The Life of John Marshall (Volume 2 of 4)

Such petty falsehoods did not disturb Marshall's composure. But he warmly resented the assault made upon him because of his friendship for Hamilton; and his anger was hot against what he felt was the sheer dishonesty of the attacks on the measures of the National Government. "I wish very much to see you," writes Marshall to Archibald Stuart at this time: "I want to observe [illegible] how much honest men you and I are [illegible] half our acquaintance. Seriously there appears to me every day to be more folly, envy, malice, and damn rascality in the world than there was the day before and I do verily begin to think that plain downright honesty and unintriguing integrity will be kicked out of doors."285

A picturesque incident gave to the Virginia opponents of Washington's Administration more substantial cause to hate Marshall than his pamphlets, speeches, and resolutions had afforded. At Smithfield, not far from Norfolk, the ship Unicorn was fitting out as a French privateer. The people of Isle of Wight County were almost unanimous in their sympathy with the project, and only seven or eight men could be procured to assist the United States Marshal in seizing and holding the vessel.286 Twenty-five soldiers and three officers were sent from Norfolk in a revenue cutter;287 but the Governor, considering this force insufficient to outface resistance and take the ship, dispatched Marshall, with a considerable body of militia, to Smithfield.

Evidently the affair was believed to be serious; "the Particular Orders … to Brigadier General Marshall" placed under his command forces of cavalry, infantry, and artillery from Richmond and another body of troops from Petersburg. The Governor assures Marshall that "the executive know that in your hands the dignity and rights of the Commonwealth will ever be safe and they are also sure that prudence, affection to our deluded fellow citizens, and marked obedience to law in the means you will be compelled to adopt, will equally characterize every step of your procedure." He is directed to "collect every information respecting this daring violation of order," and particularly "the conduct of the Lieutenant Colonel Commandant of Isle of Wight," who had disregarded his instructions.288

Clad in the uniform of a brigadier-general of the Virginia Militia,289 Marshall set out for Smithfield riding at the head of the cavalry, the light infantry and artillery following by boat.290 He found all thought of resistance abandoned upon his arrival. A "peaceable search" of Captain Sinclair's house revealed thirteen cannon with ball, grape-shot, and powder. Three more pieces of ordnance were stationed on the shore. Before General Marshall and his cavalry arrived, the United States Marshal had been insulted, and threatened with violence. Men had been heard loading muskets in Sinclair's house, and fifteen of these weapons, fully charged, were discovered. The house so "completely commanded the Deck of the" Unicorn "that … one hundred men placed in the vessel could not have protected her ten minutes from fifteen placed in the house."291

The State and Federal officers had previously been able to get little aid of any kind, but "since the arrival of distant militia," reports Marshall, "those of the County are as prompt as could be wished in rendering any service required of them," and he suggests that the commandant of the county, rather than the men, was responsible for the failure to act earlier. He at once sent messengers to the infantry and artillery detachment which had not yet arrived, with orders that they return to Richmond and Petersburg.292

Marshall "had … frequent conversations with individuals of the Isle of Wight" and found them much distressed at the necessity for calling distant militia "to protect from violence the laws of our common country… The commanding officers [of the county] … seem not to have become sufficiently impressed with the importance of maintaining the Sovereignty of the law" says Marshall, but with unwarranted optimism he believes "that a more proper mode of thinking is beginning to prevail."293

Thus was the Smithfield defiance of Neutrality and the National laws quelled by strong measures, taken before it had gathered dangerous headway. "I am very much indebted to Brig. – Gen'l Marshall and Major Taylor294 for their exertions in the execution of my orders," writes Governor Lee to the Secretary of War.295

But the efforts of the National Government and the action of Governor Lee in Virginia to enforce obedience to National laws and observance of Neutrality, while they succeeded locally in their immediate purpose, did not modify the public temper toward the Administration. Neutrality, in particular, grew in disfavor among the people. When the congressional elections of 1794 came on, all complaints against the National Government were vivified by that burning question. As if, said the Republicans, there could be such a status as neutrality between "right and wrong," between "liberty" and "tyranny."296

Thus, in the campaign, the Republicans made the French cause their own. Everything that Washington's Administration had accomplished was wrong, said the Republicans, but Neutrality was the work of the Evil One. The same National power which had dared to issue this "edict" against American support of French "liberty" had foisted on the people Assumption, National Courts, and taxes on whiskey. This identical Nationalist crew had, said the Republicans, by Funding and National Banks, fostered, nay, created, stock-jobbing and speculation by which the few "monocrats" were made rich, while the many remained poor. Thus every Republican candidate for Congress became a knight of the flaming sword, warring upon all evil, but especially and for the moment against the dragon of Neutrality that the National Government had uncaged to help the monarchs of Europe destroy free government in France.297 Chiefly on that question the Republicans won the National House of Representatives.

But if Neutrality lit the flames of public wrath, Washington's next act in foreign affairs was powder and oil cast upon fires already fiercely burning. Great Britain, by her war measures against France, did not spare America. She seized hundreds of American vessels trading with her enemy and even with neutrals; in order to starve France298 she lifted cargoes from American bottoms; to man her warships she forcibly took sailors from American ships, "often leaving scarcely hands enough to navigate the vessel into port";299 she conducted herself as if she were not only mistress of the seas, but their sole proprietor. And the British depredations were committed in a manner harsh, brutal, and insulting.

Even Marshall was aroused and wrote to his friend Stuart: "We fear, not without reason, a war. The man does not live who wishes for peace more than I do; but the outrages committed upon us are beyond human bearing. Farewell – pray Heaven we may weather the storm."300 If the self-contained and cautious Marshall felt a just resentment of British outrage, we may, by that measure, accurately judge of the inflamed and dangerous condition of the general sentiment.

Thus it came about that the deeply rooted hatred of the people for their former master301 was heated to the point of reckless defiance. This was the same Monarchy, they truly said, that still kept the military and trading posts on American soil which, more than a decade before, it had, by the Treaty of Peace, solemnly promised to surrender.302 The Government that was committing these savage outrages was the same faithless Power, declared the general voice, that had pledged compensation for the slaves its armies had carried away, but not one shilling of which had been paid.

If ever a country had good cause for war, Great Britain then furnished it to America; and, had we been prepared, it is impossible to believe that we should not have taken up arms to defend our ravaged interests and vindicate our insulted honor. In Congress various methods of justifiable retaliation were urged with intense earnestness, marred by loud and extravagant declamation.303 "The noise of debate was more deafening than a mill… We sleep upon our arms," wrote a member of the National House.304 But these bellicose measures were rejected because any one of them would have meant immediate hostilities.

For we were not prepared. War was the one thing America could not then afford. Our Government was still tottering on the unstable legs of infancy. Orderly society was only beginning and the spirit of unrest and upheaval was strong and active. In case of war, wrote Ames, expressing the conservative fears, "I dread anarchy more than great guns."305 Our resources had been bled white by the Revolution and the desolating years that followed. We had no real army, no adequate arsenals,306 no efficient ships of war; and the French Republic, surrounded by hostile bayonets and guns and battling for very existence, could not send us armies, fleets, munitions, and money as the French Monarchy had done.

Spain was on our south eager for more territory on the Mississippi, the mouth of which she controlled; and ready to attack us in case we came to blows with Great Britain. The latter Power was on our north, the expelled Loyalists in Canada burning with that natural resentment307 which has never cooled; British soldiers held strategic posts within our territory; hordes of Indians, controlled and their leaders paid by Great Britain,308 and hostile to the United States, were upon our borders anxious to avenge themselves for the defeats we had inflicted on them and their kinsmen in the savage wars incited by their British employers.309 Worst of all, British warships covered the oceans and patrolled every mile of our shores just beyond American waters. Our coast defenses, few, poor, and feeble in their best estate, had been utterly neglected for more than ten years and every American port was at the mercy of British guns.310

Evidence was not wanting that Great Britain courted war.311 She had been cold and unresponsive to every approach for a better understanding with us. She had not even sent a Minister to our Government until eight years after the Treaty of Peace had been signed.312 She not only held our posts, but established a new one fifty miles south of Detroit; and her entire conduct indicated, and Washington believed, that she meant to draw a new boundary line which would give her exclusive possession of the Great Lakes.313 She had the monopoly of the fur trade314 and plainly meant to keep it.

Lord Dorchester, supreme representative of the British Crown in Canada, had made an ominous speech to the Indians predicting hostilities against the United States within a year and declaring that a new boundary line would then be drawn "by the warriors."315 Rumors flew and gained volume and color in their flight. Even the poised and steady Marshall was disturbed.

"We have some letters from Philadelphia that wear a very ugly aspect," he writes Archibald Stuart. "It is said that Simcoe, the Governor of Upper Canada, has entered the territory of the United States at the head of about 500 men and has possessed himself of Presque Isle." But Marshall cannot restrain his humor, notwithstanding the gravity of the report: "As this is in Pennsylvania," he observes, "I hope the democratic society of Philadelphia will at once demolish him and if they should fail I still trust that some of our upper brothers [Virginia Republicans] will at one stride place themselves by him and prostrate his post. But seriously," continues Marshall, "if this be true we must bid adieu to all hope of peace and prepare for serious war. My only hope is that it is a mere speculating story."316

Powerless to obtain our rights by force or to prevent their violation by being prepared to assert them with arms, Washington had no recourse but to diplomacy. At all hazards and at any cost, war must be avoided for the time being. It was one of Great Britain's critical mistakes that she consented to treat instead of forcing a conflict with us; for had she taken the latter course it is not improbable that, at the end of the war, the southern boundary of British dominion in America would have been the Ohio River, and it is not impossible that New York and New England would have fallen into her hands. At the very least, there can be little doubt that the Great Lakes and the St. Lawrence would have become exclusively British waters.317

Amid a confusion of counsels, Washington determined to try for a treaty of amity, commerce, and navigation with Great Britain, a decision, the outcome of which was to bring Marshall even more conspicuously into politics than he ever had been before. Indeed, the result of the President's policy, and Marshall's activity in support of it, was to become one of the important stepping-stones in the latter's career.

Chief Justice Jay was selected for the infinitely delicate task of negotiation. Even the news of such a plan was received with stinging criticism. What! Kiss the hand that smote us! It was "a degrading insult to the American people; a pusillanimous surrender of their honor; and an insidious injury to France."318 And our envoy to carry out this shameful programme! – was it not that same Jay who once tried to barter away the Mississippi?319

It was bad enough to turn our backs on France; but to treat with the British Government was infamous. So spoke the voice of the people. The democratic societies were especially virulent; "Let us unite with France and stand or fall together"320 was their heroic sentiment. But abhorrence of the mission did not blind the Republicans to the advantages of political craft. While the negotiations were in progress they said that, after all, everything would be gained that America desired, knowing that they could say afterward, as they did and with just cause, that everything had been lost.321

At last Jay secured from Great Britain the famous treaty that bears his name. It is perhaps the most humiliating compact into which America ever entered. He was expected to secure the restriction of contraband – it was enlarged; payment for the slaves – it was refused; recognition of the principle that "free ships make free goods" – it was denied; equality with France as to belligerent rights – it was not granted; opening of the West Indian trade – it was conceded upon hard and unjust conditions; payment for British spoliation of American commerce – it was promised at some future time, but even then only on the award of a commission; immediate surrender of the posts – their evacuation was agreed to, but not until a year and a half after the treaty was signed.

On the other hand, the British secured from us free navigation and trading rights on the Mississippi – never contemplated; agreement that the United States would pay all debts due from American citizens to British creditors – a claim never admitted hitherto; prohibition of any future sequestration of British debts; freedom of all American ports to British vessels, with a pledge to lay no further restrictions on British commerce – never before proposed; liberty of Indians and British subjects to pass our frontiers, trade on our soil, retain lands occupied without becoming American citizens, but privileged to become such at pleasure – an odious provision, which, formerly, had never occurred to anybody.

Thus, by the Treaty of 1794, we yielded everything and gained little not already ours. But we secured peace; we were saved from war. That supreme end was worth the sacrifice and that, alone, justified it. It more than demonstrated the wisdom of the Jay Treaty.

While the Senate was considering the bitter terms which Great Britain, with unsheathed sword, had forced upon us, Senator Stephen T. Mason of Virginia, in violation of the Senate rules, gave a copy of the treaty to the press.322 Instantly the whole land shook with a tornado of passionate protest.323 From one end of the country to the other, public meetings were held. Boston led off.324 Washington was smothered with violent petitions that poured in upon him from every quarter praying, demanding, that he withhold his assent.325 As in the struggle for the Constitution and in the violent attacks on Neutrality, so now the strongest advocates of the Jay Treaty were the commercial interests. "The common opinion among men of business of all descriptions is," declares Hamilton, "that a disagreement would greatly shock and stagnate pecuniary plans and operations in general."326

The printing presses belched pamphlets and lampoons, scurrilous, inflammatory, even indecent. An example of these was a Boston screed. This classic of vituperation, connecting the treaty with the financial measures of Washington's Administration, represented the Federalist leaders as servants of the Devil; Independence, after the death of his first wife, Virtue, married a foul creature, Vice, and finally himself expired in convulsions, leaving Speculation, Bribery, and Corruption as the base offspring of his second marriage.327

Everywhere Jay was burned in effigy. Hamilton was stoned in New York when he tried to speak to the mob; and with the blood pouring down his face went, with the few who were willing to listen to him, to the safety of a hall.328 Even Washington's granite resolution was shaken. Only once in our history have the American people so scourged a great public servant.329 He was no statesman, raged the Republicans; everybody knew that he had been a failure as a soldier, they said; and now, having trampled on the Constitution and betrayed America, let him be impeached, screamed the infuriated opposition.330 Seldom has any measure of our Government awakened such convulsions of popular feeling as did the Jay Treaty, which, surrendering our righteous and immediate demands, yet saved our future. Marshall, watching it all, prepared to defend the popularly abhorred compact; and thus he was to become its leading defender in the South.

When, finally, Washington reluctantly approved its ratification by the Senate,331 many of his friends deserted him.332 "The trouble and perplexities … have worn away my mind," wrote the abused and distracted President.333 Mercer County, Kentucky, denounced Senator Humphrey Marshall for voting for ratification and demanded a constitutional amendment empowering State Legislatures to recall Senators at will.334 The Legislature of Virginia actually passed a resolution for an amendment of the National Constitution to make the House of Representatives a part of the treaty-making power.335 The Lexington, Kentucky, resolutions branded the treaty as "shameful to the American name."336 It was reported that at a dinner in Virginia this toast was drunk: "A speedy death to General Washington."337 Orators exhausted invective; poets wrote in the ink of gall.338

Jefferson, in harmony, of course, with the public temper, was against the treaty. "So general a burst of dissatisfaction," he declared, "never before appeared against any transaction… The whole body of the people … have taken a greater interest in this transaction than they were ever known to do in any other."339 The Republican chieftain carefully observed the effect of the popular commotion on his own and the opposite party. "It has in my opinion completely demolished the monarchical party here340 [Virginia]." Jefferson thought the treaty itself so bad that it nearly turned him against all treaties. "I am not satisfied," said he, "we should not be better without treaties with any nation. But I am satisfied we should be better without such as this."341

The deadliest charge against the treaty was the now familiar one of "unconstitutionality." Many urged that the President had no power to begin negotiations without the assent of the Senate;342 and all opponents agreed that it flagrantly violated the Constitution in several respects, especially in regulating trade, to do which was the exclusive province of Congress.343 Once more, avowed the Jeffersonians, it was the National Government which had brought upon America this disgrace. "Not one in a thousand would have resisted Great Britain … in the beginning of the Revolution" if the vile conduct of Washington had been foreseen; and it was plain, at this late day, that "either the Federal or State governments must fall" – so wrote Republican pamphleteers, so spoke Republican orators.344

Again Hamilton brought into action the artillery of his astounding intellect. In a series of public letters under the signature of "Camillus," he vindicated every feature of the treaty, evading nothing, conceding nothing. These papers were his last great constructive work. In numbers three, six, thirty-seven, and thirty-eight of "Camillus," he expounded the Constitution on the treaty-making power; demonstrated the exclusive right of the President to negotiate, and, with the Senate, to conclude, treaties; and proved, not only that the House should not be consulted, but that it is bound by the Constitution itself to pass all laws necessary to carry treaties into effect.345

Fearless, indeed, and void of political ambition were those who dared to face the tempest. "The cry against the Treaty is like that against a mad-dog," wrote Washington from Mount Vernon.346 Particularly was this true of Virginia, where it raged ungovernably.347 A meeting of Richmond citizens "have outdone all that has gone before them" in the resolutions passed,348 bitterly complained Washington. Virginians, testified Jefferson, "were never more unanimous. 4. or 5. individuals of Richmond, distinguished however, by their talents as by their devotion to all the sacred acts of the government, & the town of Alexandria constitute the whole support of that instrument [Jay Treaty] here."349 These four or five devoted ones, said Jefferson, were "Marshall, Carrington, Harvey, Bushrod Washington, Doctor Stewart."350 But, as we are now to see, Marshall made up in boldness and ability what the Virginia friends of the Administration lacked in numbers.

CHAPTER IV

WASHINGTON'S DEFENDER

His [Marshall's] lax, lounging manners have made him popular. (Jefferson.)

Having a high opinion of General Marshall's honor, prudence, and judgment, consult him. (Washington.)

The man [Washington] who is the source of all the misfortunes of our country is no longer possessed of the power to multiply evils on the United States. (The Aurora on Washington's retirement from the Presidency.)

Jefferson properly named Marshall as the first of Washington's friends in Virginia. For, by now, he had become the leader of the Virginia Federalists. His lucid common sense, his level poise, his steady courage, his rock-like reliability – these qualities, together with his almost uncanny influence over his constituents, had made him chief in the Virginia Federalist councils.

So high had Marshall risen in Washington's esteem and confidence that the President urged him to become a member of the Cabinet.

"The office of Attorney Genḷ of the United States has become vacant by the death of Will Bradford, Esq.351 I take the earliest opportunity of asking if you will accept the appointment? The salary annexed thereto, and the prospects of lucrative practice in this city [Philadelphia] – the present seat of the Genḷ Government, must be as well known to you, perhaps better, than they are to me, and therefore I shall say nothing concerning them.

"If your answer is in the affirmative, it will readily occur to you that no unnecessary time should be lost in repairing to this place. If, on the contrary, it should be the negative (which would give me concern) it might be as well to say nothing of this offer. But in either case, I pray you to give me an answer as promptly as you can."352

Marshall decided instantly; he could not possibly afford to accept a place yielding only fifteen hundred dollars annually, the salary of the Attorney-General at that period,353 and the duties of which permitted little time for private practice which was then allowable.354 So Marshall, in a "few minutes" declined Washington's offer in a letter which is a model of good taste.

"I had the honor of receiving a few minutes past your letter of the 26th inst.

"While the business I have undertaken to complete in Richmond,355 forbids me to change my situation tho for one infinitely more eligible, permit me Sir to express my sincere acknowledgments for the offer your letter contains & the real pride & gratification I feel at the favorable opinion it indicates.

"I respect too highly the offices of the present government of the United States to permit it to be suspected that I have declined one of them."356