The Life of John Marshall (Volume 2 of 4)
When he refused the office of Attorney-General, Washington, sorely perplexed, wrote Marshall's brother-in-law,357 Edward Carrington, United States Marshal and Collector of Internal Revenue for the District of Virginia,358 a letter, "the whole" of which "is perfectly confidential, written, perhaps, with more candor than prudence," concerning Innes or Henry for the place; but, says the President, "having a high opinion of General359 Marshall's honor, prudence, and judgment," Carrington must consult him.360
The harassed President had now come to lean heavily on Marshall in Virginia affairs; indeed, it may be said that he was Washington's political agent at the State Capital. Carrington's answer is typical of his reports to the President: "The inquiry [concerning the selection of an Attorney-General] which you have been pleased to submit to Genḷ Marshall and myself demands & receives our most serious attention – On his [Marshall's] aid I rely for giving you accurate information."361
John Marshall
From a painting by Rembrandt Peale
Later Carrington advises Washington that Marshall "wishes an opportunity of conversing with Col. Innes before he decides."362 Innes was absent at Williamsburg; and although the matter was urgent, Marshall and Carrington did not write Innes, because, to do so, would involve a decisive offer from Washington which "Genḷ Marshall does not think advisable."363
When Washington's second letter, suggesting Patrick Henry, was received by Carrington, he "immediately consulted Genḷ Marshall thereon"; and was guided by his opinion. Marshall thought that Washington's letter should be forwarded to Henry because "his nonacceptance, from domestic considerations, may be calculated on"; the offer "must tend to soften" Henry "if he has any asperities"; and the whole affair would make Henry "active on the side of Government & order."364
Marshall argued that, if Henry should accept, his friendship for the Administration could be counted on. But Marshall's strongest reason for trying to induce Henry to become a member of the Cabinet was, says Carrington, that "we are fully persuaded that a more deadly blow could not be given to the Faction [Republican party] in Virginia, & perhaps elsewhere, than that Gentleman's acceptance of the" Attorney-Generalship. "So much have the opposers of the Government held him [Henry] up as their oracle, even since he has ceased to respond to them, that any event demonstrating his active support to Government, could not but give the [Republican] party a severe shock."365
A week later Carrington reports that Henry's "conduct & sentiments generally both as to government & yourself [Washington] are such as we [Marshall and Carrington] calculated on … which assure us of his discountenancing calumny of every description & disorder,"366 meaning that Henry was hostile to the Republicans.
In the rancorous assaults upon the Jay Treaty in Virginia, Marshall, of course, promptly took his position by Washington's side, and stoutly defended the President and even the hated compact itself. Little cared Marshall for the effect of his stand upon his popularity. Not at all did he fear or hesitate to take that stand. And high courage was required to resist the almost universal denunciation of the treaty in Virginia. Nor was this confined to the masses of the people; it was expressed also by most of the leading men in the various communities. At every meeting of protest, well-drawn and apparently convincing resolutions were adopted, and able, albeit extravagant, speeches were made against the treaty and the Administration.
Typical of these was the address of John Thompson at Petersburg, August 1, 1795.367 With whom, asked Thompson, was the treaty made? With the British King "who had sworn eternal enmity to republics"; that hateful monarch who was trying "to stifle the liberty of France" and "to starve thirty millions of men" by "intercepting the correspondence and plundering the commerce of neutral nations," especially that of the United States. The British, declared Thompson, sought "the destruction of our rising commerce; the annihilation of our growing navigation," and were pursuing that object "with all the … oppression which rapacity can practice."
Sequestration of British debts and other justifiable measures of retaliation would, said he, have stopped Great Britain's lawless practices. But the Administration preferred to treat with that malign Power; and our envoy, Jay, instead of "preserving the attitude of dignity and speaking the language of truth … basely apostatizing from republican principles, stooped to offer the incense of flattery to a tyrant, the scourge of his country, the foe of mankind… Yes!" exclaimed the radical orator, "we hesitated to offend a proud King, who had captured our vessels, enslaved our fellow-citizens, ruined our merchants, invaded our territory and trampled on our sovereignty." In spite of these wrongs and insults, "we prostrated ourselves before him, smiled in his face, flattered, and obtained this treaty."
The treaty thus negotiated was, declared Thompson, the climax of the Funding system which had "organized a great aristocracy … usurped the dominion of the senate … often preponderated in the house of representatives and which proclaims itself in servile addresses to our supreme executive, in dangerous appointments, in monstrous accumulations of debt, in violation of the constitution, in proscriptions of democrats, and, to complete the climax of political infamy, in this treaty."
Concerning the refusal to observe the principle that "free bottoms make free goods," our yielding the point rendered us, avowed Thompson, "a cowardly confederate … of … ruthless despots, who march to desolate France, to restore the altars of barbarous superstition and to extinguish the celestial light which has burst upon the human mind. O my countrymen, when you are capable of such monstrous baseness, even the patriot will invoke upon you the contempt of ages." This humiliation had been thrust upon us as a natural result of Washington's Neutrality proclamation – "a sullen neutrality between freemen and despots."
Thompson's searching, if boyish, rhetoric truly expressed the feeling in the hearts of the people; it was a frenzied sentiment with which Marshall had to contend. Notwithstanding his blazing language, Thompson analyzed the treaty with ability. In common with opponents of the treaty everywhere, he laid strongest emphasis on its unconstitutionality and the "usurpation" by the President and Senate of the rights and powers of the House of Representatives.
But Thompson also mentioned one point that touched Marshall closely. "The ninth article," said he, "invades the rights of this commonwealth, by contemplating the case of Denny Fairfax."368 Marshall and his brother were now the owners of this estate;369 and the Jay Treaty confirmed all transfers of British property and authorized British subjects to grant, sell, or devise lands held in America in the same manner as if they were citizens of the United States. In Congress a few months later, Giles, who, declared Ames, "has no scruples and certainly less sense,"370 touched lightly on this same chord.371 So did Heath, who was from that part of Virginia lying within the Fairfax grant.372
Such was the public temper in Virginia, as accurately if bombastically expressed by the youthful Thompson, when the elections for the Legislature of 1795 were held. It was certain that the General Assembly would take drastic and hostile action against the treaty; and, perhaps, against Washington himself, in case the Republicans secured a majority in that body. The Federalists were in terror and justly so; for the Republicans, their strength much increased by the treaty, were aggressive and confident.
The Federalist candidate in Richmond was the member of the Legislature whom the Federalists had succeeded in electing after Marshall's retirement three years before. He was Marshall's intimate friend and a stanch supporter of Washington's Administration. But it appears that in the present crisis his popularity was not sufficient to secure his election, nor his courage robust enough for the stern fight that was certain to develop in the General Assembly.
The polls were open and the voting in progress. Marshall was among the first to arrive; and he announced his choice.373 Upon his appearance "a gentleman demanded that a poll be opened for Mr. Marshall."374 Marshall, of course, indignantly refused; he had promised to support his friend, he avowed, and now to become a candidate was against "his wishes and feeling and honor." But Marshall promised that he would stand for the Legislature the following year.
Thereupon Marshall left the polls and went to the court-house to make an argument in a case then pending. No sooner had he departed than a poll was opened for him in spite of his objections;375 he was elected; and in the evening was told of the undesired honor with which the freeholders of Richmond had crowned him.
Washington was apprehensive of the newly elected Legislature. He anxiously questioned Carrington "as to the temper of our Assembly." The latter reported that he did not "expect an extravagant conduct during the session."376 He thought that "the spirit of dissatisfaction is considerably abated abroad" (throughout Virginia and away from Richmond), because recent attempts to hold county and district meetings "for the avowed purpose of condemning the Administration & the Treaty" had been "abortive." It seemed to him, however, that "there is a very general impression unfavorable to the Treaty, owing to the greater industry of those who revile, over the supporters of it."377
Still, Carrington was not sure about the Legislature itself; for, as he said, "it has every year for several past been observable, that, at meeting [of the Legislature] but few hot heads were to be seen, while the great body were rational; but in the course of the session it has seldom happened otherwise than that the spirit of party has been communicated so as to infect a majority. In the present instance I verily believe a question put on this day [the first day of the session] for making the Treaty a subject of consideration would be negatived – yet sundry members are here who will attempt every injury to both the Administration & the Treaty. The party will want ability in their leaders… General Lee, C. Lee, Genḷ Marshall & Mr. Andrews will act with ability on the defensive."378
Three days later the buoyant official advised the President that the Republicans doubted their own strength and, at worst, would delay their attack "in order that, as usual, a heat may be generated." Marshall was still busy searching for a properly qualified person to appoint to the unfilled vacancy in the office of Attorney-General; and Carrington tells Washington that "Genḷ Marshall and myself have had a private consultation" on that subject and had decided to recommend Judge Blain. But, he adds, "The suggestion rests entirely with Genḷ M[arshall] & myself & will there expire, should you, for any consideration, forbear to adopt it." His real message of joy, however, was the happy frame of mind of the Legislature.379
Alas for this prophecy of optimism! The Legislature had not been in session a week before the anti-Administration Banquo's ghost showed its grim visage. The Republicans offered a resolution approving the vote of Virginia Senators against the Jay Treaty. For three days the debate raged. Marshall led the Federalist forces. "The support of the Treaty has fallen altogether on Genḷ Marshall and Mr. Chas. Lee," Carrington reports to Washington.380
Among the many objections to the treaty the principal one, as we have seen, was that it violated the Constitution. The treaty regulated commerce; the Constitution gave that power to Congress, which included the House of Representatives; yet the House had not been consulted. The treaty involved naturalization, the punishment of piracies, the laying of imposts and the expenditure of money – all of these subjects were expressly placed under the control of Congress and one of them381 (the raising and expending of public money) must originate in the House; yet that popular branch of the Government had been ignored. The treaty provided for a quasi-judicial commission to settle the question of the British debts; yet "all the power of the Federal government with respect to debts is given [Congress] by a concise article of the Constitution… What article of the Constitution authorizes President and Senate to establish a judiciary colossus which is to stand with one foot on America and the other on Britain, and drag the reluctant governments of those countries to the altar of justice?"382
Thus the question was raised whether a commercial treaty, or an international compact requiring an appropriation of money, or, indeed, any treaty whatever in the execution of which any action of any kind on the part of the House of Representatives was necessary, could be made without the concurrence of the House as well as the Senate. On this, the only vital and enduring question involved, Marshall's views were clear and unshakable.
The defense of the constitutional power of the President and Senate to make treaties was placed solely on Marshall's shoulders. The Federalists considered his argument a conclusive demonstration. Carrington wrote Washington that "on the point of constitutionality many conversions were acknowledged."383 He was mistaken; the Republicans were not impressed. On the contrary, they thought that the treaty "was much less ably defended than opposed."384
The Republicans had been very much alarmed over Marshall and especially feared the effect of one clever move. "John Marshall," wrote Jefferson's son-in-law from Richmond to the Republican commander in Monticello, "it was once apprehended would make a great number of converts by an argument which cannot be considered in any other light than an uncandid artifice. To prevent what would be a virtual censure of the President's conduct he maintained that the treaty in all its commercial parts was still under the power of the H.[ouse] of R.[epresentatives]."385
Marshall, indeed, did make the most of this point. It was better, said he, and "more in the spirit of the constitution" for the National House to refuse support after ratification than to have a treaty "stifled in embryo" by the House passing upon it before ratification. "He compared the relation of the Executive and the Legislative department to that between the states and the Congress under the old confederation. The old Congress might have given up the right of laying discriminating duties in favor of any nation by treaty; it would never have thought of taking beforehand the assent of each state thereto. Yet, no one would have pretended to deny the power of the states to lay such [discriminating duties]."386
Such is an unfriendly report of this part of Marshall's effort which, wrote Jefferson's informant, "is all that is original in his argument. The sophisms of Camillus, & the nice distinctions of the Examiner made up the rest."387 Marshall's position was that a "treaty is as completely a valid and obligatory contract when negotiated by the President and ratified by him, with the assent and advice of the Senate, as if sanctioned by the House of Representatives also, under a constitution requiring such sanction"; and he admitted only that the powers of the House in reference to a treaty were limited to granting or refusing appropriations to carry it into effect.388
But as a matter of practical tactics to get votes, Marshall appears to have put this in the form of an assertion – no matter what treaty the President and Senate made, the House held the whip hand, he argued, and in the end, could do what it liked; why then unnecessarily affront and humiliate Washington by applauding the Virginia Senators for their vote against the treaty? This turn of Marshall's, thought the Republicans, "was brought forward for the purpose of gaining over the unwary & wavering. It has never been admitted by the writers in favor of the treaty to the northward."389
But neither Marshall's unanswerable argument on the treaty-making power, nor his cleverness in holding up the National House of Representatives as the final arbiter, availed anything. The Federalists offered an amendment affirming that the President and Senate "have a right to make" a treaty; that discussion of a treaty in a State Legislature, "except as to its constitutionality," was unnecessary; and that the Legislature could not give "any mature opinion upon the conduct of the Senators from Virginia … without a full investigation of the treaty." They were defeated by a majority of 46 out of a total of 150 members present and voting; John Marshall voting for the amendment.390 On the main resolution proposed by the Republicans the Federalists lost two votes and were crushed by a majority of two to one; Marshall, of course, voting with the minority.391
Carrington hastily reported to Washington that though "the discussion has been an able one on the side of the Treaty," yet, "such was the apprehension that a vote in its favor would be unpopular, that argument was lost"; and that, notwithstanding many members were convinced by Marshall's constitutional argument, "obligations of expediency" held them in line against the Administration. The sanguine Carrington assured the President, however, that "during the discussion there has been preserved a decided respect for & confidence in you."392
But alas again for the expectations of sanguinity! The Republican resolution was, as Jefferson's son-in-law had reported to the Republican headquarters at Monticello, "a virtual censure of the President's conduct." This was the situation at the close of the day's debate. Realizing it, as the night wore on, Washington's friends determined to relieve the President of this implied rebuke by the Legislature of his own State. The Republicans had carried their point; and surely, thought Washington's supporters, the Legislature of Virginia would not openly affront the greatest of all Americans, the pride of the State, and the President of the Nation.
Infatuated imagination! The next morning the friends of the Administration offered a resolution that Washington's "motives" in approving the treaty met "the entire approbation of this House"; and that Washington, "for his great abilities, wisdom and integrity merits and possesses the undiminished confidence of his country." The resolution came near passing. But some lynx-eyed Republican discovered in the nick of time the word "wisdom."393 That would never do. The Republicans, therefore, offered an amendment "that this House do entertain the highest sense of the integrity and patriotism of the President of the United States; and that while they approve of the vote of the Senators of this State" on the treaty, "they in no wise censure the motives which influenced him in his [Washington's] conduct thereupon."394
The word "wisdom" was carefully left out. Marshall, Lee, and the other Federalists struggled hard to defeat this obnoxious amendment; but the Republicans overwhelmed them by a majority of 33 out of a total of 145 voting, Marshall, of course, casting his vote against it.395
In worse plight than ever, Washington's friends moved to amend the Republican amendment by resolving: "That the President of the United States, for his great abilities, wisdom, and integrity, merits and possesses the undiminished confidence of this House." But even this, which omitted all reference to the treaty and merely expressed confidence in Washington's "abilities, wisdom, and integrity," was beaten by a majority of 20 out of a total of 138 voting.396
As soon as Jefferson got word of Marshall's support of Washington's Administration in the Legislature, he poured out his dislike which had long been distilling: —
"Though Marshall will be able to embarras [sic] the republican party in the assembly a good deal," wrote Jefferson to Madison, "yet upon the whole his having gone into it will be of service. He has been, hitherto, able to do more mischief acting under the mask of Republicanism than he will be able to do after throwing it plainly off. His lax lounging manners have made him popular with the bulk of the people of Richmond; & a profound hypocrisy, with many thinking men of our country. But having come forth in the plenitude of his English principles the latter will see that it is high time to make him known."397
Such was Jefferson's inability to brook any opposition, and his readiness to ascribe improper motives to any one having views different from his own. So far from Marshall's having cloaked his opinions, he had been and was imprudently outspoken in avowing them. Frankness was as much a part of Marshall's mental make-up as his "lax, lounging manners" were a part of his physical characteristics. Of all the men of the period, not one was cleaner of hypocrisy than he. From Patrick Henry in his early life onward to his associates on the bench at the end of his days the testimony as to Marshall's open-mindedness is uniform and unbroken.
With the possible exception of Giles and Roane, Jefferson appears to have been the only man who even so much as hinted at hypocrisy in Marshall. Although strongly opposing his views and suggesting the influence of supposed business connections, Madison had supreme confidence in Marshall's integrity of mind and character. So had Monroe. Even Jefferson's most panegyrical biographer declares Marshall to have been "an earnest and sincere man."398
The House of Delegates having refused to approve Washington, even indirectly, the matter went to the State Senate. There for a week Washington's friends fought hard and made a slight gain. The Senate struck out the House resolution and inserted instead: "The General Assembly entertain the highest sense of the integrity, patriotism and wisdom of the President of the United States, and in approving the vote of the Senators of the State in the Congress of the United States, relative to the treaty with Great Britain, they in no wise mean to censure the motives which influenced him in his conduct thereupon." To this the House agreed, although by a slender majority, Marshall, of course, voting for the Senate amendment.399
During this session Marshall was, as usual, on the principal standing committees and did his accustomed share of general legislative work. He was made chairman of a special committee to bring in a bill "authorizing one or more branches of the bank of the United States in this commonwealth";400 and later presented the bill,401 which finally passed, December 8, 1795, though not without resistance, 38 votes being cast against it.402
But the Republicans had not yet finished with the Jay Treaty or with its author. On December 12, 1795, they offered a resolution instructing Virginia's Senators and Representatives in Congress to attempt to secure amendments to the Constitution providing that: "Treaties containing stipulations upon the subject of powers vested in Congress shall be approved by the House of Representatives"; that "a tribunal other than the Senate be instituted for trying impeachments"; that "Senators shall be chosen for three years"; and that "U.S. Judges shall hold no other appointments."403
The Federalists moved to postpone this resolution until the following year "and print and distribute proposed amendments for the consideration of the people"; but they were beaten by a majority of 11 out of a total vote of 129, Marshall voting for the resolution. The instruction to secure these radical constitutional changes then passed the House by a majority of 56 out of a total vote of 120, Marshall voting against it.404
Marshall's brother-in-law, United States Marshal Carrington, had a hard time explaining to Washington his previous enthusiasm. He writes: "The active powers of the [Republican] party … unveiled themselves, & carried in the House some points very extraordinary indeed, manifesting disrespect towards you." But, he continues, when the Virginia Senate reversed the House, "the zealots of Anarchy were backward to act … while the friends of Order were satisfied to let it [the Virginia Senate amendment] remain for farther effects of reflection"; and later succeeded in carrying it.
"The fever has raged, come to its crisis, and is abating." Proof of this, argued Carrington, was the failure of the Republicans to get signatures to "some seditious petitions [against the Jay Treaty] which was sent in vast numbers from Philadelphia" and which "were at first patronized with great zeal by many of our distinguished anarchists; but … very few copies will be sent to Congress fully signed."405