The Life of John Marshall (Volume 2 of 4)

Never was appointive officer so oblivious of facts in his reports to his superior, as was Carrington. Before adjournment on December 12, 1795, the Legislature adopted part of the resolution which had been offered in the morning: "No treaty containing any stipulation upon the subject of powers vested in Congress by the eighth section of the first article [of the Constitution] shall become the Supreme law of the land until it shall have been approved in those particulars by a majority in the House of Representatives; and that the President, before he shall ratify any treaty, shall submit the same to the House of Representatives."406

Carrington ignored or failed to understand this amazing resolution of the Legislature of Virginia; for nearly three months later he again sought to solace Washington by encouraging reports. "The public mind in Virginia was never more tranquil than at present. The fever of the late session of our assembly, had not been communicated to the Country… The people do not approve of the violent and petulant measures of the Assembly, because, in several instances, public meetings have declared a decided disapprobation." In fact, wrote Carrington, Virginia's "hostility to the treaty has been exaggerated." Proof "of the mass of the people being less violent than was asserted" would be discovered "in the failure of our Zealots in getting their signatures to certain printed papers, sent through the Country almost by Horse loads, as copies of a petition to Congress on the subject of the Treaty."407 But a few short months would show how rose-colored were the spectacles which Mr. Carrington wore when he wrote this reassuring letter.

The ratification of the British treaty; the rage against England; and the devotion to France which already had made the Republican a French party; the resentment of the tri-color Republic toward the American Government – all forged a new and desperate menace. It was, indeed, Scylla or Charybdis, as Washington had foreseen, and bluntly stated, that confronted the National Government. War with France now seemed the rock on which events were driving the hard-pressed Administration – war for France or war from France.

The partisan and simple-minded Monroe had been recalled from his diplomatic post at Paris. The French mission, which at the close of our Revolution was not a place of serious moment,408 now became critically – vitally – important. Level must be the head and stout the heart of him who should be sent to deal with that sensitive, proud, and now violent country. Lee thus advises the President: "No person would be better fitted than John Marshall to go to France for supplying the place of our minister; but it is scarcely short of absolute certainty that he would not accept any such office."409

But Washington's letter was already on the way, asking Marshall to undertake this delicate task: —

"In confidence I inform you," wrote Washington to Marshall, "that it has become indispensably necessary to recall our minister at Paris & to send one in his place, who will explain faithfully the views of this government & ascertain those of France.

"Nothing would be more pleasing to me than that you should be this organ, if it were only for a temporary absence of a few months; but it being feared that even this could not be made to comport with your present pursuits, I have in order that as little delay as possible may be incurred put the enclosed letter [to Charles Cotesworth Pinckney] under cover to be forwarded to its address, if you decline the present offer or to be returned to me if you accept it. Your own correct knowledge of circumstances renders details unnecessary."410

Marshall at once declined this now high distinction and weighty service, as he had already refused the United States district attorneyship and a place in Washington's Cabinet. Without a moment's delay, he wrote the President: —

"I will not attempt to express those sensations which your letter of the 8th instant has increased. Was it possible for me in the present crisis of my affairs to leave the United States, such is my conviction of the importance of that duty which you would confide to me, &, pardon me if I add, of the fidelity with which I shoud attempt to perform it, that I woud certainly forego any consideration not decisive with respect to my future fortunes, & woud surmount that just diffidence I have entertaind of myself, to make one effort to convey truly & faithfully to the government of France those sentiments which I have ever believed to be entertained by that of the United States.

"I have forwarded your letter to Mr. Pinckney. The recall of our minister at Paris has been conjectured while its probable necessity has been regretted by those who love more than all others, our own country. I will certainly do myself the honor of waiting on you at Mt. Vernon."411

Washington, although anticipating Marshall's refusal of the French mission, promptly answered: "I … regret that present circumstances should deprive our Country of the services, which, I am confident, your going to France would have rendered it"; and Washington asks Marshall's opinion on the proper person to appoint to the office of Surveyor-General.412

The President's letter, offering the French post to Pinckney, was lost in the mails; and the President wrote Marshall about it, because it also enclosed a note "containing three bank bills for one hundred dollars each for the sufferers by fire in Charlestown."413 In answer, Marshall indulged in a flash of humor, even at Washington's expense. "Your letter to General Pinckney was delivered by myself to the post master on the night on which I received it and was, as he says, immediately forwarded by him. Its loss is the more remarkable, as it could not have been opened from a hope that it contained bank notes." He also expressed his gratification "that a gentleman of General Pinckney's character will represent our government at the court of France."414

The office of Secretary of State now became vacant, under circumstances apparently forbidding. The interception of Fauchet's415 famous dispatch number 10416 had been fatal to Randolph. The French Minister, in this communication to his Government, portrays a frightful state of corrupt public thinking in America; ascribes this to the measures of Washington's Administration; avows that a revolution is imminent; declares that powerful men, "all having without doubt" Randolph at their head, are balancing to decide on their party; asserts that Randolph approached him with suggestions for money; and concludes: —

"Thus with some thousands of dollars the [French] republic could have decided on civil war or on peace [in America]! Thus the consciences of the pretended patriots of America have already their prices!.. What will be the old age of this [American] government, if it is thus early decrepid!"417

The discovery of this dispatch of the French Minister destroyed Randolph politically. Washington immediately forced his resignation.418

The President had great difficulty in finding a suitable successor to the deposed Secretary of State. He tendered the office to five men, all of whom declined.419 "What am I to do for a Secretary of State?" he asks Hamilton; and after recounting his fruitless efforts to fill that office the President adds that "Mr. Marshall, of Virginia, has declined the office of Attorney General, and I am pretty certain, would accept of no other."420 It is thus made clear that Washington would have made Marshall the head of his Cabinet in 1795 but for the certainty that his Virginia champion would refuse the place, as he had declined other posts of honor and power.

Hardly had the Virginia Legislature adjourned when the conflict over the treaty was renewed in Congress. The Republicans had captured the House of Representatives and were full of fight. They worked the mechanism of public meetings and petitions to its utmost. On March 7 the House plunged into a swirl of debate over the British treaty; time and again it seemed as though the House would strangle the compact by withholding appropriations to make it effective.421 If the treaty was to be saved, all possible pressure must be brought to bear on Congress. So the Federalists took a leaf out of the book of Republican tactics, and got up meetings wherever they could to petition Congress to grant the necessary money.

In Virginia, as elsewhere, the merchants were the principal force in arranging these meetings.422 As we have seen, the business and financial interests had from the first been the stanchest supporters of Washington's Administration. "The commercial and monied people are zealously attached to" and support the Government, wrote Wolcott in 1791.423 And now Hamilton advised King that "men of business of all descriptions" thought the defeat of the treaty "would greatly shock and stagnate pecuniary plans and operations in general."424 Indeed, the one virtue of the treaty, aside from its greatest purpose, that of avoiding war, was that it prevented the collapse of credit and the wreck of Hamilton's financial system.

Washington, with the deceptive hopefulness of responsibility, had, even when it seemed that the people were as one man against the treaty, "doubted much whether the great body of the yeomanry have formed any opinions on the subject."425 The Federalist meetings were designed to show that the "yeomanry," having been "educated," had at last made up its mind in favor of Washington's policy.

Marshall and Carrington arranged for the Richmond gathering. "The disorganizing machinations of a faction [Republicans]," reported the busy United States Marshal, "are no longer left to be nourished and inculcated on the minds of the credulous by clamorous demagogues, while the great mass of citizens, viewing these, as evils at a distance, remain inactive… All who are attached to peace and order, … will now come forward and speak for themselves… A meeting of the people of this city will take place on Monday next" to petition the National House of Representatives to support the treaty. So Carrington advised the President; and the same thing, said he, was to be done "extensively" by "public meetings and Petitions throughout Virginia."426

Washington was expecting great results from the Richmond demonstration. "It would give me and … every friend to order and good government throughout the United States very great satisfaction," he wrote to encourage the Virginia Federalists; "more so than similar sentiments from any other State in the Union; for people living at a distance from it [Virginia] know not how to believe it possible" that the Virginia Legislature and her Senators and Representatives in Congress should speak and act as they had done.427 "It is," philosophized Washington, "on great occasions only and after time has been given for cool and deliberate reflection that the real voice of the people can be known. The present … is one of those great occasions, than which none more important has occurred, or probably may occur again to call forth their decision."428

By such inspiration and management the historic Federalist gathering was brought about at Richmond on April 25, 1796, where the "Marshall eloquence" was to do its utmost to convert a riotously hostile sentiment into approval of this famous treaty and of the Administration which was responsible for it. All day the meeting lasted. Marshall put forth his whole strength. At last a "decided majority" adopted a favorable resolution drawn by an "original opponent" of the treaty. Thus were sweetened the bitter resolutions adopted by these same freeholders of Richmond some months before, which had so angered Washington.

The accounts of this all-day public discussion are as opposite as were the prejudices and interests of the narrators. Justice Story tells us that Marshall's speech was "masterly," the majority for the resolution "flattering," and the assemblage itself made up of the "same citizens" who formerly had "denounced" the treaty.429 But there was present at the meeting an onlooker who gives a different version. Randolph, who, in disgrace, was then sweating venom from every pore, thus reports to Madison at the end of the hard-fought day: —

"Between 3 & 400 persons were present; a large proportion of whom were British merchants, some of whom pay for the British purchases of horses – their clerks – officers, who have held posts under the President at his will, – stockholders – expectants of office – and many without the shadow of a freehold.430 Notwithstanding this, the numbers on the republican side, tho' inferior, were inferior in a small degree only; and it is believed on good grounds that the majority of free-holders were on the side of the house of representatives [against the treaty].

"Campbell431 and Marshall the principal combatants [word illegible] as you know without being told. Marshall's argument was inconsistent, and shifting; concluding every third sentence with the horrors of war. Campbell spoke elegantly and forcibly; and threw ridicule and absurdity upon his antagonist with success. Mr. Clofton [Clopton, member of Congress from Richmond] will receive two papers; one signed by the treaty men, many of whom he will know to have neither interest nor feeling in common with the citizens of Virginia, and to have been transplanted hither from England or Caledonia since the war, interspersed pretty considerably with fugitive tories who have returned under the amnesty of peace.

"The notice, which I sent you the other day," he goes on to say, "spoke of instructions and a petition; but Marshall, suspecting that he would be outnumbered by freeholders, and conscious that none should instruct those who elect, quitted the idea of instruction, and betook himself to a petition, in which he said all the inhabitants of Richmond, though not freeholders, might join. Upon which Campbell gave notice, that it would be published that he (Marshall) declined hazarding the question on the true sense of the country. Very few of the people [freeholders] of the county were present; but three-fourths of those who were present voted with Campbell. Dr. Foushee was extremely active and influential."432

Marshall, on the contrary, painted in rich colors his picture of this town-hall contest. He thus reports to Hamilton: "I had been informed of the temper of the House of Representatives and we [Richmond Federalists] had promptly taken such measures as appeared to us fitted to the occasion. We could not venture an expression of the public mind under the violent prejudices with which it has been impressed, so long as a hope remained, that the House of Representatives might ultimately consult the interest or honor of the nation… But now, when all hope of this has vanished, it was deemed advisable to make the experiment, however hazardous it might be.

"A meeting was called," continues Marshall, "which was more numerous than I have ever seen at this place; and after a very ardent and zealous discussion which consumed the day, a decided majority declared in favor of a resolution that the wellfare and honor of the nation required us to give full effect to the treaty negotiated with Britain. This resolution, with a petition drawn by an original opponent of the treaty, will be forwarded by the next post to Congress."433

The resolution which Marshall's speech caused an "original opponent"434 of the treaty to draw was "that the Peace, Happiness, & Wellfare, not less than the National Honor of the United States, depend in a great degree upon giving, with good faith, Full effect to the Treaty lately negotiated with Great Britain." The same newspaper that printed this resolution, in another account of the meeting "which was held at the instance of some friends of the British Treaty," says that "in opposition to that resolution a vast number of the meeting" subscribed to counter-declarations which "are now circulated throughout this City and the county of Henrico for the subscription of all those who" are opposed to the treaty.435 Even the exultant Carrington reported "that the enemies of the Treaty or rather of the Government, are putting in practice every part and effort to obtain subscriptions to a counteracting paper."

Carrington denounced the unfavorable newspaper account as "a most absolute falsehood." He tells Washington that the opposition resolution "was not even listened [to] in the meeting." But still he is very apprehensive – he beholds the politician's customary "crisis" and strives to make the people see it: "There never was a crisis at which the activity of the Friends of Government was more urgently called for – some of us here have endeavored to make this impression in different parts of the Country."436 The newspaper reported that the Federalists had induced "school boys & apprentices" to sign the petition in favor of the treaty; Carrington adds a postscript stating that this was, "I believe, a little incorrect."

Marshall foresaw that the Republicans would make this accusation and hastened to anticipate it by advancing the same charge against his opponents. The Republicans, says Marshall, secured the signatures to their petition not only "of many respectable persons but of still a greater number of mere boys… Altho' some caution has been used by us in excluding those who might not be considered as authorized to vote," yet, Marshall advises King, "they [Republicans] will not fail to charge us with having collected a number of names belonging to foreigners and to persons having no property in the place. The charge is as far untrue," asserts Marshall, "as has perhaps ever happened on any occasion of the sort. We could, by resorting to that measure, have doubled our list of petitioners." And he adds that "the ruling party [Republican] of Virginia are extremely irritated at the vote of to-day, and will spare no exertion to obtain a majority in other counties. Even here they will affect to have the greater number of freeholders."437

It was in this wise that petitions favorable to the Jay Treaty and to Washington were procured in the President's own State. It was thus that the remainder of the country was assured that the Administration was not without support among the people of Virginia. Unsuspected and wholly unforeseen was the influence on Marshall's future which his ardent championship of this despised treaty was to exercise.

The Federalists were wise to follow the Republican practice of petition to Congress; for, "nothing … but the torrent of petitions and remonstrances … would have produced a division (fifty-one to forty-eight) in favor of the appropriation."438 So great was the joy of the commercial classes that in Philadelphia, the financial heart of the country, a holiday was celebrated when the House voted the money.439

Marshall's activity, skill, courage, ability, and determination in the Legislature and before the people at this critical hour lifted him higher than ever, not only in the regard of Washington, but in the opinion of the Federalist leaders throughout the country.440 They were casting about for a successor to Washington who could be most easily elected. The Hamiltonian Federalists were already distrustful of Adams for the presidency, and, even then, were warily searching for some other candidate. Why not Patrick Henry? Great changes had occurred in the old patriot's mind and manner of thinking. He was now a man of wealth and had come to lean strongly toward the Government. His friendship for Washington, Marshall, and other Virginia Federalists had grown; while for Jefferson and other Virginia Republicans it had turned to dislike. Still, with Henry's lifelong record, the Federalists could not be sure of him.

To Marshall's cautious hands the Federalist leaders committed the delicate business of sounding Henry. King of New York had written Marshall on the subject. "Having never been in habits of correspondence with Mr. H.[enry]," replies Marshall, "I cou'd not by letter ask from him a decision on the proposition I was requested to make him without giving him at the same time a full statement of the whole conversation & of the persons with whom that conversation was held." Marshall did not think this wise, for "I am not positively certain what course that Gentleman might take. The proposition might not only have been rejected but mentioned publickly to others in such manner as to have become an unpleasant circumstance."

A prudent man was Marshall. He thought that Lee, who "corresponds familiarly with Mr. H. & is in the habit of proposing offices to him," was the man to do the work; and he asked Lee "to sound Mr. H. as from himself or in such manner as might in any event be perfectly safe." Lee did so, but got no answer. However, writes Marshall, "Mr. H.[enry] will be in Richmond on the 22d of May. I can then sound him myself & if I find him (as I suspect I shall) totally unwilling to engage in the contest, I can stop where prudence may direct. I trust it will not then be too late to bring forward to public view Mr. H. or any other gentleman who may be thought of in his stead. Shou'd anything occur to render it improper to have any communication with Mṛ H. on this subject, or shou'd you wish the communication to take any particular shape you will be so obliging as to drop me a line concerning it."441

Marshall finally saw Henry and at once wrote the New York lieutenant of Hamilton the result of the interview. "Mr. Henry has at length been sounded on the subject you communicated to my charge," Marshall advises King. "Genḷ Lee and myself have each conversed with him on it, tho' without informing him particularly of the persons who authorized the communication. He is unwilling to embark in the business. His unwillingness, I think, proceeds from an apprehension of the difficulties to be encountered by those who shall fill high Executive offices."442

The autumn of 1796 was at hand. Washington's second term was closing in Republican cloudbursts and downpours of abuse of him. He was, said the Republicans, an aristocrat, a "monocrat," a miser, an oppressor of the many for the enrichment of the few. Nay, more! Washington was a thief, even a murderer, charged the Republicans. His personal habits were low and base, said these champions of purity.443 Washington had not even been true to the cause of the Revolution, they declared; and to prove this, an ancient slander, supported by forged letters alleged to have been written by Washington during the war, was revived.444

Marshall, outraged and insulted by these assaults on the great American, the friend of his father and himself and the commander of the patriots who had, by arms, won liberty and independence for the very men who were now befouling Washington's name, earnestly defended the President. Although his law practice and private business called for all his strength and time, Marshall, in order to serve the President more effectively, again stood for the Legislature, and again he was elected.

In the Virginia House of Delegates, Marshall and the other friends of Washington took the initiative. On November 17, 1796, they carried a motion for an address to the President, declaratory of Virginia's "gratitude for the services of their most excellent fellow citizen"; who "has so wisely and prosperously administrated the national concerns."445 But how should the address be worded? The Republicans controlled the committee to which the resolution was referred. Two days later that body reported a cold and formal collection of sentences as Virginia's address to Washington upon his leaving, apparently forever, the service of America. Even Lee, who headed the committee, could not secure a declaration that Washington was or had been wise.

This stiff "address" to Washington, reported by the committee, left out the word "wisdom." Commendation of Washington's conduct of the Government was carefully omitted. Should his friends submit to this? No! Better to be beaten in a manly contest. Marshall and the other supporters of the President resolved to try for a warmer expression. On December 10, they introduced a substitute declaring that, if Washington had not declined, the people would have reëlected him; that his whole life had been "strongly marked by wisdom, valor, and patriotism"; that "posterity to the most remote generations and the friends of true and genuine liberty and of the rights of man throughout the world, and in all succeeding ages, will unite" in acclaiming "that you have never ceased to deserve well of your country"; that Washington's "valor and wisdom … had essentially contributed to establish and maintain the happiness and prosperity of the nation."446