The Life of John Marshall (Volume 2 of 4)

In vain the President pathetically begged Jefferson for harmony and peace.209 Jefferson responded with a bitter attack on Hamilton. "I was duped," said he, "by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me."210 To somewhat, but not much, better purpose did Washington ask Hamilton for "mutual forbearances."211 Hamilton replied with spirit, yet pledged his honor that he would "not, directly or indirectly, say or do a thing that shall endanger a feud."212

The immense speculation, which had unavoidably grown out of the Assumption and Funding Acts, inflamed popular resentment against the whole financial statesmanship of the Federalists.213 More material, this, for the hands of the artificer who was fashioning the Republican Party into a capacious vessel into which the people might pour all their discontent, all their fears, all their woes and all their hopes. And Jefferson, with practical skill, used for that purpose whatever material he could find.

Still more potter's earth was brought to Jefferson. The National Courts were at work. Creditors were securing judgments for debts long due them. In Virginia the debtors of British merchants, who for many years had been rendered immune from payment, were brought to the bar of this "alien" tribunal. Popular feeling ran high. A resolution was introduced into the House of Delegates requesting the Virginia Senators and Representatives in Congress to "adopt such measures as will tend, not only to suspend all executions and the proceedings thereon, but prevent any future judgments to be given by the Federal Courts in favor of British creditors until" Great Britain surrendered the posts and runaway negroes.214 Thus was the practical overthrow of the National Judiciary proposed.215

Nor was this all. A State had been haled before a National Court.216 The Republicans saw in this the monster "consolidation." The Virginia Legislature passed a resolution instructing her Senators and Representatives to "unite their utmost and earliest exertions" to secure a constitutional amendment preventing a State from being sued "in any court of the United States."217 The hostility to the National Bank took the form of a resolution against a director or stockholder of the Bank of the United States being a Senator or Representative in Congress.218 But apparently this trod upon the toes of too many ambitious Virginians, for the word "stockholders" was stricken out.219

The slander that the Treasury Department had misused the public funds had been thoroughly answered;220 but the Legislature of Virginia by a majority of 111 out of a total vote of 124, applauded her Senators and Representatives who had urged the inquiry.221 Such was the developing temper of Republicanism as revealed by the emotionless pages of the public records; but these furnish scarcely a hint of the violence of public opinion.

Jefferson was now becoming tigerish in his assaults on the measures of the Administration. Many members of Congress had been holders of certificates which Assumption and Funding had made valuable. Most but not all of them had voted for every feature of Hamilton's financial plan.222 Three or four were directors of the Bank, but no dishonesty existed.223 Heavy speculation went on in Philadelphia.224 This, said Republicans, was the fruit which Hamilton's Nationalist financial scheme gathered from the people's industry to feed to "monocrats."

"Here [Philadelphia]," wrote Jefferson, "the unmonied farmer … his cattle & corps [sic] are no more thought of than if they did not feed us. Script & stock are food & raiment here… The credit & fate of the nation seem to hang on the desperate throws & plunges of gambling scoundrels."225 But Jefferson comforted himself with the prophecy that "this nefarious business" would finally "tumble its authors headlong from their heights."226

The National law taxing whiskey particularly aroused the wrath of the multitude. Here it was at last! – a direct tax laid upon the universal drink of the people, as the razor-edged Pennsylvania resolutions declared.227 Here it was, just as the patriotic foes of the abominable National Constitution had predicted when fighting the ratification of that "oppressive" instrument. Here was the exciseman at every man's door, just as Henry and Mason and Grayson had foretold – and few were the doors in the back counties of the States behind which the owner's private still was not simmering.228 And why was this tribute exacted? To provide funds required by the corrupt Assumption and Funding laws, asserted the agitators.

Again it was the National Government that was to blame; in laying the whiskey tax it had invaded the rights of the States, hotly declared the Republicans. "All that powerful party," Marshall bears witness, "which attached itself to the local [State] rather than to the general [National] government … considered … a tax by Congress on any domestic manufacture as the intrusion of a foreign power into their particular concerns which excited serious apprehensions for state importance and for liberty."229 The tariff did not affect most people, especially those in the back country, because they used few or no imported articles; but the whiskey tax did reach them, directly and personally.230

Should such a despotic law be obeyed? Never! It was oppressive! It was wicked! Above all, it was "unconstitutional"! But what to do! The agencies of the detested and detestable National Government were at work! To arms, then! That was the only thing left to outraged freemen about to be ravaged of their liberty!231 Thus came the physical defiance of the law in Pennsylvania; Washington's third proclamation232 demanding obedience to the National statutes after his earnest pleas233 to the disaffected to observe the laws; the march of the troops accompanied by Hamilton234 against the insurgents; the forcible suppression of this first armed assault on the laws of the United States in which men had been killed, houses burned, mails pillaged – all in the name of the Constitution,235 which the Republicans now claimed as their peculiar property.236

Foremost in the fight for the whiskey insurgents were the democratic societies, which, as has been seen, were the offspring of the French Jacobin Clubs. Washington finally became certain that these organizations had inspired this uprising against National law and authority. While the Whiskey Rebellion was economic in its origin, yet it was sustained by the spirit which the French Revolution had kindled in the popular heart. Indeed, when the troops sent to put down the insurrection reached Harrisburg, they found the French flag flying over the courthouse.237

Marshall's old comrade in the Revolution, close personal friend, and business partner,238 Henry Lee, was now Governor of Virginia. He stood militantly with Washington and it was due to Lee's efforts that the Virginia militia responded to help suppress the Whiskey Rebellion. He was made Commander-in-Chief of all the forces that actually took the field.239 To Lee, therefore, Washington wrote with unrestrained pen.

"I consider," said the President, "this insurrection as the first formidable fruit of the Democratic Societies … instituted by … artful and designing members [of Congress] … to sow the seeds of jealousy and distrust among the people of the government… I see, under a display of popular and fascinating guises, the most diabolical attempts to destroy … the government."240 He declared: "That they have been the fomenters of the western disturbances admits of no doubt."241

Never was that emphatic man more decided than now; he was sure, he said, that, unless lawlessness were overcome, republican government was at an end, "and nothing but anarchy and confusion is to be expected hereafter."242 If "the daring and factious spirit" is not crushed, "adieu to all government in this country, except mob and club government."243

Such were Washington's positive and settled opinions, and they were adopted and maintained by Marshall, his faithful supporter.

And not only by argument and speech did Marshall uphold the measures of Washington's Administration. In 1793 he had been commissioned as Brigadier-General of Militia, and when the President's requisition came for Virginia troops to enforce the National revenue law against those who were violently resisting the execution of it, he was placed in command of one of the detachments to be raised for that purpose.244 Although it is not established that his brigade was ordered to Pennsylvania, the probabilities are that it was and that Marshall, in command of it, was on the scene of the first armed opposition to the National Government. And it is certain that Marshall was busy and effective in the work of raising and properly equipping the troops for duty. He suggested practical plans for expediting the muster and for economizing the expenditure of the public money, and his judgment was highly valued.245

All the ability, experience, and zeal at the disposal of the State were necessary, for the whiskey tax was only less disliked in Virginia than in Pennsylvania, and a portion of the Commonwealth was inclined to assist rather than to suppress the insurrection.246 Whether or not he was one of the military force that, on the ground, overawed the whiskey insurgents, it is positively established that Marshall was ready, in person, to help put down with arms all forcible opposition to the National laws and authority.

Jefferson, now the recognized commander-in-chief of the new party, was, however, heartily with the popular outbreak. He had approved Washington's first proclamations against the whiskey producers;247 but, nevertheless, as the anger of the people grew, it found Jefferson responsive. "The excise law is an infernal one," he cried; the rebellion against it, nothing more than "riotous" at the worst.248

And Jefferson wielded his verbal cat-o'-nine-tails on Washington's order to put the rebellion down by armed forces.249 It was all "for the favorite purpose of strengthening government and increasing public debt."250 Washington thought the Whiskey Rebellion treasonable; and Jefferson admitted that "there was … a meeting to consult about a separation" from the Union; but talking was not acting.251 Thus the very point was raised which Marshall enforced in the Burr trial twelve years later, when Jefferson took exactly opposite grounds. But to take the popular view now made for Republican solidarity and strength. Criticism is ever more profitable politics than building.

All this had different effects on different public men. The Republican Party was ever growing stronger, and under Jefferson's skillful guidance, was fast becoming a seasoned political army. The sentiment of the multitude against the National Government continued to rise. But instead of weakening John Marshall's Nationalist principles, this turbulent opposition strengthened and hardened them. So did other and larger events of that period which tumultuously crowded fast upon one another's heels. As we have seen, the horrors of the Reign of Terror in Paris did not chill the frenzied enthusiasm of the masses of Americans for France. "By a strange kind of reasoning," wrote Oliver Wolcott to his brother, "some suppose the liberties of America depend on the right of cutting throats in France."252

In the spring of 1793 France declared war against England. The popular heart in America was hot for France, the popular voice loud against England. The idea that the United States was an independent nation standing aloof from foreign quarrels did not enter the minds of the people. But it was Washington's one great conception. It was not to make the American people the tool of any foreign government that he had drawn his sword for their independence. It was to found a separate nation with dignity and rights equal to those of any other nation; a nation friendly to all, and allied with none253– this was the supreme purpose for which he had fought, toiled, and suffered. And Washington believed that only on this broad highway could the American people travel to ultimate happiness and power.254 He determined upon a policy of absolute impartiality.

On the same day that the Minister of the new French Republic landed on American shores, Washington proclaimed Neutrality.255 This action, which to-day all admit to have been wise and far-seeing statesmanship, then caused an outburst of popular resentment against Neutrality and the Administration that had dared to take this impartial stand. For the first time Washington was openly abused by Americans.256

"A great majority of the American people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy [Great Britain] and republican France," declares Marshall. The people, he writes, thought Great Britain was waging war "with the sole purpose of imposing a monarchical government on the French people. The few who did not embrace these opinions, and they were certainly very few, were held up as objects of public detestation; and were calumniated as the tools of Britain and the satellites of despotism."257

The National Government was ungrateful, cried the popular voice; it was aiding the tyrants of Europe against a people struggling for freedom; it was cowardly, infamous, base. "Could any friend of his kind be neutral?" was the question on the popular tongue; of course not! unless, indeed, the miscreant who dared to be exclusively American was a monarchist at heart. "To doubt the holiness of their [the French] cause was the certain road to odium and proscription," testifies an observer.258 The Republican press, following Paine's theory, attacked "all governments, including that of the United States, as naturally hostile to the liberty of the people," asserts Marshall.259 Few were the friends of Neutrality outside of the trading and shipping interests.260

Jefferson, although still in Washington's Cabinet, spoke of "the pusillanimity of the proclamation"261 and of "the sneaking neutrality" it set up.262 "In every effort made by the executive to maintain the neutrality of the United States," writes Marshall, "that great party [Republican] which denominated itself 'The People' could perceive only a settled hostility to France and to liberty."263

And, of course, Washington's proclamation of Neutrality was "unconstitutional," shouted the Republican politicians. Hamilton quickly answered. The power to deal with foreign affairs was, he said, lodged somewhere in the National Government. Where, then? Plainly not in the Legislative or Judicial branches, but in the Executive Department, which is "the organ of intercourse between the nation and foreign nations" and "the interpreter of … treaties in those cases in which the judiciary is not competent – that is between government and government… The executive power of the United States is completely lodged in the President," with only those exceptions made by the Constitution, as that of declaring war. But if it is the right of Congress to declare war, "it is the duty of the Executive to preserve peace till the declaration is made."264

Washington's refusal to take sides in the European war was still more fuel for the Republican furnace. The bill to maintain Neutrality escaped defeat in Congress by a dangerously narrow margin: on amendments and motions in the Senate it was rescued time and again only by the deciding vote of the Vice-President.265 In the House, resolutions were introduced which, in the perspective of history, were stupid. Public speakers searched for expressions strong enough for the popular taste; the newspapers blazed with denunciation. "The artillery of the press," declares Marshall, "was played with unceasing fury on" the supporters of Neutrality; "and the democratic societies brought their whole force into operation. Language will scarcely afford terms of greater outrage, than were employed against those who sought to stem the torrent of public opinion and to moderate the rage of the moment."266

At the most effective hour, politically, Jefferson resigned267 from the Cabinet, as he had declared, two years before, he intended to do.268 He had prepared well for popular leadership. His stinging criticism of the Nationalist financial measures, his warm championship of France, his bitter hostility to Great Britain, and most of all, his advocacy of the popular view of the Constitution, secured him the favor of the people. Had he remained Secretary of State, he would have found himself in a hazardous political situation. But now, freed from restraint, he could openly lead the Republican forces which so eagerly awaited his formal command.269

As in the struggle for the Constitution, so now Neutrality was saved by the combined efforts of the mercantile and financial interests who dreaded the effect of the war on business and credit;270 and by the disinterested support of those who wished the United States to become a nation, distinct from, unconnected with, and unsubservient to any other government.

Among these latter was John Marshall, although he also held the view of the commercial classes from which most of his best clients came; and his personal loyalty to Washington strengthened his opinions. Hot as Virginia was against the Administration, Marshall was equally hot in its favor. Although he was the most prudent of men, and in Virginia silence was the part of discretion for those who approved Washington's course, Marshall would not be still. He made speeches in support of Washington's stand, wrote pamphlets, and appealed in every possible way to the solid reason and genuine Americanism of his neighbors. He had, of course, read Hamilton's great defense of Neutrality; and he asserted that sound National policy required Neutrality and that it was the duty of the President to proclaim and enforce it. Over and over again, by tongue and pen, he demonstrated the constitutional right of the Executive to institute and maintain the Nation's attitude of aloofness from foreign belligerents.271

Marshall rallied the friends of the Administration, not only in Richmond, but elsewhere in Virginia. "The [Administration] party in Richmond was soon set in motion," Monroe reported to Jefferson; "from what I have understood here [I] have reason to believe they mean to produce the most extensive effect they are capable of. Mr Marshall has written G. Jones272 on the subject and the first appearances threatened the most furious attack on the French Minister [Genêt]."273

At last Marshall's personal popularity could no longer save him from open and public attack. The enraged Republicans assailed him in pamphlets; he was criticized in the newspapers; his character was impugned.274 He was branded with what, in Virginia, was at that time the ultimate reproach: Marshall, said the Republicans, was the friend and follower of Alexander Hamilton, the monarchist, the financial manipulator, the father of Assumption, the inventor of the rotten Funding system, the designer of the stock-jobbing Bank of the United States, and, worst of all, the champion of a powerful Nationalism and the implacable foe of the sovereignty of the States.

Spiritedly Marshall made reply. He was, indeed, a disciple of Washington's great Secretary of the Treasury, he said, and proud of it; and he gloried in his fealty to Washington, for which also he had been blamed. In short, Marshall was aggressively for the Administration and all its measures. These were right, he said, and wise and necessary. Above all, since that was the chief ground of attack, all of them, from Assumption to Neutrality, were plainly constitutional. At a public meeting at Richmond, Marshall offered resolutions which he had drawn up in support of the Administration's foreign policy, spoke in their favor, and carried the meeting for them by a heavy majority.275

Marshall's bold course cost him the proffer of an honor. Our strained relations with the Spaniards required an alert, able, and cool-headed representative to go to New Orleans. Jefferson276 confided to Madison the task of finding such a man in Virginia. "My imagination has hunted thro' this whole state," Madison advised the Secretary of State in reply, "without being able to find a single character fitted for the mission to N. O. Young Marshall seems to possess some of the qualifications, but there would be objections of several sorts to him."277 Three months later Madison revealed one of these "several objections" to Marshall; but the principal one was his sturdy, fighting Nationalism. This "objection" was so intense that anybody who was even a close friend of Marshall was suspected and proscribed by the Republicans. The Jacobin Clubs of Paris were scarcely more intolerant than their disciples in America.

So irritated, indeed, were the Republican leaders by Marshall's political efforts in support of Neutrality and other policies of the Administration, that they began to hint at improper motives. With his brother, brother-in-law, and General Henry Lee (then Governor of Virginia) Marshall had purchased the Fairfax estate.278 This was evidence, said the Republicans, that he was the tool of the wicked financial interests. Madison hastened to inform Jefferson.

"The circumstances which derogate from full confidence in W[ilson] N[icholas]," cautioned Madison, "are … his connection & intimacy with Marshall, of whose disinterestedness as well as understanding he has the highest opinion. It is said that Marshall, who is at the head of the great purchase from Fairfax, has lately obtained pecuniary aids from the bank [of the United States] or people connected with it. I think it certain that he must have felt, in the moment of purchase, an absolute confidence in the monied interests which will explain him to everyone that reflects in the active character he is assuming."279

In such fashion do the exigencies of politics generate suspicion and false witness. Marshall received no money from the Bank for the Fairfax purchase and it tied him to "the monied interests" in no way except through business sympathy. He relied for help on his brother's father-in-law, Robert Morris, who expected to raise the funds for the Fairfax purchase from loans negotiated in Europe on the security of Morris's immense real-estate holdings in America.280 But even the once poised, charitable, and unsuspicious Madison had now acquired that state of mind which beholds in any business transaction, no matter how innocent, something furtive and sinister. His letter proves, however, that the fearless Richmond lawyer was making himself effectively felt as a practical power for Washington's Administration, to the serious discomfort of the Republican chieftains.

While Marshall was beloved by most of those who knew him and was astonishingly popular with the masses, jealousy of his ability and success had made remorseless enemies for him. It appears, indeed, that a peculiarly malicious envy had pursued him almost from the time he had gone to William and Mary College. His sister-in-law, with hot resentment, emphasizes this feature of Marshall's career. "Notwithstanding his amiable and correct conduct," writes Mrs. Carrington, "there were those who would catch at the most trifling circumstance to throw a shade over his fair fame." He had little education, said his detractors; "his talents were greatly overrated"; his habits were bad. "Tho' no man living ever had more ardent friends, yet there does not exist one who had at one time more slanderous enemies."281

These now assailed Marshall with all their pent-up hatred. They stopped at no charge, hesitated at no insinuation. For instance, his conviviality was magnified into reports of excesses and the tale was carried to the President. "It was cruelly insinuated to G[eorge] W[ashington]," writes Marshall's sister-in-law, "by an after great S[olo?]n that to Mr. M[arsha]lls fondness for play was added an increasing fondness for liquor." Mrs. Carrington loyally defends Marshall, testifying, from her personal knowledge, that "this S – n knew better than most others how Mr. M – ll always played for amusement and never, never for gain, and that he was, of all men, the most temperate."282

Considering the custom of the time283 and the habits of the foremost men of that period,284 Marshall's sister-in-law is entirely accurate. Certainly this political slander did not impress Washington, for his confidence in Marshall grew steadily; and, as we shall presently see, he continued to tender Marshall high honors and confide to him political tasks requiring delicate judgment.