Marshall's Account Book shows many payments on stock in this company.

138

Journal, H.D. (1789), 117, 135. For many years after the Constitution was adopted the United States Senate sat behind closed doors. The Virginia Legislature continued to demand public debate in the National Senate until that reform was accomplished. (See Journal, H.D. (Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.)

In 1789 the Nationalists were much stronger in the Legislatures of the other States than they had been in the preceding year. Only three States had answered Virginia's belated letter proposing a new Federal Convention to amend the Constitution. Disgusted and despondent, Henry quitted his seat in the House of Delegates in the latter part of November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.)

139

Journal, H.D. (1789), 17, 19, 98.

140

Ib., 107-12.

141

Ib., 90-91.

142

Journal, H.D. (1789), 96.

143

Ib., 102.

144

Ib., 119. The objections were that the liberty of the press, trial by jury, freedom of speech, the right of the people to assemble, consult, and "to instruct their representatives," were not guaranteed; and in general, that the amendments submitted "fall short of affording security to personal rights." (Senate Journal, December 12, 1789; MS., Va. St. Lib.)

145

Annals, 1st Cong., 1st Sess., 444; and see entire debate. The amendments were offered as a measure of prudence to mollify the disaffected. (Rives, iii, 38-39.)

146

The House agreed to seventeen amendments. But the Senate reduced these to twelve, which were submitted to the States. The first of these provided for an increase of the representation in the House; the second provided that no law "varying" the salaries of Senators or Representatives "shall take effect until an election of Representatives shall have intervened." (Annals, 1st Cong., 1st Sess., Appendix to ii, 2033.) The States ratified only the last ten. (For good condensed treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth Amendment, as ratified, was the twelfth as submitted and is sometimes referred to by the latter number in the documents and correspondence of 1790-91, as in Jefferson's "Opinion on the Constitutionality of the Bank of the United States." (See infra.) New York, Virginia, Maryland, South Carolina, North Carolina, and Rhode Island accepted the twelve amendments as proposed. The other States rejected one or both of the first two amendments.

147

Randolph to Madison, June 30, 1789; Conway, 126.

148

See Beard: Econ. O. J. D., 76.

149

Ib., 86.

150

Ib., 132-33.

151

Marshall, ii, 192.

152

Money was exceedingly scarce. Even Washington had to borrow to travel to New York for his inauguration, and Patrick Henry could not attend the Federal Constitutional Convention for want of cash. (Conway, 132.)

153

"First Report on the Public Credit"; Works: Lodge, ii, 227 et seq. The above analysis, while not technically precise, is sufficiently accurate to give a rough idea of Hamilton's plan. (See Marshall's analysis; Marshall, ii, 178-80.)

154

This, indeed, was a portion of Hamilton's plan and he succeeded in it as he did in other parts of his broad purpose to combine as much strength as possible in support of the National Government. "The northern states and the commercial and monied people are zealously attached to … the new government." (Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62.)

155

This was emphatically true. From the National point of view it was the best feature of Hamilton's plan.

156

In his old age, John Adams, Hamilton's most venomous and unforgiving enemy, while unsparing in his personal abuse, paid high tribute to the wisdom and necessity of Hamilton's financial statesmanship. "I know not," writes Adams, "how Hamilton could have done otherwise." (Adams to Rush, Aug. 23, 1805; Old Family Letters, 75.) "The sudden rise of public securities, after the establishment of the funding system was no misfortune to the Public but an advantage. The necessity of that system arose from the inconsistency of the People in contracting debts and then refusing to pay them." (Same to same, Jan. 25, 1806; ib., 93.)

Fisher Ames thus states the different interests of the sections: "The funding system, they [Southern members of Congress] say, is in favor of the moneyed interest – oppressive to the land; that is, favorable to us [Northern people], hard on them. They pay tribute, they say, and the middle and eastern people … receive it. And here is the burden of the song, almost all the little [certificates of State or Continental debts] that they had and which cost them twenty shillings, for supplies or services, has been bought up, at a low rate, and now they pay more tax towards the interest than they received for the paper. This tribute, they say, is aggravating." (Ames to Minot, Nov. 30, 1791; Works: Ames, i, 104.)

157

Marshall, ii, 181. The attack on Hamilton's financial plan and especially on Assumption was the beginning of the definite organization of the Republican Party. (Washington's Diary: Lossing, 166.)

158

Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii, 22.

159

At one time, when it appeared that Assumption was defeated, Sedgwick of Massachusetts intimated that his section might secede. (Annals, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii, 90 et seq.)

160

Marshall's statement of the debate is the best and fairest brief account of this historic conflict. (See Marshall, ii, 181-90. See entire debate in Annals, 1st Cong., i, ii, under caption "Public Debt.")

161

"This despicable grog-shop contest, whether the taverns of New York or Philadelphia shall get the custom of Congress, keeps us in discord and covers us all with disgrace." (Ames to Dwight, June 11, 1790; Works: Ames, i, 80.)

162

Jefferson to Monroe, June 20, 1790; Works: Ford, vi, 78-80; and see ib., 76; to Gilmer, June 27, ib., 83; to Rutledge, July 4, ib., 87-88; to Harvie, July 25, ib., 108.

163

Ib.; and see also Jefferson to Eppes, July 25, ib., 106; to Randolph, March 28, ib., 37; to same, April 18, ib., 47; to Lee, April 26, ib., 53; to Mason, June 13, ib., 75; to Randolph, June 20, ib., 76-77; to Monroe, June 20, ib., 79; to Dumas, June 23, ib., 82; to Rutledge, July 4, ib., 87-88; to Dumas, July 13, ib., 96. Compare these letters with Jefferson's statement, February, 1793; ib., vii, 224-26; and with the "Anas," ib., i, 171-78. Jefferson then declared that "I was really a stranger to the whole subject." (Ib., 176.)

164

Jefferson's statement; Works: Ford, vii, 224-26, and i, 175-77.

165

Gibbs, i, 32; and see Marshall, ii, 190-91.

166

Henry, ii, 453. But Marshall says that more votes would have changed had that been necessary to consummate the bargain. (See Marshall, ii, footnote to 191.)

167

Ib., 192.

168

Marshall, ii, 191-92.

169

Henry, ii, 453-55.

170

Journal, H.D. (1790), 35.

171

Journal, H.D. (1790), 35.

172

Ib.

173

Ib., 80-81.

174

Journal, H.D. (1790), 80-81; and see Am. St. Prs., Finance, i, 90-91. The economic distinction is here clearly drawn. Jefferson, who later made this a chief part of his attack, had not yet raised the point.

175

Ames to Minot, Feb. 16, 1792; Works: Ames, i, 113.

176

This was the sentence which declared that Hamilton's reasoning would result in "fictitious wealth through a paper medium," referring to his plan for making the transferable certificates of the National debt serve as currency.

177

Journal, H.D. (1790), 141.

178

Hamilton to Jay, Nov. 13, 1790; Works: Lodge, ix, 473-74. Virginia was becoming very hostile to the new Government. First, there was a report that Congress was about to emancipate the slaves. Then came the news of the Assumption of the State debts, with the presence in Virginia of speculators from other States buying up State securities; and this added gall to the bitter cup which Virginians felt the National Government was forcing them to drink. Finally the tidings that the Senate had defeated the motion for public sessions inflamed the public mind still more. (Stuart to Washington, June 2, 1790; Writings: Ford, xi, footnote to 482.)

Even close friends of Washington deeply deplored a "spirit so subversive of the true principles of the constitution… If Mr. Henry has sufficient boldness to aim the blow at its [Constitution's] existence, which he has threatened, I think he can never meet with a more favorable opportunity if the assumption should take place." (Ib.)

Washington replied that Stuart's letter pained him. "The public mind in Virginia … seems to be more irritable, sour, and discontented than … it is in any other State in the Union except Massachusetts." (Washington to Stuart, June 15, 1790; ib., 481-82.)

Marshall's father most inaccurately reported to Washington that Kentucky favored the measures of the Administration; and the President, thanking him for the welcome news, asked the elder Marshall for "any information of a public or private nature … from your district." (Washington to Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.) Kentucky was at that time in strong opposition and this continued to grow.

179

Taylor's "An Enquiry, etc.," as quoted in Beard: Econ. O. J. D., 209. (Ib., chap. vii.) Taylor's pamphlet was revised by Pendleton and then sent to Madison before publication. (Monroe to Madison, May 18, 1793; Monroe's Writings: Hamilton, i, 254.) Taylor wanted "banks … demolished" and bankers "excluded from public councils." (Beard: Econ. O. J. D., 209.)

180

Marshall, ii, 192.

181

In Jefferson's letters, already cited, not the faintest suggestion appears that he thought the law unconstitutional. Not until Patrick Henry's resolution, and the address of the Virginia Legislature to Congress based thereon, made the point that Assumption was in violation of this instrument, because the power to pass such a law was not expressly given in the Constitution, did Jefferson take his stand against implied powers.

182

"Whether … right or wrong, abstractedly, more attention should be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791; Works: Ford, vi, 186.)

183

Monroe had advised Madison of the hostility of Virginia to Assumption and incidentally asked for an office for his own brother-in-law. (Monroe to Madison, July 2, 1790; Monroe's Writings: Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790; ib., 209.)

184

Anderson, 21.

185

Jefferson himself, a year after he helped pass the Assumption Act, had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter answered in a formal statement to the President. These two documents are the ablest summaries of the opposing sides of this great controversy. (See Jefferson to President, May 23, 1792; Works: Ford, vi, 487-95; and Hamilton to Washington, Aug. 18, 1792; Works: Lodge, ii, 426-72.)

186

Ames to Minot, March 8, 1792; Works: Ames, i, 114.

187

Tenth Amendment, as ratified.

188

"Opinion on the Constitutionality of a National Bank of the United States"; Works: Ford, vi, 198; and see Madison's argument against the constitutionality of the Bank Act in Annals, 1st Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also, Writings: Hunt, vi, 19-42. This argument best shows Madison's sudden and radical change from an extreme Nationalist to an advocate of the most restricted National powers.

189

Hamilton's "Opinion as to the Constitutionality of the Bank of the United States"; Works: Lodge, iii, 445-93. Adams took the same view. (See Adams to Rush, Dec. 27, 1810; Old Family Letters, 272.)

190

"Opinion as to the Constitutionality of the Bank of the United States"; Works: Lodge, iii, 445-93. Washington was sorely perplexed by the controversy and was on the point of vetoing the Bank Bill. (See Rives, iii, 170-71.)

191

Marshall, ii, 206-07.

192

Ames to Dwight, Jan. 23, 1792; Works: Ames, i, 110-11.

193

"A Candid State of Parties" —National Gazette, Sept. 26, 1792.

194

"I was no party man myself and the first wish of my heart was, if parties did exist, to reconcile them." (Washington to Jefferson, July 6, 1796; Writings: Ford, xiii, 230.)

195

Compare Hamilton's "Opinion as to the Constitutionality of the Bank of the United States" with Marshall's opinion in McCulloch vs. Maryland, The student of Marshall cannot devote too much attention to Hamilton's great state papers, from the "First Report on the Public Credit" to "Camillus." It is interesting that Hamilton produced all these within five years, notwithstanding the fact that this was the busiest and most crowded period of his life.

196

Binney, in Dillon, iii, 301-02.

197

La Rochefoucauld, iii, 73. For a man even "to be passive … is a satisfactory proof that he is on the wrong side." (Monroe to Jefferson, July 17, 1792; Monroe's Writings: Hamilton, i, 238.)

198

George Mason to John Mason, July 12, 1791; Rowland, ii, 338.

199

Corbin to Hamilton, March 17, 1793; as quoted in Beard: Econ. O. J. D., 226.

200

"Patrick Henry once said 'that he could forgive anything else in Mr. Jefferson, but his corrupting Mr. Madison.'" (Pickering to Marshall, Dec. 26, 1828; Pickering MSS., Mass. Hist. Soc.) "His [Madison's] placing himself under the pupilage of Mr. Jefferson and supporting his public deceptions, are sufficient to put him out of my book." (Pickering to Rose, March 22, 1808; ib.)

201

Madison's course was irreconcilable with his earlier Nationalist stand. (See Beard: Econ. O. J. D., 77; and see especially the remarkable and highly important letter of Hamilton to Carrington, May 26, 1792; Works: Lodge, ix, 513-35, on Madison's change, Jefferson's conduct, and the politics of the time.) Carrington was now the brother-in-law of Marshall and his most intimate friend. Their houses in Richmond almost adjoined. (See infra, chap. v.)