The Life of John Marshall (Volume 2 of 4)

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Title: The Life of John Marshall (Volume 2 of 4)
Author: Beveridge, Albert J.
Language: English
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THE LIFE OF JOHN MARSHALL

Standard Library Edition

IN FOUR VOLUMES

VOLUME II

[Illustration: JOHN MARSHALL AS CHIEF JUSTICE
From the portrait by Jarvis]

THE LIFE
OF
JOHN MARSHALL

BY
ALBERT J. BEVERIDGE

VOLUME II

POLITICIAN, DIPLOMATIST
STATESMAN

1789-1801

[Illustration]

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge

CONTENTS

I. INFLUENCE OF THE FRENCH REVOLUTION ON AMERICA 1

The effort of the French King to injure Great Britain by
assisting the revolt of the colonists hastens the upheaval in
France--The French Revolution and American Government under the
Constitution begins at the same time--The vital influence of
the French convulsion on Americans--Impossible to understand
American history without considering this fact--All Americans,
at first, favor the French upheaval which they think a reform
movement--Marshall's statement--American newspapers--Gouverneur
Morris's description of the French people--Lafayette's
infatuated reports--Marshall gets black and one-sided accounts
through personal channels--The effect upon him--The fall of the
Bastille--Lafayette sends Washington the key of the prison--
The reign of blood in Paris applauded in America--American
conservatives begin to doubt the wisdom of the French
Revolution--Burke writes his "Reflections"--Paine answers with
his "Rights of Man"--The younger Adams replies in the
"Publicola" essays--He connects Jefferson with Paine's
doctrines--"Publicola" is viciously assailed in the press--
Jefferson writes Paine--The insurrection of the blacks in
St. Domingo--Marshall's account--Jefferson writes his daughter:
"I wish we could distribute the white exiles among the
Indians"--Marshall's statement of effect of the French
Revolution in America--Jefferson writes to Short:
"I would rather see half the earth desolated"--Louis XVI
guillotined--Genêt arrives in America--The people greet him
frantically--His outrageous conduct--The Republican newspapers
suppress the news of or defend the atrocities of the
revolutionists--The people of Philadelphia guillotine Louis XVI
in effigy--Marie Antoinette is beheaded--American rejoicing at
her execution--Absurd exaggeration by both radicals and
conservatives in America--The French expel Lafayette--Washington
sends Marshall's brother to secure his release from the
Allies--He fails--Effect upon Marshall--Ridiculous conduct of
the people in America--All titles are denounced: "Honorable,"
"Reverend," even "Sir" or "Mr." considered "aristocratic"--The
"democratic societies" appear--Washington denounces them--Their
activities--Marshall's account of their decline--The influence
on America of the French Revolution summarized--Marshall and
Jefferson.

II. A VIRGINIA NATIONALIST 45

The National Government under the Constitution begins--Popular
antagonism to it is widespread--Virginia leads this general
hostility--Madison has fears--Jefferson returns from France--
He is neutral at first--Madison is humiliatingly defeated for
Senator of the United States because of his Nationalism--The
Legislature of Virginia passes ominous Anti-Nationalist
resolutions--The Republicans attack everything done or
omitted by Washington's Administration--Virginia leads the
opposition--Washington appoints Marshall to be United States
District Attorney--Marshall declines the office--He seeks and
secures election to the Legislature--Is given his old committees
in the House of Delegates--Is active in the general business of
the House--The amendments to the Constitution laid before the
House of Delegates--They are intended only to quiet opposition
to the National Government--Hamilton presents his financial
plan--"The First Report on the Public Credit"--It is furiously
assailed--Hamilton and Jefferson make the famous
Assumption-Capitol "deal"--Jefferson's letters--The Virginia
Legislature strikes Assumption--Virginia writes the Magna
Charta of State Rights--Marshall desperately resists these
Anti-Nationalist resolutions and is badly beaten--Jefferson
finally agrees to the attitude of Virginia--He therefore opposes
the act to charter the Bank of the United States--He and
Hamilton give contrary opinions--The contest over "implied
powers" begins--Political parties appear, divided by Nationalism
and localism--Political parties not contemplated by the
Constitution--The word "party" a term of reproach to our early
statesmen.

III. LEADING THE VIRGINIA FEDERALISTS 77

Marshall, in Richmond, is aggressive for the unpopular measures
of Washington's Administration--danger of such conduct in
Virginia--Jefferson takes Madison on their celebrated northern
tour--Madison is completely changed--Jefferson fears Marshall--
Wishes to get rid of him: "Make Marshall a judge"--Jefferson's
unwarranted suspicions--He savagely assails the Administration
of which he is a member--He comes to blows with Hamilton--The
Republican Party grows--The causes for its increased strength--
Pennsylvania resists the tax on whiskey--The Whiskey Rebellion--
Washington denounces and Jefferson defends it--Militia ordered
to suppress it--Marshall, as brigadier-general of militia,
prepares to take the field--War breaks out between England and
France--Washington proclaims American Neutrality--Outburst
of popular wrath against him--Jefferson resigns from the
Cabinet--Marshall supports Washington--At the head of the
military forces he suppresses the riot at Smithfield and
takes a French privateer--The Republicans in Richmond attack
Marshall savagely--Marshall answers his assailants--They make
insinuations against his character: the Fairfax purchase, the
story of Marshall's heavy drinking--The Republicans win on their
opposition to Neutrality--Great Britain becomes more hostile
than ever--Washington resolves to try for a treaty in order
to prevent war--Jay negotiates the famous compact bearing his
name--Terrific popular resentment follows: Washington abused,
Hamilton stoned, Jay burned in effigy, many of Washington's
friends desert him--Toast drank in Virginia "to the speedy death
of General Washington"--Jefferson assails the treaty--Hamilton
writes "Camillus"--Marshall stands by Washington--Jefferson
names him as the leading Federalist in Virginia.

IV. WASHINGTON'S DEFENDER 122

Marshall becomes the chief defender of Washington in
Virginia--The President urges him to accept the office of
Attorney-General--He declines--Washington depends upon
Marshall's judgment in Virginia politics--Vicious opposition
to the Jay Treaty in Virginia--John Thompson's brilliant
speech expresses popular sentiment--He couples the Jay
Treaty with Neutrality: "a sullen neutrality between
freemen and despots"--The Federalists elect Marshall to the
Legislature--Washington is anxious over its proceedings--
Carrington makes absurdly optimistic forecast--The Republicans
in the Legislature attack the Jay Treaty--Marshall defends it
with great adroitness--Must the new House of Representatives be
consulted about treaties?--Carrington writes Washington that
Marshall's argument was a demonstration--Randolph reports to
Jefferson that Marshall's speech was tricky and ineffectual--
Marshall defeated--Amazing attack on Washington and stout
defense of him led by Marshall--Washington's friends beaten--
Legislature refuses to vote that Washington has "wisdom"--
Jefferson denounces Marshall: "His lax, lounging manners and
profound hypocrisy"--Washington recalls Monroe from France and
tenders the French mission to Marshall, who declines--The
Fauchet dispatch is intercepted and Randolph is disgraced--
Washington forces him to resign as Secretary of State--The
President considers Marshall for the head of his Cabinet--
The opposition to the Jay Treaty grows in intensity--Marshall
arranges a public meeting in Richmond--The debate lasts
all day--The reports as to the effect of his speeches
contradictory--Marshall describes situation--The Republicans
make charges and Marshall makes counter-charges--The national
Federalist leaders depend on Marshall--They commission him to
sound Henry on the Presidency as the successor of Washington--
Washington's second Administration closes--He is savagely abused
by the Republicans--The fight in the Legislature over the
address to him--Marshall leads the Administration forces and is
beaten--The House of Delegates refuse to vote that Washington
is wise, brave, or even patriotic--Washington goes out of the
Presidency amid storms of popular hatred--The "Aurora's"
denunciation of him--His own description of the abuse: "indecent
terms that could scarcely be applied to a Nero, a defaulter, or
a common pickpocket"--Jefferson is now the popular hero--All
this makes a deep and permanent impression on Marshall.

V. THE MAN AND THE LAWYER 166

An old planter refuses to employ Marshall as his lawyer because
of his shabby and unimpressive appearance--He changes his mind
after hearing Marshall address the court--Marshall is conscious
of his superiority over other men--Wirt describes Marshall's
physical appearance--He practices law as steadily as his
political activities permit--He builds a fine house adjacent
to those of his powerful brothers-in-law--Richmond becomes a
flourishing town--Marshall is childishly negligent of his
personal concerns: the Beaumarchais mortgage; but he is extreme
in his solicitude for the welfare of his relatives: the letter
on the love-affair of his sister; and he is very careful of the
business entrusted to him by others--He is an enthusiastic Free
Mason and becomes Grand Master of that order in Virginia--He
has peculiar methods at the bar: cites few authorities, always
closes in argument, and is notably honest with the court: "The
law is correctly stated by opposing counsel"--Gustavus Schmidt
describes Marshall--He is employed in the historic case of Ware
_vs._ Hylton--His argument in the lower court so satisfactory to
his clients that they select him to conduct their case in the
Supreme Court of the United States--Marshall makes a tremendous
and lasting impression by his effort in Philadelphia--Rufus King
pays him high tribute--After twenty-four years William Wirt
remembers Marshall's address and describes it--Wirt advises his
son-in-law to imitate Marshall--Francis Walker Gilmer writes,
from personal observation, a brilliant and accurate analysis of
Marshall as lawyer and orator--The Federalist leaders at the
Capital court Marshall--He has business dealings with Robert
Morris--The Marshall syndicate purchases the Fairfax estate--
Marshall's brother marries Hester Morris--The old financier
makes desperate efforts to raise money for the Fairfax
purchase--Marshall compromises with the Legislature of
Virginia--His brother finally negotiates a loan in Antwerp on
Morris's real estate and pays half of the contract price--
Robert Morris becomes bankrupt and the burden of the Fairfax
debt falls on Marshall--He is in desperate financial
embarrassment--President Adams asks him to go to France as a
member of the mission to that country--The offer a "God-send" to
Marshall, who accepts it in order to save the Fairfax estate.

VI. ENVOY TO FRANCE 214

Marshall starts for France--Letters to his wife--Is bored
by the social life of Philadelphia--His opinion of Adams--The
President's opinion of Marshall--The "Aurora's" sarcasm--The
reason for sending the mission--Monroe's conduct in Paris--The
Republicans a French party--The French resent the Jay Treaty
and retaliate by depredations on American Commerce--Pinckney,
as Monroe's successor, expelled from France--President Adams's
address to Congress--Marshall, Pinckney, and Gerry are
sent to adjust differences between France and America--Gerry's
appointment is opposed by entire Cabinet and all Federalist
leaders because of their distrust of him--Adams cautions Gerry
and Jefferson flatters him--Marshall arrives at The Hague--
Conditions in France--Marshall's letter to his wife--His long,
careful and important letter to Washington--His letter to
Lee from Antwerp--Marshall and Pinckney arrive at Paris--The
city--The corruption of the Government--Gerry arrives--The
envoys meet Talleyrand--Description of the Foreign Minister--His
opinion of America and his estimate of the envoys--Mysterious
intimations.

VII. FACING TALLEYRAND 257

Marshall urges formal representation of American grievances
to French Government--Gerry opposes action--The intrigue
begins--Hottenguer appears--The Directory must be "soothed" by
money "placed at the disposal of M. Talleyrand"--The French
demands: "pay debts due from France to American citizens,
pay for French spoliations of American Commerce, and make a
considerable loan and something for the pocket" (a bribe of
two hundred and fifty thousand dollars)--Marshall indignantly
opposes and insists on formally presenting the American
case--Gerry will not agree--Bellamy comes forward and proposes
still harder terms: "_you must pay money, you must pay a
great deal of money_"--The envoys consult--Marshall and Gerry
disagree--Hottenguer and Bellamy breakfast with Gerry--They
again urge loan and bribe--Marshall writes Washington--His
letter an able review of the state of the country--News of
Bonaparte's diplomatic success at Campo Formio reaches
Paris--Talleyrand's agents again descend on the envoys and
demand money--"No! not a sixpence"--Marshall's bold but moderate
statement--Hauteval joins Hottenguer and Bellamy--Gerry calls
on Talleyrand: is not received--Talleyrand's agents hint at
war--They threaten the envoys with "the French party in
America"--Marshall and Pinckney declare it "degrading to carry
on indirect intercourse"--Marshall again insists on written
statement to Talleyrand--Gerry again objects--Marshall's letter
to his wife--His letter in cipher to Lee--Bonaparte appears in
Paris--His consummate acting--The fête at the Luxemburg to the
Conqueror--Effect on Marshall.

VIII. THE AMERICAN MEMORIAL 290

Madame de Villette--Her friendship with Marshall--Her proposals
to Pinckney--Beaumarchais enters the plot--Marshall his attorney
in Virginia--Bellamy suggests an arrangement between Marshall
and Beaumarchais--Marshall rejects it--Gerry asks Talleyrand
to dine with him--The dinner--Hottenguer in Talleyrand's
presence again proposes the loan and bribe--Marshall once
more insists on written statement of the American case--Gerry
reluctantly consents--Marshall writes the American memorial--
That great state paper--The French decrees against American
commerce become harsher--Gerry holds secret conferences with
Talleyrand--Marshall rebukes Gerry--Talleyrand at last receives
the envoys formally--The fruitless discussion--Altercation
between Marshall and Gerry--Beaumarchais comes with alarming
news--Marshall again writes Washington--Washington's answer--
The French Foreign Minister answers Marshall's memorial--He
proposes to treat with Gerry alone--Marshall writes reply to
Talleyrand--Beaumarchais makes final appeal to Marshall--
Marshall replies with spirit--He sails for America.

IX. THE TRIUMPHANT RETURN 335

Anxiety in America--Jefferson is eager for news--Skipwith writes
Jefferson from Paris--Dispatches of envoys, written by Marshall,
are received by the President--Adams makes alarming speech to
Congress--The strength of the Republican Party increases--
Republicans in House demand that dispatches be made public--
Adams transmits them to Congress--Republicans are thrown into
consternation and now oppose publication--Federalist Senate
orders publication--Effect on Republicans in Congress--Effect
on the country--Outburst of patriotism: "Hail, Columbia!" is
written--Marshall arrives, unexpectedly, at New York--His
dramatic welcome at Philadelphia--The Federalist banquet:
Millions "for defense but not one cent for tribute"--Adams
wishes to appoint Marshall Associate Justice of the Supreme
Court--He declines--He is enthusiastically received at
Richmond--Marshall's speech--He is insulted at the theater in
Fredericksburg--Congress takes decisive action: Navy Department
is created and provisional army raised--Washington accepts
command--His opinions of the French--His letter to Marshall's
brother--Jefferson attacks X. Y. Z. dispatches and defends
Talleyrand--Alien and Sedition Laws are enacted--Gerry's
predicament in France--His return--Marshall disputes Gerry's
statements--Marshall's letter to his wife--He is hard pressed
for money--Compensation for services as envoy saves the Fairfax
estate--Resolves to devote himself henceforth exclusively to
his profession.

X. CANDIDATE FOR CONGRESS 374

Plight of the Federalists in Richmond--They implore Marshall
to be their candidate for Congress--He refuses--Washington
personally appeals to him--Marshall finally yields--Violence of
the campaign--Republicans viciously attack Marshall--the Alien
and Sedition Laws the central issue--"Freeholder's" questions to
Marshall--His answers--Federalists disgusted with Marshall--"The
Letters of Curtius"--The Kentucky and Virginia Resolutions--The
philosophy of secession--Madison writes address of majority of
Virginia Legislature to their constituents--Marshall writes
address of the minority which Federalists circulate as campaign
document--Republicans ridicule its length and verbosity--
Federalists believe Republicans determined to destroy the
National Government--Campaign charges against Marshall--
Marshall's disgust with politics: "Nothing more debases or
pollutes the human mind"--Despondent letter to his brother--
On the brink of defeat--Patrick Henry saves Marshall--Riotous
scenes on election day--Marshall wins by a small majority--
Washington rejoices--Federalist politicians not sure of
Marshall--Jefferson irritated at Marshall's election--Marshall
visits his father--Jefferson thinks it a political journey:
"the visit of apostle Marshall to Kentucky excites anxiety"--
Naval war with France in progress--Adams sends the second
mission to France--Anger of the Federalists--Republican
rejoicing--Marshall supports President's policy--Adams
pardons Fries--Federalists enraged, Republicans jubilant--
State of parties when Marshall takes his seat in Congress.

XI. INDEPENDENCE IN CONGRESS 432

Speaker Sedgwick's estimate of Marshall--Cabot's opinion--
Marshall a leader in Congress from the first--Prepares answer
of House to President's speech--It satisfies nobody--Wolcott
describes Marshall--Presidential politics--Marshall writes his
brother analysis of situation--Announces death of Washington,
presents resolutions, and addresses House: "first in war, first
in peace and first in the hearts of his countrymen"--Marshall's
activity in the House--He clashes with John Randolph of
Roanoke--Debate on Slavery and Marshall's vote--He votes against
his party on Sedition Law--Opposes his party's favorite measure,
the Disputed Elections Bill--Forces amendment and kills the
bill--Federalist resentment of his action: Speaker Sedgwick's
comment on Marshall--The celebrated case of Jonathan
Robins--Republicans make it principal ground of attack on
Administration--The Livingston Resolution--Marshall's great
speech on Executive power--Gallatin admits it to be
"unanswerable"--It defeats the Republicans--Jefferson's faint
praise--the "Aurora's" amusing comment--Marshall defends the
army and the policy of preparing for war--His speech the ablest
on the Army Bill--His letter to Dabney describing conditions--
Marshall helps draw the first Bankruptcy Law and, in the
opinion of the Federalists, spoils it--Speaker Sedgwick
vividly portrays Marshall as he appeared to the Federalist
politicians at the close of the session.

XII. CHIEF JUSTICE OF THE UNITED STATES 485

The shattering of Adams's Cabinet--Marshall declines office of
Secretary of War--Offered that of Secretary of State--Adams's
difficult party situation--The feud with Hamilton--Marshall
finally, and with reluctance, accepts portfolio of Secretary
of State--Republican comment--Federalist politicians approve:
"Marshall a state conservator"--Adams leaves Marshall in charge
at Washington--Examples of his routine work--His retort to the
British Minister--His strong letter to Great Britain on the
British debts--Controversy with Great Britain over contraband,
treatment of neutrals, and impressment--Marshall's notable
letter on these subjects--His harsh language to Great Britain--
Federalist disintegration begins--Republicans overwhelmingly
victorious in Marshall's home district--Marshall's despondent
letter to Otis: "The tide of real Americanism is on the ebb"--
Federalist leaders quarrel; rank and file confused and
angered--Hamilton's faction plots against Adams--Adams's inept
retaliation: Hamilton and his friends "a British faction"--
Republican strength increases--Jefferson's platform--The
second mission to France succeeds in negotiating a treaty--
Chagrin of Federalists and rejoicing of Republicans--Marshall
dissatisfied but favors ratification--Hamilton's amazing
personal attack on Adams--The Federalists dumbfounded, the
Republicans in glee--The terrible campaign of 1800--Marshall
writes the President's address to Congress--The Republicans
carry the election by a narrow margin--Tie between Jefferson and
Burr--Federalists in House determine to elect Burr--Hamilton's
frantic efforts against Burr: "The _Catiline_ of America"--
Hamilton appeals to Marshall, who favors Burr--Marshall refuses
to aid Jefferson, but agrees to keep hands off--Ellsworth
resigns as Chief Justice--Adams reappoints Jay, who declines--
Adams then appoints Marshall, who, with hesitation, accepts--
The appointment unexpected and arouses no interest--Marshall
continues as Secretary of State--The dramatic contest in the
House over Burr and Jefferson--Marshall accused of advising
Federalists that Congress could provide for Presidency by law
in case of deadlock--Federalists consider Marshall for the
Presidency--Hay assails Marshall--Burr refuses Federalist
proposals--The Federalist bargain with Jefferson--He is
elected--The "midnight judges"--The power over the Supreme
Court which Marshall was to exercise totally unsuspected by
anybody--Failure of friend and foe to estimate properly his
courage and determination.

APPENDIX 565
I. LIST OF CASES 567
II. GENERAL MARSHALL'S ANSWER TO AN ADDRESS OF THE CITIZENS OF
RICHMOND, VIRGINIA 571
III. FREEHOLDER'S QUESTIONS TO GENERAL MARSHALL 574

WORKS CITED IN THIS VOLUME 579

ILLUSTRATIONS

JOHN MARSHALL AS CHIEF JUSTICE _Colored Frontispiece_

From the portrait by John Wesley Jarvis in the possession of Mr.
Roland Gray, of Boston. It represents Marshall as he was during
his early years as Chief Justice and as he appeared when
Representative in Congress and Secretary of State. The Jarvis
portrait is by far the best likeness of Marshall during this
period of his life.

JOHN MARSHALL 48

From a painting by E. F. Petticolas, presented by the artist to
John Marshall and now in the possession of Mr. Malcolm G. Bruce,
of South Boston, Va.

JOHN MARSHALL 124

From a painting by Rembrandt Peale in the rooms of the Long Island
Historical Society.

JOHN MARSHALL'S HOUSE, RICHMOND 172

From a photograph taken especially for this book. The house was
built by Marshall between 1789 and 1793. It was his second home in
Richmond and the one in which he lived for more than forty years.

THE LARGE ROOM WHERE THE FAMOUS "LAWYERS' DINNERS" WERE GIVEN 172

From a photograph taken especially for this book. The woodwork of
the room, which is somewhat indistinct in the reproduction, is
exceedingly well done.

WILLIAM WIRT 192

From an engraving by A. B. Walter, from a portrait by Charles B.
King, in "Memoirs of William Wirt," by John P. Kennedy, published
by Lea & Blanchard, Philadelphia, 1849. Autograph from the
Chamberlain collection, Boston Public Library.

ROBERT MORRIS 202

From an original painting by Gilbert Stuart through kind
permission of the owner, C. F. M. Stark, Esq., of Winchester,
Mass. Autograph from the Declaration of Independence.

FACSIMILE OF A PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT
MORRIS, HIS FATHER-IN-LAW 210

From the original in the possession of James M. Marshall, of Front
Royal, Virginia. This page shows £7700 sterling furnished by
Robert Morris to the Marshall brothers for the purchase of the
Fairfax estate. This documentary evidence of the source of the
money with which the Marshalls purchased this holding has not
hitherto been known to exist.

FACSIMILE OF THE FIRST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS
WIFE, JULY 2, 1797 214

From the original in the possession of Miss Emily Harvie, of
Richmond. The letter was written from Philadelphia immediately
after Marshall's arrival at the capital when starting on his
journey to France on the X. Y. Z. Mission. It is characteristic
of Marshall in the fervid expressions of tender affection for his
wife, whom he calls his "dearest life." It is also historically
important as describing his first impression of President Adams.

FACSIMILE OF PART OF LETTER OF JULY 17, 1797, FROM JOHN ADAMS TO
ELBRIDGE GERRY DESCRIBING JOHN MARSHALL 228

From the original in the Adams Manuscripts. President Adams
writes of Marshall as he appeared to him just before he sailed
for France.

CHARLES MAURICE DE TALLEYRAND-PÉRIGORD 252

From an engraving by Bocourt after a drawing by Mullard,
reproduced through the kindness of Mr. Charles E. Goodspeed.
This portrait represents Talleyrand as he was some time after
the X. Y. Z. Mission.

GENERAL CHARLES COTESWORTH PINCKNEY 274

From an engraving by E. Wellmore after the miniature by Edward
Greene Malbone.

ELBRIDGE GERRY 310

From an engraving by J. B. Longacre after a drawing made from life
by Vanderlyn in 1798, when Gerry was in Paris.

FACSIMILE OF PART OF A LETTER FROM JOHN MARSHALL TO HIS BROTHER,
DATED APRIL 3, 1799, REFERRING TO THE VIRULENCE OF THE CAMPAIGN
IN WHICH MARSHALL WAS A CANDIDATE FOR CONGRESS 410

The word "faction" in this excerpt meant "party" in the vernacular
of the period.

STATUE OF JOHN MARSHALL, BY RANDOLPH ROGERS 456

This is one of six statues at the base of the Washington monument
in Richmond, Va., the other figures being Jefferson, Henry, Mason,
Nelson, and Lewis. The Washington Monument was designed by Thomas
Crawford, who died before completing the work, and was finished by
Rogers. From a photograph.

STATUE OF MARSHALL, BY W. W. STORY 530

At the Capitol, Washington, D.C. From a photograph.

LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

_All references here are to the List of Authorities at the end of
this volume._

_Am. St. Prs._ _See_ American State Papers.

Beard: _Econ. I. C._ _See_ Beard, Charles A. Economic Interpretation of
the Constitution of the United States.

Beard: _Econ. O. J. D._ _See_ Beard, Charles A. Economic Origins of
Jeffersonian Democracy.

_Cor. Rev._: Sparks. _See_ Sparks, Jared. Correspondence of the
Revolution.

_Cunningham Letters._ _See_ Adams, John. Correspondence with William
Cunningham.

_Letters_: Ford. _See_ Vans Murray, William. Letters to John Quincy
Adams. Edited by Worthington Chauncey Ford.

Monroe's _Writings_: Hamilton. _See_ Monroe, James. Writings. Edited by
Stanislaus Murray Hamilton.

_Old Family Letters._ _See_ Adams, John. Old Family Letters. Edited by
Alexander Biddle.

_Works_: Adams. _See_ Adams, John. Works. Edited by Charles Francis
Adams.

_Works_: Ames. _See_ Ames, Fisher. Works. Edited by Seth Ames.

_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited
by Paul Leicester Ford.

_Works_: Hamilton. _See_ Hamilton, Alexander. Works. Edited by John C.
Hamilton.

_Works_: Lodge. _See_ Hamilton, Alexander. Works. Federal Edition.
Edited by Henry Cabot Lodge.

_Writings_: Conway. _See_ Paine, Thomas. Writings. Edited by Moncure
Daniel Conway.

_Writings_: Ford. _See_ Washington, George. Writings. Edited by
Worthington Chauncey Ford.

_Writings_: Hunt. _See_ Madison, James. Writings. Edited by Gaillard
Hunt.

_Writings, J. Q. A._: Ford. _See_ Adams, John Quincy. Writings. Edited
by Worthington Chauncey Ford.

_Writings_: Smyth. _See_ Franklin, Benjamin. Writings. Edited by Albert
Henry Smyth.

_Writings_: Sparks. _See_ Washington, George. Writings. Edited by Jared
Sparks.

THE LIFE OF JOHN MARSHALL

CHAPTER I

INFLUENCE OF THE FRENCH REVOLUTION ON AMERICA

Were there but an Adam and an Eve left in every country, and left
free, it would be better than it now is. (Jefferson.)

That malignant philosophy which can coolly and deliberately
pursue, through oceans of blood, abstract systems for the
attainment of some fancied untried good. (Marshall.)

The only genuine liberty consists in a mean equally distant from
the despotism of an individual and a million. ("Publicola": J. Q.
Adams, 1792.)

The decision of the French King, Louis XVI, on the advice of his
Ministers, to weaken Great Britain by aiding the Americans in their War
for Independence, while it accomplished its purpose, was fatal to
himself and to the Monarchy of France. As a result, Great Britain lost
America, but Louis lost his head. Had not the Bourbon Government sent
troops, fleets, munitions, and money to the support of the failing and
desperate American fortunes, it is probable that Washington would not
have prevailed; and the fires of the French holocaust which flamed
throughout the world surely would not have been lit so soon.

The success of the American patriots in their armed resistance to the
rule of George III, although brought about by the aid of the French
Crown, was, nevertheless, the shining and dramatic example which
Frenchmen imitated in beginning that vast and elemental upheaval called
the French Revolution.[1] Thus the unnatural alliance in 1778 between
French Autocracy and American Liberty was one of the great and decisive
events of human history.

In the same year, 1789, that the American Republic began its career
under the forms of a National Government, the curtain rose in France on
that tremendous drama which will forever engage the interest of mankind.
And just as the American Revolution vitally influenced French opinion,
so the French Revolution profoundly affected American thought; and,
definitely, helped to shape those contending forces in American life
that are still waging their conflict.

While the economic issue, so sharp in the adoption of the Constitution,
became still keener, as will appear, after the National Government was
established, it was given a higher temper in the forge of the French
Revolution. American history, especially of the period now under
consideration, can be read correctly only by the lights that shine from
that titanic smithy; can be understood only by considering the effect
upon the people, the thinkers, and the statesmen of America, of the
deeds done and words spoken in France during those inspiring if
monstrous years.

The naturally conservative or radical temperaments of men in America
were hardened by every episode of the French convulsion. The events in
France, at this time, operated upon men like Hamilton on the one hand,
and Jefferson on the other hand, in a fashion as deep and lasting as it
was antagonistic and antipodal; and the intellectual and moral
phenomena, manifested in picturesque guise among the people in America,
impressed those who already were, and those who were to become, the
leaders of American opinion, as much as the events of the Gallic
cataclysm itself.

George Washington at the summit of his fame, and John Marshall just
beginning his ascent, were alike confirmed in that non-popular tendency
of thought and feeling which both avowed in the dark years between our
War for Independence and the adoption of our Constitution.[2] In
reviewing all the situations, not otherwise to be fully understood, that
arose from the time Washington became President until Marshall took his
seat as Chief Justice, we must have always before our eyes the
extraordinary scenes and consider the delirious emotions which the
French Revolution produced in America. It must be constantly borne in
mind that Americans of the period now under discussion did not and could
not look upon it with present-day knowledge, perspective, or calmness.
What is here set down is, therefore, an attempt to portray the effects
of that volcanic eruption of human forces upon the minds and hearts of
those who witnessed, from across the ocean, its flames mounting to the
heavens and its lava pouring over the whole earth.

Unless this portrayal is given, a blank must be left in a recital of the
development of American radical and conservative sentiment and of the
formation of the first of American political parties. Certainly for the
purposes of the present work, an outline, at least, of the effect of the
French Revolution on American thought and feeling is indispensable. Just
as the careers of Marshall and Jefferson are inseparably intertwined,
and as neither can be fully understood without considering the other, so
the American by-products of the French Revolution must be examined if we
would comprehend either of these great protagonists of hostile theories
of democratic government.

At first everybody in America heartily approved the French reform
movement. Marshall describes for us this unanimous approbation. "A great
revolution had commenced in that country," he writes, "the first stage
of which was completed by limiting the powers of the monarch, and by the
establishment of a popular assembly. In no part of the globe was this
revolution hailed with more joy than in America. The influence it would
have on the affairs of the world was not then distinctly foreseen; and
the philanthropist, without becoming a political partisan, rejoiced in
the event. On this subject, therefore, but one sentiment existed."[3]

Jefferson had written from Paris, a short time before leaving for
America: "A complete revolution in this [French] government, has been
effected merely by the force of public opinion; ... and this revolution
has not cost a single life."[4] So little did his glowing mind then
understand the forces which he had helped set in motion. A little later
he advises Madison of the danger threatening the reformed French
Government, but adds, reassuringly, that though "the lees ... of the
patriotic party [the French radical party] of wicked principles &
desperate fortunes" led by Mirabeau who "is the chief ... may produce a
temporary confusion ... they cannot have success ultimately. The King,
the mass of the substantial people of the whole country, the army, and
the influential part of the clergy, form a firm phalanx which must
prevail."[5]

So, in the beginning, all American newspapers, now more numerous, were
exultant. "Liberty will have another feather in her cap.... The ensuing
winter [1789] will be the commencement of a Golden Age,"[6] was the
glowing prophecy of an enthusiastic Boston journal. Those two sentences
of the New England editor accurately stated the expectation and belief
of all America.

But in France itself one American had grave misgivings as to the
outcome. "The materials for a revolution in this country are very
indifferent. Everybody agrees that there is an utter prostration of
morals; but this general position can never convey to an American mind
the degree of depravity.... A hundred thousand examples are required to
show the extreme rottenness.... The virtuous ... stand forward from a
background deeply and darkly shaded.... From such crumbling matter ...
the great edifice of freedom is to be erected here [in France]....
[There is] a perfect indifference to the violation of engagements....
Inconstancy is mingled in the blood, marrow, and very essence of this
people.... Consistency is a phenomenon.... The great mass of the common
people have ... no morals but their interest. These are the creatures
who, led by drunken curates, are now in the high road _à la
liberté_."[7] Such was the report sent to Washington by Gouverneur
Morris, the first American Minister to France under the Constitution.

Three months later Morris, writing officially, declares that "this
country is ... as near to anarchy as society can approach without
dissolution."[8] And yet, a year earlier, Lafayette had lamented the
French public's indifference to much needed reforms; "The people ...
have been so dull that it has made me sick" was Lafayette's doleful
account of popular enthusiasm for liberty in the France of 1788.[9]

Gouverneur Morris wrote Robert Morris that a French owner of a quarry
demanded damages because so many bodies had been dumped into the quarry
that they "choked it up so that he could not get men to work at it."
These victims, declared the American Minister, had been "the best
people," killed "without form of trial, and their bodies thrown like
dead dogs into the first hole that offered."[10] Gouverneur Morris's
diary abounds in such entries as "[Sept. 2, 1792] the murder of the
priests, ... murder of prisoners,... [Sept. 3] The murdering continues
all day.... [Sept. 4th].... And still the murders continue."[11]

John Marshall was now the attorney of Robert Morris; was closely
connected with him in business transactions; and, as will appear, was
soon to become his relative by the marriage of Marshall's brother to the
daughter of the Philadelphia financier. Gouverneur Morris, while not
related to Robert Morris, was "entirely devoted" to and closely
associated with him in business; and both were in perfect agreement of
opinions.[12] Thus the reports of the scarlet and revolting phases of
the French Revolution that came to the Virginia lawyer were carried
through channels peculiarly personal and intimate.

They came, too, from an observer who was thoroughly aristocratic in
temperament and conviction.[13] Little of appreciation or understanding
of the basic causes and high purposes of the French Revolution appears
in Gouverneur Morris's accounts and comments, while he portrays the
horrible in unrelieved ghastliness.[14]

Such, then, were the direct and first-hand accounts that Marshall
received; and the impression made upon him was correspondingly dark, and
as lasting as it was somber. Of this, Marshall himself leaves us in no
doubt. Writing more than a decade later he gives his estimate of
Gouverneur Morris and of his accounts of the French Revolution.

"The private correspondence of Mr. Morris with the president [and, of
course, much more so with Robert Morris] exhibits a faithful picture,
drawn by the hand of a master, of the shifting revolutionary scenes
which with unparalleled rapidity succeeded each other in Paris. With the
eye of an intelligent, and of an unimpassioned observer, he marked all
passing events, and communicated them with fidelity. He did not mistake
despotism for freedom, because it was sanguinary, because it was
exercised by those who denominated themselves the people, or because it
assumed the name of liberty. Sincerely wishing happiness and a really
free government to France, he could not be blind to the obvious truth
that the road to those blessings had been mistaken."[15]

Everybody in America echoed the shouts of the Parisian populace when the
Bastille fell. Was it not the prison where kings thrust their subjects
to perish of starvation and torture?[16] Lafayette, "as a missionary of
liberty to its patriarch," hastened to present Washington with "the main
key of the fortress of despotism."[17] Washington responded that he
accepted the key of the Bastille as "a token of the victory gained by
liberty."[18] Thomas Paine wrote of his delight at having been chosen by
Lafayette to "convey ... the first ripe fruits of American principles,
transplanted into Europe, to his master and patron."[19] Mutual
congratulations were carried back and forth by every ship.

Soon the mob in Paris took more sanguinary action and blood flowed more
freely, but not in sufficient quantity to quench American enthusiasm for
the cause of liberty in France. We had had plenty of mobs ourselves and
much crimson experience. Had not mobs been the precursors of our own
Revolution?

The next developments of the French uprising and the appearance of the
Jacobin Clubs, however, alarmed some and gave pause to all of the
cautious friends of freedom in America and other countries.

Edmund Burke hysterically sounded the alarm. On account of his
championship of the cause of American Independence, Burke had enjoyed
much credit with all Americans who had heard of him. "In the last age,"
exclaimed Burke in Parliament, February 9, 1790, "we were in danger of
being entangled by the example of France in the net of a relentless
despotism.... Our present danger from the example of a people whose
character knows no medium, is, with regard to government, a danger from
anarchy; a danger of being led, through an admiration of successful
fraud and violence, to an imitation of the excesses of an irrational,
unprincipled, proscribing, confiscating, plundering, ferocious, bloody,
and tyrannical democracy."[20]

Of the French declaration of human rights Burke declared: "They made and
recorded a sort of _institute_ and _digest_ of anarchy, called the
rights of man, in such a pedantic abuse of elementary principles as
would have disgraced boys at school.... They systematically destroyed
every hold of authority by opinion, religious or civil, on the minds of
the people.[21]... On the scheme of this barbarous philosophy, which is
the offspring of cold hearts and muddy understandings," exclaimed the
great English liberal, "laws are to be supported only by their own
terrours.... In the groves of _their_ academy, at the end of every
vista, you see nothing but the gallows."[22]

Burke's extravagant rhetoric, although reprinted in America, was little
heeded. It would have been better if his pen had remained idle. For
Burke's wild language, not yet justified by the orgy of blood in which
French liberty was, later, to be baptized, caused a voice to speak to
which America did listen, a page to be written that America did read.
Thomas Paine, whose "Common Sense" had made his name better known to all
people in the United States than that of any other man of his time
except Washington, Franklin, Jefferson, and Henry, was then in France.
This stormy petrel of revolution seems always to have been drawn by
instinct to every part of the human ocean where hurricanes were
brooding.[23]

Paine answered Burke with that ferocious indictment of monarchy entitled
"The Rights of Man," in which he went as far to one extreme as the
English political philosopher had gone to the other; for while Paine
annihilated Burke's Brahminic laudation of rank, title, and custom, he
also penned a doctrine of paralysis to all government. As was the case
with his "Common Sense," Paine's "Rights of Man" abounded in attractive
epigrams and striking sentences which quickly caught the popular ear and
were easily retained by the shallowest memory.

"The cause of the French people is that of ... the whole world,"
declared Paine in the preface of his flaming essay;[24] and then, the
sparks beginning to fly from his pen, he wrote: "Great part of that
order which reigns among mankind is not the effect of government.... It
existed prior to government, and would exist if the formality of
government was abolished.... The instant formal government is
abolished," said he, "society begins to act; ... and common interest
produces common security." And again: "The more perfect civilization is,
the less occasion has it for government.... It is but few general laws
that civilised life requires."

Holding up our own struggle for liberty as an illustration, Paine
declared: "The American Revolution ... laid open the imposition of
governments"; and, using our newly formed and untried National
Government as an example, he asserted with grotesque inaccuracy: "In
America ... all the parts are brought into cordial unison. There the
poor are not oppressed, the rich are not privileged.... Their taxes are
few, because their government is just."[25]

Proceeding thence to his assault upon all other established governments,
especially that of England, the great iconoclast exclaimed: "It is
impossible that such governments as have hitherto [1790] existed in the
world, could have commenced by any other means than a violation of every
principle sacred and moral."

Striking at the foundations of all permanent authority, Paine declared
that "Every age and generation must be ... free to act for itself _in
all cases_.... The vanity and presumption of governing beyond the grave
is the most ridiculous and insolent of all tyrannies." The people of
yesterday have "no right ... to bind or to control ... the people of the
present day ... _in any shape whatever_.... Every generation is, and
must be, competent to all the purposes which its occasions require."[26]
So wrote the incomparable pamphleteer of radicalism.

Paine's essay, issued in two parts, was a torch successively applied to
the inflammable emotions of the American masses. Most newspapers printed
in each issue short and appealing excerpts from it. For example, the
following sentence from Paine's "Rights of Man" was reproduced in the
"Columbian Centinel" of Boston on June 6, 1792: "Can we possibly suppose
that if government had originated in right principles and had not an
interest in pursuing a wrong one, that the world could have been in the
wretched and quarrelsome condition it is?" Such quotations from Paine
appeared in all radical and in some conservative American publications;
and they were repeated from mouth to mouth until even the backwoodsmen
knew of them--and believed them.

"Our people ... love what you write and read it with delight" ran the
message which Jefferson sent across the ocean to Paine. "The printers,"
continued Jefferson, "season every newspaper with extracts from your
last, as they did before from your first part of the _Rights of Man_.
They have both served here to separate the wheat from the chaff....
Would you believe it possible that in this country there should be high
& important characters[27] who need your lessons in republicanism & who
do not heed them. It is but too true that we have a sect preaching up &
pouting after an English constitution of king, lords, & commons, &
whose heads are itching for crowns, coronets & mitres....

"Go on then," Jefferson urged Paine, "in doing with your pen what in
other times was done with the sword, ... and be assured that it has not
a more sincere votary nor you a more ardent well-wisher than ... Tho^s.
Jefferson."[28]

And the wheat was being separated from the chaff, as Jefferson declared.
Shocked not more by the increasing violence in France than by the
principles which Paine announced, men of moderate mind and conservative
temperament in America came to have misgivings about the French
Revolution, and began to speak out against its doings and its doctrines.

A series of closely reasoned and well-written articles were printed in
the "Columbian Centinel" of Boston in the summer of 1791, over the _nom
de guerre_ "Publicola"; and these were widely copied. They were ascribed
to the pen of John Adams, but were the work of his brilliant son.[29]

The American edition of Paine's "Rights of Man" was headed by a letter
from Secretary of State Jefferson to the printer, stating his pleasure
that the essay was to be printed in this country and "that something is
at length to be publickly said against the political heresies which have
sprung up among us."[30] Publicola called attention to this and thus,
more conspicuously, displayed Jefferson as an advocate of Paine's
doctrines.[31]

All Americans had "seen with pleasure the temples of despotism levelled
with the ground," wrote the keen young Boston law student.[32] There was
"but one sentiment...--that of exultation." But what did Jefferson mean
by "heresies"? asked Publicola. Was Paine's pamphlet "the canonical book
of scripture?" If so, what were its doctrines? "That which a whole
nation chooses to do, it has a right to do" was one of them.

Was that "principle" sound? No! avowed Publicola, for "the eternal and
immutable laws of justice and of morality are paramount to all human
legislation." A nation might have the power but never the right to
violate these. Even majorities have no right to do as they please; if
so, what security has the individual citizen? Under the unrestrained
rule of the majority "the principles of liberty must still be the sport
of arbitrary power, and the hideous form of despotism must lay aside the
diadem and the scepter, only to assume the party-colored garments of
democracy."

"The only genuine liberty consists in a mean equally distant from the
despotism of an individual and of a million," asserted Publicola. "Mr.
Paine seems to think it as easy for a nation to change its government as
for a man to change his coat." But "the extreme difficulty which impeded
the progress of its [the American Constitution's] adoption ... exhibits
the fullest evidence of what a more than Herculean task it is to unite
the opinions of a free people on any system of government whatever."

The "mob" which Paine exalted as the common people, but which Publicola
thought was really only the rabble of the cities, "can be brought to act
in concert" only by "a frantic enthusiasm and ungovernable fury; their
profound ignorance and deplorable credulity make them proper tools for
any man who can inflame their passions; ... and," warned Publicola, "as
they have nothing to lose by the total dissolution of civil society,
their rage may be easily directed against any victim which may be
pointed out to them.... To set in motion this inert mass, the eccentric
vivacity of a madman is infinitely better calculated than the sober
coolness of phlegmatic reason."

"Where," asked Publicola, "is the power that should control them
[Congress]?" if they violate the letter of the Constitution. Replying to
his own question, he asserted that the real check on Congress "is the
spirit of the people."[33] John Marshall had said the same thing in the
Virginia Constitutional Convention; but even at that early period the
Richmond attorney went further and flatly declared that the temporary
"spirit of the people" was not infallible and that the Supreme Court
could and would declare void an unconstitutional act of Congress--a
truth which he was, unguessed at that time by himself or anybody else,
to announce with conclusive power within a few years and at an hour when
dissolution confronted the forming Nation.

Such is a rapid _précis_ of the conservative essays written by the
younger Adams. Taken together, they were a rallying cry to those who
dared to brave the rising hurricane of American sympathy with the French
Revolution; but they also strengthened the force of that growing storm.
Multitudes of writers attacked Publicola as the advocate of
"aristocracy" and "monarchy." "The papers under the signature of
PUBLICOLA have called forth a torrent of abuse," declared the final
essay of the series.

Brown's "Federal Gazette" of Philadelphia branded Publicola's doctrines
as "abominable heresies"; and hoped that they would "not procure many
proselytes either to _monarchy_ or _aristocracy_."[34] The "Independent
Chronicle" of Boston asserted that Publicola was trying to build up a
"system of MONARCHY AND ARISTOCRACY ... on the ruins both of the
REPUTATION and LIBERTIES of the PEOPLE."[35] Madison reported to
Jefferson that because of John Adams's reputed authorship of these
unpopular letters, the supporters of the Massachusetts statesman had
become "perfectly insignificant in ... number" and that "in Boston he
is ... distinguished for his unpopularity."[36]

In such fashion the controversy began in America over the French
Revolution.

But whatever the misgivings of the conservative, whatever the alarm of
the timid, the overwhelming majority of Americans were for the French
Revolution and its doctrines;[37] and men of the highest ability and
station gave dignity to the voice of the people.

In most parts of the country politicians who sought election to public
office conformed, as usual, to the popular view. It would appear that
the prevailing sentiment was influential even with so strong a
conservative and extreme a Nationalist as Madison, in bringing about his
amazing reversal of views which occurred soon after the Constitution was
adopted.[38] But those who, like Marshall, were not shaken, were made
firmer in their opinions by the very strength of the ideas thus making
headway among the masses.

An incident of the French Revolution almost within sight of the American
coast gave to the dogma of equality a new and intimate meaning in the
eyes of those who had begun to look with disfavor upon the results of
Gallic radical thought. Marshall and Jefferson best set forth the
opposite impressions made by this dramatic event.

"Early and bitter fruits of that malignant philosophy," writes Marshall,
"which ... can coolly and deliberately pursue, through oceans of blood,
abstract systems for the attainment of some fancied untried good, were
gathered in the French West Indies.... The revolutionists of France
formed the mad and wicked project of spreading their doctrines of
equality among persons [negroes and white people] between whom
distinctions and prejudices exist to be subdued only by the grave. The
rage excited by the pursuit of this visionary and baneful theory, after
many threatening symptoms, burst forth on the 23d day of August 1791,
with a fury alike destructive and general.

"In one night, a preconcerted insurrection of the blacks took place
throughout the colony of St. Domingo; and the white inhabitants of the
country, while sleeping in their beds, were involved in one
indiscriminate massacre, from which neither age nor sex could afford an
exemption. Only a few females, reserved for a fate more cruel than
death, were intentionally spared; and not many were fortunate enough to
escape into the fortified cities. The insurgents then assembled in vast
numbers, and a bloody war commenced between them and the whites
inhabiting the towns."[39]

After the African disciples of French liberty had overthrown white
supremacy in St. Domingo, Jefferson wrote his daughter that he had been
informed "that the Patriotic party [St. Domingo revolutionists] had
taken possession of 600 aristocrats & monocrats, had sent 200 of them to
France, & were sending 400 here.... I wish," avowed Jefferson, in this
intimate family letter, "we could distribute our 400 [white French
exiles] among the Indians, who would teach them lessons of liberty &
equality."[40]

Events in France marched swiftly from one bloody climax to another still
more scarlet. All were faithfully reflected in the views of the people
of the United States. John Marshall records for us "the fervour of
democracy" as it then appeared in our infant Republic. He repeats that,
at first, every American wished success to the French reformers. But the
later steps of the movement "impaired this ... unanimity of opinion....
A few who had thought deeply on the science of government ... believed
that ... the influence of the galleries over the legislature, and of
mobs over the executive; ... the tumultuous assemblages of the people
and their licentious excesses ... did not appear to be the symptoms of a
healthy constitution, or of genuine freedom.... They doubted, and they
feared for the future."

Of the body of American public opinion, however, Marshall chronicles
that: "In total opposition to this sentiment was that of the public.
There seems to be something infectious in the example of a powerful and
enlightened nation verging towards democracy, which imposes on the human
mind, and leads human reason in fetters.... Long settled opinions yield
to the overwhelming weight of such dazzling authority. It wears the
semblance of being the sense of mankind, breaking loose from the
shackles which had been imposed by artifice, and asserting the freedom,
and the dignity, of his nature."

American conservative writers, says Marshall, "were branded as the
advocates of royalty, and of aristocracy. To question the duration of
the present order of things [in France] was thought to evidence an
attachment to unlimited monarchy, or a blind prejudice in favour of
British institutions.... The war in which the several potentates of
Europe were engaged against France, although in almost every instance
declared by that power, was pronounced to be a war for the extirpation
of human liberty, and for the banishment of free government from the
face of the earth. The preservation of the constitution of the United
States was supposed to depend on its issue; and the coalition against
France was treated as a coalition against America also."[41]

Marshall states, more clearly, perhaps, than any one else, American
conservative opinion of the time: "The circumstances under which the
abolition of royalty was declared, the massacres which preceded it, the
scenes of turbulence and violence which were acted in every part of the
nation, appeared to them [American conservatives] to present an awful
and doubtful state of things.... The idea that a republic was to be
introduced and supported by force, was, to them, a paradox in politics."

Thus it was, he declares, that "the French revolution will be found to
have had great influence on the strength of parties, and on the
subsequent political transactions of the United States."[42]

As the French storm increased, its winds blew ever stronger over the
responsive waters of American opinion. Jefferson, that accurate
barometer of public weather, thus registers the popular feeling: "The
sensations it [the French Revolution] has produced here, and the
indications of them in the public papers, have shown that the form our
own government was to take depended much more on the events of France
than anybody had before imagined."[43] Thus both Marshall and Jefferson
bear testimony as to the determining effect produced in America by the
violent change of systems in France.

William Short, whom Jefferson had taken to France as his secretary, when
he was the American Minister to France, and who, when Jefferson returned
to the United States, remained as _chargé d'affaires_,[44] had written
both officially and privately of what was going on in France and of the
increasing dominance of the Jacobin Clubs.[45] Perhaps no more
trustworthy statement exists of the prevailing American view of the
French cataclysm than that given in Jefferson's fatherly letter to his
protégé:--

"The tone of your letters had for some time given me pain," wrote
Jefferson, "on account of the extreme warmth with which they censured
the proceedings of the Jacobins of France.[46]... Many guilty persons
[aristocrats] fell without the forms of trial, and with them some
innocent:... It was necessary to use the arm of the people, a machine
not quite so blind as balls and bombs, but blind to a certain degree....

"The liberty of the whole earth," continued Jefferson, "was depending on
the issue of the contest, and was ever such a prize won with so little
innocent blood? My own affections have been deeply wounded by some of
the martyrs to this cause, but rather than it should have failed, I
would have seen half the earth desolated.

"Were there but an Adam & an Eve left in every country, & left free, it
would be better than as it now is," declared Jefferson; and "my
sentiments ... are really those of 99 in an hundred of our citizens,"
was that careful political observer's estimate of American public
opinion. "Your temper of mind," Jefferson cautions Short, "would be
extremely disrelished if known to your countrymen.

"There are in the U.S. some characters of opposite principles....
Excepting them, this country is entirely republican, friends to the
constitution.... The little party above mentioned have espoused it only
as a stepping stone to monarchy.... The successes of republicanism in
France have given the coup de grace to their prospects, and I hope to
their projects.

"I have developed to you faithfully the sentiments of your country,"
Jefferson admonishes Short, "that you may govern yourself
accordingly."[47]

Jefferson's count of the public pulse was accurate. "The people of this
country [Virginia] ... are unanimous & explicit in their sympathy with
the Revolution" was the weather-wise Madison's report.[48] And the fever
was almost as high in other States.

When, after many executions of persons who had been "denounced" on mere
suspicion of unfriendliness to the new order of things, the neck of
Louis XVI was finally laid beneath the knife of the guillotine and the
royal head rolled into the executioner's basket, even Thomas Paine was
shocked. In a judicious letter to Danton he said:--

"I now despair of seeing the great object of European liberty
accomplished" because of "the tumultuous misconduct" of "the present
revolution" which "injure[s its] character ... and discourage[s] the
progress of liberty all over the world.... There ought to be some
regulation with respect to the spirit of denunciation that now
prevails."[49]

So it was that Thomas Paine, in France, came to speak privately the
language which, in America, at that very hour, was considered by his
disciples to be the speech of "aristocracy," "monarchy," and
"despotism"; for the red fountains which drenched the fires of even
Thomas Paine's enthusiasm did not extinguish the flames his burning
words had lighted among the people of the United States. Indeed Paine,
himself, was attacked for regretting the execution of the King.[50]

Three months after the execution of the French King, the new Minister of
the French Republic, "Citizen" Genêt, arrived upon our shores. He
landed, not at Philadelphia, then our seat of government, but at
Charleston, South Carolina. The youthful[51] representative of
Revolutionary France was received by public officials with obsequious
flattery and by the populace with a frenzy of enthusiasm almost
indescribable in its intensity.

He acted on the welcome. He fitted out privateers, engaged seamen,
issued letters of marque and reprisal, administered to American citizens
oaths of "allegiance" to the authority then reigning in Paris. All this
was done long before he presented his credentials to the American
Government. His progress to our Capital was an unbroken festival of
triumph. Washington's dignified restraint was interpreted as hostility,
not only to Genêt, but also to "liberty." But if Washington's heart was
ice, the people's heart was fire.

"We expect Mr. Genest here within a few days," wrote Jefferson, just
previous to the appearance of the French Minister in Philadelphia and
before our ignored and offended President had even an opportunity to
receive him. "It seems," Jefferson continued, "as if his arrival would
furnish occasion for the _people_ to testify their affections without
respect to the cold caution of their government."[52]

Again Jefferson measured popular sentiment accurately. Genêt was made an
idol by the people. Banquets were given in his honor and extravagant
toasts were drunk to the Republic and the guillotine. Showers of fiery
"poems" filled the literary air.[53] "What hugging and tugging! What
addressing and caressing! What mountebanking and chanting! with liberty
caps and other wretched trumpery of _sans culotte_ foolery!" exclaimed a
disgusted conservative.[54]

While all this was going on in America, Robespierre, as the incarnation
of liberty, equality, and fraternity in France, achieved the summit of
power and "The Terror" reached high tide. Marie Antoinette met the fate
of her royal husband, and the executioners, overworked, could not
satisfy the lust of the Parisian populace for human life. All this,
however, did not extinguish American enthusiasm for French liberty.

Responding to the wishes of their subscribers, who at that period were
the only support of the press, the Republican newspapers suppressed such
atrocities as they could, but when concealment was impossible, they
defended the deeds they chronicled.[55] It was a losing game to do
otherwise, as one of the few journalistic supporters of the American
Government discovered to his sorrow. Fenno, the editor of the "Gazette
of the United States," found opposition to French revolutionary ideas,
in addition to his support of Hamilton's popularly detested financial
measures,[56] too much for him. The latter was load enough; but the
former was the straw that broke the conservative editor's back.

"I am ... incapacitate[d] ... from printing another paper without the
aid of a considerable loan," wrote the bankrupt newspaper opponent of
French doctrines and advocate of Washington's Administration. "Since the
18th September, [1793] I have rec'd only 35-1/4 dollars," Fenno
lamented. "Four years & an half of my life is gone for nothing; & worse
(for I have a Debt of 2500 Dollars on my Shoulders), if at this crisis
the hand of benevolence & _patriotism_ is not extended."[57]

Forgotten by the majority of Americans was the assistance which the
demolished French Monarchy and the decapitated French King had given the
American army when, but for that assistance, our cause had been lost.
The effigy of Louis XVI was guillotined by the people, many times every
day in Philadelphia, on the same spot where, ten years before, as a
monument of their gratitude, these same patriots had erected a triumphal
arch, decorated with the royal lilies of France bearing the motto, "They
exceed in glory," surmounted by a bust of Louis inscribed, "His merit
makes us remember him."[58]

At a dinner in Philadelphia upon the anniversary of the French King's
execution, the dead monarch was represented by a roasted pig. Its head
was cut off at the table, and each guest, donning the liberty cap,
shouted "tyrant" as with his knife he chopped the sundered head of the
dead swine.[59] The news of the beheading of Louis's royal consort met
with a like reception. "I have heard more than one young woman under the
age of twenty declare," testifies Cobbett, "that they would willingly
have dipped their hands in the blood of the queen of France."[60]

But if the host of American radicals whom Jefferson led and whose spirit
he so truly interpreted were forgetful of the practical friendship of
French Royalty in our hour of need, American conservatives, among whom
Marshall was developing leadership, were also unmindful of the dark
crimes against the people which, at an earlier period, had stained the
Monarchy of France and gradually cast up the account that brought on the
inevitable settlement of the Revolution. The streams of blood that
flowed were waters of Lethe to both sides.

Yet to both they were draughts which produced in one an obsession of
reckless unrestraint and in the other a terror of popular rule no less
exaggerated.[61] Of the latter class, Marshall was, by far, the most
moderate and balanced, although the tragic aspect of the convulsion in
which French liberty was born, came to him in an especially direct
fashion, as we have seen from the Morris correspondence already cited.

Another similar influence on Marshall was the case of Lafayette. The
American partisans of the French Revolution accused this man, who had
fought for us in our War for Independence, of deserting the cause of
liberty because he had striven to hold the Gallic uprising within
orderly bounds. When, for this, he had been driven from his native land
and thrown into a foreign dungeon, Freneau thus sang the conviction of
the American majority:--

"Here, bold in arms, and firm in heart,
He help'd to gain our cause,
Yet could not from a tyrant part,
But, turn'd to embrace his laws!"[62]

Lafayette's expulsion by his fellow Republicans and his imprisonment by
the allied monarchs, was brought home to John Marshall in a very direct
and human fashion. His brother, James M. Marshall, was sent by
Washington[63] as his personal representative, to plead unofficially for
Lafayette's release. Marshall tells us of the strong and tender personal
friendship between Washington and Lafayette and of the former's anxiety
for the latter. But, writes Marshall: "The extreme jealousy with which
the persons who administered the government of France, as well as a
large party in America, watched his [Washington's] deportment towards
all those whom the ferocious despotism of the jacobins had exiled from
their country" rendered "a formal interposition in favour of the
virtuous and unfortunate victim [Lafayette] of their furious
passions ... unavailing."

Washington instructed our ministers to do all they could "unofficially"
to help Lafayette, says Marshall; and "a confidential person [Marshall's
brother James] had been sent to Berlin to solicit his discharge: but
before this messenger had reached his destination, the King of Prussia
had delivered over his illustrious prisoner to the Emperor of
Germany."[64] Washington tried "to obtain the powerful mediation of
Britain" and hoped "that the cabinet of St. James would take an interest
in the case; but this hope was soon dissipated." Great Britain would do
nothing to secure from her allies Lafayette's release.[65]

Thus Marshall, in an uncommonly personal way, was brought face to face
with what appeared to him to be the injustice of the French
revolutionists. Lafayette, under whom John Marshall had served at
Brandywine and Monmouth; Lafayette, leader of the movement in France for
a free government like our own; Lafayette, hated by kings and
aristocrats because he loved genuine liberty, and yet exiled from his
own country by his own countrymen for the same reason[66]--this picture,
which was the one Marshall saw, influenced him profoundly and
permanently.

Humor as well as horror contributed to the repugnance which Marshall and
men of his type felt ever more strongly for what they considered to be
mere popular caprice. The American passion for equality had its comic
side. The public hatred of all rank did not stop with French royalty
and nobility. Because of his impassioned plea in Parliament for the
American cause, a statue of Lord Chatham had been erected at Charleston,
South Carolina; the people now suspended it by the neck in the air until
the sculptured head was severed from the body. But Chatham was dead and
knew only from the spirit world of this recognition of his bold words in
behalf of the American people in their hour of trial and of need. In
Virginia the statue of Lord Botetourt was beheaded.[67] This nobleman
was also long since deceased, guilty of no fault but an effort to help
the colonists, more earnest than some other royal governors had
displayed. Still, in life, he had been called a "lord"; so off with the
head of his statue!

In the cities, streets were renamed. "Royal Exchange Alley" in Boston
became "Equality Lane"; and "Liberty Stump" was the name now given to
the base of a tree that formerly had been called "Royal." In New York,
"_Queen Street_ became _Pearl Street_; and _King Street_, Liberty
Street."[68] The liberty cap was the popular headgear and everybody wore
the French cockade. Even the children, thus decorated, marched in
processions,[69] singing, in a mixture of French and English words, the
meaning of which they did not in the least understand, the glories of
"liberté, égalité, fraternité."

At a town meeting in Boston resolutions asking that a city charter be
granted were denounced as an effort to "destroy the liberties of the
people; ... a link in the chain of aristocratic influence."[70] Titles
were the especial aversion of the masses. Even before the formation of
our government, the people had shown their distaste for all formalities,
and especially for terms denoting official rank; and, after the
Constitution was adopted, one of the first things Congress did was to
decide against any form of address to the President. Adams and Lee had
favored some kind of respectful designation of public officials. This
all-important subject had attracted the serious thought of the people
more than had the form of government, foreign policy, or even taxes.

Scarcely had Washington taken his oath of office when David Stuart
warned him that "nothing could equal the ferment and disquietude
occasioned by the proposition respecting titles. As it is believed to
have originated from Mr. Adams and Mr. Lee, they are not only unpopular
to an extreme, but highly odious.... It has given me much pleasure to
hear every part of your conduct spoken of with high approbation, and
particularly your dispensing with ceremony, occasionally walking the
streets; while Adams is never seen but in his carriage and six. As
trivial as this may appear," writes Stuart, "it appears to be more
captivating to the generality, than matters of more importance. Indeed,
I believe the great herd of mankind form their judgments of characters,
more from such slight occurrences, than those of greater magnitude."[71]

This early hostility to ostentation and rank now broke forth in rabid
virulence. In the opinion of the people, as influenced by the French
Revolution, a Governor or President ought not to be referred to as "His
Excellency"; nor a minister of the gospel as "Reverend." Even "sir" or
"esquire" were, plainly, "monarchical." The title "Honorable" or "His
Honor," when applied to any official, even a judge, was base pandering
to aristocracy. "Mr." and "Mrs." were heretical to the new religion of
equality. Nothing but "citizen"[72] would do--citizen judge, citizen
governor, citizen clergyman, citizen colonel, major, or general, citizen
baker, shoemaker, banker, merchant, and farmer,--citizen everybody.

To address the master of ceremonies at a dinner or banquet or other
public gathering as "Mr. Chairman" or "Mr. Toastmaster" was
aristocratic: only "citizen chairman" or "citizen toastmaster" was the
true speech of genuine liberty.[73] And the name of the _Greek_ letter
college fraternity, Phi Beta Kappa, was the trick of kings to ensnare
our unsuspecting youth. Even "[Greek: Ph.B.K.]" was declared to be "an
infringement of the natural rights of society." A college fraternity was
destructive of the spirit of equality in American colleges.[74]
"_Lèse-républicanisme_" was the term applied to good manners and
politeness.[75]

Such were the surface and harmless evidences of the effect of the French
Revolution on the great mass of American opinion. But a serious and
practical result developed. Starting with the mother organization at
Philadelphia, secret societies sprang up all over the Union in imitation
of the Jacobin Clubs of France. Each society had its corresponding
committee; and thus these organizations were welded into an unbroken
chain. Their avowed purpose was to cherish the principles of human
freedom and to spread the doctrine of true republicanism. But they soon
became practical political agencies; and then, like their French
prototype, the sowers of disorder and the instigators of
insurrection.[76]

The practical activities of these organizations aroused, at last, the
open wrath of Washington. They "are spreading mischief far and wide," he
wrote;[77] and he declared to Randolph that "if these self-created
societies cannot be discountenanced, they will destroy the government of
this country."[78]

Conservative apprehensions were thus voiced by George Cabot: "We have
seen ... the ... representatives of the people butchered, and a band of
relentless murderers ruling in their stead with rods of iron. Will not
this, or something like it, be the wretched fate of our country?... Is
not this hostility and distrust [to just opinions and right sentiments]
chiefly produced by the slanders and falsehoods which the anarchists
incessantly inculcate?"[79]

Young men like John Quincy Adams of Massachusetts and John Marshall of
Virginia thought that "the rabble that followed on the heels of Jack
Cade could not have devised greater absurdities than" the French
Revolution had inspired in America;[80] but they were greatly
outnumbered by those for whom Jefferson spoke when he said that "I feel
that the permanence of our own [Government] leans" on the success of the
French Revolution.[81]

The American democratic societies, like their French originals, declared
that theirs was the voice of "the people," and popular clamor justified
the claim.[82] Everybody who dissented from the edicts of the clubs was
denounced as a public robber or monarchist. "What a continual yelping
and barking are our Swindlers, Aristocrats, Refugees, and British Agents
making at the Constitutional Societies" which were "like a noble
mastiff ... with ... impotent and noisy puppies at his heels," cried the
indignant editor of the "Independent Chronicle" of Boston,[83] to whom
the democratic societies were "guardians of liberty."

While these organizations strengthened radical opinion and fashioned
American sympathizers of the French Revolution into disciplined ranks,
they also solidified the conservative elements of the United States.
Most viciously did the latter hate these "Jacobin Clubs," the principles
they advocated, and their interference with public affairs. "They were
born in sin, the impure offspring of Genêt," wrote Fisher Ames.

"They are the few against the many; the sons of darkness (for their
meetings are secret) against those of the light; and above all, it is a
_town_ cabal, attempting to rule the _country_."[84] This testy New
Englander thus expressed the extreme conservative feeling against the
"insanity which is epidemic":[85] "This French mania," said Ames, "is
the bane of our politics, the mortal poison that makes our peace so
sickly."[86] "They have, like toads, sucked poison from the earth. They
thirst for vengeance."[87] "The spirit of mischief is as active as the
element of fire and as destructive."[88] Ames describes the activities
of the Boston Society and the aversion of the "better classes" for it:
"The club is despised here by men of right heads," he writes. "But ...
they [the members of the Club] poison every spring; they whisper lies to
every gale; they are everywhere, always acting like Old Nick and his
imps.... They will be as busy as Macbeth's witches at the
election."[89]

In Virginia the French Revolution and the American "Jacobins" helped to
effect that change in Patrick Henry's political sentiments which his
increasing wealth had begun. "If my Country," wrote Henry to Washington,
"is destined in my day to encounter the horrors of anarchy, every power
of mind or body which I possess will be exerted in support of the
government under which I live."[90] As to France itself, Henry predicted
that "anarchy will be succeeded by despotism" and Bonaparte,
"Caesar-like, subvert the liberties of his country."[91]

Marshall was as much opposed to the democratic societies as was
Washington, or Cabot, or Ames, but he was calmer in his opposition,
although vitriolic enough. When writing even ten years later, after time
had restored perspective and cooled feeling, Marshall says that these
"pernicious societies"[92] were "the resolute champions of all the
encroachments attempted by the agents of the French republic on the
government of the United States, and the steady defamers of the views
and measures of the American executive."[93] He thus describes their
decline:--

"The colossean power of the [French] clubs, which had been abused to an
excess that gives to faithful history the appearance of fiction, fell
with that of their favourite member, and they sunk into long merited
disgrace. The means by which their political influence had been
maintained were wrested from them; and, in a short time, their meetings
were prohibited. Not more certain is it that the boldest streams must
disappear, if the fountains which fed them be emptied, than was the
dissolution of the democratic societies of America, when the Jacobin
clubs were denounced by France. As if their destinies depended on the
same thread, the political death of the former was the unerring signal
for that of the latter."[94]

Such was the effect of the French Revolution on American thought at the
critical period of our new Government's first trials. To measure justly
the speech and conduct of men during the years we are now to review,
this influence must always be borne in mind. It was woven into every
great issue that arose in the United States. Generally speaking, the
debtor classes and the poorer people were partisans of French
revolutionary principles; and the creditor classes, the mercantile and
financial interests, were the enemies of what they called "Jacobin
philosophy." In a broad sense, those who opposed taxes, levied to
support a strong National Government, sympathized with the French
Revolution and believed in its ideas; those who advocated taxes for that
purpose, abhorred that convulsion and feared its doctrines.

Those who had disliked government before the Constitution was
established and who now hated National control, heard in the preachings
of the French revolutionary theorists the voice of their hearts; while
those who believed that government is essential to society and
absolutely indispensable to the building of the American Nation, heard
in the language and saw in the deeds of the French Revolution the forces
that would wreck the foundations of the state even while they were but
being laid and, in the end, dissolve society itself. Thus were the ideas
of Nationality and localism in America brought into sharper conflict by
the mob and guillotine in France.

All the passion for irresponsible liberty which the French Revolution
increased in America, as well as all the resentment aroused by the
financial measures and foreign policy of the "Federal Administrations,"
were combined in the opposition to and attacks upon a strong National
Government. Thus provincialism in the form of States' Rights was given a
fresh impulse and a new vitality. Through nearly all the important
legislation and diplomacy of those stirring and interpretative years
ran, with ever increasing clearness, the dividing line of Nationalism as
against localism.

Such are the curious turns of human history. Those whom Jefferson led
profoundly believed that they were fighting for human rights; and in
their view and as a practical matter at that particular time this sacred
cause meant State Rights. For everything which they felt to be
oppressive, unjust, and antagonistic to liberty, came from the National
Government. By natural contrast in their own minds, as well as by
assertions of their leaders, the State Governments were the sources of
justice and the protectors of the genuine rights of man.

In the development of John Marshall as well as of his great ultimate
antagonist, Thomas Jefferson, during the formative decade which we are
now to consider, the influence of the French Revolution must never be
forgotten. Not a circumstance of the public lives of these two men and
scarcely an incident of their private experience but was shaped and
colored by this vast series of human events. Bearing in mind the
influence of the French Revolution on American opinion, and hence, on
Marshall and Jefferson, let us examine the succeeding years in the light
of this determining fact.

FOOTNOTES:

[1] "That the principles of America opened the Bastille is not to be
doubted." (Thomas Paine to Washington, May 1, 1790; _Cor. Rev.^2_:
Sparks, iv, 328.) "The principles of it [the French Revolution] were
copied from America." (Paine to Citizens of the United States, Nov. 15,
1802; _Writings_: Conway, iii, 381.)

"Did not the American Revolution produce the French Revolution? And did
not the French Revolution produce all the Calamities and Desolations to
the human Race and the whole Globe ever since?" (Adams to Rush, Aug. 28,
1811; _Old Family Letters_, 352.)

"Many of ... the leaders [of the French Revolution] have imbibed their
principles in America, and all have been fired by our example."
(Gouverneur Morris to Washington, Paris, April 29, 1789; _Cor. Rev._:
Sparks, iv, 256.)

"All the friends of freedom on this side the Atlantic are now rejoicing
for an event which ... has been accelerated by the American
Revolution.... You have been the means of raising that spirit in Europe
which ... will ... extinguish every remain of that barbarous servitude
under which all the European nations, in a less ... degree, have so long
been subject." (Catharine M. Graham to Washington, Berks (England), Oct.
1789; _ib._, 284; and see Cobbett, i, 97.)

[2] See vol. I, chap. VIII, of this work.

[3] Marshall, ii, 155. "The mad harangues of the [French] National
Convention were all translated and circulated through the States. The
enthusiasm they excited it is impossible for me to describe." (Cobbett
in "Summary View"; Cobbett, i, 98.)

[4] Jefferson to Humphreys, March 18, 1789; _Works_: Ford, v, 467.

[5] Jefferson to Madison, Aug. 28, 1789; _ib._, 490.

[6] _Boston Gazette_, Sept. 7 and Nov. 30, 1789; as quoted in Hazen; and
see Hazen, 142-43.

[7] Gouverneur Morris to Washington, Paris, April 29, 1789; _Cor. Rev._:
Sparks, iv, 256. Even Jefferson had doubted French capacity for
self-government because of what he described as French light-mindedness.
(Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 263; also see
vol. I, chap. VIII, of this work.)

[8] Morris to Washington, July 31, 1789; _Cor. Rev._: Sparks, iv, 270.

[9] Lafayette to Washington, May 25, 1788; _Cor. Rev._: Sparks, iv, 216.
Lafayette's letters to Washington, from the beginning of the French
Revolution down to his humiliating expulsion from France, constitute a
thermometer of French temperature, all the more trustworthy because his
letters are so naïve. For example, in March, 1790: "Our revolution is
getting on as well as it can, with a nation that has swallowed liberty
at once, and is still liable to mistake licentiousness for freedom." Or,
in August of the same year: "I have lately lost some of my favor with
the mob, and displeased the frantic lovers of licentiousness, as I am
bent on establishing a legal subordination." Or, six months later: "I
still am tossed about in the ocean of factions and commotions of every
kind." Or, two months afterwards: "There appears a kind of phenomenon in
my situation; all parties against me, and a national popularity which,
in spite of every effort, has been unshakable." (Lafayette to
Washington, March 17, 1790; _ib._, 321; Aug. 28, _ib._, 345; March 7,
1791, _ib._, 361; May 3, 1791, _ib._, 372.)

[10] G. Morris to R. Morris, Dec. 24, 1792; Morris, ii, 15.

[11] _Ib._, i, 582-84.

[12] Louis Otto to De Montmorin, March 10, 1792; _Writings_: Conway,
iii, 153.

[13] _Ib._, 154-56.

[14] Morris associated with the nobility in France and accepted the
aristocratic view. (_Ib._; and see A. Esmein, Membre de l'Institut:
_Gouverneur Morris, un témoin américain de la révolution française_,
Paris, 1906.)

[15] Marshall, ii, note xvi, p. 17.

[16] Recent investigation establishes the fact that the inmates of the
Bastille generally found themselves very well off indeed. The records of
this celebrated prison show that even prisoners of mean station, when
incarcerated for so grave a crime as conspiracy against the King's life,
had, in addition to remarkably abundant meals, an astonishing amount of
extra viands and refreshments including comfortable quantities of wine,
brandy, and beer. Prisoners of higher station fared still more
generously, of course. (Funck-Brentano: _Legends of the Bastille_,
85-113; see also _ib._, introduction.) It should be said, however, that
the _lettres de cachet_ were a chief cause of complaint, although the
stories, generally exaggerated, concerning the cruel treatment of
prisoners came to be the principal count of the public indictment of the
Bastille.

[17] Lafayette to Washington, March 17, 1790; _Cor. Rev._: Sparks, iv,
322.

[18] Washington to Lafayette, August 11, 1790; _Writings:_ Ford, xi,
493.

[19] Paine to Washington, May 1, 1790; _Cor. Rev._: Sparks, iv, 328.
Paine did not, personally, bring the key, but forwarded it from London.

[20] Burke in the House of Commons; _Works_: Burke, i, 451-53.

[21] _Ib._

[22] _Reflections on the Revolution in France_; _ib._, i, 489. Jefferson
well stated the American radical opinion of Burke: "The Revolution of
France does not astonish me so much as the Revolution of Mr. Burke....
How mortifying that this evidence of the rottenness of his mind must
oblige us now to ascribe to wicked motives those actions of his life
which were the mark of virtue & patriotism." (Jefferson to Vaughan, May
11, 1791; _Works_: Ford, vi, 260.)

[23] Paine had not yet lost his immense popularity in the United States.
While, later, he came to be looked upon with horror by great numbers of
people, he enjoyed the regard and admiration of nearly everybody in
America at the time his _Rights of Man_ appeared.

[24] _Writings_: Conway, ii, 272.

[25] _Writings_: Conway, ii, 406. At this very moment the sympathizers
with the French Revolution in America were saying exactly the reverse.

[26] _Writings_: Conway, ii, 278-79, 407, 408, 413, 910.

[27] Compare with Jefferson's celebrated letter to Mazzei (_infra_,
chap. VII). Jefferson was now, however, in Washington's Cabinet.

[28] Jefferson to Paine, June 19, 1792; _Works_: Ford, vii, 121-22; and
see Hazen, 157-60. Jefferson had, two years before, expressed precisely
the views set forth in Paine's _Rights of Man_. Indeed, he stated them
in even more startling terms. (See Jefferson to Madison, Sept. 6, 1789;
_ib._, vi, 1-11.)

[29] _Writings, J. Q. A._: Ford, i, 65-110. John Quincy Adams wrote
these admirable essays when he was twenty-four years old. Their logic,
wit, and style suggest the writer's incomparable mother. Madison, who
remarked their quality, wrote to Jefferson: "There is more of method ...
in the arguments, and much less of clumsiness & heaviness in the style,
than characterizes his [John Adams's] writings." (Madison to Jefferson,
July 13, 1791; _Writings_: Hunt, vi, 56.)

The sagacious industry of Mr. Worthington C. Ford has made these and all
the other invaluable papers of the younger Adams accessible, in his
_Writings of John Quincy Adams_ now issuing.

[30] Jefferson to Adams, July 17, 1791; _Works_: Ford, vi, 283, and
footnote; also see Jefferson to Washington, May 8, 1791; _ib._, 255-56.

Jefferson wrote Washington and the elder Adams, trying to evade his
patronage of Paine's pamphlet; but, as Mr. Ford moderately remarks,
"the explanation was somewhat lame." (_Writings, J. Q. A._: Ford, i, 65;
and see Hazen, 156-57.) Later Jefferson avowed that "Mr. Paine's
principles ... were the principles of the citizens of the U. S."
(Jefferson to Adams, Aug. 30, 1791; _Works_: Ford, vi, 314.) To his
intimate friend, Monroe, Jefferson wrote that "Publicola, in attacking
all Paine's principles, is very desirous of involving me in the same
censure with the author. I certainly merit the same, for I profess the
same principles." (Jefferson to Monroe, July 10, 1791; _ib._, 280.)

Jefferson at this time was just on the threshold of his discovery of and
campaign against the "deep-laid plans" of Hamilton and the Nationalists
to transform the newborn Republic into a monarchy and to deliver the
hard-won "liberties" of the people into the rapacious hands of
"monocrats," "stockjobbers," and other "plunderers" of the public. (See
next chapter.)

[31] _Writings, J. Q. A._: Ford, i, 65-66.

[32] Although John Quincy Adams had just been admitted to the bar, he
was still a student in the law office of Theophilus Parsons at the time
he wrote the Publicola papers.

[33] _Writings, J. Q. A._: Ford, i, 65-110.

[34] _Writings, J. Q. A._: Ford, i, footnote to 107.

"As soon as Publicola attacked Paine, swarms appeared in his defense....
Instantly a host of writers attacked Publicola in support of those
[Paine's] principles." (Jefferson to Adams, Aug. 30, 1791; _Works_:
Ford, vi, 314; and see Jefferson to Madison, July 10, 1791; _ib._, 279.)

[35] _Writings, J. Q. A._: Ford, i, 110.

[36] Madison to Jefferson, July 13, 1791; _Writings_; Hunt, vi, 56; and
see Monroe to Jefferson, July 25, 1791; Monroe's _Writings_: Hamilton,
i, 225-26.

[37] A verse of a song by French Revolutionary enthusiasts at a Boston
"CIVIC FESTIVAL in commemoration of the SUCCESSES of their French
brethren in their glorious enterprise for the ESTABLISHMENT of EQUAL
LIBERTY," as a newspaper describes the meeting, expresses in reserved
and moderate fashion the popular feeling:--

"See the bright flame arise,
In yonder Eastern skies
Spreading in veins;
'T is pure Democracy
Setting all Nations free
Melting their chains."

At this celebration an ox with gilded horns, one bearing the French flag
and the other the American; carts of bread and two or three hogsheads of
rum; and other devices of fancy and provisions for good cheer were the
material evidence of the radical spirit. (See _Columbian Centinel_, Jan.
26, 1793.)

[38] It is certain that Madison could not possibly have continued in
public life if he had remained a conservative and a Nationalist. (See
next chapter.)

[39] Marshall, ii, 239.

[40] Jefferson to Martha Jefferson Randolph, May 26, 1793; _Works_:
Ford, vii, 345.

[41] Marshall, ii, 249-51.

[42] Marshall, ii, 251-52.

[43] Jefferson to T. M. Randolph, Jan. 7, 1793; _Works_: Ford, vii, 207.

[44] Mass. Hist. Collections (7th Series), i, 138.

[45] Typical excerpts from Short's reports to Jefferson are: July 20,
1792: "Those mad & corrupted people in France who under the name of
liberty have destroyed their own government [French Constitution of
1791] & disgusted all ... men of honesty & property.... All the rights
of humanity ... are daily violated with impunity ... universal anarchy
prevails.... There is no succour ... against mobs & factions which have
assumed despotic power."

July 31: "The factions which have lately determined the system ... for
violating all the bonds of civil society ... have disgusted all, except
the _sans culottes_ ... with the present order of things ... the most
perfect & universal disorder that ever reigned in any country. Those who
from the beginning took part in the revolution ... have been disgusted,
by the follies, injustice, & atrocities of the Jacobins.... All power
[is] in the hands of the most mad, wicked & atrocious assembly that ever
was collected in any country."

August 15: "The Swiss guards have been massacred by the people & ...
streets literally are red with blood."

October 12: "Their [French] successes abroad are unquestionably evils
for humanity. The spirit which they will propagate is so destructive of
all order ... so subversive of all ideas of justice--the system they aim
at so absolutely visionary & impracticable--that their efforts can end
in nothing but despotism after having bewildered the unfortunate people,
whom they render free in their way, in violence & crimes, & wearied them
with sacrifices of blood, which alone they consider worthy of the furies
whom they worship under the names of _Liberté_ & _Egalité_!"

August 24: "I sh^d. not be at all surprized to hear of the present
leaders being hung by the people. Such has been the moral of this
revolution from the beginning. The people have gone farther than their
leaders.... We may expect ... to hear of such proceedings, under the
cloak of liberty, _égalité_ & patriotism as would disgrace any _chambre
ardente_ that has ever created in humanity shudders at the idea." (Short
MSS., Lib. Cong.)

These are examples of the statements to which Jefferson's letter, quoted
in the text following, was the reply. Short's most valuable letters are
from The Hague, to which he had been transferred. They are all the more
important, as coming from a young radical whom events in France had
changed into a conservative. And Jefferson's letter is conclusive of
American popular sentiment, which he seldom opposed.

[46] Almost at the same time Thomas Paine was writing to Jefferson from
Paris of "the Jacobins who act without either prudence or morality."
(Paine to Jefferson, April 20, 1793; _Writings_: Conway, iii, 132.)

[47] Jefferson to Short, Jan. 3, 1793; _Works_: Ford, vii, 202-05. Short
had written Jefferson that Morris, then in Paris, would inform him of
French conditions. Morris had done so. For instance, he wrote officially
to Jefferson, nearly four months before the latter's letter to Short
quoted in the text, that: "We have had one week of unchecked murders, in
which some thousands have perished in this city [Paris]. It began with
between two and three hundred of the clergy, who would not take the oath
prescribed by law. Thence these _executors of speedy justice_ went to
the Abbaye, where the prisoners were confined who were at Court on the
10th. Madame de Lamballe ... was beheaded and disembowelled; the head
and entrails paraded on pikes through the street, and the body dragged
after them," etc., etc. (Morris to Jefferson, Sept. 10, 1792; Morris, i,
583-84.)

[48] Madison to Jefferson, June 17, 1793; _Writings_: Hunt, vi, 133.

[49] Paine to Danton, May 6, 1793; _Writings_: Conway, iii, 135-38.

[50] "Truth," in the _General Advertiser_ (Philadelphia), May 8, 1793.
"Truth" denied that Louis XVI had aided us in our Revolution and
insisted that it was the French Nation that had come to our assistance.
Such was the disregard of the times for even the greatest of historic
facts, and facts within the personal knowledge of nine tenths of the
people then living.

[51] See _Writings, J. Q. A._: Ford, i, 151.

[52] Jefferson to Madison, April 28, 1793; _Works_: Ford, vii, 301.

[53] For examples of these, see Hazen, 220-45.

[54] Graydon, 363.

[55] Freneau's _National Gazette_ defended the execution of the King and
the excesses of the Terror. (Hazen, 256; and see Cobbett, iii, 4.) While
Cobbett, an Englishman, was a fanatic against the whole democratic
movement, and while his opinions are violently prejudiced, his
statements of fact are generally trustworthy. "I have seen a bundle of
Gazettes published all by the same man, wherein Mirabeau, Fayette,
Brissot, Danton, Robespierre, and Barras, are all panegyrized and
execrated in due succession." (_Ib._, i, 116.) Cobbett did his best to
turn the radical tide, but to no purpose. "Alas!" he exclaimed, "what
can a straggling pamphlet ... do against a hundred thousand volumes of
miscellaneous falsehood in folio?" (_Ib._, iii, 5.)

[56] See next chapter.

[57] Fenno to Hamilton, Nov. 9, 1793; King, i, 501-02. "The hand of
benevolence & _patriotism_" was extended, it appears: "If you can ...
raise 1000 Dollars in New York, I will endeavor to raise another
Thousand at Philadelphia. If this cannot be done, we must lose his
[Fenno's and the _Gazette of the United States_] services & he will be
the Victim of his honest public spirit." (Hamilton to King, Nov. 11,
1793; King, i, 502.)

[58] Cobbett, i, footnote to 114. Curiously enough Louis XVI had
believed that he was leading the French people in the reform movement.
Thomas Paine, who was then in Paris, records that "The King ... prides
himself on being the head of the revolution." (Paine to Washington, May
1, 1790; _Cor. Rev._: Sparks, iv, 328.)

[59] Cobbett, i, 113-14; and see Hazen, 258. For other accounts of the
"feasts" in honor of _liberté, égalité, et fraternité_, in America, see
_ib._, 165-73.

[60] Cobbett, i, 113.

[61] For instance, the younger Adams wrote that the French Revolution
had "contributed more to ... Vandalic ignorance than whole centuries can
retrieve.... The myrmidons of Robespierre were as ready to burn
libraries as the followers of Omar; and if the principle is finally to
prevail which puts the sceptre of Sovereignty in the hands of European
Sans Culottes, they will soon reduce everything to the level of their
own ignorance." (John Quincy Adams to his father, July 27, 1795;
_Writings, J. Q. A._: Ford, i, 389.)

And James A. Bayard wrote that: "The Barbarians who inundated the Roman
Empire and broke to pieces the institutions of the civilized world, in
my opinion innovated the state of things not more than the French
revolution." (Bayard to Bassett, Dec. 30, 1797; _Bayard Papers_: Donnan,
47.)

[62] Freneau, iii, 86.

[63] Marshall, ii, 387.

[64] Austria.

[65] Marshall, ii, 387.

[66] "They have long considered the M^{is} de lafayette as really the
firmest supporter of the principles of liberty in France--& as they are
for the most part no friends to these principles anywhere, they cannot
conceal the pleasure they [the aristocracy at The Hague] feel at their
[principles of liberty] supporters' being thus expelled from the country
where he laboured to establish them." (Short to Jefferson, Aug. 24,
1792; Short MSS., Lib. Cong.)

[67] Cobbett, i, 112.

[68] _Ib._ When the corporation of New York City thus took all monarchy
out of its streets, Noah Webster suggested that, logically, the city
ought to get rid of "this vile aristocratical name New York"; and, why
not, inquired he, change the name of Kings County, Queens County, and
Orange County? "Nay," exclaimed the sarcastic savant, "what will become
of the people named King? Alas for the liberties of such people!"
(Hazen, 216.)

[69] Hazen, 218.

[70] J. Q. Adams, to T. B. Adams, Feb. 1, 1792; _Writings, J. Q. A._:
Ford, i, 111-13.

[71] Stuart to Washington, July 14, 1789; _Cor. Rev._: Sparks, iv,
265-66; and see Randolph to Madison, May 19, 1789; Conway, 124.

[72] See Hazen, 209-15.

[73] _Ib._, 213.

[74] See Hazen, 215.

[75] Cobbett, i, 111.

[76] For an impartial and comprehensive account of these clubs see
Hazen, 188-208; also, Marshall, ii, 269 _et seq._ At first many
excellent and prominent men were members; but these withdrew when the
clubs fell under the control of less unselfish and high-minded persons.

[77] Washington to Thruston, Aug. 10, 1794; _Writings_: Ford, xii, 451.

[78] Washington to Randolph, Oct. 16, 1794; _ib._, 475; and see
Washington to Lee, Aug. 26, 1794; _ib._, 455.

[79] Cabot to Parsons, Aug. 12, 1794; Lodge: _Cabot_, 79.

[80] J. Q. Adams to John Adams, Oct. 19, 1790; _Writings, J. Q. A._:
Ford, i, 64.

[81] Jefferson to Rutledge, Aug. 29, 1791; _Works_: Ford, vi, 309.

[82] See Hazen, 203-07.

[83] September 18, 1794.

[84] Ames to Dwight, Sept. 11, 1794; _Works_: Ames, i, 150.

[85] Cabot to King, July 25, 1795; Lodge: _Cabot_, 80.

[86] Ames to Gore, March 26, 1794; _Works_: Ames, i, 139.

[87] Ames to Minot, Feb. 20, 1793; _ib._, 128.

[88] Ames to Gore, Jan. 28, 1794; _ib._, 134.

[89] Ames to Dwight, Sept. 3, 1794; _ib._, 148.

[90] Henry to Washington, Oct. 16, 1795; Henry, ii, 559.

[91] _Ib._, 576.

[92] Marshall, ii, 353.

[93] _Ib._, 269.

[94] Marshall, ii, 353-54.

CHAPTER II

A VIRGINIA NATIONALIST

Lace Congress up straitly within the enumerated powers.
(Jefferson.)

Construe the constitution liberally in advancement of the common
good. (Hamilton.)

To organize government, to retrieve the national character, to
establish a system of revenue, to create public credit, were among
the duties imposed upon them. (Marshall.)

I trust in that Providence which has saved us in six troubles,
yea, in seven, to rescue us again. (Washington.)

The Constitution's narrow escape from defeat in the State Conventions
did not end the struggle against the National principle that pervaded
it.[95] The Anti-Nationalists put forth all their strength to send to
the State Legislatures and to the National House and Senate as many
antagonists of the National idea as possible.[96] "Exertions will be
made to engage two thirds of the legislatures in the task of regularly
undermining the government" was Madison's "hint" to Hamilton.[97]

Madison cautioned Washington to the same effect, suggesting that a still
more ominous part of the plan was "to get a Congress appointed in the
first instance that will commit suicide on their own Authority."[98]
Not yet had the timorous Madison personally felt the burly hand of the
sovereign people so soon to fall upon him. Not yet had he undergone that
familiar reversal of principles wrought in those politicians who keep an
ear to the ground. But that change was swiftly approaching. Even then
the _vox populi_ was filling the political heavens with a clamor not to
be denied by the ambitious. The sentiment of the people required only an
organizer to become formidable and finally omnipotent.

Such an artisan of public opinion was soon to appear. Indeed, the master
political potter was even then about to start for America where the clay
for an Anti-Nationalist Party was almost kneaded for the moulder's
hands. Jefferson was preparing to leave France; and not many months
later the great politician landed on his native soil and among his
fellow citizens, who, however, welcomed him none too ardently.[99]

No one knew just where Jefferson stood on the fundamental question of
the hour when, with his two daughters, he arrived in Virginia in 1789.
The brilliant Virginian had uttered both Nationalist and
Anti-Nationalist sentiments. "I am not of the party of the Federalists,"
he protested, "but I am much farther from that of the Antifederalists."
Indeed, declared Jefferson, "If I could not go to heaven but with a
party, I would not go there at all."[100]

His first opinions of the Constitution were, as we have seen,
unfavorable. But after he had learned that the new Government was to be
a fact, Jefferson wrote Washington: "I have seen with infinite pleasure
our new constitution accepted." Careful study had taught him, he said,
"that circumstances may arise, and probably will arise, wherein all the
resources of taxation will be necessary for the safety of the state." He
saw probability of war which "requires every resource of taxation &
credit." He thought that "the power of making war often prevents
it."[101]

Thus Jefferson could be quoted on both sides and claimed by neither or
by both. But, because of his absence in France and of the reports he had
received from the then extreme Nationalist, Madison, he had not yet
apprehended the people's animosity to National rule. Upon his arrival in
Virginia, however, he discovered that "Antifederalism is not yet dead
in this country."[102] That much, indeed, was clear at first sight. The
Legislature of Virginia, which met three months after her Convention had
ratified the Constitution, was determined to undo that work, as Madison
had foreseen.[103]

That body was militantly against the new Government as it stood. "The
conflict between the powers of the general and state governments was
coeval with those governments," declares Marshall. "The old line of
division was still as strongly marked as ever." The enemies of National
power thought that "liberty could be endangered only by encroachments
upon the states; and that it was the great duty of patriotism to
restrain the powers of the general government within the narrowest
possible limits." On the other hand, the Nationalists, says Marshall,
"sincerely believed that the real danger which threatened the republic
was to be looked for in the undue ascendency of the states."[104]

[Illustration: _John Marshall From a painting by E. F. Petticolas_]

Patrick Henry was supreme in the House of Delegates. Washington was
vastly concerned at the prospect. He feared that the enemies of
Nationalism would control the State Legislature and that it would
respond to New York's appeal for a new Federal Constitutional
Convention. He was "particularly alarmed" that the General Assembly
would elect Senators "entirely anti-Federal."[105] His apprehension was
justified. Hardly a week passed after the House convened until it passed
resolutions, drawn by Henry,[106] to answer Clinton's letter, to ask
Congress to call a new Federal Convention, and to coöperate with other
States in that business.

In vain did the Nationalist members strive to soften this resolution. An
amendment which went so far as to request Congress to recommend to the
several States "the ratification of a bill of rights" and of the twenty
amendments proposed by the Virginia Convention, was defeated by a
majority of 46 out of a total vote of 124.[107] Swiftly and without
mercy the triumphant opposition struck its next blow. Washington had
urged Madison to stand for the Senate,[108] and the Nationalists exerted
themselves to elect him. Madison wrote cleverly in his own behalf.[109]
But he had no hope of success because it was "certain that a clear
majority of the assembly are enemies to the Gov^t."[110] Madison was
still the ultra-Nationalist, who, five years earlier, had wanted the
National Government to have an absolute veto on _every_ State law.[111]

Henry delivered "a tremendous philippic" against Madison as soon as his
name was placed before the General Assembly.[112] Madison was badly
beaten, and Richard Henry Lee and William Grayson were chosen as the
first Senators from Virginia under the new National Government.[113] The
defeated champion of the Constitution attributed Henry's attack and his
own misfortune to his Nationalist principles: Henry's "enmity was
levelled ... ag^{st} the _whole system_; and the destruction of the
whole system, I take to be the secret wish of his heart."[114]

In such fashion did Madison receive his first chastisement for his
Nationalist views and labors. He required no further discipline of a
kind so rough and humiliating; and he sought and secured election to the
National House of Representatives,[115] with opinions much subdued and
his whole being made pliant for the wizard who so soon was to invoke his
spell over that master mind.

Though Marshall was not in the Virginia Legislature at that session, it
is certain that he worked with its members for Madison's election as
Senator. But even Marshall's persuasiveness was unavailing. "Nothing,"
wrote Randolph to Madison, "is left undone which can tend to the
subversion of the new government."[116]

Hard upon its defeat of Madison the Legislature adopted an ominous
address to Congress. "The sooner ... the [National] government is
possessed of the confidence of the people ... _the longer its
duration_"--such was the language and spirit of Virginia's message to
the lawmakers of the Nation, even before they had assembled.[117] The
desperate Nationalists sought to break the force of this blow. They
proposed a substitute which even suggested that the widely demanded new
Federal Convention should be called by Congress if that body thought
best. But all to no purpose. Their solemn[118] amendment was beaten by a
majority of 22 out of a total vote of 122.[119]

Thus again was displayed that hostility to Nationalism which was to
focus upon the newborn National Government every burning ray of
discontent from the flames that sprang up all over the country during
the constructive but riotous years that followed. Were the people taxed
to pay obligations incurred in our War for Independence?--the National
Government was to blame. Was an excise laid on whiskey, "the common
drink of the nation"[120]--it was the National Government which thus
wrung tribute from the universal thirst. Were those who owed debts
compelled, at last, to pay them?--it was the National Government which
armed the creditor with power to recover his own.

Why did we not aid French Republicans against the hordes of "despotism"?
Because the National Government, with its accursed Neutrality, would not
let us! And who but the National Government would dare make a treaty
with British Monarchy, sacrificing American rights? Speculation and
corruption, parade and ostentation,--everything that could, reasonably
or unreasonably, be complained of,--were, avowed the Anti-Nationalists,
the wretched but legitimate offspring of Nationalism. The remedy, of
course, was to weaken the power of the Nation and strengthen that of the
States. Such was the course pursued by the foes of Nationalism, that we
shall trace during the first three administrations of the Government of
the United States.

Thus, the events that took place between 1790 and 1800, supplemented and
heated by the French Revolution, developed to their full stature those
antagonistic theories of which John Marshall and Thomas Jefferson were
to become the chief expounders. Those events also finished the
preparation of these two men for the commanding stations they were to
occupy. The radical politician and States' Rights leader on the one
hand, and the conservative politician and Nationalist jurist on the
other hand, were finally settled in their opinions during these
developing years, at the end of which one of them was to occupy the
highest executive office and the other the highest judicial office in
the Government.

It was under such circumstances that the National Government, with
Washington at its head, began its uncertain career. If the Legislature
of Virginia had gone so far before the infant National establishment was
under way, how far might not succeeding Legislatures go? No one knew.
But it was plain to all that every act of the new Administration, even
with Washington at the helm, would be watched with keen and jealous
eyes; and that each Nationalist turn of the wheel would meet with prompt
and stern resistance in the General Assembly of the greatest of American
Commonwealths. Mutiny was already aboard.

John Marshall, therefore, determined again to seek election to the House
of Delegates.

Immediately upon the organization of the National Government, Washington
appointed Marshall to be United States Attorney for the District of
Virginia. The young lawyer's friends had suggested his name to the
President, intimating that he wished the place.[121] Marshall, high in
the esteem of every one, had been consulted as to appointments on the
National bench,[122] and Washington gladly named him for District
Attorney. But when notified of his appointment, Marshall declined the
honor.

A seat in the Virginia Legislature, was, however, quite another matter.
Although his work as a legislator would interfere with his profession
much more than would his duties as United States Attorney, he could be
of practical service to the National Government in the General Assembly
of the State where, it was plain, the first battle for Nationalism must
be fought.

The Virginia Nationalists, much alarmed, urged him to make the race. The
most popular man in Richmond, he was the only Nationalist who could be
elected by that constituency; and, if chosen, would be the ablest
supporter of the Administration in the Legislature. Although the people
of Henrico County were more strongly against a powerful National
Government than they had been when they sent Marshall to the
Constitutional Convention the previous year, they nevertheless elected
him; and in 1789 Marshall once more took his seat as a member of
Virginia's law-making and law-marring body.

He was at once given his old place on the two principal standing
committees;[123] and on special committees to bring in various
bills,[124] among them one concerning descents, a difficult subject and
of particular concern to Virginians at that time.[125] As a member of
the Committee of Privileges and Elections, he passed on a hotly
contested election case.[126] He was made a member of the important
special committee to report upon the whole body of laws in force in
Virginia, and helped to draw the committee's report, which is
comprehensive and able.[127] The following year he was appointed a
member of the committee to revise the tangled laws of the
Commonwealth.[128]

The irrepressible subject of paying taxes in something else than money
soon came up. Marshall voted against a proposition to pay the taxes in
hemp and tobacco, which was defeated by a majority of 37 out of a total
vote of 139; and he voted for the resolution "that the taxes of the
present year ought to be paid in specie only or in warrants equivalent
thereto," which carried.[129] He was added to the committee on a notable
divorce case.[130]

Marshall was, of course, appointed on the special committee to bring in
a bill giving statehood to the District of Kentucky.[131] Thus he had to
do with the creation of the second State to be admitted after the
Constitution was adopted. A bill was passed authorizing a lottery to
raise money to establish an academy in Marshall's home county,
Fauquier.[132] He voted with the majority against the perennial Baptist
petition to democratize religion;[133] and for the bill to sell lands
for taxes.[134]

Marshall was appointed on the committee to bring in bills for proceeding
against absent debtors;[135] on another to amend the penal code;[136]
and he was made chairman of the special committee to examine the James
River Company,[137] of which he was a stockholder. Such are examples of
his routine activities in the Legislature of 1789.

The Legislature instructed the Virginia Senators in Congress "to use
their utmost endeavors to procure the admission of the citizens of the
United States to hear the debates of their House, whenever they are
sitting in their legislative capacity."[138]

An address glowing with love, confidence, and veneration was sent to
Washington.[139] Then Jefferson came to Richmond; and the Legislature
appointed a committee to greet him with polite but coldly formal
congratulations.[140] No one then foresaw that a few short years would
turn the reverence and affection for Washington into disrespect and
hostility, and the indifference toward Jefferson into fiery enthusiasm.

The first skirmish in the engagement between the friends and foes of a
stronger National Government soon came on. On November 30, 1789, the
House ratified the first twelve amendments to the Constitution,[141]
which the new Congress had submitted to the States; but three days later
it was proposed that the Legislature urge Congress to reconsider the
amendments recommended by Virginia which Congress had not adopted.[142]
An attempt to make this resolution stronger was defeated by the deciding
vote of the Speaker, Marshall voting against it.[143]

The Anti-Nationalist State Senate refused to concur in the House's
ratification of the amendments proposed by Congress;[144] and Marshall
was one of the committee to hold a conference with the Senate committee
on the subject.

After Congress had passed the laws necessary to set the National
Government in motion, Madison had reluctantly offered his summary of the
volume of amendments to the Constitution recommended by the States "in
order," as he said, "to quiet that anxiety which prevails in the public
mind."[145] The debate is illuminating. The amendments, as agreed to,
fell far short of the radical and extensive alterations which the States
had asked and were understood to be palliatives to popular
discontent.[146]

Randolph in Richmond wrote that the amendments were "much approved by
the _strong_ federalists ... being considered as an anodyne to the
discontented. Some others ... expect to hear, ... that a real
amelioration of the Constitution was not so much intended, as a
soporific draught to the restless. I believe, indeed," declared
Randolph, "that nothing--nay, not even the abolishment of direct
taxation--would satisfy those who are most clamorous."[147]

The amendments were used by many, who changed from advocates to
opponents of broad National powers, as a pretext for reversed views and
conduct; but such as were actually adopted were not a sufficient
justification for their action.[148]

The great question, however, with which the First Congress had to deal,
was the vexed and vital problem of finance. It was the heart of the
whole constitutional movement.[149] Without a solution of it the
National Government was, at best, a doubtful experiment. The public debt
was a chaos of variegated obligations, including the foreign and
domestic debts contracted by the Confederation, the debts of the various
States, the heavy accumulation of interest on all.[150] Public and
private credit, which had risen when the Constitution finally became an
accomplished fact, was now declining with capital's frail timidity of
the uncertain.

In his "First Report on the Public Credit," Hamilton showed the way out
of this maddening jungle. Pay the foreign debt, said Hamilton, assume as
a National obligation the debts of the States and fund them, together
with those of the Confederation. All had been contracted for a common
purpose in a common cause; all were "the price of liberty." Let the
owners of certificates, both State and Continental, be paid in full
with arrears of interest, without discrimination between original
holders and those who had purchased from them. And let this be done
by exchanging for the old certificates those of the new National
Government bearing interest and transferable. These latter then would
pass as specie;[151] the country would be supplied with a great volume
of sound money, so badly needed,[152] and the debt be in the process
of extinguishment.[153]

Hamilton's entire financial system was assailed with fury both in
Congress and among the people. The funding plan, said its opponents, was
a stock-jobbing scheme, the bank a speculator's contrivance, the
National Assumption of State debts a dishonest trick. The whole was a
plot designed to array the moneyed interests in support of the National
Government.[154] Assumption of State debts was a device to increase the
National power and influence and to lessen still more the strength and
importance of the States.[155] The speculators, who had bought the
depreciated certificates of the needy, would be enriched from the
substance of the whole people.

Without avail had Hamilton answered every objection in advance; the
careful explanations in Congress of his financial measures went for
naught; the materials for popular agitation against the National
Government were too precious to be neglected by its foes.[156] "The
first regular and systematic opposition to the principles on which the
affairs of the union were administered," writes Marshall, "originated in
the measures which were founded on it [the "First Report on the Public
Credit"]."[157]

The Assumption of State debts was the strategic point of attack,
especially for the Virginia politicians; and upon Assumption, therefore,
they wisely concentrated their forces. Nor were they without plausible
ground of opposition; for Virginia, having given as much to the common
cause as any State and more than most of her sisters, and having
suffered greatly, had by the sale of her public lands paid off more of
her debt than had any of the rest of them.

It seemed, therefore, unjust to Virginians to put their State on a
parity with those Commonwealths who had been less prompt. On the other
hand, the certificates of debt, State and Continental, had accumulated
in the North and East;[158] and these sections were determined that the
debt should be assumed by the Nation.[159] So the debate in Congress was
heated and prolonged, the decision doubtful. On various amendments,
sometimes one side and sometimes the other prevailed, often by a single
vote.[160]

At the same time the question of the permanent location of the National
Capital arose.[161] On these two subjects Congress was deadlocked. Both
were disposed of finally by the famous deal between Jefferson and
Hamilton, by which the latter agreed to get enough votes to establish
the Capital on the Potomac and the former enough votes to pass the
Assumption Bill.

Washington had made Jefferson his Secretary of State purely on merit.
For similar reasons of efficiency Hamilton had been appointed Secretary
of the Treasury, after Robert Morris, Washington's first choice, had
declined that office.

At Jefferson's dinner table, the two Secretaries discussed the
predicament and made the bargain. Thereupon, Jefferson, with all the
zeal of his ardent temperament, threw himself into the contest to pass
Hamilton's financial measure; and not only secured the necessary votes
to make Assumption a law, but wrote letters broadcast in support of it.

"Congress has been long embarrassed," he advised Monroe, "by two of the
most irritating questions that ever can be raised, ... the funding the
public debt and ... the fixing on a more central residence.... Unless
they can be reconciled by some plan of compromise, there will be no
funding bill agreed to, our credit ... will burst and vanish and the
states separate to take care every one of itself." Jefferson outlines
the bargain for fixing the Capital and assuming the debts, and
concludes: "If this plan of compromise does not take place, I fear one
infinitely worse."[162] To John Harvie he writes: "With respect to
Virginia the measure is ... divested of ... injustice."[163]

Jefferson delivered three Southern votes to pass the bill for Assumption
of the State debts, and Hamilton got enough Northern votes to locate the
National Capital permanently where it now stands.[164] Thus this vital
part of Hamilton's comprehensive financial plan was squeezed through
Congress by only two votes.[165] But Virginia was not appeased and
remained the center of the opposition.[166]

Business at once improved. "The sudden increase of monied capital,"
writes Marshall, "invigorated commerce, and gave a new stimulus to
agriculture."[167] But the "immense wealth which individuals acquired"
by the instantaneous rise in the value of the certificates of debt
caused popular jealousy and discontent. The debt was looked upon, not as
the funding of obligations incurred in our War for Independence, but as
a scheme newly hatched to strengthen the National Government by "the
creation of a monied interest ... subservient to its will."[168]

The Virginia Legislature, of which Marshall was now the foremost
Nationalist member, convened soon after Assumption had become a National
law. A smashing resolution, drawn by Henry,[169] was proposed, asserting
that Assumption "is repugnant to the constitution of the United States,
as it goes to the exercise of a power not expressly granted to the
general government."[170] Marshall was active among and, indeed, led
those who resisted to the uttermost the attack upon this thoroughly
National measure of the National Government.

Knowing that they were outnumbered in the Legislature and that the
people were against Assumption, Marshall and his fellow Nationalists in
the House of Delegates employed the expedient of compromise. They
proposed to amend Henry's resolution by stating that Assumption would
place on Virginia a "heavy debt ... which never can be extinguished" so
long as the debt of any other State remained unpaid; that it was
"inconsistent with justice"; that it would "alienate the affections of
good citizens of this Commonwealth from the government of the United
States ... and finally tend to produce measures extremely unfavorable to
the interests of the Union."[171]

Savage enough for any one, it would seem, was this amendment of the
Nationalists in the Virginia Legislature; but its fangs were not
sufficiently poisonous to suit the opposition. It lacked, particularly,
the supreme virtue of asserting the law's unconstitutionality. So the
Virginia Anti-Nationalists rejected it by a majority of 41 votes out of
a total of 135.

Marshall and his determined band of Nationalists labored hard to
retrieve this crushing defeat. On Henry's original resolution, they
slightly increased their strength, but were again beaten by a majority
of 23 out of 127 voting.[172]

Finally, the triumphant opposition reported a protest and remonstrance
to Congress. This brilliant Anti-Nationalist State paper--the Magna
Charta of States' Rights--sounded the first formal call to arms for the
doctrine that all powers not expressly given in the Constitution were
reserved to the States. It also impeached the Assumption Act as an
effort "to erect and concentrate and perpetuate a large monied interest
in opposition to the landed interests," which would prostrate
"agriculture at the feet of commerce" or result in a "change in the
present form of Federal Government, fatal to the existence of American
liberty."[173]

But the unconstitutionality of Assumption was the main objection. The
memorial declared that "during the whole discussion of the federal
constitution by the convention of Virginia, your memorialists were
taught to believe 'that every power not expressly granted was
retained' ... and upon this positive condition" the Constitution had
been adopted. But where could anything be found in the Constitution
"authorizing Congress to express terms or to assume the debts of the
states?" Nowhere! Therefore, Congress had no such power.

"As the guardians, then, of the rights and interests of their
constituents; as sentinels placed by them over the ministers of the
Federal Government, to shield it from their encroachments," the
Anti-Nationalists in the Virginia Legislature sounded the alarm.[174] It
was of this jealous temper of the States that Ames so accurately wrote a
year later: "The [National] government is too far off to gain the
affections of the people.... Instead of feeling as a Nation, a State is
our country. We look with indifference, often with hatred, fear, and
aversion, to the other states."[175]

Marshall and his fellow Nationalists strove earnestly to extract from
the memorial as much venom as possible, but were able to get only three
or four lines left out;[176] and the report was adopted practically as
originally drafted.[177] Thus Marshall was in the first skirmish, after
the National Government had been established, of that constitutional
engagement in which, ultimately, Nationalism was to be challenged on the
field of battle. Sumter and Appomattox were just below the horizon.

The remainder of Hamilton's financial plan was speedily placed upon the
statute books of the Republic, though not without determined resistance
which, more and more, took on a grim and ugly aspect both in Congress
and throughout the country.

When Henry's resolution, on which the Virginia remonstrance was based,
reached Hamilton, he instantly saw its logical result. It was, he
thought, the major premise of the syllogism of National disintegration.
"This," exclaimed Hamilton, of the Virginia resolution, "is the first
symptom of a spirit which must either be killed or it will kill the
Constitution of the United States."[178]

The Anti-Nationalist memorial of the Legislature of Virginia accurately
expressed the sentiment of the State. John Taylor of Caroline two years
later, in pamphlets of marked ability, attacked the Administration's
entire financial system and its management. While he exhaustively
analyzed its economic features, yet he traced all its supposed evils to
the Nationalist idea. The purpose and result of Hamilton's whole plan
and of the manner of its execution was, declared Taylor, to "Swallow
up ... the once sovereign ... states.... Hence all assumptions
and ... the enormous loans." Thus "the state governments will become
only speculative commonwealths to be read for amusement, like
Harrington's _Oceana_ or Moore's _Utopia_."[179]

The fight apparently over, Marshall declined to become a candidate for
the Legislature in the following year. The Administration's financial
plan was now enacted into law and the vital part of the National
machinery thus set up and in motion. The country was responding with a
degree of prosperity hitherto unknown, and, for the time, all seemed
secure.[180] So Marshall did not again consent to serve in the House of
Delegates until 1795. But the years between these periods of his public
life brought forth events which were determinative of the Nation's
future. Upon the questions growing out of them, John Marshall was one of
the ever-decreasing Virginia minority which stanchly upheld the policies
of the National Government.

Virginia's declaration of the unconstitutionality of the Assumption Act
had now thundered in Jefferson's ears. He himself was instrumental in
the enactment of this law and its unconstitutionality never occurred to
him[181] until Virginia spoke. But, faithful to the people's voice,[182]
Jefferson was already publicly opposing, through the timid but
resourceful Madison[183] and the fearless and aggressive[184] Giles, the
Nationalist statesmanship of Hamilton.[185]

Thus it came about that when Washington asked his Cabinet's opinion upon
the bill to incorporate the Bank of the United States, Jefferson
promptly expressed with all his power the constitutional theory of the
Virginia Legislature. The opposition had reached the point when, if no
other objection could be found to any measure of the National
Government, its "unconstitutionality" was urged against it. "We hear,
incessantly, from the old foes of the Constitution 'this is
unconstitutional and that is,' and, indeed, what is not? I scarce know a
point which has not produced this cry, not excepting a motion for
adjourning."[186] Jefferson now proceeded "to produce this cry" against
the Bank Bill.

Hamilton's plan, said Jefferson, violated the Constitution. "To take a
single step beyond the boundaries thus specially drawn around the powers
of Congress [the Twelfth Amendment][187] is to take possession of a
boundless field of power, no longer susceptible of any definition." Even
if the bank were "convenient" to carry out any power specifically
granted in the Constitution, yet it was not "_necessary_," argued
Jefferson; all powers expressly given could be exercised without the
bank. It was only indispensable powers that the Constitution permitted
to be implied from those definitely bestowed on Congress--"convenience
is not necessity."[188]

Hamilton answered with his argument for the doctrine of implied
powers.[189] Banks, said he, are products of civilized life--all
enlightened commercial nations have them. He showed the benefits and
utility of banks; answered all the objections to these financial
agencies; and then examined the disputed constitutionality of the bill
for the incorporation of the Bank of the United States.

All the powers of the National Government were not set down in words in
the Constitution and could not be. For instance, there are the
"resulting powers," as over conquered territory. Nobody could deny the
existence of such powers--yet they were not granted by the language of
the fundamental law. As to Jefferson's argument based on the word
"necessary," his contention meant, said Hamilton, that "no means are to
be considered _necessary_ without which the power would be
_nugatory_"--which was absurd. Jefferson's reasoning would require that
an implied power should be "_absolutely_ or _indispensably_ necessary."

But this was not the ordinary meaning of the word and it was by this
usual and customary understanding of terms that the Constitution must be
interpreted. If Jefferson was right, Congress could act only in "a case
of extreme necessity." Such a construction of the Constitution would
prevent the National Government even from erecting lighthouses, piers,
and other conveniences of commerce which _could_ be carried on without
them. These illustrations revealed the paralysis of government concealed
in Jefferson's philosophy.

The true test of implied powers, Hamilton showed, was the "natural
relation [of means] to the ... lawful ends of the government."
Collection of taxes, foreign and interstate trade, were, admittedly,
such ends. The National power to "_regulate_" these is "_sovereign_";
and therefore "to employ all the means which will relate to their
regulation to the best and greatest advantage" is permissible.

"This _general principle_ is _inherent_ in the very _definition_ of
government," declared he, "and _essential_ to every step of the progress
to be made by that of the United States, namely: That every power vested
in a government is in its nature _sovereign_ and included by _force_ of
the _term_, a right to employ all the _means_ requisite and fairly
applicable to the attainment of the _ends_ of such power, and which are
not precluded by restrictions and exceptions specified in the
Constitution or not immoral, or not contrary to the _essential_ ends of
political society....

"The powers of the Federal Government, as to _its objects_ are
sovereign"; the National Constitution, National laws, and treaties are
expressly declared to be "the supreme law of the land." And he added,
sarcastically: "The power which can create _the supreme law of the land_
in _any case_ is doubtless _sovereign_ as to such case." But, said
Hamilton, "it is unquestionably incident to _sovereign power_ to erect
corporations, and consequently to _that_ of the United States, in
_relation_ to the _objects_ intrusted to the management of the
government."

And, finally: "The powers contained in a constitution of government ...
ought to be construed liberally in advancement of the public good....
The means by which natural exigencies are to be provided for, national
inconveniences obviated, national prosperity promoted are of such
infinite variety, extent, and complexity, that there must of necessity
be great latitude of discretion in the selection and application of
those means."[190]

So were stated the opposing principles of liberal and narrow
interpretation of the Constitution, about which were gathering those
political parties that, says Marshall, "in their long and dubious
conflict ... have shaken the United States to their centre."[191] The
latter of these parties, under the name "Republican," was then being
shaped into a compact organization. Its strength was increasing. The
object of Republican attack was the National Government; that of
Republican praise and affection was the sovereignty of the States.

"The hatred of the Jacobites towards the house of Hanover was never more
deadly than that ... borne by many of the partisans of State power
towards the government of the United States," testifies Ames.[192] In
the Republican view the basis of the two parties was faith as against
disbelief in the ability of the people to govern themselves; the former
favored the moneyed interests, the latter appealed to the masses.[193]
Such was the popular doctrine preached by the opponents of the National
Government; but all economic objections centered in a common assault on
Nationalism.

Thus a clear dividing line was drawn separating the people into two
great political divisions; and political parties, in the present-day
sense of definite organizations upon fundamental and popularly
recognized principles, began to emerge. Henceforth the terms
"Federalist" and "Republican" mean opposing party groups, the one
standing for the National and the other for the provincial idea. The
various issues that arose were referred to the one or the other of these
hostile conceptions of government.

In this rise of political parties the philosophy of the Constitution was
negatived; for our fundamental law, unlike those of other modern
democracies, was built on the non-party theory and did not contemplate
party government. Its architects did not foresee parties. Indeed, for
several years after the Constitution was adopted, the term "party" was
used as an expression of reproach. The correspondence of the period
teems with illustrations of this important fact.

For a considerable time most of the leading men of the period looked
with dread upon the growing idea of political parties; and the favorite
rebuke to opponents was to accuse them of being a "party" or a
"faction," those designations being used interchangeably. The "Farewell
Address" is a solemn warning against political parties[194] almost as
much as against foreign alliances.

FOOTNOTES:

[95] Marshall, ii, 150-51. "The agitation had been too great to be
suddenly calmed; and for the active opponents of the system
[Constitution] to become suddenly its friends, or even indifferent to
its fate, would have been a victory of reason over passion." (_Ib._; and
see Beard: _Econ. O. J. D._, 85, 101, 102-07.)

[96] "The effort was made to fill the legislature with the declared
enemies of the government, and thus to commit it, in its infancy, to the
custody of its foes." (Marshall, ii, 151.)

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

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

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

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

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

[100] Jefferson to Hopkinson, March 13, 1789; _Works_: Ford, v, 456.

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

[102] Jefferson to Short, Dec. 14, 1789; _Works_: Ford, vi, 24.

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

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

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

[106] _Ib._, 416-18.

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

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

[109] Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788;
_Writings_: Hunt, v, 269-79.

[110] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 296.

[111] See vol. I of this work.

[112] Henry, ii, 427; see also Scott, 172.

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

[114] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 295.

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

[116] Randolph to Madison, Nov. 10, 1788; Conway, 121.

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

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

[119] _Ib._, 44.

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

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

[122] Randolph to Madison, July 19, 1789; Conway, 127.

[123] Journal, H.D. (Oct. 20, 1789), 4.

[124] _Ib._, 7-16.

[125] _Ib._, 16. Marshall probably drew the bill that finally passed. He
carried it from the House to the Senate. (_Ib._, 136.)

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

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

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

[129] Journal, H.D. (1789), 57-58.

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

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

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

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

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

[134] _Ib._ (Nov. 17, 1789), 20.

[135] _Ib._ (Nov. 13, 1789), 12.

[136] _Ib._ (Nov. 16, 1789), 14.

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

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

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

[139] Journal, H.D. (1789), 17, 19, 98.

[140] _Ib._, 107-12.

[141] _Ib._, 90-91.

[142] Journal, H.D. (1789), 96.

[143] _Ib._, 102.

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

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

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

[147] Randolph to Madison, June 30, 1789; Conway, 126.

[148] See Beard: _Econ. O. J. D._, 76.

[149] _Ib._, 86.

[150] _Ib._, 132-33.

[151] Marshall, ii, 192.

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

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

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

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

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

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

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

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

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

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

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

[162] Jefferson to Monroe, June 20, 1790; _Works_: Ford, vi, 78-80; and
see _ib._, 76; to Gilmer, June 27, _ib._, 83; to Rutledge, July 4,
_ib._, 87-88; to Harvie, July 25, _ib._, 108.

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

[164] Jefferson's statement; _Works_: Ford, vii, 224-26, and i, 175-77.

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

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

[167] _Ib._, 192.

[168] Marshall, ii, 191-92.

[169] Henry, ii, 453-55.

[170] Journal, H.D. (1790), 35.

[171] Journal, H.D. (1790), 35.

[172] _Ib._

[173] _Ib._, 80-81.

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

[175] Ames to Minot, Feb. 16, 1792; _Works_: Ames, i, 113.

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

[177] Journal, H.D. (1790), 141.

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

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

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

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

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

[180] Marshall, ii, 192.

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

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

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

[184] Anderson, 21.

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

[186] Ames to Minot, March 8, 1792; _Works_: Ames, i, 114.

[187] Tenth Amendment, as ratified.

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

[189] Hamilton's "Opinion as to the Constitutionality of the Bank of the
United States"; _Works_: Lodge, iii, 445-93. Adams took the same view.
(See Adams to Rush, Dec. 27, 1810; _Old Family Letters_, 272.)

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

[191] Marshall, ii, 206-07.

[192] Ames to Dwight, Jan. 23, 1792; _Works_: Ames, i, 110-11.

[193] "A Candid State of Parties"--_National Gazette_, Sept. 26, 1792.

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

CHAPTER III

LEADING THE VIRGINIA FEDERALISTS

I think nothing better could be done than to make him [Marshall] a
judge. (Jefferson to Madison, June 29, 1792.)

To doubt the holiness of the French cause was the certain road to
odium and proscription. (Alexander Graydon.)

The trouble and perplexities have worn away my mind. (Washington.)

In Richmond, Marshall was growing ever stronger in his belief in
Nationalism. Hamilton's immortal plea for a vital interpretation of the
fundamental law of the Nation and his demonstration of the
constitutionality of extensive implied powers was a clear, compact
statement of what Marshall himself had been thinking. The time was
coming when he would announce it in language still more lucid,
expressive of a reasoning even more convincing. Upon Hamilton's
constitutional doctrine John Marshall was to place the seal of
finality.[195]

But Marshall did not delay until that great hour to declare his
Nationalist opinions. Not only did he fight for them in the House of
Delegates; but in his club at Farmicola's Tavern, on the street corners,
riding the circuit, he argued for the constitutionality and wisdom of
those measures of Washington's Administration which strengthened and
broadened the powers of the National Government.[196]

Although he spoke his mind, in and out of season, for a cause
increasingly unpopular, Marshall, as yet, lost little favor with the
people. At a time when political controversy severed friendship and
interrupted social relations,[197] his personality still held sway over
his associates regardless of their political convictions. Even Mason,
the ultra-radical foe of broad National powers, wrote, at this heated
juncture, that Marshall "is an intimate friend of mine."[198]

His winning frankness, easy manner, and warm-heartedness saved him from
that dislike which his bold views otherwise would have created.
"Independent principles, talents, and integrity are denounced [in
Virginia] as badges of aristocracy; but if you add to these good manners
and a decent appearance, his political death is decreed without the
benefit of a hearing," testifies Francis Corbin.[199]

"Independent principles, talents, and integrity" Marshall possessed in
fullest measure, as all admitted; but his manners were far from those
which men like the modish Corbin called "good," and his appearance would
not have passed muster under the critical eye of that fastidious and
disgruntled young Federalist. We shall soon hear Jefferson denouncing
Marshall's deportment as the artifice of a cunning and hypocritical
craft. As yet, however, Jefferson saw in Marshall only an extremely
popular young man who was fast becoming the most effective supporter in
Virginia of the National Government.

In the year of the Bank Act, Jefferson and Madison went on their
eventful "vacation," swinging up the Hudson and through New England.
During this journey Jefferson drew around Madison "the magic circle"
of his compelling charm and won entirely to the extreme Republican
cause[200] the invaluable aid of that superb intellect. In
agreement as to common warfare upon the Nationalist measures of the
Administration,[201] the two undoubtedly talked over the Virginia
Federalists.[202]

Marshall's repeated successes at the polls with a constituency hostile
to the young lawyer's views particularly impressed them. Might not
Marshall become a candidate for Congress? If elected, here would be a
skillful, dauntless, and captivating supporter of all Nationalist
measures in the House of Representatives. What should be done to avert
this misfortune?

Jefferson's dexterous intellect devised the idea of getting rid of
Marshall, politically, by depositing him on the innocuous heights of the
State bench. Better, far better, to make Marshall a Virginia judge than
to permit him to become a Virginia Representative in Congress. So, upon
his return, Jefferson wrote to Madison:--

"I learn that he [Hamilton] has expressed the strongest desire that
Marshall should come into Congress from Richmond, declaring that there
is no man in Virginia whom he wishes so much to see there; and I am told
that Marshall has expressed half a mind to come. Hence I conclude that
Hamilton has plyed him well with flattery & sollicitation and I think
nothing better could be done than to make him a judge."[203]

Hamilton's "plying" Marshall with "flattery & solicitation" occurred
only in Jefferson's teeming, but abnormally suspicious, mind. Marshall
was in Virginia all this time, as his Account Book proves, while
Hamilton was in New York, and no letters seem to have passed between
them.[204] But Jefferson's information that his fellow Secretary wished
the Nationalist Richmond attorney in Congress was probably correct.
Accounts of Marshall's striking ability and of his fearless zeal in
support of the Administration's measures had undoubtedly reached
Hamilton, perhaps through Washington himself; and so sturdy and capable
a Federalist in Congress from Virginia would have been of great
strategic value.

But Jefferson might have spared his pains to dispose of Marshall by
cloistering him on the State bench. Nothing could have induced the busy
lawyer to go to Congress at this period. It would have been fatal to his
law practice[205] which he had built up until it was the largest in
Richmond and upon the returns from which his increasing family depended
for support. Six years later, Washington himself labored with Marshall
for four days before he could persuade him to stand for the National
House, and Marshall then yielded to his adored leader only as a matter
of duty, at one of the Nation's most critical hours, when war was on the
horizon.[206]

The break-up of Washington's Cabinet was now approaching. Jefferson was
keeping pace with the Anti-Nationalist sentiment of the masses--drilling
his followers into a sternly ordered political force. "The discipline of
the [Republican] party," wrote Ames, "is as severe as the
Prussian."[207] Jefferson and Madison had secured an organ in the
"National Gazette,"[208] edited by Freneau, whom Jefferson employed as
translator in the State Department. Through this paper Jefferson
attacked Hamilton without mercy. The spirited Secretary of the Treasury
keenly resented the opposition of his Cabinet associate which was at
once covert and open.

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
proclamation[232] demanding obedience to the National statutes after his
earnest pleas[233] to the disaffected to observe the laws; the march of
the troops accompanied by Hamilton[234] 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 none[253]--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 resigned[267] 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. M^r. Marshall
has written G. Jones[272] 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. Jefferson[276] 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 time[283] 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.

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
Taylor[294] 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 France[298] 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 master[301] 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 resentment[307]
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 trade[314] 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 here[340] [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.

FOOTNOTES:

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

[196] Binney, in Dillon, iii, 301-02.

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

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

[199] Corbin to Hamilton, March 17, 1793; as quoted in Beard: _Econ. O.
J. D._, 226.

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

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

[202] See brief but excellent account of this famous journey in Gay:
_Madison_ (American Statesmen Series), 184-85; and _contra_, Rives, iii,
191.

[203] Jefferson to Madison, June 29, 1792; _Works_: Ford, vii, 129-30.

[204] No letters have been discovered from Hamilton to Marshall or from
Marshall to Hamilton dated earlier than three years after Jefferson's
letter to Madison.

[205] "The length of the last session has done me irreparable injury in
my profession, as it has made an impression on the general opinion that
two occupations are incompatible." (Monroe to Jefferson, June 17, 1792;
Monroe's _Writings_: Hamilton, i, 230.)

[206] See _infra_, chap. X.

[207] Ames to Dwight, Jan., 1793; _Works_: Ames, i, 126-27.

[208] Rives, iii, 192-94; and see McMaster, ii, 52-53; also Hamilton to
Carrington, May 26, 1792; _Works_: Lodge, ix, 513-35.

[209] Washington to Jefferson, Aug. 23, 1792; _Writings_: Ford, xii,
174-75. This letter is almost tearful in its pleading.

[210] Jefferson to Washington, Sept. 9, 1792; _Works_: Ford, vii, 137
_et seq._ The quotation in the text refers to Jefferson's part in the
deal fixing the site of the Capital and passing the Assumption Act.
Compare with Jefferson's letters written at the time. (_Supra_, 64.) It
is impossible that Jefferson was not fully advised; the whole country
was aroused over Assumption, Congress debated it for weeks, it was the
one subject of interest and conversation at the seat of government, and
Jefferson himself so testifies in his correspondence.

[211] Washington to Hamilton, Aug. 26, 1792; _Writings_: Ford, xii,
177-78.

[212] Hamilton to Washington, Sept, 9, 1792; _Works_: Lodge, vii, 306.

[213] See Marshall, ii, 191-92.

[214] Journal, H.D. (Nov. 28, 1793), 101.

[215] _Ib._ The Legislature instructed Virginia's Senators and
Representatives to endeavor to secure measures to "suspend the operation
and completion" of the articles of the treaty of peace looking to the
payment of British debts until the posts and negroes should be given up.
(_Ib._, 124-25; also see Virginia Statutes at Large, New Series, i,
285.) Referring to this Ames wrote: "Thus, murder, at last, is out."
(Ames to Dwight, May 6, 1794; _Works_: Ames, i, 143-44.)

[216] Chisholm _vs._ Georgia, 2 Dallas, 419.

[217] Journal, H.D. (1793), 92-99; also see Virginia Statutes at Large,
New Series, i, 284. This was the origin of the Eleventh Amendment to the
Constitution. The Legislature "Resolved, That a State cannot, under the
Constitution of the United States, be made a defendant at the suit of
any individual or individuals, and that the decision of the Supreme
Federal Court, that a State may be placed in that situation, is
incompatible with, and dangerous to the sovereignty and independence of
the individual States, as the same tends to a general consolidation of
these confederated republics." Virginia Senators were "instructed" to
make "their utmost exertions" to secure an amendment to the Constitution
regarding suits against States. The Governor was directed to send the
Virginia resolution to all the other States. (Journal, H.D. (1793), 99.)

[218] _Ib._, 125.

[219] _Ib._; also Statutes at Large, _supra_, 284.

[220] See _Annals_, 2d Cong., 900-63.

[221] Journal, H.D. (1793), 56-57. Of Giles's methods in this attack on
Hamilton the elder Wolcott wrote that it was "such a piece of baseness
as would have disgraced the council of Pandemonium." (Wolcott to his
son, March 25, 1793; Gibbs, i, 91.)

[222] Beard: _Econ. O. J. D._, chap. vi.

[223] Professor Beard, after a careful treatment of this subject,
concludes that "The charge of mere corruption must fall to the ground."
(_Ib._, 195.)

[224] "To the northward of Baltimore everybody ... speculates, trades,
and jobs in the stocks. The judge, the advocate, the physician and the
minister of divine worship, are all, or almost all, more or less
interested in the sale of land, in the purchase of goods, in that of
bills of exchange, and in lending money at two or three per cent." (La
Rochefoucauld, iv, 474.) The French traveler was also impressed with the
display of riches in the Capital. "The profusion of luxury of
Philadelphia, on great days, at the tables of the wealthy, in their
equipages and the dresses of their wives and daughters, are ... extreme.
I have seen balls on the President's birthday where the splendor of the
rooms, and the variety and richness of the dresses did not suffer, in
comparison with Europe." The extravagance extended to working-men who,
on Sundays, spent money with amazing lavishness. Even negro servants had
balls; and negresses with wages of one dollar per week wore dresses
costing sixty dollars. (_Ib._, 107-09.)

[225] Jefferson to T. M. Randolph, March 16, 1792; _Works_: Ford, vi,
408.

[226] Jefferson to Short, May 18, 1792; _Works_: Ford, vi, 413; and see
"A Citizen" in the _National Gazette_, May 3, 1792, for a typical
Republican indictment of Funding and Assumption.

[227] Gallatin's _Writings_: Adams, i, 3.

[228] Pennsylvania alone had five thousand distilleries. (Beard: _Econ.
O. J. D._, 250.) Whiskey was used as a circulating medium. (McMaster,
ii, 29.) Every contemporary traveler tells of the numerous private
stills in Pennsylvania and the South. Practically all farmers,
especially in the back country, had their own apparatus for making
whiskey or brandy. (See chap. VII, vol. I, of this work.)

Nor was this industry confined to the lowly and the frontiersmen.
Washington had a large distillery. (Washington to William Augustine
Washington, Feb. 27, 1798; _Writings_: Ford, xiii, 444.)

New England's rum, on the other hand, was supplied by big distilleries;
and these could include the tax in the price charged the consumer. Thus
the people of Pennsylvania and the South felt the tax personally, while
New Englanders were unconscious of it. Otherwise there doubtless would
have been a New England "rum rebellion," as Shays's uprising and as New
England's implied threat in the Assumption fight would seem to prove.
(See Beard: _Econ. O. J. D._, 250-51.)

[229] Marshall, ii, 200.

[230] _Ib._, 238.

[231] Graydon, 372.

[232] Sept. 25, 1794; _Writings_: Ford, xii, 467.

[233] Sept. 15, 1792; Richardson, i, 124; Aug. 7, 1794; _Writings_:
Ford, xii, 445.

[234] Hamilton remained with the troops until the insurrection was
suppressed and order fully established. (See Hamilton's letters to
Washington, written from various points, during the expedition, from
Oct. 25 to Nov. 19, 1794; _Works_: Lodge, vi, 451-60.)

[235] Marshall, ii, 200, 235-38, 340-48; Gibbs, i, 144-55; and see
Hamilton's Report to the President, Aug. 5, 1794; _Works_: Lodge, vi,
358-88. But see Gallatin's _Writings_: Adams, i, 2-12; Beard: _Econ. O.
J. D._, 250-60. For extended account of the Whiskey Rebellion from the
point of view of the insurgents, see Findley: _History of the
Insurrection_, etc., and Breckenridge: _History of the Western
Insurrection_.

[236] The claim now made by the Republicans that they were the only
friends of the Constitution was a clever political turn. Also it is an
amusing incident of our history. The Federalists were the creators of
the Constitution; while the Republicans, generally speaking and with
exceptions, had been ardent foes of its adoption. (See Beard: _Econ. O.
J. D._)

[237] Graydon, 374. Jefferson's party was called Republican because of
its championship of the French Republic. (Ambler, 63.)

[238] In the Fairfax purchase. (See _infra_, chap. V.)

[239] See Hamilton's orders to General Lee; _Works_: Lodge, vi, 445-51;
and see Washington to Lee, Oct. 20, 1794; _Writings_: Ford, xii, 478-80.

[240] Washington to Lee, Aug. 26, 1794; _Writings_: Ford, xii, 454-56.

[241] Washington to Jay, Nov. 1, 1794; _ib._, 486.

[242] Washington to Thruston, Aug. 10, 1794; _ib._, 452.

[243] Washington to Morgan, Oct. 8, 1794; _ib._, 470. The Virginia
militia were under the Command of Major-General Daniel Morgan.

[244] General Order, June 30, 1794; _Cal. Va. St. Prs._, vii, 202.

[245] Carrington to Lieutenant-Governor Wood, Sept. 1, 1794; _ib._, 287.

[246] Major-General Daniel Morgan to the Governor of Virginia, Sept. 7,
1794; _ib._, 297.

[247] Jefferson to Washington, Sept. 18, 1792; _Works_: Ford, vii, 153.

[248] Jefferson to Madison, Dec. 28, 1794; _ib._, viii, 157.

[249] _Ib._

[250] Jefferson to Monroe, May 26, 1795; _ib._, 177.

[251] Jefferson to Madison, Dec. 28, 1794; _ib._, 157.

[252] Wolcott to Wolcott, Dec. 15, 1792; Gibbs, i, 85.

[253] Marshall, ii, 256; see Washington's "Farewell Address."

[254] John Adams claimed this as his particular idea. "Washington
learned it from me ... and practiced upon it." (Adams to Rush, July 7,
1805; _Old Family Letters_, 71.)

"I trust that we shall have too just a sense of our own interest to
originate any cause, that may involve us in it [the European war]."
(Washington to Humphreys, March 23, 1793; _Writings_: Ford, xii, 276.)

[255] Marshall, ii, 259; and see Rules of Neutrality, _ib._, note 13, p.
15. Washington's proclamation was drawn by Attorney-General Randolph.
(Conway, 202.)

[256] Marshall, ii, 259-60. "The publications in Freneau's and Bache's
papers are outrages on common decency." (Washington to Lee, July 21,
1793; _Writings_: Ford, xii, 310.)

[257] Marshall, ii, 256.

[258] Graydon, 382.

[259] Marshall, ii, 260. "A Freeman" in the _General Advertiser_ of
Philadelphia stated the most moderate opinion of those who opposed
Neutrality. "France," said he, "is not only warring against the
despotism of monarchy but the despotism of aristocracy and it would
appear rather uncommon to see men [Washington and those who agreed with
him] welcoming the Ambassador of republicanism who are warring [against]
their darling aristocracy. But ... shall the officers of our government
prescribe rules of conduct to freemen? Fellow citizens, view this
conduct [Neutrality] well and you will discover principles lurking at
bottom at variance with your liberty. Who is the superior of the people?
Are we already so degenerate as to acknowledge a superior in the United
States?" (_General Advertiser_, April 25, 1793.)

[260] "Our commercial and maritime people feel themselves deeply
interested to prevent every act that may put our peace at hazard."
(Cabot to King, Aug. 2, 1793; Lodge: _Cabot_, 74.)

The merchants and traders of Baltimore, "as participants in the general
prosperity resulting from peace, and the excellent laws and constitution
of the United States ... beg leave to express the high sense they
entertain of the provident wisdom and watchfulness over the concerns and
peace of a happy people which you have displayed in your late
proclamation declaring neutrality ... well convinced that the true
interests of America consist in a conduct, impartial, friendly, and
unoffending to all the belligerent powers." (Address of the Merchants
and Traders of Baltimore to George Washington, President of the United
States; _General Advertiser_, Philadelphia, June 5, 1793.)

[261] Jefferson to Madison, May 19, 1793; _Works_: Ford, vii, 336.

[262] Jefferson to Monroe, May 5, 1793; _ib._, 309.

[263] Marshall, ii, 273.

[264] Pacificus No. 1; _Works_: Lodge, iv, 432-44.

[265] Marshall, ii, 327.

[266] Marshall, ii, 322.

[267] Jefferson to Washington, Dec. 31, 1793; _Works_: Ford, viii, 136.

[268] Jefferson to Short, Jan. 28, 1792; _ib._, vi, 382.

[269] Marshall, ii, 233.

[270] Generally speaking, the same classes that secured the Constitution
supported all the measures of Washington's Administration. (See Beard:
_Econ. O. J. D._, 122-24.)

While the Republicans charged that Washington's Neutrality was inspired
by favoritism to Great Britain, as it was certainly championed by
trading and moneyed interests which dealt chiefly with British houses,
the Federalists made the counter-charge, with equal accuracy, that the
opponents of Neutrality were French partisans and encouraged by those
financially interested.

The younger Adams, who was in Europe during most of this period and who
carefully informed himself, writing from The Hague, declared that many
Americans, some of them very important men, were "debtors to British
merchants, creditors to the French government, and speculators in the
French revolutionary funds, all to an immense amount," and that other
Americans were heavily indebted in England. All these interests were
against Neutrality and in favor of war with Great Britain--those owing
British debts, because "war ... would serve as a sponge for their
debts," or at least postpone payment, and the creditors of the French
securities, because French success would insure payment. (J. Q. Adams to
his father, June 24, 1796; _Writings, J. Q. A._: Ford, i, 506.)

[271] Story, in Dillon, iii, 350.

[272] Gabriel Jones, the ablest lawyer in the Valley, and, of course, a
stanch Federalist.

[273] Monroe to Jefferson, Sept. 3, 1793; Monroe's _Writings_: Hamilton,
i, 274-75. Considering the intimate personal friendship existing between
Monroe and Marshall, the significance and importance of this letter
cannot be overestimated.

[274] It was at this point, undoubtedly, that the slander concerning
Marshall's habits was started. (See _infra_, 101-03.)

[275] The above paragraphs are based on Justice Story's account of
Marshall's activities at this period, supplemented by Madison and
Monroe's letters; by the well-known political history of that time; and
by the untrustworthy but not negligible testimony of tradition. While
difficult to reconstruct a situation from such fragments, the account
given in the text is believed to be substantially accurate.

[276] See _Works_: Ford, xii, footnote to 451.

[277] Madison to Jefferson, June 17, 1793; _Writings_: Hunt, vi, 134.

[278] See _infra_, chap. V.

[279] Madison to Jefferson, Sept. 2, 1793; _Writings_: Hunt, vi, 196.

[280] See _infra_, chap. V. Robert Morris secured in this way all the
money he was able to give his son-in-law for the Fairfax purchase.

[281] Mrs. Carrington to her sister Nancy; undated; MS.

[282] _Ib._

[283] See _supra_, vol. I, chap. VII.

[284] See, for instance, Jefferson to Short (Sept 6, 1790; _Works_:
Ford, vi, 146), describing a single order of wine for Washington and one
for himself; and see Chastellux's account of an evening with Jefferson:
"We were conversing one evening over a bowl of punch after Mrs.
Jefferson had retired. Our conversation turned on the poems of
Ossian.... The book was sent for and placed near the bowl, where by
their mutual aid the night far advanced imperceptibly upon us."
(Chastellux, 229.)

Marshall's Account Book does not show any purchases of wine at all
comparable with those of other contemporaries. In March, 1791, Marshall
enters, "wine £60"; August, ditto, "£14-5-8"; September, 1792, "Wine
£70"; in July, 1793, "Whisky 6.3.9" (pounds, shillings, and pence); in
May, 1794, "Rum and brandy 6-4"; August, 1794, ditto, five shillings,
sixpence; May, 1795, "Whisky £6.16"; Sept., "wine £3"; Oct., ditto,
"£17.6."

[285] Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc.

[286] Major George Keith Taylor to Brigadier-General Mathews, July 19,
1794; _Cal. Va. St. Prs._, vii, 223.

[287] Mathews to Taylor, July 20, 1794; _ib._, 224.

[288] Governor Henry Lee "Commander-in-chief," to Marshall, July 21,
1794; MS., "War 10," Archives, Va. St. Lib.

[289] "Dark blue coat, skirts lined with buff, capes, lapels and cuffs
buff, buttons yellow. Epaulets gold one on each shoulder, black cocked
hat, with black cockade, black stock, boots and side arms." (Division
Orders, July 4, 1794; _Cal. Va. St. Prs._, vii, 204. But see Schoepf
(ii, 43), where a uniform worn by one brigadier-general of Virginia
Militia is described as consisting of "a large white hat, a blue coat, a
brown waistcoat, and green breeches.")

[290] Particular Orders, _supra_.

[291] Marshall to Governor of Virginia, July 23, 1794; _Cal. Va. St.
Prs._, vii, 228; and same to same, July 28, 1794; _ib._, 234.

[292] _Ib._

[293] Marshall to Governor of Virginia, July 28, 1794; _Cal. Va. St.
Prs._, vii, 235.

[294] George Keith Taylor; see _infra_, chaps. X and XII.

[295] Lee to the Secretary of War, July 28, 1794; _Cal. Va. St. Prs._,
vii, 234.

[296] See, for instance, Thompson's speech, _infra_, chap. VI.

[297] Marshall, ii, 293.

[298] _Ib._, 285.

[299] _Ib._, 285.

[300] Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc.

[301] "The idea that Great Britain was the natural enemy of America had
become habitual" long before this time. (Marshall, ii, 154.)

[302] One reason for Great Britain's unlawful retention of these posts
was her purpose to maintain her monopoly of the fur trade. (_Ib._, 194.
And see Beard: _Econ. O. J. D._, 279.)

[303] Marshall, ii, 320-21; and see _Annals_, 3d Cong., 1st Sess., 1793,
274-90; also Anderson, 29; and see prior war-inviting resolves and
speeches in _Annals_, 3d Cong., _supra_, 21, 30, 544 _et seq._; also
Marshall, ii, 324 _et seq._

[304] Ames to Dwight, Dec. 12, 1794; _Works_: Ames, i, 154.

[305] Ames to Gore, March 26, 1794; _Works_: Ames, i, 140. And see
Marshall, ii, 324 _et seq._

[306] See Washington to Ball, Aug. 10, 1794; _Writings_: Ford, xii, 449.

[307] See Van Tyne, chap. xi.

[308] Marshall, ii, 286, 287.

[309] _Ib._

[310] John Quincy Adams, who was in London and who was intensely
irritated by British conduct, concluded that: "A war at present with
Great Britain must be total destruction to the commerce of our country;
for there is no maritime power on earth that can contend with the
existing naval British force." (J. Q. Adams to Sargent, The Hague, Oct.
12, 1795; _Writings, J. Q. A._: Ford, i, 419.)

[311] "I believe the intention is to draw the United States into it
[war] merely to make tools of them.... The conduct of the British
government is so well adapted to increasing our danger of war, that I
cannot but suppose they are secretly inclined to produce it." (J. Q.
Adams to his father, The Hague, Sept. 12, 1795; _ib._, 409.)

[312] Marshall, ii, 194.

[313] Marshall, ii, 337.

[314] _Ib._, 195; and see Beard: _Econ. O. J. D._, 279.

[315] See this speech in Rives, iii, footnote to 418-19. It is curious
that Marshall, in his _Life of Washington_, makes the error of asserting
that the account of Dorchester's speech was "not authentic." It is one
of the very few mistakes in Marshall's careful book. (Marshall, ii,
320.)

[316] Marshall to Stuart, May 28, 1794; MS., Va. Hist. Soc.

[317] It must not be forgotten that we were not so well prepared for war
in 1794 as the colonies had been in 1776, or as we were a few years
after Jay was sent on his mission. And on the traditional policy of
Great Britain when intending to make war on any country, see J. Q. Adams
to his father, June 24, 1796; _Writings, J. Q. A._: Ford, i, 499-500.

Also, see same to same, The Hague, June 9, 1796; _ib._, 493, predicting
dissolution of the Union in case of war with Great Britain. "I confess
it made me doubly desirous to quit a country where the malevolence that
is so common against America was exulting in triumph." (_Ib._)

"The truth is that the American _Government_ ... have not upon earth
more rancorous enemies, than the springs which move the machine of this
Country [England] ... Between Great Britain and the United States no
_cordiality_ can exist." (Same to same, London, Feb. 10, 1796; _ib._,
477; also, March 24, 1794; _ib._, 18, 183, 187.)

[318] Marshall, ii, 363.

[319] _American Remembrancer_, i, 9.

[320] Resolution of Wythe County (Va.) Democratic Society, quoted in
Anderson, 32.

[321] Ames to Dwight, Feb. 3, 1795; _Works_: Ames, i, 166.

[322] Marshall, ii, 362-64.

[323] _Ib._, 366.

[324] The Boston men, it appears, had not even read the treaty, as was
the case with other meetings which adopted resolutions of protest.
(Marshall, ii, 365 _et seq._) Thereupon the Boston satirists lampooned
the hasty denunciators of the treaty as follows:--

"I've never read it, but I say 'tis bad.
If it goes down, I'll bet my ears and eyes,
It will the people all unpopularize;
Boobies may hear it read ere they decide,
I move it quickly be unratified."

On Dr. Jarvis's speech at Faneuil Hall against the Jay Treaty; Loring:
_Hundred Boston Orators_, 232. The Republicans were equally sarcastic:
"I say the treaty is a good one ... for I do not think about it.... What
did we choose the Senate for ... but to think for us.... Let the people
remember that it is their sacred right to submit and obey; and that all
those who would persuade them that they have a right to think and speak
on the sublime, mysterious, and to them incomprehensible affairs of
government are factious Democrats and outrageous Jacobins." (Essay on
Jacobinical Thinkers: _American Remembrancer_, i, 141.)

[325] See Marshall's vivid description of the popular reception of the
treaty; Marshall, ii, 365-66.

[326] Hamilton to King, June 20, 1795; _Works_: Lodge, x, 103.

[327] "An Emetic for Aristocrats.... Also a History of the Life and
Death of Independence; Boston, 1795." Copies of such attacks were
scattered broadcast--"Emissaries flew through the country spreading
alarm and discontent." (Camillus, no. 1; _Works_: Lodge, v, 189-99.)

[328] McMaster, ii, 213-20; Gibbs, i, 207; and Hildreth, iv, 548.

[329] Present-day detraction of our public men is gentle reproof
contrasted with the savagery with which Washington was, thenceforth,
assailed.

[330] Marshall, ii, 370. Of the innumerable accounts of the abuse of
Washington, Weld may be cited as the most moderate. After testifying to
Washington's unpopularity this acute traveler says: "It is the spirit of
dissatisfaction which forms a leading trait in the character of the
Americans as a people, which produces this malevolence [against
Washington]; if their public affairs were regulated by a person sent
from heaven, I firmly believe his acts, instead of meeting with
universal approbation, would by many be considered as deceitful and
flagitious." (Weld, i, 108-09.)

[331] Washington almost determined to withhold ratification. (Marshall,
ii, 362.) The treaty was signed November 19, 1794; received by the
President, March 7, 1795; submitted to the Senate June 8, 1795; ratified
by the Senate June 24; and signed by Washington August 12, 1795. (_Ib._,
360, 361, 368.)

[332] "Washington now defies the whole Sovereign that made him what he
is----and can unmake him again. Better his hand had been cut off when
his glory was at its height before he blasted all his Laurels!" (Dr.
Nathaniel Ames's Diary, Aug. 14, 1795; _Dedham (Mass.) Historical
Register_, vii, 33.) Of Washington's reply to the address of the
merchants and traders of Philadelphia "An Old Soldier of '76," wrote:
"Has adulation ... so bewildered his senses, that relinquishing even
common decency, he tells 408 merchants and traders of Philadelphia that
they are more immediately concerned than any other class of his fellow
citizens?" (_American Remembrancer_, ii, 280-81.)

[333] Washington to Jay, May 8, 1796; _Writings_: Ford, xiii, 189.

[334] _American Remembrancer_, ii, 265.

[335] Journal, H.D. (1795), 54-55; and see Anderson, 43.

[336] _American Remembrancer_, ii, 269.

[337] Ames to Gore, Jan. 10, 1795; _Works_: Ames, i, 161.

[338]

"This treaty in one page confines,
The sad result of base designs;
The wretched purchase here behold
Of Traitors--who their country sold.
Here, in their proper shape and mien,
Fraud, perjury, and guilt are seen."
(Freneau, iii, 133.)

[339] Jefferson to Monroe, Sept. 6, 1795; _Works_: Ford, viii, 187-88.

[340] _Ib._

[341] Jefferson to Tazewell, Sept. 13, 1795; _Works_: Ford, viii, 191.
The Jay Treaty and Neutrality must be considered together, if the temper
of the times is to be understood. "If our neutrality be still preserved,
it will be due to the President alone," writes the younger Adams from
Europe. "Nothing but his weight of character and reputation, combined
with his firmness and political intrepidity could have stood against the
torrent that is still tumbling with a fury that resounds even across the
Atlantic.... If his system of administration now prevails, ten years
more will place the United States among the most powerful and opulent
nations on earth.... Now, when a powerful party at home and a mighty
influence from abroad, are joining all their forces to assail his
reputation, and his character I think it my duty as an American to avow
my sentiments." (J. Q. Adams to Bourne, Dec. 24, 1795; _Writings, J. Q.
A._: Ford, i, 467.)

[342] Charles Pinckney's Speech; _American Remembrancer_, i, 7.

[343] Marshall, ii, 378. The Republicans insisted that the assent of the
House of Representatives is necessary to the ratification of any treaty
that affects commerce, requires appropriation of money, or where any act
of Congress whatever may be necessary to carry a treaty into effect.
(_Ib._; and see Livingston's resolutions and debate; _Annals_, 4th
Cong., 1st Sess., 1795, 426; 628.)

[344] "Priestly's Emigration," printed in Cobbett, i, 196, quoting
"Agricola."

[345] "Camillus"; _Works_: Lodge, v and vi. It is impossible to give a
satisfactory condensation of these monumental papers. Struck off in
haste and under greatest pressure, they equal if not surpass Hamilton's
"First Report on the Public Credit," his "Opinion as to the
Constitutionality of the Bank of the United States," or his "Report on
Manufactures." As an intellectual performance, the "Letters of Camillus"
come near being Hamilton's masterpiece.

[346] Washington to Hamilton, July 29, 1795; _Writings_: Ford, xiii, 76.

[347] The whole country was against the treaty on general grounds; but
Virginia was especially hostile because of the sore question of runaway
slaves and the British debts.

[348] Washington to Randolph, Aug. 4, 1795; _Writings_: Ford, xiii,
footnote to 86. See Resolutions, which were comparatively mild;
_American Remembrancer_, i, 133-34; and see _Richmond and Manchester
Advertiser_, of July 30, and Aug. 6, 1795.

[349] Jefferson to Coxe, Sept. 10, 1795; _Works_: Ford, vii, 29.

[350] Jefferson to Monroe, Sept. 6, 1795; _ib._, 27.

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 Gen^l. 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 Gen^l. 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]

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 General[359] 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 Gen^l.
Marshall and myself demands & receives our most serious attention--On
his [Marshall's] aid I rely for giving you accurate information."[361]

[Illustration: _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 "Gen^l. Marshall does not think
advisable."[363]

When Washington's second letter, suggesting Patrick Henry, was received
by Carrington, he "immediately consulted Gen^l. 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."[369] Marshall and his
brother were now the owners of this estate;[370] 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,"[371] touched lightly on this same chord.[372] So did Heath,
who was from that part of Virginia lying within the Fairfax grant.[373]

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.[374] Upon his appearance
"a gentleman demanded that a poll be opened for Mr. Marshall."[375]
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;[376] 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."[377] 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."[378]

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, Gen^l. Marshall & Mr. Andrews will act
with ability on the defensive."[379]

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 "Gen^l. 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 Gen^l. 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.[380]

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 Gen^l. Marshall and Mr. Chas. Lee," Carrington
reports to Washington.[382]

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 them[383] (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?"[384]

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."[385] He was mistaken; the Republicans were not impressed.
On the contrary, they thought that the treaty "was much less ably
defended than opposed."[386]

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]."[387]

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]."[388]

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."[389] 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.[390]

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."[391]

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.[392] 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.[393]

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."[394]

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_."[395] 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."[396]

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.[397]

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.[398]

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."[399]

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."[400]

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.[401]

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";[402] and later presented the bill,[403] which finally
passed, December 8, 1795, though not without resistance, 38 votes being
cast against it.[404]

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."[405]

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.[406]

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."[407]

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."[408]

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."[409] 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,[410] 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."[411]

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."[412]

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 entertain^d
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."[413]

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.[414]

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."[415] 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."[416]

The office of Secretary of State now became vacant, under circumstances
apparently forbidding. The interception of Fauchet's[417] famous
dispatch number 10[418] 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!"[419]

The discovery of this dispatch of the French Minister destroyed Randolph
politically. Washington immediately forced his resignation.[420]

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.[421] "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."[422] 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.[423] 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.[424] 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.[425] 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."[426] 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."[427] 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."[428]

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.[429] "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."[430]

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.[431] 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.[432] 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].

"Campbell[433] 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."[434]

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."[435]

The resolution which Marshall's speech caused an "original
opponent"[436] 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.[437] 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."[438] 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."[439]

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."[440] 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.[441]

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.[442] 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 22^d 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 M^r. 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."[443]

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. "Gen^l. 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."[444]

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.[445] 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.[446]

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."[447] 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."[448]

But the Republicans would have none of it. After an acrid debate and in
spite of personal appeals made to the members of the House, the
substitute was defeated by a majority of three votes. John Marshall was
the busiest and most persistent of Washington's friends, and of course
voted for the substitute,[449] which, almost certainly, he drew. Cold as
was the original address which the Federalists had failed to amend, the
Republicans now made it still more frigid. They would not admit that
Washington deserved well of the whole country. They moved to strike out
the word "country" and in lieu thereof insert "native state."[450]

Many years afterward Marshall told Justice Story his recollection of
this bitter fight: "In the session of 1796 ... which," said Marshall,
"called forth all the strength and violence of party, some Federalist
moved a resolution expressing the high confidence of the House in the
virtue, patriotism, and wisdom of the President of the United States. A
motion was made to strike out the word _wisdom_. In the debate the whole
course of the Administration was reviewed, and the whole talent of each
party was brought into action. Will it be believed that the word was
retained by a very small majority? A very small majority in the
legislature of Virginia acknowledged the wisdom of General
Washington!"[451]

Dazed for a moment, the Federalists did not resist. But, their courage
quickly returning, they moved a brief amendment of twenty words
declaring that Washington's life had been "strongly marked by wisdom, in
the cabinet, by valor, in the field, and by the purest patriotism in
both." Futile effort! The Republicans would not yield. By a majority of
nine votes[452] they flatly declined to declare that Washington had been
wise in council, brave in battle, or patriotic in either; and the
original address, which, by these repeated refusals to endorse either
Washington's sagacity, patriotism, or even courage, had now been made a
dagger of ice, was sent to Washington as the final comment of his
native State upon his lifetime of unbearable suffering and incalculable
service to the Nation.

Arctic as was this sentiment of the Virginia Republicans for Washington,
it was tropical compared with the feeling of the Republican Party toward
the old hero as he retired from the Presidency. On Monday, March 5,
1797, the day after Washington's second term expired, the principal
Republican newspaper of America thus expressed the popular sentiment:--

"'Lord, now lettest thou thy servant depart in peace, for mine eyes have
seen thy salvation,' was the pious ejaculation of a man who beheld a
flood of happiness rushing in upon mankind....

"If ever there was a time that would license the reiteration of the
exclamation, that time is now arrived, for the man [Washington] who is
the source of all the misfortunes of our country, is this day reduced to
a level with his fellow citizens, and is no longer possessed of power to
multiply evils upon the United States.

"If ever there was a period for rejoicing this is the moment--every
heart, in unison with the freedom and happiness of the people ought to
beat high with exultation, that the name of Washington from this day
ceases to give a currency to political iniquity, and to legalize
corruption....

"A new æra is now opening upon us, an æra which promises much to the
people; for public measures must now stand upon their own merits, and
nefarious projects can no longer be supported by a name.

"When a retrospect is taken of the Washingtonian administration for
eight years, it is a subject of the greatest astonishment, that a single
individual should have cankered the principles of republicanism in an
enlightened people, just emerged from the gulph of despotism, and should
have carried his designs against the public liberty so far as to have
put in jeopardy its very existence.

"Such however are the facts, and with these staring us in the face, this
day ought to be a JUBILEE in the United States."[453]

Such was Washington's greeting from a great body of his fellow citizens
when he resumed his private station among them after almost twenty years
of labor for them in both war and peace. Here rational imagination must
supply what record does not reveal. What must Marshall have thought? Was
this the fruit of such sacrifice for the people's welfare as no other
man in America and few in any land throughout all history had ever
made--this rebuke of Washington--Washington, who had been the soul as
well as the sword of the Revolution; Washington, who alone had saved the
land from anarchy; Washington, whose level sense, far-seeing vision, and
mighty character had so guided the newborn Government that the American
people had taken their place as a separate and independent Nation?
Could any but this question have been asked by Marshall?

He was not the only man to whom such reflections came. Patrick Henry
thus expressed his feelings: "I see with concern our old
commander-in-chief most abusively treated--nor are his long and great
services remembered.... If he, whose character as our leader during the
whole war, was above all praise, is so roughly handled in his old age,
what may be expected by men of the common standard of character?"[454]

And Jefferson! Had he not become the voice of the majority?

Great as he was, restrained as he had arduously schooled himself to be,
Washington personally resented the brutal assaults upon his character
with something of the fury of his unbridled youth: "I had no conception
that parties would or even could go to the length I have been witness
to; nor did I believe, until lately, that it was within the bounds of
probability--hardly within those of possibility--that ... every act of
my administration would be tortured and the grossest and most insidious
misrepresentations of them be made ... and that too in such exaggerated
and indecent terms as could scarcely be applied to a Nero--a notorious
defaulter--or even to a common pickpocket."[455]

Here, then, once more, we clearly trace the development of that
antipathy between Marshall and Jefferson, the seeds of which were sown
in those desolating years from 1776 to 1780, and in the not less trying
period from the close of the Revolution to the end of Washington's
Administration. Thus does circumstance mould opinion and career far more
than abstract thinking; and emotion quite as much as reason shape
systems of government. The personal feud between Marshall and Jefferson,
growing through the years and nourished by events, gave force and speed
to their progress along highways which, starting at the same point,
gradually diverged and finally ran in opposite directions.

FOOTNOTES:

[351] When Jefferson resigned, Randolph succeeded him as Secretary of
State, and continued in that office until driven out of public life by
the famous Fauchet disclosure. William Bradford of Pennsylvania
succeeded Randolph as Attorney-General.

[352] Washington to Marshall, Aug. 26, 1795; Washington MSS., Lib. Cong.

[353] Act of 1789, _Annals_, 1st Cong., 1st Sess., Appendix, 2238.

[354] For Randolph's pathetic account of his struggles to subsist as
Attorney-General, see Conway, chap. xv.

[355] The Fairfax purchase. See _infra_, chap. V.

[356] Marshall to Washington, Aug. 31, 1795; Washington MSS., Lib. Cong.

[357] See _infra_, chap. V.

[358] Executive Journal, U.S. Senate, i, 81, 82. And see Washington's
_Diary_: Lossing, 166. Carrington held both of these offices at the same
time.

[359] Referring to Marshall's title as General of Virginia Militia. He
was called "General" from that time until he became Chief Justice of the
United States.

[360] Washington to Carrington, Oct. 9, 1795; _Writings_: Ford, xiii,
116.

[361] Carrington to Washington, Oct. 2, 1795; MS., Lib. Cong.

[362] _Ib._

[363] Carrington to Washington, Oct. 8, 1795; MS., Lib. Cong.

[364] _Ib._, Oct. 13, 1795; MS., Lib. Cong.

[365] _Ib._ A passage in this letter clearly shows the Federalist
opinion of the young Republican Party and suggests the economic line
dividing it from the Federalists. "In the present crisis Mr. H.[enry]
may reasonably be calculated on as taking the side of Government, even
though he may retain his old prejudices against the Constitution. He has
indubitably an abhorrence of Anarchy.... We know too that he is
improving his fortune fast, which must additionally attach him to the
existing Government & order, the only Guarantees of property. Add to all
this, that he has no affection for the present leaders of the opposition
in Virg^a." (Carrington to Washington, Oct. 13, 1795; MS., Lib. Cong.)

[366] Carrington to Washington, Oct. 20, 1795; MS., Lib. Cong.
Carrington's correspondence shows that everything was done on Marshall's
judgment and that Marshall himself personally handled most of the
negotiations. (See _ib._, Oct. 28; Oct. 30, 1795.)

[367] _American Remembrancer_, i, 21 _et seq._ John Thompson was
nineteen years old when he delivered this address. His extravagant
rhetoric rather than his solid argument is quoted in the text as better
illustrating the public temper and prevailing style of oratory. (See
sketch of this remarkable young Virginian, _infra_, chap. X.)

[368] A favorite Republican charge was that the treaty would separate us
from France and tie us to Great Britain: "A treaty which children cannot
read without discovering that it tends to disunite us from our present
ally, and unite us to a government which we abhor, detest and despise."
("An Old Soldier of '76"; _American Remembrancer_, ii, 281.)

[369] _American Remembrancer_, i, 27.

[370] See _infra_, chap. V.

[371] Ames to Gore, March 11, 1796; _Works_: Ames, i, 189.

[372] _Annals_, 4th Cong., 1st Sess., 1033-34.

[373] _Ib._, 1063. See Anderson, 41-43. As one of the purchasers of the
Fairfax estate, Marshall had a personal interest in the Jay Treaty,
though it does not appear that this influenced him in his support of it.

[374] The voting was _viva voce_. See _infra_, chap. X.

[375] Undoubtedly this gentleman was one of the perturbed Federalist
managers.

[376] _North American Review_, xxvi, 22. While this story seems
improbable, no evidence has appeared which throws doubt upon it. At any
rate, it serves to illustrate Marshall's astonishing popularity.

[377] Carrington's reports to Washington were often absurd in their
optimistic inaccuracy. They are typical of those which faithful
office-holding politicians habitually make to the appointing power. For
instance, Carrington told Washington in 1791 that, after traveling all
over Virginia as United States Marshal and Collector of Internal
Revenue, he was sure the people were content with Assumption and the
whiskey tax (Washington's _Diary_: Lossing, footnote to 166), when, as a
matter of fact, the State was boiling with opposition to those very
measures.

[378] The mingling, in the Republican mind, of the Jay Treaty,
Neutrality, unfriendliness to France, and the Federalist Party is
illustrated in a toast at a dinner in Lexington, Virginia, to Senator
Brown, who had voted against the treaty: "The French Republic--May every
power or party who would attempt to throw any obstacle in the way of its
independence or happiness receive the reward due to corruption."
(_Richmond and Manchester Advertiser_, Oct. 15, 1795.)

[379] Carrington to Washington, Nov. 10, 1795; MS., Lib. Cong.

[380] _Ib._, Nov. 13, 1795; MS.; Lib. Cong.

[381] The resolution "was warmly agitated three whole days." (Randolph
to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, footnote to 197.)

[382] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

[383] See debates; _Annals_, 4th Cong., 1st Sess., 423-1291; also see
Petersburg Resolutions; _American Remembrancer_, i, 102-07.

[384] Thompson's address, Aug. 1, 1795, at Petersburg; _ib._, 21 _et
seq._

[385] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

[386] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii,
footnote to 197.

[387] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii,
footnote to 197.

[388] _Ib._

[389] _Ib._ See Hamilton's dissertation on the treaty-making power in
numbers 36, 37, 38, of his "Camillus"; _Works_: Lodge, vi, 160-97.

[390] Marshall to Hamilton, April 25, 1796; _Works_: Hamilton, vi, 109.

[391] Randolph to Jefferson, Nov. 22, 1795; _Works_: Ford, viii, 198.

[392] Journal, H.D. (Nov. 20, 1795), 27-28.

[393] Journal, H.D. (Nov. 20, 1795), 28.

[394] Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

[395] The italics are mine. "The word 'wisdom' in expressing the
confidence of the House in the P.[resident] was so artfully introduced
that if the fraudulent design had not been detected in time the vote of
the House, as to its effect upon the P. would have been entirely done
away.... A resolution so worded as to acquit the P. of all evil
intention, but at the same time silently censuring his error, was passed
by a majority of 33." (Letter of Jefferson's son-in-law, enclosed by
Jefferson to Madison; _Works_: Ford, viii, footnote to 198.)

[396] Journal, H.D. (Nov. 21, 1795), 29.

[397] _Ib._

[398] Journal, H.D. (Nov. 21, 1795), 29.

[399] Jefferson to Madison, Nov. 26, 1795; _Works_: Ford, viii, 197-98.

[400] Randall, ii, 36.

[401] Journal, H.D. (1795), 72.

[402] Journal, H.D. (1795), 50.

[403] _Ib._, 53.

[404] _Ib._, 79.

[405] _Ib._, 90.

[406] _Ib._, 91-92.

[407] Carrington to Washington, Dec. 6, 1795; MS., Lib. Cong.

[408] Journal, H.D. (Dec. 12, 1795), 91-92.

[409] Carrington to Washington, Feb. 24, 1796; MS., Lib. Cong.

[410] Dodd, 39.

[411] Lee to Washington, July 7, 1796; _Writings_: Sparks, xi, 487.

[412] Washington to Marshall, July 8, 1796; Washington MSS., Lib. Cong.

[413] Marshall to Washington, July 11, 1796; _ib._

[414] Washington to Marshall, July 15, 1796; Washington's Private Letter
Book; MS., Lib. Cong.

[415] Washington to Marshall, Oct. 10, 1796; _ib._

[416] Marshall to Washington, Oct. 12, 1796; Washington MSS., Lib. Cong.

[417] Genêt's successor as French Minister to the United States.

[418] _Interesting State Papers_, 48 _et seq._

[419] _Interesting State Papers_, 55.

[420] For able defense of Randolph see Conway, chap. xxiii; but
_contra_, see Gibbs, i, chap. ix.

[421] Patterson of New Jersey, Johnson of Maryland, C. C. Pinckney of
South Carolina, Patrick Henry of Virginia, and Rufus King of New York.
(Washington to Hamilton, Oct. 29, 1795; _Writings_: Ford, xiii, 129-30.)
King declined because of the abuse heaped upon public officers.
(Hamilton to Washington, Nov. 5, 1795; _ib._, footnote to 130.)

[422] Washington to Hamilton, Oct. 29, 1795; _Writings_: Ford, xiii,
131.

[423] For debate see _Annals_, 4th Cong., 1st Sess., 423-1291.

[424] Carrington to Washington, May 9, 1796; MS., Lib. Cong.

[425] Oliver Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62.

[426] Hamilton to King, June 20, 1795; _Works_: Lodge, x, 103.

[427] Washington to Knox, Sept. 20, 1795; _Writings_: Ford, xiii,
105-06.

[428] Carrington to the President, April 22, 1796; _Writings_: Ford,
xiii, footnote to 185.

[429] Washington to Carrington, May 1, 1796; _ib._, 185.

[430] _Ib._, 186.

[431] Story, in Dillon, iii, 352.

[432] Senator Stephen Thompson Mason wrote privately to Tazewell that
the Fairfax purchasers and British merchants were the only friends of
the treaty in Virginia. (Anderson, 42.)

[433] Alexander Campbell. (See _infra_, chap. V.)

[434] Randolph to Madison, Richmond, April 25, 1796; Conway, 362. Only
freeholders could vote.

[435] Marshall to Hamilton, April 25, 1796; _Works_: Hamilton, vi, 109.

[436] Author unknown.

[437] _Richmond and Manchester Advertiser_, April 27, 1796.

[438] Carrington to the President, April 27, 1796; MS., Lib. Cong.

[439] Marshall to King, April 25, 1796; King, ii, 45-46.

[440] Washington to Thomas Pinckney, May 22, 1796; _Writings_: Ford,
xiii, 208.

[441] Robert Morris to James M. Marshall, May 1, 1796; Morris's Private
Letter Book; MS., Lib. Cong.

[442] Story, in Dillon, iii, 350.

[443] Marshall to King, April 19, 1796; Hamilton MSS., Lib. Cong.
Hamilton, it seems, had also asked Marshall to make overtures to Patrick
Henry for the Presidency. (King, ii, footnote to 46.) But no
correspondence between Hamilton and Marshall upon this subject has been
discovered. Marshall's correspondence about Henry was with King.

[444] Marshall to King, May 24, 1796; King, ii, 48.

[445] For an accurate description of the unparalleled abuse of
Washington, see McMaster, ii, 249-50, 289-91, 302-06.

[446] Marshall, ii, 391-92. Also see Washington to Pickering, March 3,
1797; _Writings_: Ford, xiii, 378-80; and to Gordon, Oct. 15; _ib._,
427.

[447] Journal, H.D. (1796), 46-47; MS. Archives, Va. St. Lib.

[448] Journal, H.D. (1796), 153; MS. Archives, Va. St. Lib.

[449]_ Ib._

[450] _Ib._ This amendment is historically important for another reason.
It is the first time that the Virginia Legislature refers to that
Commonwealth as a "State" in contra-distinction to the country. Although
the Journal shows that this important motion was passed, the manuscript
draft of the resolution signed by the presiding officer of both Houses
does not show the change. (MS. Archives, Va. St. Lib.)

[451] Story, in Dillon, iii, 355. Marshall's account was inaccurate, as
we have seen. His memory was confused as to the vote in the two contests
(_supra_), a very natural thing after the lapse of twenty years. In the
first contest the House of Delegates voted overwhelmingly against
including the word "wisdom" in the resolutions; and on the Senate
amendment restored it by a dangerously small majority. On the second
contest in 1796, when Marshall declares that Washington's friends won
"by a very small majority," they were actually defeated.

[452] Journal, H. D., 153-90.

[453] _Aurora_, Monday, March 5, 1797. This paper, expressing Republican
hatred of Washington, had long been assailing him. For instance, on
October 24, 1795, a correspondent, in the course of a scandalous attack
upon the President, said: "The consecrated ermine of Presidential
chastity seems too foul for time itself to bleach." (See Cobbett, i,
411; and _ib._, 444, where the _Aurora_ is represented as having said
that "Washington has the ostentation of an eastern bashaw.") From August
to September the _Aurora_ had accused Washington of peculation. (See
"Calm Observer" in _Aurora_, Oct. 23 to Nov. 5, 1795.)

[454] Henry to his daughter, Aug. 20, 1796; Henry, ii, 569-70. Henry was
now an enemy of Jefferson and his dislike was heartily reciprocated.

[455] Washington to Jefferson, July 6, 1796; _Writings_: Ford, xiii,
230-31. This letter is in answer to a letter from Jefferson denying
responsibility for the publication of a Cabinet paper in the _Aurora_.
(Jefferson to Washington, June 19, 1796; _Works_: Ford, viii, 245; and
see Marshall, ii, 390-91.) Even in Congress Washington did not escape.
In the debate over the last address of the National Legislature to the
President, Giles of Virginia declared that Washington had been "neither
wise nor firm." He did not think "so much of the President." He "wished
him to retire ... the government of the United States could go on very
well without him." (_Annals_, 4th Cong., 2d Sess. (Dec. 14, 1796),
1614-18.) On the three roll-calls and passage of the address Giles voted
against Washington. (_Ib._, 1666-68.) So did Andrew Jackson, a new
member from Tennessee. (_Ib._)

The unpopularity of Washington's Administration led to the hostile
policy of Bache's paper, largely as a matter of business. This provident
editor became fiercely "Republican" because, as he explained to his
relative, Temple Franklin, in England, he "could not [otherwise]
maintain his family," and "he had determined to adopt a bold experiment
and to come out openly against the Administration. He thought the public
temper would bear it." (Marshall to Pickering, Feb. 28, 1811, relating
the statement of Temple Franklin to James M. Marshall while in England
in 1793.)

CHAPTER V

THE MAN AND THE LAWYER

Tall, meagre, emaciated, his muscles relaxed, his joints loosely
connected, his head small, his complexion swarthy, his countenance
expressing great good humor and hilarity. (William Wirt.)

Mr. Marshall can hardly be regarded as a learned lawyer. (Gustavus
Schmidt.)

His head is one of the best organized of any I have known. (Rufus
King.)

On a pleasant summer morning when the cherries were ripe, a tall,
ungainly man in early middle life sauntered along a Richmond street. His
long legs were encased in knee breeches, stockings, and shoes of the
period; and about his gaunt, bony frame hung a roundabout or short linen
jacket. Plainly, he had paid little attention to his attire. He was
bareheaded and his unkempt hair was tied behind in a queue. He carried
his hat under his arm, and it was full of cherries which the owner was
eating as he sauntered idly along.[456] Mr. Epps's hotel (The Eagle)
faced the street along which this negligently appareled person was
making his leisurely way. He greeted the landlord as he approached,
cracked a joke in passing, and rambled on in his unhurried walk.

At the inn was an old gentleman from the country who had come to
Richmond where a lawsuit, to which he was a party, was to be tried. The
venerable litigant had a hundred dollars to pay to the lawyer who should
conduct the case, a very large fee for those days. Who was the best
lawyer in Richmond, asked he of his host? "The man who just passed us,
John Marshall by name," said the tavern-keeper. But the countryman would
have none of Marshall. His appearance did not fill the old man's idea of
a practitioner before the courts. He wanted, for his hundred dollars, a
lawyer who looked like a lawyer. He would go to the court-room itself
and there ask for further recommendation. But again he was told by the
clerk of the court to retain Marshall, who, meanwhile, had ambled into
the court-room.

But no! This searcher for a legal champion would use his own judgment.
Soon a venerable, dignified person, solemn of face, with black coat and
powdered wig, entered the room. At once the planter retained him. The
client remained in the court-room, it appears, to listen to the lawyers
in the other cases that were ahead of his own. Thus he heard the pompous
advocate whom he had chosen; and then, in astonishment, listened to
Marshall.

The attorney of impressive appearance turned out to be so inferior to
the eccentric-looking advocate that the planter went to Marshall,
frankly told him the circumstances, and apologized. Explaining that he
had but five dollars left, the troubled old farmer asked Marshall
whether he would conduct his case for that amount. With a kindly jest
about the power of a black coat and a powdered wig, Marshall
good-naturedly accepted.[457]

This not too highly colored story is justified by all reports of
Marshall that have come down to us. It is some such picture that we must
keep before us as we follow this astonishing man in the henceforth easy
and giant, albeit accidental, strides of his great career. John
Marshall, after he had become the leading lawyer of Virginia, and,
indeed, throughout his life, was the simple, unaffected man whom the
tale describes. Perhaps consciousness of his own strength contributed to
his disregard of personal appearance and contempt for studied manners.
For Marshall knew that he carried heavier guns than other men. "No one,"
says Story, who knew him long and intimately, "ever possessed a more
entire sense of his own extraordinary talents ... than he."[458]

Marshall's most careful contemporary observer, William Wirt, tells us
that Marshall was "in his person, tall, meagre, emaciated; his muscles
relaxed and his joints so loosely connected, as not only to disqualify
him, apparently, for any vigorous exertion of body, but to destroy
everything like elegance and harmony in his air and movements.

"Indeed, in his whole appearance, and demeanour; dress, attitudes,
gesture; sitting, standing, or walking; he is as far removed from the
idolized graces of lord Chesterfield, as any other gentleman on earth.

"To continue the portrait; his head and face are small in proportion to
his height; his complexion swarthy; the muscles of his face being
relaxed; ... his countenance has a faithful expression of great good
humour and hilarity; while his black eyes--that unerring index--possess
an irradiating spirit which proclaims the imperial powers of the mind
that sits enthroned within....

"His voice is dry, and hard; his attitude, in his most effective
orations, often extremely awkward; as it was not unusual for him to
stand with his left foot in advance, while all his gesture proceeded
from his right arm, and consisted merely in a vehement, perpendicular
swing of it from about the elevation of his head to the bar, behind
which he was accustomed to stand."[459]

During all the years of clamorous happenings, from the great Virginia
Convention of 1788 down to the beginning of Adams's Administration and
in the midst of his own active part in the strenuous politics of the
time, Marshall practiced his profession, although intermittently.
However, during the critical three weeks of plot and plan, debate and
oratory in the famous month of June, 1788, he managed to do some "law
business": while Virginia's Constitutional Convention was in session, he
received twenty fees, most of them of one and two pounds and the largest
from "Col^o. W. Miles Cary 6.4." He drew a deed for his fellow member of
the Convention, James Madison, while the Convention was in session, for
which he charged his colleague one pound and four shillings.

But there was no time for card-playing during this notable month and no
whist or backgammon entries appear in Marshall's Account Book. Earlier
in the year we find such social expenses as "Card table 5.10 Cards 8/
paper 2/-6" and "expenses and loss at billiards at dif^t times 3"
(pounds). In September, 1788, occurs the first entry for professional
literature, "Law books 20/-1"; but a more important book purchase was
that of "Mazai's book sur les etats unis[460] 18" (shillings), an entry
which shows that some of Marshall's family could read French.[461]

Marshall's law practice during this pivotal year was fairly profitable.
He thus sums up his earnings and outlay, "Rec^d. in the year 1788
1169.05; and expended in year 1788, 515-13-7" which left Marshall more
than 653 pounds or about $1960 Virginia currency clear profit for the
year.[462]

The following year (1789) he did a little better, his net profit being a
trifle over seven hundred pounds, or about $2130 Virginia currency. In
1790 he earned a few shillings more than 1427 pounds and had about $2400
Virginia currency remaining, after paying all expenses. In 1791 he did
not do so well, yet he cleared over $2200 Virginia currency. In 1792 his
earnings fell off a good deal, yet he earned more than he expended, over
402 pounds (a little more than $1200 Virginia currency).

In 1793 Marshall was slightly more successful, but his expenses also
increased, and he ended this year with a trifle less than 400 pounds
clear profit. He makes no summary in 1794, but his Account Book shows
that he no more than held his own. This business barometer does not
register beyond the end of 1795,[463] and there is no further evidence
than the general understanding current in Richmond as to the amount of
his earnings after this date. La Rochefoucauld reported in 1797 that
"Mr. Marshall does not, from his practice, derive above four or five
thousand dollars per annum and not even that sum every year."[464] We
may take this as a trustworthy estimate of Marshall's income; for the
noble French traveler and student was thorough in his inquiries and took
great pains to verify his statements.

In 1789 Marshall bought the tract of land amounting to an entire city
"square" of two acres,[465] on which, four years later, he built the
comfortable brick residence where he lived, while in Richmond, during
the remainder of his life. This house still stands (1916) and is in
excellent repair. It contains nine rooms, most of them commodious, and
one of them of generous dimensions where Marshall gave the "lawyer
dinners" which, later, became so celebrated. This structure was one of a
number of the important houses of Richmond.[466] Near by were the
residences of Colonel Edward Carrington, Daniel Call, an excellent
lawyer, and George Fisher, a wealthy merchant; these men had married the
three sisters of Marshall's wife. The house of Jacquelin Ambler was also
one of this cluster of dwellings. So that Marshall was in daily
association with four men to whom he was related by marriage, a not
negligible circumstance; for every one of them was a strong and
successful man, and all of them were, like Marshall, pronounced
Federalists. Their views and tastes were the same, they mutually aided
and supported one another; and Marshall was, of course, the favorite of
this unusual family group.

In the same locality lived the Leighs, Wickhams, Ronalds, and others,
who, with those just mentioned, formed the intellectual and social
aristocracy of the little city.[467] Richmond grew rapidly during the
first two decades that Marshall lived there. From the village of a few
hundred people abiding in small wooden houses, in 1783, the Capital
became, in 1795, a vigorous town of six thousand inhabitants, dwelling
mostly in attractive brick residences.[468] This architectural
transformation was occasioned by a fire which, in 1787, destroyed most
of the buildings in Richmond.[469] Business kept pace with the growth of
the city, wealth gradually and healthfully accumulated, and the comforts
of life appeared. Marshall steadily wove his activities into those of
the developing Virginia metropolis and his prosperity increased in
moderate and normal fashion.

[Illustration: JOHN MARSHALL'S HOUSE, RICHMOND]

[Illustration: THE LARGE ROOM WHERE THE FAMOUS "LAWYERS' DINNERS" WERE
GIVEN]

In his personal business affairs Marshall showed a childlike faith in
human nature which sometimes worked to his disadvantage. For instance,
in 1790 he bought a considerable tract of land in Buckingham County,
which was heavily encumbered by a deed of trust to secure "a debt of
a former owner" of the land to Caron de Beaumarchais.[470] Marshall
knew of this mortgage "at the time of the purchase, but he felt no
concern ... because" the seller verbally "promised to pay the debt and
relieve the land from the incumbrance."

So he made the payments through a series of years, in spite of the fact
that Beaumarchais's mortgage remained unsatisfied, that Marshall urged
its discharge, and, finally, that disputes concerning it arose. Perhaps
the fact that he was the attorney of the Frenchman in important
litigation quieted apprehension. Beaumarchais having died, his agent,
unable to collect the debt, was about to sell the land under the trust
deed, unless Marshall would pay the obligation it secured. Thus,
thirteen years after this improvident transaction, Marshall was forced
to take the absurd tangle into a court of equity.[471]

But he was as careful of matters entrusted to him by others as this land
transaction would suggest that he was negligent of his own affairs.
Especially was he in demand, it would seem, when an enterprise was to be
launched which required public confidence for its success. For instance,
the subscribers to a fire insurance company appointed him on the
committee to examine the proposed plan of business and to petition the
Legislature for a charter,[472] which was granted under the name of the
"Mutual Assurance Society of Virginia."[473] Thus Marshall was a founder
of one of the oldest American fire insurance companies.[474] Again, when
in 1792 the "Bank of Virginia," a State institution, was organized,[475]
Marshall was named as one of the committee to receive and approve
subscriptions for stock.[476]

No man could have been more watchful than was Marshall of the welfare of
members of his family. At one of the most troubled moments of his life,
when greatly distressed by combined business and political
complications,[477] he notes a love affair of his sister and, unasked,
carefully reviews the eligibility of her suitor. Writing to his brother
James on business and politics, he says:--

"I understand that my sister Jane, while here [Richmond], was addressed
by Major Taylor and that his addresses were encouraged by her. I am not
by any means certain of the fact nor did I suspect it until we had
separated the night preceding her departure and consequently I could
have no conversation with her concerning it.

"I believe that tho' Major Taylor was attach'd to her, it would probably
have had no serious result if Jane had not manifested some partiality
for him. This affair embarrasses me a good deal. Major Taylor is a young
gentleman of talents and integrity for whom I profess and feel a real
friendship. There is no person with whom I should be better pleased if
there were not other considerations which ought not to be overlook'd.
Mr. Taylor possesses but little if any fortune, he is encumbered with a
family, and does not like his profession. Of course he will be as
eminent in his profession as his talents entitle him to be. These are
facts unknown to my sister but which ought to be known to her.

"Had I conjectured that Mr. Taylor was contemplated in the character of
a lover I shou'd certainly have made to her all proper communications. I
regret that it was concealed from me. I have a sincere and real
affection and esteem for Major Taylor but I think it right in affairs of
this sort that the real situation of the parties should be mutually
understood. Present me affectionately to my sister."[478]

From the beginning of his residence in Richmond, Marshall had been an
active member of the Masonic Order. He had become a Free Mason while in
the Revolutionary army,[479] which abounded in camp lodges. It was due
to his efforts as City Recorder of Richmond that a lottery was
successfully conducted to raise funds for the building of a Masonic hall
in the State Capital in 1785.[480] The following year Marshall was
appointed Deputy Grand Master. In 1792 he presided over the Grand Lodge
as Grand Master _pro tempore_; and the next year he was chosen as the
head of the order in Virginia. He was reëlected as Grand Master in 1794;
and presided over the meetings of the Grand Lodge held during 1793 until
1795 inclusive. During the latter year the Masonic hall in Manchester
was begun and he assisted in the ceremonies attending the laying of the
corner-stone, which bore this inscription: "This stone was laid by the
Worshipful Archibald Campbell, Master of the Manchester Lodge of free &
accepted Masons Assisted by & in the presence of the Most Worshipful
John Marshall Grand Master of Masons to Virginia."[481]

Upon the expiration of his second term in this office, the Grand Lodge
"Resolved, that the Grand Lodge are truly sensible of the great
attention of our late Grand Master, John Marshall, to the duties of
Masonry, and that they entertain an high sense of the wisdom displayed
by him in the discharge of the duties of his office; and as a token of
their entire approbation of his conduct do direct the Grand Treasurer to
procure and present him with an elegant Past Master's jewel."[482]

From 1790 until his election to Congress, nine years later,[483]
Marshall argued one hundred and thirteen cases decided by the Court of
Appeals of Virginia. Notwithstanding his almost continuous political
activity, he appeared, during this time, in practically every important
cause heard and determined by the supreme tribunal of the State.
Whenever there was more than one attorney for the client who retained
Marshall, the latter almost invariably was reserved to make the closing
argument. His absorbing mind took in everything said or suggested by
counsel who preceded him; and his logic easily marshaled the strongest
arguments to support his position and crushed or threw aside as
unimportant those advanced against him.

Marshall preferred to close rather than open an argument. He wished to
hear all that other counsel might have to say before he spoke himself;
for, as has appeared, he was but slightly equipped with legal
learning[484] and he informed himself from the knowledge displayed by
his adversaries. Even after he had become Chief Justice of the Supreme
Court of the United States and throughout his long and epochal occupancy
of that high place, Marshall showed this same peculiarity which was so
prominent in his practice at the bar.

Every contemporary student of Marshall's method and equipment notes the
meagerness of his learning in the law. "Everyone has heard of the
gigantick abilities of John Marshall; as a most able and profound
reasoner he deserves all the praise which has been lavished upon him,"
writes Francis Walker Gilmer, in his keen and brilliant contemporary
analysis of Marshall. "His mind is not very richly stored with
knowledge," he continues, "but it is so creative, so well organized by
nature, or disciplined by early education, and constant habits of
systematick thinking, that he embraces every subject with the clearness
and facility of one prepared by previous study to comprehend and explain
it."[485]

Gustavus Schmidt, who was a competent critic of legal attainments and
whose study of Marshall as a lawyer was painstaking and thorough, bears
witness to Marshall's scanty acquirements. "Mr. Marshall," says Schmidt,
"can hardly be regarded as a learned lawyer.... His acquaintance with
the Roman jurisprudence as well as with the laws of foreign countries
was not very extensive. He was what is called a common law lawyer in the
best & noblest acceptation of that term."

Mr. Schmidt attempts to excuse Marshall's want of those legal weapons
which knowledge of the books supply.

"He was educated for the bar," writes Schmidt, "at a period when
digests, abridgments & all the numerous facilities, which now smooth
the path of the law student were almost unknown & when you often sought
in vain in the Reporters which usually wore the imposing form of folios,
even for an index of the decisions & when marginal notes of the points
determined in a case was a luxury not to be either looked for or
expected.

"At this period when the principles of the Common Law had to be studied
in the black-letter pages of Coke upon Littleton, a work equally
remarkable for quaintness of expression, profundity of research and the
absence of all method in the arrangements of its very valuable
materials; when the rules of pleading had to be looked for in Chief
Justice Saunders's Reports, while the doctrinal parts of the
jurisprudence, based almost exclusively on the precedents had to be
sought after in the reports of Dyer, Plowden, Coke, Popham ... it
was ... no easy task to become an able lawyer & it required no common
share of industry and perseverance to amass sufficient knowledge of the
law to make even a decent appearance in the forum."[486]

It would not be strange, therefore, if Marshall did cite very few
authorities in the scores of cases argued by him. But it seems certain
that he would not have relied upon the "learning of the law" in any
event; for at a later period, when precedents were more abundant and
accessible, he still ignored them. Even in these early years other
counsel exhibited the results of much research; but not so Marshall. In
most of his arguments, as reported in volumes one, two, and four of
Call's Virginia Reports and in volumes one and two of Washington's
Virginia Reports,[487] he depended on no authority whatever. Frequently
when the arguments of his associates and of opposing counsel show that
they had explored the whole field of legal learning on the subject in
hand, Marshall referred to no precedent.[488] The strongest feature of
his argument was his statement of the case.

The multitude of cases which Marshall argued before the General Court of
Appeals and before the High Court of Chancery at Richmond covered every
possible subject of litigation at that time. He lost almost as
frequently as he won. Out of one hundred and twenty-one cases reported,
Marshall was on the winning side sixty-two times and on the losing side
fifty times. In two cases he was partly successful and partly
unsuccessful, and in seven it is impossible to tell from the reports
what the outcome was.

Once Marshall appeared for clients whose cause was so weak that the
court decided against him on his own argument, refusing to hear opposing
counsel.[489] He was extremely frank and honest with the court, and on
one occasion went so far as to say that the opposing counsel was in the
right and himself in the wrong.[490] "My own opinion," he admitted to
the court in this case, "is that the law is correctly stated by Mr.
Ronald [the opposing counsel], but the point has been otherwise
determined in the General Court." Marshall, of course, lost.[491]

Nearly all the cases in which Marshall was engaged concerned property
rights. Only three or four of the controversies in which he took part
involved criminal law. A considerable part of the litigation in which he
was employed was intricate and involved; and in this class of cases his
lucid and orderly mind made him the intellectual master of the
contending lawyers. Marshall's ability to extract from the confusion of
the most involved question its vital elements and to state those
elements in simple terms was helpful to the court, and frankly
appreciated by the judges.

Few letters of Marshall to his fellow lawyers written during this period
are extant. Most of these are very brief and confined strictly to the
particular cases which he had been retained by his associate attorneys
throughout Virginia to conduct before the Court of Appeals.
Occasionally, however, his humor breaks forth.

"I cannot appear for Donaghoe," writes Marshall to a country member of
the bar who lived in the Valley over the mountains. "I do not decline
his business from any objection to his _bank_. To that I should like
very well to have free access & wou'd certainly discount _from_ it as
largely as he wou'd permit, but I am already fixed by Rankin & as those
who are once in the bank do not I am told readily get out again I
despair of being ever able to touch the guineas of Donaghoe.

"Shall we never see you again in Richmond? I was very much rejoiced when
I heard that you were happily married but if that amounts to a ne exeat
which is to confine you entirely to your side of the mountain, I shall
be selfish enough to regret your good fortune & almost wish you had
found some little crooked rib among the fish and oysters which would
once a year drag you into this part of our terraqueous globe.

"You have forgotten I believe the solemn compact we made to take a
journey to Philadelphia together this winter and superintend for a while
the proceedings of Congress."[492]

Again, writing to Stuart concerning a libel suit, Marshall says:
"Whether the truth of the libel may be justified or not is a perfectly
unsettled question. If in that respect the law here varies from the law
of England it must be because such is the will of their Honors for I
know of no legislative act to vary it. It will however be right to
appeal was it only to secure a compromise."[493]

Marshall's sociableness and love of play made him the leader of the
Barbecue Club, consisting of thirty of the most agreeable of the
prominent men in Richmond. Membership in this club was eagerly sought
and difficult to secure, two negatives being sufficient to reject a
candidate. Meetings were held each Saturday, in pleasant weather, at
"the springs" on the farm of Mr. Buchanan, the Episcopal clergyman.
There a generous meal was served and games played, quoits being the
favorite sport. One such occasion of which there is a trustworthy
account shows the humor, the wit, and the good-fellowship of Marshall.

He welcomed the invited guests, Messrs. Blair and Buchanan, the famous
"Two Parsons" of Richmond, and then announced that a fine of a basket of
champagne, imposed on two members for talking politics at a previous
meeting of the club, had been paid and that the wine was at hand. It was
drunk from tumblers and the Presbyterian minister joked about the danger
of those who "drank from tumblers _on_ the table becoming tumblers
_under_ the table." Marshall challenged "Parson" Blair to a game of
quoits, each selecting four partners. His quoits were big, rough, heavy
iron affairs that nobody else could throw, those of the other players
being smaller and of polished brass. Marshall rang the meg and Blair
threw his quoit directly over that of his opponent. Loud were the cries
of applause and a great controversy arose as to which player had won.
The decision was left to the club with the understanding that when the
question was determined they should "crack another bottle of champagne."

Marshall argued his own case with great solemnity and elaboration. The
one first ringing the meg must be deemed the winner, unless his
adversary knocked off the first quoit and put his own in its place.
This required perfection, which Blair did not possess. Blair claimed to
have won by being on top of Marshall; but suppose he tried to reach
heaven "by riding on my back," asked Marshall. "I fear that from my many
backslidings and deficiencies, he may be badly disappointed." Blair's
method was like playing leap frog, said he. And did anybody play
backgammon in that way? Also there was the ancient legal maxim, "_Cujus
est solum, ejus est usque ad coelum_": being "the first occupant his
right extended from the ground up to the vault of heaven and no one had
a right to become a squatter on his back." If Blair had any claim "he
must obtain a writ of ejectment or drive him [Marshall] from his
position vi et armis." Marshall then cited the boys' game of marbles
and, by analogy, proved that he had won and should be given the verdict
of the club.

Wickham argued at length that the judgment of the club should be that
"where two adversary quoits are on the same meg, neither is victorious."
Marshall's quoit was so big and heavy that no ordinary quoit could move
it and "no rule requires an impossibility." As to Marshall's insinuation
that Blair was trying to reach "Elysium by mounting on his back," it was
plain to the club that such was not the parson's intention, but that he
meant only to get a more elevated view of earthly things. Also Blair, by
"riding on that pinnacle," will be apt to arrive in time at the upper
round of the ladder of fame. The legal maxim cited by Marshall was
really against his claim, since the ground belonged to Mr. Buchanan and
Marshall was as much of a "squatter" as Blair was. "The first squatter
was no better than the second." And why did Marshall talk of ejecting
him by force of arms? Everybody knew that "parsons are men of peace and
do not vanquish their antagonists _vi et armis_. We do not deserve to
prolong this riding on Mr. Marshall's back; he is too much of a
_Rosinante_ to make the ride agreeable." The club declined to consider
seriously Marshall's comparison of the manly game of quoits with the
boys' game of marbles, for had not one of the clergymen present preached
a sermon on "marvel not"? There was no analogy to quoits in Marshall's
citation of leap frog nor of backgammon; and Wickham closed, amid the
cheers of the club, by pointing out the difference between quoits and
leap frog.

The club voted with impressive gravity, taking care to make the vote as
even as possible and finally determined that the disputed throw was a
draw. The game was resumed and Marshall won.[494]

Such were Marshall's diversions when an attorney at Richmond. His
"lawyer dinners" at his house,[495] his card playing at Farmicola's
tavern, his quoit-throwing and pleasant foolery at the Barbecue Club,
and other similar amusements which served to take his mind from the
grave problems on which, at other times, it was constantly working, were
continued, as we shall see, and with increasing zest, after he became
the world's leading jurist-statesman of his time. But neither as lawyer
nor judge did these wholesome frivolities interfere with his serious
work.

Marshall's first case of nation-wide interest, in which his argument
gave him fame among lawyers throughout the country, was the historic
controversy over the British debts. When Congress enacted the Judiciary
Law of 1789 and the National Courts were established, British creditors
at once began action to recover their long overdue debts. During the
Revolution, other States as well as Virginia had passed laws
confiscating the debts which their citizens owed British subjects and
sequestering British property.

Under these laws, debtors could cancel their obligations in several
ways. The Treaty of Peace between the United States and Great Britain
provided, among other things, that "It is agreed that creditors on
either side shall meet with no legal impediments to the recovery of the
full value in sterling money of all bona fide debts heretofore
contracted." The Constitution provided that "All treaties made, or which
shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every State shall be bound
thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding,"[496] and that "The judicial power shall
extend to all cases in law and equity arising under this Constitution,
the laws of the United States, and treaties made, or which shall be
made, under their authority; to all cases ... between a State, or the
citizens thereof, and foreign States citizens, or subjects."[497]

Thus the case of Ware, Administrator, _vs._ Hylton ET AL., which
involved the validity of a State law in conflict with a treaty,
attracted the attention of the whole country when finally it reached the
Supreme Court. The question in that celebrated controversy was whether a
State law, suspending the collection of a debt due to a subject of Great
Britain, was valid as against the treaty which provided that no "legal
impediment" should prevent the recovery of the obligation.

Ware _vs._ Hylton was a test case; and its decision involved immense
sums of money. Large numbers of creditors who had sought to cancel their
debts under the confiscation laws were vitally interested. Marshall, in
this case, made the notable argument that carried his reputation as a
lawyer beyond Virginia and won for him the admiration of the ablest men
at the bar, regardless of their opinion of the merits of the
controversy.

It is an example of "the irony of fate" that in this historic legal
contest Marshall supported the theory which he had opposed throughout
his public career thus far, and to demolish which his entire after life
was given. More remarkable still, his efforts for his clients were
opposed to his own interests; for, had he succeeded for those who
employed him, he would have wrecked the only considerable business
transaction in which he ever engaged.[498] He was employed by the
debtors to uphold those laws of Virginia which sequestered British
property and prevented the collection of the British debts; and he put
forth all his power in this behalf.

Three such cases were pending in Virginia; and these were heard twice by
the National Court in Richmond as a consolidated cause, the real issue
being the same in all. The second hearing was during the May Term of
1793 before Chief Justice Jay, Justice Iredell of the Supreme Court, and
Judge Griffin of the United States District Court. The attorneys for the
British creditors were William Ronald, John Baker, John Stark, and John
Wickham. For the defendants were Alexander Campbell, James Innes,
Patrick Henry, and John Marshall. Thus we see Marshall, when thirty-six
years of age, after ten years of practice at the Richmond bar,
interrupted as those years were by politics and legislative activities,
one of the group of lawyers who, for power, brilliancy, and learning,
were unsurpassed in America.

The argument at the Richmond hearing was a brilliant display of
eloquence, reasoning, and erudition, and, among lawyers, its repute has
reached even to the present day. Counsel on both sides exerted every
ounce of their strength. When Patrick Henry had finished his appeal,
Justice Iredell was so overcome that he cried, "Gracious God! He is an
orator indeed!"[499] The Countess of Huntingdon, who was then in
Richmond and heard the arguments of all the attorneys, declared: "If
every one had spoken in Westminster Hall, they would have been honored
with a peerage."[500]

In his formal opinion, Justice Iredell thus expressed his admiration:
"The cause has been spoken to, at the bar, with a degree of ability
equal to any occasion.... I shall as long as I live, remember with
pleasure and respect the arguments which I have heard on this case: they
have discovered an ingenuity, a depth of investigation, and a power of
reasoning fully equal to anything I have ever witnessed.... Fatigue has
given way under its influence; the heart has been warmed, while the
understanding has been instructed."[501]

Marshall's argument before the District Court of Richmond must have
impressed his debtor clients more than that of any other of their
distinguished counsel, with the single exception of Alexander Campbell;
for when, on appeal to the Supreme Court of the United States, the case
came on for hearing in 1796, we find that only Marshall and Campbell
appeared for the debtors.

It is unfortunate that Marshall's argument before the Supreme Court at
Philadelphia is very poorly reported. But inadequate as the report is,
it still reveals the peculiar clearness and the compact and simple
reasoning which made up the whole of Marshall's method, whether in legal
arguments, political speeches, diplomatic letters, or judicial opinions.

Marshall argued that the Virginia law barred the recovery of the debts
regardless of the treaty. "It has been conceded," said he, "that
independent nations have, in general, the right to confiscation; and
that Virginia, at the time of passing her law, was an independent
nation." A State engaged in war has the powers of war, "and confiscation
is one of those powers, weakening the party against whom it is employed
and strengthening the party that employs it." Nations have equal powers;
and, from July 4, 1776, America was as independent a nation as Great
Britain. What would have happened if Great Britain had been victorious?
"Sequestration, confiscation, and proscription would have followed in
the train of that event," asserted Marshall.

Why, then, he asked, "should the confiscation of British property be
deemed less just in the event of an American triumph?" Property and its
disposition is not a natural right, but the "creature of civil society,
and subject in all respects to the disposition and control of civil
institutions." Even if "an individual has not the power of extinguishing
his debts," still "the community to which he belongs ... may ... upon
principles of public policy, prevent his creditors from recovering
them." The ownership and control of property "is the offspring of the
social state; not the incident of a state of nature. But the Revolution
did not reduce the inhabitants of America to a state of nature; and if
it did, the plaintiff's claim would be at an end." Virginia was within
her rights when she confiscated these debts.

As an independent nation Virginia could do as she liked, declared
Marshall. Legally, then, at the time of the Treaty of Peace in 1783,
"the defendant owed nothing to the plaintiff." Did the treaty revive
the debt thus extinguished? No: For the treaty provides "that creditors
on either side shall meet with no lawful impediment to the recovery" of
their debts. Who are the creditors? "There cannot be a creditor where
there is not a debt; and the British debts were extinguished by the act
of confiscation," which was entirely legal.

Plainly, then, argued Marshall, the treaty "must be construed with
reference to those creditors" whose debts had not been extinguished by
the sequestration laws. There were cases of such debts and it was to
these only that the treaty applied. The Virginia law must have been
known to the commissioners who made the treaty; and it was unthinkable
that they should attempt to repeal those laws in the treaty without
using plain words to that effect.

Such is an outline of Marshall's argument, as inaccurately and
defectively reported.[502]

Cold and dry as it appears in the reporter's notes, Marshall's address
to the Supreme Court made a tremendous impression on all who heard it.
When he left the court-room, he was followed by admiring crowds. The
ablest public men at the Capital were watching Marshall narrowly and
these particularly were captivated by his argument. "His head is one of
the best organized of any one that I have known," writes the keenly
observant King, a year later, in giving to Pinckney his estimate of
Marshall. "This I say from general Reputation, and more satisfactorily
from an Argument that I heard him deliver before the fed'l Court at
Philadelphia."[503] King's judgment of Marshall's intellectual strength
was that generally held.

Marshall's speech had a more enduring effect on those who listened to it
than any other address he ever made, excepting that on the Jonathan
Robins case.[504] Twenty-four years afterwards William Wirt, then at the
summit of his brilliant career, advising Francis Gilmer upon the art of
oratory, recalled Marshall's argument in the British Debts case as an
example for Gilmer to follow. Wirt thus contrasts Marshall's method with
that of Campbell on the same occasion:--

"Campbell played off all his Apollonian airs; but they were lost.
Marshall spoke, as he always does, to the judgment merely and for the
simple purpose of convincing. Marshall was justly pronounced one of the
greatest men of the country; he was followed by crowds, looked upon, and
courted with every evidence of admiration and respect for the great
powers of his mind. Campbell was neglected and slighted, and came home
in disgust.

"Marshall's maxim seems always to have been, 'aim exclusively _at
Strength_:' and from his eminent success, I say, if I had my life to go
over again, I would practice on his maxim with the most rigorous
severity, until the character of my mind was established."[505]

[Illustration]

In another letter to Gilmer, Wirt again urges his son-in-law to imitate
Marshall's style. In his early career Wirt had suffered in his own
arguments from too much adornment which detracted from the real solidity
and careful learning of his efforts at the bar. And when, finally, in
his old age he had, through his own mistakes, learned the value of
simplicity in statement and clear logic in argument, he counseled young
Gilmer accordingly.

"In your arguments at the bar," he writes, "_let argument strongly
predominate_. Sacrifice your flowers.... Avoid as you would the gates of
death, the reputation for floridity.... Imitate ... Marshall's simple
process of reasoning."[506]

Following the advice of his distinguished brother-in-law, Gilmer studied
Marshall with the hungry zeal of ambitious youth. Thus it is that to
Francis Gilmer we owe what is perhaps the truest analysis, made by a
personal observer, of Marshall's method as advocate and orator.

"So perfect is his analysis," records Gilmer, "that he extracts the
whole matter, the kernel of the inquiry, unbroken, undivided, clean and
entire. In this process, such is the instinctive neatness and precision
of his mind that no superfluous thought, or even word, ever presents
itself and still he says everything that seems appropriate to the
subject.

"This perfect exemption from any unnecessary encumbrance of matter or
ornament, is in some degree the effect of an aversion for the labour of
thinking. So great a mind, perhaps, like large bodies in the physical
world, is with difficulty set in motion. That this is the case with Mr.
Marshall's is manifest, from his mode of entering on an argument both in
conversation and in publick debate.

"It is difficult to rouse his faculties; he begins with reluctance,
hesitation, and vacancy of eye; presently his articulation becomes less
broken, his eye more fixed, until finally, his voice is full, clear, and
rapid, his manner bold, and his whole face lighted up, with the mingled
fires of genius and passion; and he pours forth the unbroken stream of
eloquence, in a current deep, majestick, smooth, and strong.

"He reminds one of some great bird, which flounders and flounces on the
earth for a while before it acquires the impetus to sustain its soaring
flight.

"The characteristick of his eloquence is an irresistible cogency, and a
luminous simplicity in the order of his reasoning. His arguments are
remarkable for their separate and independent strength, and for the
solid, compact, impenetrable order in which they are arrayed.

"He certainly possesses in an eminent degree the power which had been
ascribed to him, of mastering the most complicated subjects with
facility, and when moving with his full momentum, even without the
appearance of resistance."

Comparing Marshall and Randolph, Gilmer says:--

"The powers of these two gentlemen are strikingly contrasted by nature.
In Mr. Marshall's speeches, all is reasoning; in Mr. Randolph's
everything is declamation. The former scarcely uses a figure; the latter
hardly an abstraction. One is awkward; the other graceful.

"One is indifferent as to his words, and slovenly in his pronunciation;
the other adapts his phrases to the sense with poetick felicity; his
voice to the sound with musical exactness.

"There is no breach in the train of Mr. Marshall's thoughts; little
connection between Mr. Randolph's. Each has his separate excellence, but
either is far from being a finished orator."[507]

Another invaluable first-hand analysis of Marshall's style and manner of
argument is that of William Wirt, himself, in the vivacious descriptions
of "The British Spy":--

"He possesses one original, and, almost supernatural faculty, the
faculty of developing a subject by a single glance of his mind, and
detecting at once, the very point on which every controversy depends. No
matter what the question; though ten times more knotty than 'the gnarled
oak,' the lightning of heaven is not more rapid nor more resistless,
than his astonishing penetration.

"Nor does the exercise of it seem to cost him an effort. On the
contrary, it is as easy as vision. I am persuaded that his eye does not
fly over a landscape and take in its various objects with more
promptitude and facility, than his mind embraces and analyses the most
complex subject.

"Possessing while at the bar this intellectual elevation, which enabled
him to look down and comprehend the whole ground at once, he determined
immediately and without difficulty, on which side the question might be
most advantageously approached and assailed.

"In a bad cause his art consisted in laying his premises so remotely
from the point directly in debate, or else in terms so general and so
spacious, that the hearer, seeing no consequence which could be drawn
from them, was just as willing to admit them as not; but his premises
once admitted, the demonstration, however distant, followed as
certainly, as cogently, as inevitably, as any demonstration in
Euclid."[508]

Marshall's supremacy, now unchallenged, at the Virginia bar was noted by
foreign observers. La Rochefoucauld testifies to this in his exhaustive
volumes of travel:--

"Mr. J. Marshall, conspicuously eminent as a professor of the law, is
beyond all doubt one of those who rank highest in the public opinion at
Richmond. He is what is termed a federalist, and perhaps somewhat warm
in support of his opinions, but never exceeding the bounds of propriety,
which a man of his goodness and prudence and knowledge is incapable of
transgressing.

"He may be considered as a distinguished character in the United States.
His political enemies allow him to possess great talents but accuse him
of ambition. I know not whether the charge be well or ill grounded, or
whether that ambition might ever be able to impel him to a dereliction
of his principles--a conduct of which I am inclined to disbelieve the
possibility on his part.

"He has already refused several employments under the general
government, preferring the income derived from his professional labours
(which is more than sufficient for his moderate system of economy),
together with a life of tranquil ease in the midst of his family and in
his native town.

"Even by his friends he is taxed with some little propensity to
indolence; but even if this reproach were well founded, he nevertheless
displays great superiority in his profession when he applies his mind to
business."[509]

When Jefferson foresaw Marshall's permanent transfer to public life he
advised James Monroe to practice law in Richmond because "the business
is very profitable;[510] ... and an opening of great importance must be
made by the retirement of Marshall."[511]

Marshall's solid and brilliant performance in the British Debts case
before the Supreme Court at Philadelphia did much more than advance him
in his profession. It also focused upon him the keen scrutiny of the
politicians and statesmen who at that time were in attendance upon
Congress in the Quaker City. Particularly did the strength and
personality of the Virginia advocate impress the Federalist leaders.

These vigilant men had learned of Marshall's daring championship of the
Jay Treaty in hostile Virginia. And although in the case of Ware _vs._
Hylton, Marshall was doing his utmost as a lawyer before the Supreme
Court to defeat the collection of the British debts, yet his courageous
advocacy of the Jay Treaty outweighed, in their judgment, his
professional labors in behalf of the clients who had employed him.

The Federalist leaders were in sore need of Southern support; and when
Marshall was in Philadelphia on the British Debts case, they were prompt
and unsparing in their efforts to bind this strong and able man to them
by personal ties. Marshall himself unwittingly testifies to this. "I
then [during this professional visit to Philadelphia] became
acquainted," he relates, "with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr.
Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of
New York. I was delighted with these gentlemen. The particular subject
(the British Treaty) which introduced me to their notice was at that
time so interesting, and a Virginian who supported, with any sort of
reputation, the measures of the government, was such a _rara avis_,
that I was received by them all with a degree of kindness which I had
not anticipated. I was particularly intimate with Mr. Ames, and could
scarcely gain credit with him when I assured him that the appropriations
[to effectuate the treaty] would be seriously opposed in Congress."[512]

As we shall presently see, Marshall became associated with Robert Morris
in the one great business undertaking of the former's life. Early in
this transaction when, for Marshall, the skies were still clear of
financial clouds, he appears to have made a small purchase of bank stock
and ventured modestly into the commercial field. "I have received your
letter of 18 ulto," Morris writes Marshall, "& am negotiating for Bank
Stock to answer your demand."[513]

And again: "I did not succeed in the purchase of the Bank Stock
mentioned in my letter of the 3^d Ulto to you and as M^r Richard tells
me in his letter of the 4 Inst that you want the money for the Stock,
you may if you please draw upon me for $7000 giving me as much time in
the sight as you can, and I will most certainly pay your drafts as they
become due. The Brokers shall fix the price of the Stock at the market
price at the time I pay the money & I will then state the Am^t including
Dividends & remit you the Balance but if you prefer having the Stock I
will buy it on receiving your Answer to this, cost what it may."[514]

Soon afterward, Morris sent Marshall the promised shares of stock,
apparently to enable him to return shares to some person in Richmond
from whom he had borrowed them.

"You will receive herewith enclosed the Certificates for four shares of
Bank Stock of the United States placed in your name to enable you to
return the four shares to the Gentlemen of whom you borrowed them, this
I thought better than remitting the money lest some difficulty should
arise about price of shares. Two other shares in the name of M^r Geo
Pickett is also enclosed herewith and I will go on buying and remitting
others untill the number of Ten are completed for him which shall be
done before the time limited in your letter of the 12^h Ins^t The
dividends shall also be remitted speedily."[515]

Again Washington desired Marshall to fill an important public office,
this time a place on the joint commission, provided for in the Jay
Treaty, to settle the British claims. These, as we have seen, had been
for many years a source of grave trouble between the two countries.
Their satisfactory adjustment would mean, not only the final settlement
of this serious controversy, but the removal of an ever-present cause of
war.[516] But since Marshall had refused appointment to three offices
tendered him by Washington, the President did not now communicate with
him directly, but inquired of Charles Lee, Attorney-General of Virginia,
whether Marshall might be prevailed upon to accept this weighty and
delicate business.

"I have very little doubt," replied Lee, "that Mr. John Marshall would
not act as a Commissioner under the Treaty with Great Britain, for
deciding on the claims of creditors. I have been long acquainted with
his private affairs, and I think it almost impossible for him to
undertake that office. If he would, I know not any objection that
subsists against him.

"First, he is not a debtor.[517] Secondly, he cannot be benefitted or
injured by any decision of the Commissioners. Thirdly, his being
employed as counsel, in suits of that kind, furnishes no reasonable
objection; nor do I know of any opinions that he has published, or
professes, that might, with a view of impartiality, make him liable to
be objected to.

"Mr. Marshall is at the head of his profession in Virginia, enjoying
every convenience and comfort; in the midst of his friends and the
relations of his wife at Richmond; in a practice of his profession that
annually produces about five thousand dollars on an average; with a
young and increasing family; and under a degree of necessity to continue
his profession, for the purpose of complying with contracts not yet
performed."[518]

The "contracts" which Marshall had to fulfill concerned the one
important financial adventure of his life. It was this, and not, as some
suppose, the condition of his invalid wife, to which Marshall vaguely
referred in his letter to Washington declining appointment as
Attorney-General and as Minister to France.

The two decades following the establishment of the National Government
under the Constitution were years of enormous land speculation. Hardly a
prominent man of the period failed to secure large tracts of real
estate, which could be had at absurdly low prices, and to hold the lands
for the natural advance which increasing population would bring. The
greatest of these investors was Robert Morris, the financier of the
Revolution, the second richest man of the time,[519] and the leading
business man of the country.

[Illustration]

John Marshall had long been the attorney in Virginia for Robert Morris,
who frequently visited that State, sometimes taking his family with him.
In all probability, it was upon some such journey that James M.
Marshall, the brother of John Marshall, met and became engaged to Hester
Morris, daughter of the great speculator, whom he married on April 19,
1795.[520] James M. Marshall--nine years younger than his
brother--possessed ability almost equal to John Marshall and wider and
more varied accomplishments.[521]

It is likely that the Pennsylvania financier, before the marriage,
suggested to the Marshall brothers the purchase of what remained of the
Fairfax estate in the Northern Neck, embracing over one hundred and
sixty thousand acres of the best land in Virginia.[522] At any rate,
sometime during 1793 or 1794 John Marshall, his brother, James M.
Marshall, his brother-in-law, Rawleigh Colston, and General Henry Lee
contracted for the purchase of this valuable holding.[523] In January of
that year James M. Marshall sailed for England to close the
bargain.[524] The money to buy the Fairfax lands was to be advanced by
Robert Morris, who, partly for this purpose, sent James M. Marshall to
Europe to negotiate[525] loans, immediately after his marriage to Hester
Morris.

At Amsterdam "some Capitalists proposed to supply on very hard terms a
Sum more than Sufficient to pay Mr. Fairfax," writes Morris, and James
M. Marshall "has my authority to apply the first Monies he receives on
my acco^t to that Payment."[526] By the end of 1796 Morris's
over-speculations had gravely impaired his fortune. The old financier
writes pathetically to James M. Marshall: "I am struggling hard, very
hard, indeed to regain my Position." He tells his son-in-law that if a
loan cannot be obtained on his other real estate he "expects these
Washington Lotts will be the most certain of any Property to raise
Money on"; and that "[I] will have a number of them Placed under your
Controul."[527]

The loan failed, for the time being, but, writes Morris to John
Marshall, "Mr. Hottenguer[528] who first put the thing in motion says it
will come on again" and succeed; "if so, your brother will, of course,
be ready for Mr. Fairfax." Morris is trying, he says, to raise money
from other sources lest that should fail. "I am here distressed
exceedingly in money matters," continues the harried and aging
speculator "as indeed every body here are but I will immediately make
such exertions as are in my power to place funds with your brother and I
cannot but hope that his and my exertions will produce the needful in
proper time to prevent mischief."[529]

A month later Morris again writes John Marshall that he is "extremely
anxious & fearing that it [the Amsterdam loan] may fall through I am
trying to obtain a loan here for the purposes of your Brother in London.
This," says the now desperate financier, "is extremely difficult, for
those who have money or credit in Europe seem to dread every thing that
is American." He assures John Marshall that he will do his utmost. "My
anxiety ... [to make good the Fairfax purchase] is beyond what I can
express." Alexander Baring "could supply the money ... but he parries
me. He intends soon for the Southward I will introduce him to you."[530]

The title to the Fairfax estate had been the subject of controversy for
many years. Conflicting grants, overlapping boundaries, sequestration
laws, the two treaties with Great Britain, were some of the elements
that produced confusion and uncertainty in the public mind and
especially in the minds of those holding lands within the grant. The
only real and threatening clouds upon the title to the lands purchased
by the Marshall syndicate, however, were the confiscatory laws passed
during the Revolution[531] which the Treaty of Peace and the Jay Treaty
nullified.[532] There were also questions growing out of grants made by
the colonial authorities between 1730 and 1736, but these were not
weighty.

The case of Hunter _vs._ Fairfax, Devisee, involving these questions,
was pending in the Supreme Court of the United States. John Marshall
went to Philadelphia and tried to get the cause advanced and decided.
He was sadly disappointed at his failure and so wrote his brother. "Your
Brother has been here," writes Morris to his son-in-law, "as you will
see by a letter from him forwarded by this conveyance. He could not get
your case brought forward in the Supreme Court of the U. S. at which he
was much dissatisfied & I am much concerned thereat, fearing that real
disadvantage will result to your concern thereby."[533]

The case came on for hearing in regular course during the fall term.
Hunter, on the death of his attorney, Alexander Campbell, prayed the
Court, by letter, for a continuance, which was granted over the protest
of the Fairfax attorneys of record, Lee and Ingersoll of Philadelphia,
who argued that "from the nature of the cause, delay would be worse for
the defendant in error [the Fairfax heir] than a decision adverse to his
claim." The Attorney-General stated that the issue before the Court was
"whether ... the defendant in error being an alien can take and hold the
lands by devise. And it will be contended that his title is completely
protected by the treaty of peace." Mr. Justice Chase remarked: "I
recollect that ... a decision in favor of such a devisee's title was
given by a court in Maryland. It is a matter, however, of great moment
and ought to be deliberately and finally settled."[534] The Marshalls,
of course, stood in the shoes of the Fairfax devisee; had the Supreme
Court decided against the Fairfax title, their contract of purchase
would have been nullified and, while they would not have secured the
estate, they would have been relieved of the Fairfax indebtedness. It
was, then, a very grave matter to the Marshalls, in common with all
others deriving their titles from Fairfax, that the question be settled
quickly and permanently.

A year or two before this purchase by the Marshalls of what remained of
the Fairfax estate, more than two hundred settlers, occupying other
parts of it, petitioned the Legislature of Virginia to quiet their
titles.[535] Acting on these petitions and influenced, perhaps, by the
controversy over the sequestration laws which the Marshall purchase
renewed, the Legislature in 1796 passed a resolution proposing to
compromise the dispute by the State's relinquishing "all claim to any
lands specifically appropriated by ... Lord Fairfax to his own use
either by deed or actual survey ... if the devises of Lord Fairfax, or
those claiming under them, will relinquish all claims to lands ... which
were waste and unappropriated at the time of the death of Lord
Fairfax."[536]

Acting for the purchasing syndicate, John Marshall, in a letter to the
Speaker of the House, accepted this legislative offer of settlement upon
the condition that "an act passes during this session confirming ... the
title of those claiming under Mr. Fairfax the lands specifically
appropriated and reserved by the late Thomas Lord Fairfax or his
ancestors for his or their use."[537]

When advised of what everybody then supposed to be the definitive
settlement of this vexed controversy, Robert Morris wrote John Marshall
that "altho' you were obliged to give up a part of your claim yet it was
probably better to do that than to hold a contest with such an opponent
[State of Virginia]. I will give notice to M^r. Ja^s. Marshall of this
compromise."[538] John Marshall, now sure of the title, and more anxious
than ever to consummate the deal by paying the Fairfax heir, hastened to
Philadelphia to see Morris about the money.

"Your Brother John Marshall Esq^r. is now in this City," writes Robert
Morris to his son-in-law, "and his principal business I believe is to
see how you are provided with Money to pay Lord Fairfax.... I am so
sensible of the necessity there is for your being prepared for Lord
Fairfax's payment that there is nothing within my power that I would not
do to enable you to meet it."[539]

The members of the Marshall syndicate pressed their Philadelphia backer
unremittingly, it appears, for a few days later he answers what seems to
have been a petulant letter from Colston assuring that partner in the
Fairfax transaction that he is doing his utmost to "raise the money to
enable Mr. James Marshall to meet the Payments for your Purchase at
least so far as it is incumbent on me to supply the means.... From the
time named by John Marshall Esq^{re} when here, I feel perfect
Confidence, because I will furnish him before that period with such
Resources & aid as I think cannot fail."[540]

[Illustration: PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT MORRIS
SHOWING PAYMENT OF £7700 TO FAIRFAX (_Facsimile_)]

Finally Marshall's brother negotiated the loan, an achievement which
Morris found "very pleasing, as it enables you to take the first steps
with Lord Fairfax for securing your bargain."[541] Nearly forty thousand
dollars of this loan was thus applied. In his book of accounts with
Morris, James M. Marshall enters: "Jany 25 '97 To £7700 paid the Rev^d.
Denny Fairfax and credited in your [Morris's] account with me 7700"
(English pounds sterling).[542] The total amount which the Marshalls
had agreed to pay for the remnant of the Fairfax estate was "fourteen
thousand pounds British money."[543] When Robert Morris became bankrupt,
payment of the remainder of the Fairfax indebtedness fell on the
shoulders of Marshall and his brother.

This financial burden caused Marshall to break his rule of declining
office and to accept appointment as one of our envoys to France at the
time of Robert Morris's failure and imprisonment for debt; for from that
public employment of less than one year, Marshall, as we shall see,
received in the sorely needed cash, over and above his expenses, three
times the amount of his annual earnings at the bar.[544] "Mr. John
Marshall has said here," relates Jefferson after Marshall's return,
"that had he not been appointed minister [envoy] to France, he was
desperate in his affairs and must have sold his estate [the Fairfax
purchase] & that immediately. That that appointment was the greatest
God-send that could ever have befallen a man."[545] Jefferson adds: "I
have this from J. Brown and S. T. Mason [Senator Mason]."[546]

So it was that Marshall accepted a place on the mission to France[547]
when it was offered to him by Adams, who "by a miracle," as Hamilton
said, had been elected President.[548]

FOOTNOTES:

[456] _Southern Literary Messenger_, 1836, ii, 181-91; also see Howe,
266.

[457] _Southern Literary Messenger_, ii, 181-91; also Howe, 266.
Apparently the older lawyer had been paid the one hundred dollars, for
prepayment was customary in Virginia at the time. (See La Rochefoucauld,
iii, 76.) This tale, fairly well authenticated, is so characteristic of
Marshall that it is important. It visualizes the man as he really was.
(See Jefferson's reference, in his letter to Madison, to Marshall's
"lax, lounging manners," _supra_, 139.)

[458] Story, in Dillon, iii, 363.

[459] Wirt: _The British Spy_, 110-12.

[460] Mazzei's _Recherches sur les États-Unis_, published in this year
(1788) in four volumes.

[461] Marshall himself could not read French at this time. (See _infra_,
chap. VI.)

[462] In this chapter of Marshall's receipts and expenditures all items
are from his Account Book, described in vol. I, chap. V, of this work.

[463] Marshall's third child, Mary, was born Sept. 17, of this year.

[464] La Rochefoucauld, iii, 75-76.

[465] Records, Henrico County, Virginia, Deed Book, iii, 74.

[466] In 1911 the City Council of Richmond presented this house to the
Association for the Preservation of Virginia Antiquities, which now owns
and occupies it.

[467] Mordecai, 63-70; and _ib._, chap. vii.

[468] La Rochefoucauld, iii, 63. Negroes made up one third of the
population.

[469] _Ib._, 64; also Christian, 30.

[470] This celebrated French playwright and adventurer is soon to appear
again at a dramatic moment of Marshall's life. (See _infra_, chaps. VI
to VIII.)

[471] Marshall's bill in equity in the "High Court of Chancery sitting
in Richmond," January 1, 1803; Chamberlin MSS., Boston Public Library.
Marshall, then Chief Justice, personally drew this bill. After the
Fairfax transaction, he seems to have left to his brother and partner,
James M. Marshall, the practical handling of his business affairs.

[472] Memorial of William F. Ast and others; MS. Archives, Va. St. Lib.

[473] Christian, 46.

[474] This company is still doing business in Richmond.

[475] Christian, 46.

[476] The enterprise appears not to have filled the public with
investing enthusiasm and no subscriptions to it were received.

[477] See _infra_, chap. X.

[478] Marshall to James M. Marshall, April 3, 1799; MS. This was the
only one of Marshall's sisters then unmarried. She was twenty years of
age at this time and married Major George Keith Taylor within a few
months. He was a man of unusual ability and high character and became
very successful in his profession. In 1801 he was appointed by President
Adams, United States Judge for a Virginia district. (See _infra_, chap.
XII.) The union of Mr. Taylor and Jane Marshall turned out to be very
happy indeed. (Paxton, 77.)

Compare this letter of Marshall with that of Washington to his niece, in
which he gives extensive advice on the subject of love and marriage.
(Washington to Eleanor Parke Custis, Jan. 16, 1795; _Writings_: Ford,
xiii, 29-32.)

[479] Marshall to Everett, July 22, 1833.

[480] Christian, 28.

[481] _Richmond and Manchester Advertiser_, Sept. 24, 1795.

[482] _Proceedings_ of the M. W. Grand Lodge of Ancient York Masons of
the State of Virginia, from 1778 to 1822, by John Dove, i, 144; see also
121, 139.

[483] See _infra_, chap. X.

[484] See vol. I, chap. V, of this work.

[485] Gilmer, 23-24.

[486] Gustavus Schmidt, in _Louisiana Law Journal_ (1841), 81-82.

[487] For a list of cases argued by Marshall and reported in Call and
Washington, with title of case, date, volume, and page, see Appendix I.

[488] A good illustration of a brilliant display of legal learning by
associate and opposing counsel, and Marshall's distaste for authorities
when he could do without them, is the curious and interesting case of
Coleman _vs._ Dick and Pat, decided in 1793, and reported in 1
Washington, 233. Wickham for appellant and Campbell for appellee cited
ancient laws and treaties as far back as 1662. Marshall cited no
authority whatever.

[489] See Stevens _vs._ Taliaferro, Adm'r, 1 Washington, 155, Spring
Term, 1793.

[490] Johnson _vs._ Bourn, 1 Washington, 187, Spring Term, 1793.

[491] _Ib._

[492] Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc.

[493] _Ib._, May 28, 1794.

[494] Munford, 326-38.

[495] See vol. III of this work.

[496] Constitution of the United States, article vi.

[497] _Ib._, article iii, section 2.

[498] The Fairfax deal; see _infra_, 203 _et seq._

[499] Henry, ii, 475.

[500] Howe, 221-22.

[501] 3 Dallas, 256-57, and footnote. In his opinion Justice Iredell
decided for the debtors. When the Supreme Court of the United States, of
which he was a member, reversed him in Philadelphia, the following year,
Justice Iredell, pursuant to a practice then existing, and on the advice
of his brother justices, placed his original opinion on record along
with those of Justices Chase, Paterson, Wilson, and Cushing, each of
whom delivered separate opinions in favor of the British creditors.

[502] For Marshall's argument in the British Debts case before the
Supreme Court, see 3 Dallas, 199-285.

[503] King to Pinckney, Oct. 17, 1797; King, ii, 234-35. King refers to
the British Debts case, the only one in which Marshall had made an
argument before the Supreme Court up to this time.

[504] See _infra_, chap. XI.

[505] Kennedy, ii, 76. Mr. Wirt remembered the argument well; but
twenty-four years having elapsed, he had forgotten the case in which it
was made. He says that it was the Carriage Tax case and that Hamilton
was one of the attorneys. But it was the British Debts case and
Hamilton's name does not appear in the records.

[506] Kennedy, ii, 66. Francis W. Gilmer was then the most brilliant
young lawyer in Virginia. His health became too frail for the hard work
of the law; and his early death was universally mourned as the going out
of the brightest light among the young men of the Old Dominion.

[507] Gilmer, 23-24.

[508] Wirt: _The British Spy_, 112-13.

[509] La Rochefoucauld, iii, 120. Doubtless La Rochefoucauld would have
arrived at the above conclusion in any event, since his estimate of
Marshall is borne out by every contemporary observer; but it is worthy
of note that the Frenchman while in Richmond spent much of his time in
Marshall's company. (_Ib._, 119.)

[510] _Ib._, 75. "The profession of a lawyer is ... one of the most
profitable.... In Virginia the lawyers usually take care to insist on
payment before they proceed in a suit; and this custom is justified by
the general disposition of the inhabitants to pay as little and as
seldom as possible."

[511] Jefferson to Monroe, Feb. 8, 1798; _Works_: Ford, viii, 365.
Marshall was in France at the time. (See _infra_, chaps. VI to VIII
inclusive.)

[512] Story, in Dillon, iii, 354. Ware _vs._ Hylton was argued Feb. 6,
8, 9, 10, 11, and 12. The fight against the bill to carry out the Jay
Treaty did not begin in the National House of Representatives until
March 7, 1796.

[513] Morris to Marshall, May 3, 1796; Morris's Private Letter Book;
MS., Lib. Cong. The stock referred to in this correspondence is probably
that of the Bank of the United States.

[514] Morris to Marshall, June 16, 1796; Morris's Private Letter Book;
MS., Lib. Cong.

[515] Morris to Marshall, Aug. 24, 1796; _ib._

[516] The commission failed and war was narrowly averted by the payment
of a lump sum to Great Britain. It is one of the curious turns of
history that Marshall, as Secretary of State, made the proposition that
finally concluded the matter and that Jefferson consummated the
transaction. (See _infra_, chap. XII.)

[517] Lee means a debtor under the commission. Marshall was a debtor to
Fairfax. (See _infra_.)

[518] Lee to Washington, March 20, 1796; _Cor. Rev._: Sparks, iv,
481-82.

[519] William Bingham of Philadelphia was reputed to be "the richest man
of his time." (Watson: _Annals of Philadelphia_ i. 414.) Chastellux
estimates Morris's wealth at the close of the Revolution at 8,000,000
francs. (Chastellux, 107.) He increased his fortune many fold from the
close of the war to 1796.

The operations of Robert Morris in land were almost without limit. For
instance, one of the smaller items of his purchases was 199,480 acres in
Burke County, North Carolina. (Robert Morris to James M. Marshall, Sept.
24, 1795; Morris's Private Letter Book; MS., Lib. Cong.)

Another example of Morris's scattered and detached deals was his
purchase of a million acres "lying on the western counties of
Virginia ... purchased of William Cary Nicholas.... I do not consider
one shilling sterling as one fourth the real value of the lands.... If,
therefore," writes Morris to James M. Marshall, "a little over £5000
Stg. could be made on this security it would be better than selling
especially at 12^d. per acre." (Robert Morris to James M. Marshall, Oct.
10, 1795; _ib._)

Morris owned at one time or another nearly all of the western half of
New York State. (See Oberholtzer, 301 _et seq._) "You knew of Mr. Robert
Morris's purchase ... of one million, three hundred thousand acres of
land of the State of Massachusetts, at five pence per acre. It is said
he has sold one million two hundred thousand acres of these in Europe."
(Jefferson to Washington, March 27, 1791; _Cor. Rev._: Sparks, iv, 365.)

Patrick Henry acquired considerable holdings which helped to make him,
toward the end of his life, a wealthy man. Washington, who had a keen
eye for land values, became the owner of immense quantities of real
estate. In 1788 he already possessed two hundred thousand acres. (De
Warville, 243.)

[520] Oberholtzer, 266 _et seq._ Hester Morris, at the time of her
marriage to John Marshall's brother, was the second greatest heiress in
America.

[521] Grigsby, i, footnote to 150.

[522] Deed of Lieutenant-General Phillip Martin (the Fairfax heir who
made the final conveyance) to Rawleigh Colston, John Marshall, and James
M. Marshall; Records at Large, Fauquier County (Virginia) Circuit Court,
200 _et seq._ At the time of the contract of purchase, however, the
Fairfax estate was supposed to be very much larger than the quantity of
land conveyed in this deed. It was considerably reduced before the
Marshalls finally secured the title.

[523] Lee is mentioned in all contemporary references to this
transaction as one of the Marshall syndicate, but his name does not
appear in the Morris correspondence nor in the deed of the Fairfax heir
to the Marshall brothers and Colston.

[524] J^s. Marshall to ---- [Edmund Randolph] Jan. 21, 1794; MS.
Archives Department of State. Marshall speaks of dispatches which he is
carrying to Pinckney, then American Minister to Great Britain. This
letter is incorrectly indexed in the Archives as from John Marshall. It
is signed "J^s. Marshall" and is in the handwriting of James M.
Marshall. John Marshall was in Richmond all this year, as his Account
Book shows.

[525] Morris to John Marshall, Nov. 21, 1795; and Aug. 24, 1796;
Morris's Private Letter Book; MS., Lib. Cong.

[526] Morris to Colston, Nov. 11, 1796; _ib._

[527] Robert Morris to James M. Marshall, Dec. 3, 1796; Morris's Private
Letter Book; MS., Lib. Cong. By the expression "Washington Lotts" Morris
refers to his immense real estate speculations on the site of the
proposed National Capital. Morris bought more lots in the newly laid out
"Federal City" than all other purchasers put together. Seven thousand
two hundred and thirty-four lots stood in his name when the site of
Washington was still a primeval forest. (Oberholtzer, 308-12.) Some of
these he afterwards transferred to the Marshall brothers, undoubtedly to
make good his engagement to furnish the money for the Fairfax deal,
which his failure prevented him from advancing entirely in cash. (For
account of Morris's real estate transactions in Washington see La
Rochefoucauld, iii, 622-26.)

[528] This Hottenguer soon appears again in John Marshall's life as one
of Talleyrand's agents who made the corrupt proposals to Marshall,
Pinckney, and Gerry, the American Commissioners to France in the famous
X.Y.Z. transaction of 1797-98. (See _infra_, chaps. VI to VIII.)

[529] Robert Morris to John Marshall, Dec. 30, 1796; Morris's Private
Letter Book; MS., Lib. Cong.

[530] Morris to John Marshall, Jan. 23, 1797; Morris's Private Letter
Book; MS., Lib. Cong.

[531] Hening, ix, chap. ix, 377 _et seq._; also _ib._, x, chap. xiv, 66
_et seq._; xi, chap. xliv, 75-76; xi, chap. xlv, 176 _et seq._; xi,
chap. xlvii, 81 _et seq._; xi, chap. xxx, 349 _et seq._

[532] Such effect of these treaties was not yet conceded, however.

[533] Morris to James M. Marshall, March 4, 1796; Morris's Private
Letter Book; MS., Lib. Cong.

[534] Hunter _vs._ Fairfax, Devisee, 3 Dallas, 303, and footnote.

[535] Originals in Archives of Virginia State Library. Most of the
petitions were by Germans, many of their signatures being in German
script. They set forth their sufferings and hardships, their good faith,
loss of papers, death of witnesses, etc.

[536] Laws of Virginia, Revised Code (1819), i, 352.

[537] Laws of Virginia, Revised Code (1819), i, 352. Marshall's letter
accepting the proposal of compromise is as follows:--

"RICHMOND, November 24th, 1796.

"SIR, being one of the purchasers of the lands of Mr. Fairfax, and
authorized to act for them all, I have considered the resolution of
the General Assembly on the petitions of sundry inhabitants of the
counties of Hampshire, Hardy, and Shenandoah, and have determined
to accede to the proposition it contains.

"So soon as the conveyance shall be transmitted to me from Mr.
Fairfax, deeds extinguishing his title to the waste and unappropriated
lands in the Northern Neck shall be executed, provided an act passes
during this session, confirming, on the execution of such deeds, the
title of those claiming under Mr. Fairfax the lands specifically
appropriated and reserved by the late Thomas Lord Fairfax, or his
ancestors, for his or their use.

"I remain Sir, with much respect and esteem,

"Your obedient servant, JOHN MARSHALL.

"The Honorable, the Speaker of the House of Delegates."

(Laws of Virginia.)

[538] Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter
Book; MS., Lib. Cong.

[539] Morris to James M. Marshall, Feb. 10, 1797; Morris's Private
Letter Book; MS., Lib. Cong. Morris adds that "I mortgaged to Col^o.
Hamilton 100,000 acres of Genesee Lands to secure payment of $75,000 to
Mr. Church in five years. This land is worth at this moment in Cash two
Dollars pr Acre."

[540] Morris to Colston, Feb. 25, 1797; _ib._

[541] Morris to James M. Marshall, April 27, 1797; _ib._

[542] MS. The entry was made in Amsterdam and Morris learned of the loan
three months afterwards.

[543] Records at Large in Clerk's Office of Circuit Court of Fauquier
County, Virginia, 200 _et seq._ The deed was not filed until 1806, at
which time, undoubtedly, the Marshalls made their last payment.

[544] See _infra_, chap. VIII. It was probably this obligation too, that
induced Marshall, a few years later, to undertake the heavy task of
writing the _Life of Washington_, quite as much as his passionate
devotion to that greatest of Americans. (See vol. III of this work.)

[545] "Anas," March 21, 1800; _Works_: Ford, i, 355.

[546] _Ib._ Misleading as Jefferson's "Anas" is, his information in this
matter was indisputably accurate.

[547] See _infra_, chap. VI. A short time before the place on the French
mission was tendered Marshall, his father in Kentucky resigned the
office of Supervisor of Revenue for the District of Ohio. In his letter
of resignation Thomas Marshall gives a résumé of his experiences as an
official under Washington's Administrations. Since this is one of the
only two existing letters of Marshall's father on political subjects,
and because it may have turned Adams's mind to John Marshall, it is
worthy of reproduction:--

SIR,

Having determined to resign my Commission as Supervisor of the
Revenue for the district of Ohio, on the 30th day of June next,
which terminates the present fiscal year, I have thought it right
to give this timely notice to you as President of the United
States, in whom the nomination and appointment of my successor is
vested; in order that you may in the meantime select some fit
person to fill the office. You will therefore be pleased to
consider me as out of office on the first day of July ensuing.

It may possibly be a subject of enquiry, why, after holding the
office during the most critical & troublesome times, I should now
resign it, when I am no longer insulted, and abused, for
endeavoring to execute the Laws of my Country--when those Laws
appear to be, more than formerly, respected--and when the
probability is, that in future they may be carried into effect
with but little difficulty?

In truth this very change, among other considerations, furnishes
a reason for the decision I have made. For having once engaged in
the business of revenue I presently found myself of sufficient
importance with the enemies of the Government here to be made an
object of their particular malevolence--and while this was the
case, I was determined not to be driven from my post.

At this time, advanced in years and declining in health, I find
myself unfit for the cares, and active duties of the office; and
therefore cheerfully resign a situation, which I at first
accepted and afterwards held, more from an attachment to the
Government, than from any pecuniary consideration, to be filled
by some more active officer, as still more conducive to the
public service.

To the late President I had the honor of being known, and
combined, with respect and veneration for his public character,
the more social and ardent affections of the man, and of the
friend.

You Sir I have not the honor to know personally, but you have
filled too many important stations in the service of your
country; & fame has been too busy with your name to permit me to
remain ignorant of your character; for which in all its public
relations permit me to say, I feel the most entire respect and
esteem: Nor is it to me among the smallest motives for my
rejoicing that you are the President; and of my attachment to
your administration to know that you have ever been on terms of
friendship with the late President--that you have approved his
administration,--and that you propose to yourself his conduct as
an example for your imitation.

On this occasion I may say without vanity that I have formerly
and not infrequently, given ample testimony of my attachment to
Republican Government, to the peace, liberty and happiness of my
country and that it is not now to be supposed that I have changed
my principles--or can esteem those who possess different ones.

And altho' I am too old [Thomas Marshall was nearly sixty-five
years of age when he wrote this letter] and infirm for active
services, (for which I pray our country may not feel a call) yet
my voice shall ever be excited in opposition to foreign
influence, (from whence the greatest danger seems to threaten, as
well as against internal foes) and in support of a manly, firm,
and independent, exercise of those constitutional rights, which
belong to the President, and Government of the United States.
And, _even opinions_, have their effect.

I am Sir with the most
JOHN ADAMS, ESQ. entire respect and esteem
President of the Your very humble Servt,
United States. T. MARSHALL.

(Thomas Marshall to Adams, April 28, 1797; MS., Dept. of State.)

[548] See _infra_, chaps. XI and XII.

CHAPTER VI

ENVOY TO FRANCE

My dearest life, continue to write to me, as my heart clings with
delight only to what comes from you. (Marshall to his wife.)

He is a plain man, very sensible and cautious. (Adams.)

Our poor insulted country has not before it the most flattering
prospects. (Marshall at Antwerp.)

"PHILADELPHIA July 2^{nd} 1797.

"MY DEAREST POLLY

"I am here after a passage up the bay from Baltimore.... I dined on
saturday in private with the President whom I found a sensible plain
candid good tempered man & was consequently much pleased with him. I am
not certain when I shall sail.... So you ... my dearest life continue to
write to me as your letters will follow me should I be gone before their
arrival & as my heart clings with real pleasure & delight only to what
comes from you. I was on friday evening at the faux hall of
Philadelphia.... The amusements were walking, sitting, punch ice cream
etc Music & conversation.... Thus my dearest Polly do I when not engaged
in the very serious business which employs a large portion of my time
endeavor by a-[muse]ments to preserve a mind at ease & [keep] it from
brooding too much over my much loved & absent wife. By all that is dear
on earth, I entreat you to do the same, for separation will not I trust
be long & letters do everything to draw its sting. I am my dearest life
your affectionate

"J MARSHALL."[549]

[Illustration: FIRST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE
(_Facsimile_)]

So wrote John Marshall at the first stage of his journey upon that
critical diplomatic mission which was to prove the most dramatic in our
history and which was to be the turning-point in Marshall's life. From
the time when Mary Ambler became his bride in 1783, Marshall had never
been farther away from his Richmond home than Philadelphia, to which
city he had made three flying visits in 1796, one to argue the British
Debts case, the other two to see Robert Morris on the Fairfax deal and
to hasten the decision of the Supreme Court in that controversy.

But now Marshall was to cross the ocean as one of the American envoys to
"the terrible Republic" whose "power and vengeance" everybody
dreaded.[550] He was to go to that now arrogant Paris whose streets were
resounding with the shouts of French victories. It was the first and the
last trans-Atlantic voyage Marshall ever undertook; and although he was
to sail into a murky horizon to grapple with vast difficulties and
unknown dangers, yet the mind of the home-loving Virginian dwelt more on
his Richmond fireside than on the duties and hazards before him.

Three days after his arrival at Philadelphia, impressionable as a boy,
he again writes to his wife: "My dearest Polly I have been extremely
chagrined at not having yet received a letter from you. I hope you are
well as I hear nothing indicating the contrary but you know not how
solicitous how anxiously solicitous I am to hear it from yourself. Write
me that you are well & in good spirits & I shall set out on my voyage
with a lightened heart ... you will hear from me more than once before
my departure."

The Virginia envoy was much courted at Philadelphia before he sailed. "I
dined yesterday," Marshall tells his wife, "in a very large company of
Senators & members of the house of representatives who met to celebrate
the 4th of July. The company was really a most respectable one & I
experienced from them the most flattering attention. I have much reason
to be satisfied & pleased with the manner in which I am received here."
But flattery did not soothe Marshall--"Something is wanting to make me
happy," he tells his "dearest Polly." "Had I my dearest wife with me I
should be delighted indeed."[551]

Washington had sent letters in Marshall's care to acquaintances in
France commending him to their attention and good offices; and the
retired President wrote Marshall himself a letter of hearty good wishes.
"Receive sir," replies Marshall, "my warm & grateful acknowledgments for
the polite &, allow me to add, friendly wishes which you express
concerning myself as well as for the honor of being mentioned in your
letters."[552]

A less composed man, totally unpracticed as Marshall was in diplomatic
usages, when embarking on an adventure involving war or peace, would
have occupied himself constantly in preparing for the vast business
before him. Not so Marshall. While waiting for his ship, he indulged
his love of the theater. Again he tells his wife how much he misses her.
"I cannot avoid writing to you because while doing so I seem to myself
to be in some distant degree enjoying your company. I was last night at
the play & saw the celebrated Mrs. Mary in the character of Juliet. She
performs that part to admiration indeed but I really do not think Mrs.
Westig is far her inferior in it. I saw," gossips Marshall, "Mrs.
Heyward there. I have paid that lady one visit to one of the most
delightful & romantic spots on the river Schuylkil.... She expressed
much pleasure to see me & has pressed me very much to repeat my visit. I
hope I shall not have time to do so."

Marshall is already bored with the social life of Philadelphia. "I am
beyond expression impatient to set out on the embassy," he informs his
wife. "The life I lead here does not suit me I am weary of it I dine out
every day & am now engaged longer I hope than I shall stay. This
dissipated life does not long suit my temper. I like it very well for a
day or two but I begin to require a frugal repast with good cold
water"--There was too much wine, it would seem, at Philadelphia to suit
Marshall.

"I would give a great deal to dine with you to day on a piece of cold
meat with our boys beside us to see Little Mary running backwards &
forwards over the floor playing the sweet little tricks she [is] full
of.... I wish to Heaven the time which must intervene before I can
repass these delightful scenes was now terminated & that we were looking
back on our separation instead of seeing it before us. Farewell my
dearest Polly. Make yourself happy & you will bless your ever
affectionate

"J. MARSHALL."[553]

If Marshall was pleased with Adams, the President was equally impressed
with his Virginia envoy to France. "He [Marshall] is a plain man very
sensible, cautious, guarded, and learned in the law of nations.[554] I
think you will be pleased with him,"[555] Adams writes Gerry, who was to
be Marshall's associate and whose capacity for the task even his
intimate personal friend, the President, already distrusted. Hamilton
was also in Philadelphia at the time[556]--a circumstance which may or
may not have been significant. It was, however, the first time, so far
as definite evidence attests, that these men had met since they had been
comrades and fellow officers in the Revolution.

The "Aurora," the leading Republican newspaper, was mildly sarcastic
over Marshall's ignorance of the French language and general lack of
equipment for his diplomatic task. "Mr. Marshall, one of our extra
envoys to France, will be eminently qualified for the mission by the
time he reaches that country," says the "Aurora." Some official of great
legal learning was coaching Marshall, it seems, and advised him to read
certain monarchical books on the old France and on the fate of the
ancient republics.

The "Aurora" asks "whether some history of France since the overthrow of
the Monarchy would not have been more instructive to Mr. Marshall. The
Envoy, however," continues the "Aurora," "approved the choice of his
sagacious friend, but very shrewdly observed 'that he must first
purchase Chambaud's grammar, English and French.' We understand that he
is a very apt scholar, and no doubt, during the passage, he will be able
to acquire enough of the French jargon for all the purposes of the
embassy."[557]

Having received thirty-five hundred dollars for his expenses,[558]
Marshall set sail on the brig Grace for Amsterdam where Charles
Cotesworth Pinckney, the expelled American Minister to France and head
of the mission, awaited him. As the land faded, Marshall wrote, like any
love-sick youth, another letter to his wife which he sent back by the
pilot.

"The land is just escaping from my view," writes Marshall to his
"dearest Polly"; "the pilot is about to leave us & I hasten from the
deck into the cabin once more to give myself the sweet indulgence of
writing to you.... There has been so little wind that we are not yet
entirely out of the bay. It is so wide however that the land has the
appearance of a light blue cloud on the surface of the water & we shall
very soon lose it entirely."

Marshall assures his wife that his "cabin is neat & clean. My berth a
commodious one in which I have my own bed & sheets of which I have a
plenty so that I lodge as conveniently as I could do in any place
whatever & I find I sleep very soundly altho on water." He is careful to
say that he has plenty of creature comforts. "We have for the voyage,
the greatest plenty of salt provisions live stock & poultry & as we lay
in our own liquors I have taken care to provide myself with a plenty of
excellent porter wine & brandy. The Captain is one of the most obliging
men in the world & the vessel is said by every body to be a very fine
one."

There were passengers, too, who suited Marshall's sociable disposition
and who were "well disposed to make the voyage agreeable.... I have then
my dearest Polly every prospect before me of a passage such as I could
wish in every respect but one ... fear of a lengthy passage. We have met
in the bay several vessels. One from Liverpool had been at sea nine
weeks, & the others from other places had been proportionately long....
I shall be extremely impatient to hear from you & our dear children."

Marshall tells his wife how to direct her letters to him, "some ... by
the way of London to the care of Rufus King esquire our Minister there,
some by the way of Amsterdam or the Hague to the care of William Vanns
[_sic_] Murr[a]y esquire our Minister at the Hague & perhaps some
directed to me as Envoy extraordinary of the United States to the French
Republic at Paris.

"Do not I entreat you omit to write. Some of your letters may miscarry
but some will reach me & my heart can feel till my return no pleasure
comparable to what will be given it by a line from you telling me that
all remains well. Farewell my dearest wife. Your happiness will ever be
the first prayer of your unceasingly affectionate

"J. MARSHALL."[559]

So fared forth John Marshall upon the adventure which was to open the
door to that historic career that lay just beyond it; and force him,
against his will and his life's plans, to pass through it. But for this
French mission, it is certain that Marshall's life would have been
devoted to his law practice and his private affairs. He now was sailing
to meet the ablest and most cunning diplomatic mind in the contemporary
world whose talents, however, were as yet known to but few; and to face
the most venal and ruthless governing body of any which then directed
the affairs of the nations of Europe. Unguessed and unexpected by the
kindly, naïve, and inexperienced Richmond lawyer were the scenes about
to unroll before him; and the manner of his meeting the emergencies so
soon to confront him was the passing of the great divide in his destiny.

Even had the French rulers been perfectly honest and simple men, the
American envoys would have had no easy task. For American-French affairs
were sadly tangled and involved. Gouverneur Morris, our first Minister
to France under the Constitution, had made himself unwelcome to the
French Revolutionists; and to placate the authorities then reigning in
Paris, Washington had recalled Morris and appointed Monroe in his place
"after several attempts had failed to obtain a more eligible
character."[560]

Monroe, a partisan of the Revolutionists, had begun his mission with
theatrical blunders; and these he continued until his recall,[561] when
he climaxed his imprudent conduct by his attack on Washington.[562]
During most of his mission Monroe was under the influence of Thomas
Paine,[563] who had then become the venomous enemy of Washington.

Monroe had refused to receive from his fellow Minister to England, John
Jay, "confidential informal statements" as to the British treaty which
Jay prudently had sent him by word of mouth only. When the Jay Treaty
itself arrived, Monroe publicly denounced the treaty as
"shameful,"[564] a grave indiscretion in the diplomatic representative
of the Government that had negotiated the offending compact.

Finally Monroe was recalled and Washington, after having offered the
French mission to John Marshall, appointed Charles Cotesworth Pinckney
of South Carolina as his successor. The French Revolutionary authorities
had bitterly resented the Jay compact, accused the American Government
of violating its treaty with France, denounced the United States for
ingratitude, and abused it for undue friendship to Great Britain.

In all this the French Directory had been and still was backed up by the
Republicans in the United States, who, long before this, had become a
distinctly French party. Thomas Paine understated the case when he
described "the Republican party in the United States" as "that party
which is the sincere ally of France."[565]

The French Republic was showing its resentment by encouraging a
piratical warfare by French privateers upon American commerce. Indeed,
vessels of the French Government joined in these depredations. In this
way, it thought to frighten the United States into taking the armed side
of France against Great Britain. The French Republic was emulating the
recent outrages of that Power; and, except that the French did not
impress Americans into their service, as the British had done, their
Government was furnishing to America the same cause for war that Great
Britain had so brutally afforded.

In less than a year and a half before Marshall sailed from Philadelphia,
more than three hundred and forty American vessels had been taken by
French privateers.[566] Over fifty-five million dollars' worth of
American property had been destroyed or confiscated under the decrees of
the Directory.[567] American seamen, captured on the high seas, had been
beaten and imprisoned. The officers and crew of a French armed brig
tortured Captain Walker, of the American ship Cincinnatus, four hours by
thumbscrews.[568]

When Monroe learned that Pinckney had been appointed to succeed him, he
began a course of insinuations to his French friends against his
successor; branded Pinckney as an "aristocrat"; and thus sowed the seeds
for the insulting treatment the latter received upon his appearance at
the French Capital.[569] Upon Pinckney's arrival, the French Directory
refused to receive him, threatened him with arrest by the Paris police,
and finally ordered the new American Minister out of the territory of
the Republic.[570]

To emphasize this affront, the Directory made a great ado over the
departure of Monroe, who responded with a characteristic address. To
this speech Barras, then President of the Directory, replied in a
harangue insulting to the American Government; it was, indeed,
an open appeal to the American people to repudiate their own
Administration,[571] of the same character as, and no less offensive
than, the verbal performances of Genêt.

And still the outrages of French privateers on American ships continued
with increasing fury.[572] The news of Pinckney's treatment and the
speech of Barras reached America after Adams's inauguration. The
President promptly called Congress into a special session and delivered
to the National Legislature an address in which Adams appears at his
best.

The "refusal [by the Directory] ... to receive him [Pinckney] until we
had acceded to their demands without discussion and without
investigation, is to treat us neither as allies nor as friends, nor as a
sovereign state," said the President; who continued:--

"The speech of the President [Barras] discloses sentiments more alarming
than the refusal of a minister [Pinckney], because more dangerous to our
independence and union....

"It evinces a disposition to separate the people of the United States
from the government, to persuade them that they have different
affections, principles and interests from those of their fellow citizens
whom they themselves have chosen to manage their common concerns and
thus to produce divisions fatal to our peace.

"Such attempts ought to be repelled with a decision which shall convince
France and the world that we are not a degraded people, humiliated under
a colonial spirit of fear and sense of inferiority, fitted to be the
miserable instruments of foreign influence, and regardless of national
honor, character, and interest.

"I should have been happy to have thrown a veil over these transactions
if it had been possible to conceal them; but they have passed on the
great theatre of the world, in the face of all Europe and America, and
with such circumstances of publicity and solemnity that they cannot be
disguised and will not soon be forgotten. They have inflicted a wound in
the American breast. It is my sincere desire, however, that it may be
healed."

Nevertheless, so anxious was President Adams for peace that he informed
Congress: "I shall institute a fresh attempt at negotiation.... If we
have committed errors, and these can be demonstrated, we shall be
willing to correct them; if we have done injuries, we shall be willing
on conviction to redress them; and equal measures of justice we have a
right to expect from France and every other nation."[573]

Adams took this wise action against the judgment of the Federalist
leaders,[574] who thought that, since the outrages upon American
commerce had been committed by France and the formal insult to our
Minister had been perpetrated by France, the advances should come from
the offending Government. Technically, they were right; practically,
they were wrong. Adams's action was sound as well as noble
statesmanship.

Thus came about the extraordinary mission, of which Marshall was a
member, to adjust our differences with the French Republic. The
President had taken great care in selecting the envoys. He had
considered Hamilton, Jefferson, and Madison,[575] for this delicate and
fateful business; but the two latter, for reasons of practical politics,
would not serve, and without one of them, Hamilton's appointment was
impossible. Pinckney, waiting at Amsterdam, was, of course, to head the
commission. Finally Adams's choice fell on John Marshall of Virginia and
Francis Dana, Chief Justice of the Supreme Court of Massachusetts; and
these nominations were confirmed by the Senate.[576]

But Dana declined,[577] and, against the unanimous advice of his
Cabinet,[578] Adams then nominated Elbridge Gerry, who, though a
Republican, had, on account of their personal relations, voted for Adams
for President, apologizing, however, most humbly to Jefferson for having
done so.[579]

No appointment could have better pleased that unrivaled politician.
Gerry was in general agreement with Jefferson and was, temperamentally,
an easy instrument for craft to play upon. When Gerry hesitated to
accept, Jefferson wrote his "dear friend" that "it was with infinite joy
to me that you were yesterday announced to the Senate" as one of the
envoys; and he pleaded with Gerry to undertake the mission.[580]

The leaders of the President's party in Congress greatly deplored the
selection of Gerry. "No appointment could ... have been more
injudicious," declared Sedgwick.[581] "If, sir, it was a desirable thing
to distract the mission, a fitter person could not, perhaps, be found.
It is ten to one against his agreeing with his colleagues," the
Secretary of War advised the President.[582] Indeed, Adams himself was
uneasy about Gerry, and in a prophetic letter sought to forestall the
very indiscretions which the latter afterwards committed.

[Illustration: PART OF LETTER OF JULY 17, 1797, FROM JOHN ADAMS TO
ELBRIDGE GERRY DESCRIBING JOHN MARSHALL (_Facsimile_)]

"There is the utmost necessity for harmony, complaisance, and
condescension among the three envoys, and unanimity is of great
importance," the President cautioned Gerry. "It is," said Adams, "my
sincere desire that an accommodation may take place; but our national
faith, and the honor of our government, cannot be sacrificed. You have
known enough of the unpleasant effects of disunion among ministers to
convince you of the necessity of avoiding it, like a rock or
quicksand.... It is probable there will be manoeuvres practiced to
excite jealousies among you."[583]

Forty-eight days after Marshall took ship at Philadelphia, he arrived at
The Hague.[584] The long voyage had been enlivened by the sight of many
vessels and the boarding of Marshall's ship three times by British
men-of-war.

"Until our arrival in Holland," Marshall writes Washington, "we saw only
British & neutral vessels. This added to the blockade of the dutch fleet
in the Texel, of the french fleet in Brest & of the spanish fleet in
Cadiz, manifests the entire dominion which one nation [Great Britain] at
present possesses over the seas.

"By the ships of war which met us we were three times visited & the
conduct of those who came on board was such as wou'd proceed from
general orders to pursue a system calculated to conciliate America.

"Whether this be occasion'd by a sense of justice & the obligations of
good faith, or solely by the hope that the perfect contrast which it
exhibits to the conduct of France may excite keener sensations at that
conduct, its effects on our commerce is the same."[585]

It was a momentous hour in French history when the Virginian landed on
European soil. The French elections of 1797 had given to the
conservatives a majority in the National Assembly, and the Directory was
in danger. The day after Marshall reached the Dutch Capital, the troops
sent by Bonaparte, that young eagle, his pinions already spread for his
imperial flight, achieved the revolution of the 18th Fructidor (4th of
September); gave the ballot-shaken Directory the support of bayonets;
made it, in the end, the jealous but trembling tool of the youthful
conqueror; and armed it with a power through which it nullified the
French elections and cast into prison or drove into exile all who came
under its displeasure or suspicion.

With Lodi, Arcola, and other laurels upon his brow, the Corsican already
had begun his astonishing career as dictator of terms to Europe. The
native Government of the Netherlands had been replaced by one modeled on
the French system; and the Batavian Republic, erected by French arms,
had become the vassal and the tool of Revolutionary France.

Three days after his arrival at The Hague, Marshall writes his wife of
the safe ending of his voyage and how "very much pleased" he is with
Pinckney, whom he "immediately saw." They were waiting "anxiously" for
Gerry, Marshall tells her. "We shall wait a week or ten days longer &
shall then proceed on our journey [to Paris]. You cannot conceive (yes
you can conceive) how these delays perplex & mortify me. I fear I cannot
return until the spring & that fear excites very much uneasiness & even
regret at my having ever consented to cross the Atlantic. I wish
extremely to hear from you & to know your situation. My mind clings so
to Richmond that scarcely a night passes in which during the hours of
sleep I have not some interesting conversation with you or concerning
you."

Marshall tells his "dearest Polly" about the appearance of The Hague,
its walks, buildings, and "a very extensive wood adjoining the city
which extends to the sea," and which is "the pride & boast of the
place." "The society at the Hague is probably very difficult, to an
American it certainly is, & I have no inclination to attempt to enter
into it. While the differences with France subsist the political
characters of this place are probably unwilling to be found frequently
in company with our countrymen. It might give umbrage to France."
Pinckney had with him his wife and daughter, "who," writes Marshall,
"appears to be about 12 or 13 years of age. Mrs. Pinckney informs me
that only one girl of her age has visited her since the residence of the
family at the Hague.[586] In fact we seem to have no communication but
with Americans, or those who are employed by America or who have
property in our country."

While at The Hague, Marshall yields, as usual, to his love for the
theater, although he cannot understand a word of the play. "Near my
lodgings is a theatre in which a french company performs three times a
week," he tells his wife. "I have been frequently to the play & tho' I
do not understand the language I am very much amused at it. The whole
company is considered as having a great deal of merit but there is a
Madame de Gazor who is considered as one of the first performers in
Paris who bears the palm in the estimation of every person."

Marshall narrates to his wife the result of the _coup d'état_ of
September 4. "The Directory," he writes, "with the aid of the soldiery
have just put in arrest the most able & leading members of the
legislature who were considered as moderate men & friends of peace. Some
conjecture that this event will so abridge our negotiations as probably
to occasion my return to America this fall. A speedy return is my most
ardent wish but to have my return expedited by the means I have spoken
of is a circumstance so calamitous that I deprecate it as the greatest
of evils. Remember me affectionately to our friends & kiss for me our
dear little Mary. Tell the boys how much I expect from them & how
anxious I am to see them as well as their beloved mother. I am my
dearest Polly unalterably your

"J MARSHALL."[587]

The theaters and other attractions of The Hague left Marshall plenty of
time, however, for serious and careful investigations. The result of
these he details to Washington. The following letter shows not only
Marshall's state of mind just before starting for Paris, but also the
effect of European conditions upon him and how strongly they already
were confirming Marshall's tendency of thought so firmly established by
every event of his life since our War for Independence:--

"Tho' the face of the country [Holland] still exhibits a degree of
wealth & population perhaps unequal'd in any other part of Europe, its
decline is visible. The great city of Amsterdam is in a state of
blockade. More than two thirds of its shipping lie unemploy'd in port.
Other seaports suffer tho' not in so great a degree. In the meantime the
requisitions made [by the French] upon them [the Dutch] are enormous....

"It is supposed that France has by various means drawn from Holland
about 60,000,000 of dollars. This has been paid, in addition to the
national expenditures, by a population of less than 2,000,000.... Not
even peace can place Holland in her former situation. Antwerp will draw
from Amsterdam a large portion of that commerce which is the great
source of its wealth; for Antwerp possesses, in the existing state of
things, advantages which not even weight of capital can entirely
surmount."

Marshall then gives Washington a clear and striking account of the
political happenings among the Dutch under French domination:--

"The political divisions of this country & its uncertainty concerning
its future destiny must also have their operation....

"A constitution which I have not read, but which is stated to me to have
contain'd all the great fundamentals of a representative government, &
which has been prepar'd with infinite labor, & has experienc'd an
uncommon length of discussion was rejected in the primary assemblies by
a majority of nearly five to one of those who voted....

"The substitute wish'd for by its opponents is a legislature with a
single branch having power only to initiate laws which are to derive
their force from the sanction of the primary assemblies. I do not know
how they wou'd organize it.... It is remarkable that the very men who
have rejected the form of government propos'd to them have reëlected a
great majority of the persons who prepar'd it & will probably make from
it no essential departure.... It is worthy of notice that more than two
thirds of those entitled to suffrage including perhaps more than four
fifths of the property of the nation & who wish'd, as I am told, the
adoption of the constitution, withheld their votes....

"Many were restrain'd by an unwillingness to take the oath required
before a vote could be receiv'd; many, disgusted with the present state
of things, have come to the unwise determination of revenging themselves
on those whom they charge with having occasion'd it by taking no part
whatever in the politics of their country, & many seem to be indifferent
to every consideration not immediately connected with their particular
employments."

Holland's example made the deepest impression on Marshall's mind. What
he saw and heard fortified his already firm purpose not to permit
America, if he could help it, to become the subordinate or ally of any
foreign power. The concept of the American people as a separate and
independent Nation unattached to, unsupported by, and unafraid of any
other country, which was growing rapidly to be the passion of Marshall's
life, was given fresh force by the humiliation and distress of the Dutch
under French control.

"The political opinions which have produc'd the rejection of the
constitution," Marshall reasons in his report to Washington, "& which,
as it wou'd seem, can only be entertain'd by intemperate & ill inform'd
minds unaccustom'd to a union of the theory & practice of liberty, must
be associated with a general system which if brought into action will
produce the same excesses here which have been so justly deplor'd in
France.

"The same materials exist tho' not in so great a degree. They have their
clubs, they have a numerous poor & they have enormous wealth in the
hands of a minority of the nation."

Marshall interviewed Dutch citizens, in his casual, indolent, and
charming way; and he thus relates to Washington the sum of one such
conversation:--

"On my remarking this to a very rich & intelligent merchant of Amsterdam
& observing that if one class of men withdrew itself from public duties
& offices it wou'd immediately be succeeded by another which wou'd
acquire a degree of power & influence that might be exercis'd to the
destruction of those who had retir'd from society, he replied that the
remark was just, but that they relied on France for a protection from
those evils which she had herself experienc'd. That France wou'd
continue to require great supplies from Holland & knew its situation too
well to permit it to become the prey of anarchy.

"That Holland was an artificial country acquired by persevering industry
& which cou'd only be preserv'd by wealth & order. That confusion &
anarchy wou'd banish a large portion of that wealth, wou'd dry up its
sources & wou'd entirely disable them from giving France that pecuniary
aid she so much needed. That under this impression very many who tho'
friends to the revolution, saw with infinite mortification french troops
garrison the towns of Holland, wou'd now see their departure with equal
regret.

"Thus, they willingly relinquish national independence for individual
safety. What a lesson to those who wou'd admit foreign influence into
the United States!"

Marshall then narrates the events in France which followed the _coup
d'état_ of September 4. While this account is drawn from rumors and
newspapers and therefore contains a few errors, it is remarkable on the
whole for its general accuracy. No condensation can do justice to
Marshall's review of this period of French history in the making. It is
of first importance, also, as disclosing his opinions of the Government
he was so soon to encounter and his convictions that unrestrained
liberty must result in despotism.

"You have observed the storm which has been long gathering in Paris,"
continues Marshall. "The thunderbolt has at length been launch'd at the
heads of the leading members of the legislature & has, it is greatly to
be fear'd, involv'd in one common ruin with them, the constitution &
liberties of their country.... Complete & impartial details concerning
it will not easily be obtained as the press is no longer free. The
journalists who had ventur'd to censure the proceedings of a majority of
the directory are seiz'd, & against about forty of them a sentence of
transportation is pronounced.

"The press is plac'd under the superintendence of a police appointed by
& dependent on the executive. It is supposed that all private letters
have been seiz'd for inspection.

"From some Paris papers it appears, that on the first alarm, several
members of the legislature attempted to assemble in their proper halls
which they found clos'd & guarded by an arm'd force. Sixty or seventy
assembled at another place & began to remonstrate against the violence
offer'd to their body, but fear soon dispersed them.

"To destroy the possibility of a rallying point the municipal
administrations of Paris & the central administration of the seine were
immediately suspended & forbidden by an arrêté of the directoire, to
assemble themselves together.

"Many of the administrators of the departments through France elected by
the people, had been previously remov'd & their places filled by persons
chosen by the directory....

"The fragment of the legislature convok'd by the directory at L'Odéon &
L'école de santé, hasten'd to repeal the law for organizing the national
guards, & authoriz'd the directory to introduce into Paris as many
troops as shou'd be judg'd necessary. The same day the liberty of the
press was abolish'd by a line, property taken away by another & personal
security destroy'd by a sentence of transportation against men unheard &
untried.

"All this," sarcastically remarks Marshall, "is still the triumph of
liberty & of the constitution."

Although admitting his lack of official information, Marshall "briefly"
observes that: "Since the election of the new third, there were found in
both branches of the legislature a majority in favor of moderate
measures & apparently, wishing sincerely for peace. They have manifested
a disposition which threaten'd a condemnation of the conduct of the
directory towards America, a scrutiny into the transactions of Italy,
particularly those respecting Venice & Genoa, an enquiry into the
disposition of public money & such a regular arrangement of the finances
as wou'd prevent in future those dilapidations which are suspected to
have grown out of their disorder. They [French conservatives] have
sought too by their laws to ameliorate the situation of those whom
terror had driven out of France, & of those priests who had committed no
offense."

Marshall thus details to Washington the excuse of the French radicals
for their severe treatment of the conservatives:--

"The cry of a conspiracy to reëstablish royalism was immediately rais'd
against them [conservatives]. An envoy was dispatched to the Army of
Italy to sound its disposition. It was represented that the legislature
was hostile to the armies, that it withheld their pay & subsistence,
that by its opposition to the directory it encourag'd Austria & Britain
to reject the terms of peace which were offer'd by France & which but
for that opposition wou'd have been accepted, & finally that it had
engag'd in a conspiracy for the destruction of the constitution & the
republic & for the restoration of royalty.

"At a feast given to the armies of Italy to commemorate their fellow
soldiers who had fallen in that country the Generals address'd to them
their complaints, plainly spoke of marching to Paris to support the
directory against the councils & received from them addresses
manifesting the willingness of the soldiers to follow them.

"The armies also addressed the directory & each other, & addresses were
dispatched to different departments. The directory answer'd them by the
stronge[st] criminations of the legislature. Similar proceedings were
had in the army of the interior commanded by Gen^l. Hoche. Detachments
were mov'd within the limits prohibited by the constitution, some of
which declar'd they were marching to Paris 'to bring the legislature to
reason.'"

Here follows Marshall's story of what then happened, according to the
accounts which were given him at The Hague:--

"Alarm'd at these movements the council of five hundred call'd on the
directory for an account of them. The movement of the troops within the
constitutional circle was attributed to accident & the discontents of
the army to the faults committed by the legislature who were plainly
criminated as conspirators against the army & the republic.

"This message was taken up by Tronçon in the council of antients & by
Thibideau in the council of five hundred. I hope you have seen their
speeches. They are able, & seem to me entirely exculpated the
legislature.

"In the mean time the directory employed itself in the removal of the
administrators of many of the departments & cantons & replacing those
whom the people had elected by others in whom it cou'd confide, and in
the removal generally of such officers both civil & military as cou'd
not be trusted to make room for others on whom it cou'd rely.

"The legislature on its part, pass'd several laws to enforce the
constitutional restrictions on the armies & endeavored to organize the
national guards. On this latter subject especially Pichegru, great &
virtuous I believe in the cabinet as in the field, was indefatigable. We
understand that the day before the law for their organization wou'd have
been carried into execution the decisive blow was struck."

Marshall now relates, argumentatively, the facts as he heard them in the
Dutch Capital; and in doing so, reveals his personal sentiments and
prejudices:--

"To support the general charge of conspiracy in favor of royalty I know
of no particular facts alleged against the arrested Members except
Pichegru & two or three others.... Pichegru is made in the first moment
of conversation to unbosom himself entirely to a perfect stranger who
had only told him that he came from the Prince of Conde & cou'd not
exhibit a single line of testimonial of any sort to prove that he had
ever seen that Prince or that he was not a spy employ'd by some of the
enemies of the General.

"This story is repel'd by Pichegru's character which has never before
been defil'd. Great as were the means he possess'd of personal
aggrandizement he retir'd clean handed from the army without adding a
shilling to his private fortune. It is repel'd by his resigning the
supreme command, by his numerous victories subsequent to the alleged
treason, by its own extreme absurdity & by the fear which his accusers
show of bringing him to trial according to the constitution even before
a tribunal they can influence & overawe, or of even permitting him to be
heard before the prostrate body which is still term'd the legislature &
which in defiance of the constitution has pronounc'd judgment on him.

"Yet this improbable & unsupported tale seems to be receiv'd as an
established truth by those who the day before [his] fall bow'd to him as
an idol. I am mortified as a man to learn that even his old army which
conquer'd under him, which ador'd him, which partook of his fame & had
heretofore not join'd their brethren in accusing the legislature, now
unite in bestowing on him the heaviest execrations & do not hesitate to
pronounce him a traitor of the deepest die."

Irrespective of the real merits of the controversy, Marshall tells
Washington that he is convinced that constitutional liberty is dead or
dying in France:--

"Whether this conspiracy be real or not," he says, "the wounds inflicted
on the constitution by the three directors seem to me to be mortal. In
opposition to the express regulations of the constitution the armies
have deliberated, the result of their deliberations addressed to the
directory has been favorably received & the legislature since the
revolution has superadded its thanks.

"Troops have been marched within those limits which by the constitution
they are forbidden to enter but on the request of the legislature. The
directory is forbidden to arrest a member of the legislature unless in
the very commission of a criminal act & then he can only be tried by the
high court, on which occasion forms calculated to protect his person
from violence or the prejudice of the moment are carefully prescrib'd.

"Yet it has seized, by a military force, about fifty leading members not
taken in a criminal act & has not pursued a single step mark'd out by
the constitution. The councils can inflict no penalty on their own
members other than reprimand, arrest for eight & imprisonment for three
days. Yet they have banished to such places as the directory shall chuse
a large portion of their body without the poor formality of hearing a
defense.

"The legislature shall not exercise any judiciary power or pass any
retrospective law. Yet it has pronounc'd this heavy judgment on others
as well as its own members & has taken from individuals property which
the law has vested in them."

Marshall is already bitter against the Directory because of its
violation of the French Constitution, and tells Washington:--

"The members of the directory are personally secur'd by the same rules
with those of the legislature. Yet three directors have depriv'd two of
their places, the legislature has then banished them without a hearing &
has proceeded to fill up the alledg'd vacancies. Merlin late minister of
justice & François de Neufchatel have been elected.

"The constitution forbids the house of any man to be entered in the
night. The orders of the constituted authorities can only be executed in
the day. Yet many of the members were seiz'd in their beds.

"Indeed, sir, the constitution has been violated in so many instances
that it wou'd require a pamphlet to detail them. The detail wou'd be
unnecessary for the great principle seems to be introduc'd that the
government is to be administered according to the will of the nation."

Marshall now indulges in his characteristic eloquence and peculiar
method of argument:--

"Necessity, the never to be worn out apology for violence, is
alledg'd--but cou'd that necessity go further than to secure the persons
of the conspirators? Did it extend to the banishment of the printers &
to the slavery of the press? If such a necessity did exist it was
created by the disposition of the people at large & it is a truth which
requires no demonstration that if a republican form of government cannot
be administered by the general will, it cannot be administered against
that will by an army."

Nevertheless, hope for constitutional liberty in France lingers in his
heart in spite of this melancholy recital.

"After all, the result may not be what is apprehended. France possesses
such enormous power, such internal energy, such a vast population that
she may possibly spare another million & preserve or reacquire her
liberty. Or, the form of the government being preserved, the
independence of the legislature may be gradually recover'd.

"With their form of government or resolutions we have certainly no right
to intermeddle, but my regrets at the present state of things are
increased by an apprehension that the rights of our country will not be
deem'd so sacred under the existing system as they wou'd have been had
the legislature preserved its legitimate authority."[588]

Washington's reply, which probably reached Marshall some time after the
latter's historic letter to Talleyrand in January, 1798,[589] is
informing. He "prays for a continuance" of such letters and hopes he
will be able to congratulate Marshall "on the favorable conclusion of
your embassy.... To predict the contrary might be as unjust as it is
impolitic, and therefore," says Washington, "mum--on that topic. Be the
issue what it may," he is sure "that nothing which justice, sound
reasoning, and fair representation would require will be wanting to
render it just and honorable." If so, and the mission fails, "then the
eyes of all who are not willfully blind ... will be fully opened." The
Directory will have a rude awakening, if they expect the Republicans to
support France against America in the "dernier ressort.... For the mass
of our citizens require no more than to understand a question to decide
it properly; and an adverse conclusion of the negotiation will effect
this." Washington plainly indicates that he wishes Marshall to read his
letter between the lines when he says: "I shall dwell very little on
European politics ... because this letter may pass through many
hands."[590]

Gerry not arriving by September 18, Marshall and Pinckney set out for
Paris, "proceeding slowly in the hope of being overtaken" by their tardy
associate. From Antwerp Marshall writes Charles Lee, then
Attorney-General, correcting some unimportant statements in his letter
to Washington, which, when written, were "considered as certainly true,"
but which "subsequent accounts contradict."[591] Down-heartedly he
says:--

"Our insulted injured country has not before it the most flattering
prospects. There is no circumstance calculated to flatter us with the
hope that our negotiations will terminate as they ought to do.... We
understand that all is now quiet in France, the small show of resistance
against which Napoleon march'd is said to have dispersed on hearing of
his movement."

He then describes the celebration in Antwerp of the birth of the new
French régime:--

"To-day being the anniversary of the foundation of the Republic, was
celebrated with great pomp by the military at this place. Very few
indeed of the inhabitants attended the celebration. Everything in
Antwerp wears the appearance of consternation and affright.

"Since the late revolution a proclamation has been published forbidding
any priest to officiate who has not taken the oath prescribed by a late
order. No priest at Antwerp has taken it & yesterday commenced the
suspension of their worship.

"All the external marks of their religion too with which their streets
abound are to be taken down. The distress of the people at the calamity
is almost as great as if the town was to be given up to pillage."[592]

Five days after leaving Antwerp, Marshall and Pinckney arrived in the
French Capital. The Paris of that time was still very much the Paris of
Richelieu, except for some large buildings and other improvements begun
by Louis XIV. The French metropolis was in no sense a modern city and
bore little resemblance to the Paris of the present day. Not until some
years afterward did Napoleon as Emperor begin the changes which later,
under Napoleon III, transformed it into the most beautiful city in the
world. Most of its ancient interest, as well as its mediæval
discomforts, were in existence when Marshall and Pinckney reached their
destination.

The Government was, in the American view, incredibly corrupt, and the
lack of integrity among the rulers was felt even among the people. "The
venality is such," wrote Gouverneur Morris, in 1793, "that if there be
no traitor it is because the enemy has not common sense."[593] And
again: "The ... administration is occupied in acquiring wealth."[594]
Honesty was unknown, and, indeed, abhorrent, to most of the governing
officials; and the moral sense of the citizens themselves had been
stupefied by the great sums of money which Bonaparte extracted from
conquered cities and countries and sent to the treasury at Paris. Time
and again the Republic was saved from bankruptcy by the spoils of
conquest; and long before the American envoys set foot in Paris the
popular as well as the official mind had come to expect the receipt of
money from any source or by any means.

The bribery of ministers of state and of members of the Directory was a
matter of course;[595] and weaker countries paid cash for treaties with
the arrogant Government and purchased peace with a price. During this
very year Portugal was forced to advance a heavy bribe to Talleyrand and
the Directory before the latter would consent to negotiate concerning a
treaty; and, as a secret part of the compact, Portugal was required to
make a heavy loan to France. It was, indeed, a part of this very
Portuguese money with which the troops were brought to Paris for the
September revolution of 1797.[596]

Marshall and Pinckney at once notified the French Foreign Office of
their presence, but delayed presenting their letters of credence until
Gerry should join them before proceeding to business. A week passed; and
Marshall records in his diary that every day the waiting envoys were
besieged by "Americans whose vessels had been captured & condemned. By
appeals & other dilatory means the money had been kept out of the hands
of the captors & they were now waiting on expenses in the hope that our
[the envoys'] negotiations might relieve them."[597] A device, this, the
real meaning of which was to be made plain when the hour should come to
bring it to bear on the American envoys.

Such was the official and public atmosphere in which Marshall and
Pinckney found themselves on their mission to adjust, with honor, the
differences between France and America: a network of unofficial and
secret agents was all about them; and at its center was the master
spider, Talleyrand. The unfrocked priest had been made Foreign Minister
under the Directory in the same month and almost the day that Marshall
embarked at Philadelphia for Paris. It largely was through the efforts
and influence of Madame de Staël[598] that this prince of intriguers
was able to place his feet upon this first solid step of his amazing
career.

Talleyrand's genius was then unknown to the world, and even the
Directory at that time had no inkling of his uncanny craft. To be sure,
his previous life had been varied and dramatic and every page of it
stamped with ability; but in the tremendous and flaming events of that
tragic period he had not attracted wide attention. Now, at last,
Talleyrand had his opportunity.

Among other incidents of his life had been his exile to America. For
nearly two years and a half he had lived in the United States, traveling
hither and yon through the forming Nation. Washington as President had
refused to receive the expelled Frenchman, who never forgave the slight.
In his journey from State to State he had formed a poor opinion of the
American people. "If," he wrote, "I have to stay here another year I
shall die."[599]

The incongruities of what still was pioneer life, the illimitable
forests, the confusion and strife of opinion, the absence of National
spirit and general purpose, caused Talleyrand to look with contempt upon
the wilderness Republic. But most of all, this future master spirit of
European diplomacy was impressed with what seemed to him the sordid,
money-grubbing character of the American people. Nowhere did he find a
spark of that idealism which had achieved our independence; and he
concluded that gold was the American god.[600]

Fauchet's disclosures[601] had caused official Paris to measure the
American character by the same yardstick that Talleyrand applied to us,
when, on leaving our shores, he said: "The United States merit no more
consideration than Genoa or Genève."[602]

The French Foreign Minister was not fairly established when the American
affair came before him. Not only was money his own pressing need, but to
pander to the avarice of his master Barras and the other corrupt members
of the Directory was his surest method of strengthening his, as yet,
uncertain official position. Such were Talleyrand's mind, views, and
station, when, three days after Gerry's belated arrival, the newly
installed Minister received the American envoys informally at his house,
"where his office was held." By a curious freak of fate, they found him
closeted with the Portuguese Minister from whom the very conditions had
been exacted which Talleyrand so soon was to attempt to extort from the
Americans.

It was a striking group--Talleyrand, tall and thin of body, with pallid,
shrunken cheeks and slumberous eyes, shambling forward with a limp, as,
with halting speech,[603] he coldly greeted his diplomatic visitors;
Gerry, small, erect, perfectly attired, the owl-like solemnity of his
face made still heavier by his long nose and enormous wig; Pinckney,
handsome, well-dressed, clear-eyed, of open countenance;[604] and
Marshall, tall, lean, loose-jointed, carelessly appareled, with only his
brilliant eyes to hint at the alert mind and dominant personality of the
man.

Talleyrand measured his adversaries instantly. Gerry he had known in
America and he weighed with just balance the qualities of the
Massachusetts envoy; Pinckney he also had observed and feared nothing
from the blunt, outspoken, and transparently honest but not in the least
subtle or far-seeing South Carolinian; the ill-appearing Virginian, of
whom he had never heard, Talleyrand counted as a cipher. It was here
that this keen and cynical student of human nature blundered.

Marshall and Talleyrand were almost of an age,[605] the Frenchman being
only a few months older than his Virginia antagonist. The powers of
neither were known to the other, as, indeed, they were at that time
unguessed generally by the mass of the people, even of their own
countries.

[Illustration: TALLEYRAND]

A month after Talleyrand became the head of French Foreign Affairs,
Rufus King, then our Minister at London, as soon as he had heard of
the appointment of the American envoys, wrote Talleyrand a conciliatory
letter congratulating the French diplomat upon his appointment. King and
Talleyrand had often met both in England and America.

"We have been accustomed," writes King, "to converse on every subject
with the greatest freedom"; then, assuming the frankness of friendship,
King tries to pave the way for Marshall, Pinckney, and Gerry, without
mentioning the latter, however. "From the moment I heard that you had
been named to the Department of Foreign Affairs," King assures
Talleyrand, "I have felt a satisfactory Confidence that the Cause of the
increasing Misunderstanding between us would cease, and that the
overtures mediated by our Government would not fail to restore Harmony
and Friendship between the two Countries."[606]

King might have saved his ink. Talleyrand did not answer the letter; it
is doubtful whether he even read it. At any rate, King's somewhat
amateurish effort to beguile the French Foreign Minister by empty words
utterly failed of its purpose.

The Americans received cold comfort from Talleyrand; he was busy, he
said, on a report on Franco-American affairs asked for by the Directory;
when he had presented it to his superiors he would, he said, let the
Americans know "what steps were to follow." Talleyrand saw to it,
however, that the envoys received "cards of hospitality" which had been
denied to Pinckney. These saved the Americans at least from offensive
attentions from the police.[607]

Three days later, a Mr. Church, an American-born French citizen,
accompanied by his son, called on Gerry, but found Marshall, who was
alone. From Thomas Paine, Church had learned of plans of the Directory
concerning neutrals which, he assured Marshall, "would be extremely
advantageous to the United States." "Do not urge your mission now,"
suggested Church--the present was "a most unfavorable moment." Haste
meant that "all would probably be lost." What were these measures of the
Directory? asked Marshall. Church was not at liberty to disclose them,
he said; but the envoys' "true policy was to wait for events."

That night came a letter from the author of "Common Sense." "This
letter," Marshall records, "made very different impressions on us. I
thought it an insult which ought to be received with that coldness which
would forbid the repetition of it. Mr. Gerry was of a contrary opinion."
Marshall insisted that the Directory knew of Paine's letter and would
learn of the envoys' answer, and that Pinckney, Gerry, and himself must
act only as they knew the American Government would approve. It was
wrong, said he, and imprudent to lead the Directory to expect anything
else from the envoys; and Paine's "aspersions on our government" should
be resented.[608] So began the break between Marshall and Gerry, which,
considering the characters of the two men, was inevitable.

Next, Talleyrand's confidential secretary confided to Major
Mountflorence, of the American Consulate, that the Directory would
require explanations of President Adams's speech to Congress, by which
they were exasperated. The Directory would not receive the envoys, he
said, until the negotiations were over; but that persons would be
appointed "to treat with" the Americans, and that these agents would
report to Talleyrand, who would have "charge of the negotiations."[609]
Mountflorence, of course, so advised the envoys.

Thus the curtain rose upon the melodrama now to be enacted--an episode
without a parallel in the history of American diplomacy. To understand
what follows, we must remember that the envoys were governed by careful,
lengthy, and detailed instructions to the effect that "no blame or
censure be directly, or indirectly, imputed to the United States"; that
in order not to "wound her [France] feelings or to excite her
resentment" the negotiations were to be on the principles of the British
Treaty; "that no engagement be made inconsistent with ... any prior
treaty"; that "no restraint on our lawful commerce with any other nation
be admitted"; that nothing be done "incompatible with the complete
sovereignty and independence of the United States in matters of policy,
commerce, and government"; and "_that no aid be stipulated in favor of
France during the present war_."[610]

We are now to witness the acts in that strange play, known to American
history as the X. Y. Z. Mission, as theatrical a spectacle as any ever
prepared for the stage. Indeed, the episode differs from a performance
behind the footlights chiefly in that in this curious arrangement the
explanation comes after the acting is over. When the dispatches to the
American Government, which Marshall now is to write, were transmitted to
Congress, diplomatic prudence caused the names of leading characters to
be indicated only by certain letters of the alphabet. Thus, this
determining phase of our diplomatic history is known to the present day
as "The X. Y. Z. Affair."

FOOTNOTES:

[549] Marshall to his wife, July 2, 1797; MS.

[550] Sedgwick to King, June 24, 1797; King, ii, 192.

[551] Marshall to his wife, July 5, 1797; MS.

[552] Marshall to Washington, July 7, 1797; MS., Lib. Cong.

[553] Marshall to his wife, July 11, 1797; MS.

[554] This, of course, was untrue, at that time. Marshall probably
listened with polite interest to Adams, who was a master of the subject,
and agreed with him. Thus Adams was impressed, as is the way of human
nature.

[555] Adams to Gerry, July 17, 1797; _Works_: Adams, viii, 549.

[556] _Aurora_, July 17, 1797.

[557] _Aurora_, July 19, 1797. For documents given envoys by the
Government, see _Am. St. Prs., For. Rel._, Class I, ii, 153.

[558] Marshall to Secretary of State, July 10, 1797; Memorandum by
Pickering; Pickering MSS., in _Proc._, Mass. Hist. Soc., xxi, 177.

[559] Marshall to his wife, "The Bay of Delaware," July 20, 1797; MS.

[560] Washington's remarks on Monroe's "View"; _Writings_: Ford, xiii,
452.

[561] See McMaster, ii, 257-59, 319, 370. But Monroe, although shallow,
was well meaning; and he had good excuse for over-enthusiasm; for his
instructions were: "Let it be seen that in case of a war with any nation
on earth, we shall consider France as our first and natural ally." (_Am.
St. Prs., For. Rel._, Class I, ii, 669.)

[562] "View of the Conduct of the Executive of the United States, etc.,"
by James Monroe (Philadelphia, Bache, Publisher, 1797). This pamphlet is
printed in full in Monroe's _Writings_: Hamilton, iii, as an Appendix.

Washington did not deign to notice Monroe's attack publicly; but on the
margin of Monroe's book answered every point. Extracts from Monroe's
"View" and Washington's comments thereon are given in Washington's
_Writings_: Ford, xiii, 452-90.

Jefferson not only approved but commended Monroe's attack on Washington.
(See Jefferson to Monroe, Oct. 25, 1797; _Works_: Ford, viii, 344-46.)
It is more than probable that he helped circulate it. (Jefferson to
Eppes, Dec. 21, 1797; _ib._, 347; and to Madison, Feb. 8, 1798; _ib._,
362; see also Jefferson to Monroe, Dec. 27; _ib._, 350. "Your book was
later coming than was to have been wished: however it works
irresistibly. It would have been very gratifying to you to hear the
unqualified eulogies ... by all who are not hostile to it from
principle.")

[563] Ticknor, ii, 113.

[564] For a condensed but accurate and impartial statement of Monroe's
conduct while Minister, see Gilman: _James Monroe_ (American Statesmen
Series), 36-73.

[565] Paine to editors of the _Bien-Informé_, Sept. 27, 1797;
_Writings_: Conway, iii, 368-69.

[566] _Am. St. Prs., For. Rel._, ii, 55-63.

[567] See condensed summary of the American case in instructions to
Pinckney, Marshall, and Gerry; _ib._, 153-57.

[568] _Ib._, 64; and for numerous other examples see _ib._, 28-64.

[569] Ticknor, ii, 113.

[570] Pinckney to Secretary of State, Amsterdam, Feb. 18, 1797; _Am. St.
Prs., For. Rel._, vii, 10.

[571] See Barras's speech in _Am. St. Prs., For. Rel._, ii, 12.

[572] See Allen: _Naval War with France_, 31-33.

[573] Adams, Message to Congress, May 16, 1797; Richardson, i, 235-36;
also, _Works_: Adams, ix, 111-18.

[574] Gibbs, ii, 171-72.

[575] Hamilton proposed Jefferson or Madison. (Hamilton to Pickering,
March 22, 1797; Lodge: _Cabot_, 101.)

[576] _Works_: Adams, ix, 111-18.

[577] _Ib._

[578] Gibbs, i, 467, 469, and footnote to 530-31.

[579] Austin: _Gerry_, ii, 134-35.

[580] Jefferson to Gerry, June 21, 1797; _Works_: Ford, viii, 314. This
letter flattered Gerry's vanity and nullified Adams's prudent advice to
him given a few days later. (See _infra._)

[581] Sedgwick to King, June 24, 1797; King, ii, 193.

[582] McHenry to Adams, in Cabinet meeting, 1797; Steiner, 224.

[583] Adams to Gerry, July 8, 1797; _Works_: Adams, viii, 547-48.
Nine days later the President again admonishes Gerry. While expressing
confidence in him, the President tells Gerry that "Some have
expressed ... fears of an unaccommodating disposition [in Gerry] and
others of an obstinacy that will risk great things to secure small ones.

"Some have observed that there is, at present, a happy and perfect
harmony among all our ministers abroad, and have expressed apprehension
that your appointment might occasion an interruption of it." (Adams to
Gerry, July 17, 1797; _ib._, 549.)

[584] Marshall took the commission and instructions of John Quincy Adams
as the American Minister to Prussia (_Writings, J.Q.A._: Ford, ii,
footnote to 216), to which post the younger Adams had been appointed by
Washington because of his brilliant "Publicola" essays.

[585] Marshall, to Washington, The Hague, Sept. 15, 1797; Washington
MSS., Lib. Cong. See citations _ib._, _infra_. (Sparks MSS., _Proc._
Mass. Hist. Soc., lxvi; also _Amer. Hist. Rev._, ii, no. 2, Jan., 1897.)

[586] Pinckney and his family had been living in Holland for almost
seven months. (Pinckney to Pickering, Feb. 8, 1797; _Am. St. Prs., For.
Rel._, ii, 10.)

[587] Marshall to his wife, The Hague, Sept. 9, 1797, MS. Marshall's
brother had been in The Hague July 30, but had gone to Berlin. Vans
Murray to J. Q. Adams, July 30, 1797; _Letters_: Ford, 358. Apparently
the brothers did not meet, notwithstanding the critical state of the
Fairfax contract.

[588] Marshall to Washington, The Hague, Sept. 15, 1797; _Amer. Hist.
Rev._, ii, no. 2, Jan., 1897; and MS., Lib. Cong.

[589] See _infra_, next chapter.

[590] Washington to Marshall, Dec. 4, 1797; _Writings_: Ford, xiii,
432-34.

[591] To justify the violence of the 18th Fructidor, the Directory
asserted that the French elections, in which a majority of conservatives
and anti-revolutionists were returned and General Pichegru chosen
President of the French Legislature, were parts of a royal conspiracy to
destroy liberty and again place a king upon the throne of France. In
these elections the French liberals, who were not in the army, did not
vote; while all conservatives, who wished above all things for a stable
and orderly government of law and for peace with other countries,
flocked to the polls.

Among the latter, of course, were the few Royalists who still remained
in France. Such, at least, was the view Marshall took of this episode.
To understand Marshall's subsequent career, too much weight cannot be
given this fact and, indeed, all the startling events in France during
the six historic months of Marshall's stay in Paris.

But Marshall did not take into account the vital fact that the French
soldiers had no chance to vote at this election. They were scattered far
and wide--in Italy, Germany, and elsewhere. Yet these very men were the
soul of the Revolutionary cause. And the private soldiers were more
enraged by the result of the French elections than their generals--even
than General Augereau, who was tigerish in his wrath.

They felt that, while they were fighting on the battlefield, they had
been betrayed at the ballot box. To the soldiers of France the
revolution of the 18th Fructidor was the overthrow of their enemies in
their own country. The army felt that it had answered with loyal
bayonets a conspiracy of treasonable ballots. It now seems probable that
the soldiers and officers of the French armies were right in this view.

Pinckney was absurdly accused of interfering in the elections in behalf
of the "Royalist Conspiracy." (Vans Murray to J. Q. Adams, April 3,
1798; _Letters_: Ford, 391.) Such a thing, of course, was perfectly
impossible.

[592] Marshall to Lee, Antwerp, Sept. 22, 1797; MS., New York Pub. Lib.

[593] Gouverneur Morris to Washington, Feb., 1793; Morris, ii, 37. While
Morris was an aristocrat, thoroughly hostile to democracy and without
sympathy with or understanding of the French Revolution, his statements
of facts have proved to be generally accurate. (See Lyman: _Diplomacy of
the United States_, i, 352, on corruption of the Directory.)

[594] Morris to Pinckney, Aug. 13, 1797; Morris, ii, 51.

[595] Loliée: _Talleyrand and His Times_, 170-71.

[596] King to Secretary of State, Dispatch no. 54, Nov. 18, 1797; King,
ii, 243.

[597] Marshall's Journal, official copy, Pickering Papers, Mass. Hist.
Soc., 1.

[598] Loliée: _Talleyrand and His Times_, 147; and Blennerhassett:
_Talleyrand_, ii, 256-57.

[599] Talleyrand to Mme. de Staël, quoted in McCabe: _Talleyrand_, 137.

[600] _Memoirs of Talleyrand_: Broglie's ed., i, 179-82; also see
McCabe's summary in his _Talleyrand_, 136-38. Talleyrand was greatly
impressed by the statement of a New Jersey farmer, who wished to see
Bingham rather than President Washington because he had heard that
Bingham was "so wealthy.... Throughout America I met with a similar love
of money," says Talleyrand. (_Memoirs of Talleyrand_: Broglie's ed., i,
180.) In this estimate of American character during that period,
Talleyrand did not differ from other travelers, nor, indeed, from the
opinion of most Americans who expressed themselves upon this subject.
(See vol. I, chaps. VII, and VIII, of this work.)

[601] Talleyrand as quoted in Pickering to King, Nov. 7, 1798;
_Pickering_: Pickering, ii, 429.

[602] _Am. St. Prs., For. Rel._, ii, 158.

[603] _Memoirs of Talleyrand_: Stewarton, ii, 10.

[604] Pinckney was the only one of the envoys who could speak French. He
had received a finished education in England at Westminster and Oxford
and afterward had studied in France at the Royal Military College at
Caen.

[605] Marshall and Talleyrand were forty-two years of age, Pinckney
fifty-one, and Gerry fifty-three.

[606] King to Talleyrand, London, Aug. 3, 1797; King, ii, 206-08.

[607] _Am. St. Prs., For. Rel._, ii, 158; Marshall's Journal, Official
Copy; MS., Mass. Hist. Soc., 2. The envoys' dispatches to the Secretary
of State were prepared by Marshall, largely, from his Journal. Citations
will be from the dispatches except when not including matter set out
exclusively in Marshall's Journal.

[608] Marshall's Journal, Oct. 11, 2-4.

[609] _Am. St. Prs., For. Rel._, ii, 8-11, and 158. Fulwar Skipwith was
consul; but Mountflorence was connected with the office.

[610] _Am. St. Prs., For. Rel._, ii, 157. Italics are mine.

CHAPTER VII

FACING TALLEYRAND

Society is divided into two classes; the shearers and the shorn.
We should always be with the former against the latter.
(Talleyrand.)

To lend money to a belligerent power is to relinquish our
neutrality. (Marshall.)

Diplomatically Marshall and his associates found themselves marooned.
Many and long were their discussions of the situation. "We have had
several conversations on the extraordinary silence of the Government
concerning our reception," writes Marshall in his Journal. "The plunder
of our commerce sustains no abatements, the condemnations of our vessels
are press'd with ardor ... our reception is postponed in a manner most
unusual & contemptuous.

"I urge repeatedly that we ought, in a respectful communication to the
Minister [Talleyrand] ... to pray for a suspension of all further
proceedings against American vessels until the further order of the
Directory....

"We have already permitted much time to pass away, we could not be
charged with precipitation, & I am willing to wait two or three days
longer but not more.... The existing state of things is to France the
most beneficial & the most desirable, but to America it is ruinous. I
therefore urge that in a few days we shall lay this interesting subject
before the Minister."[611]

Marshall tells us that Gerry again opposed action, holding that for the
envoys to act would "irritate the [French] Government." The Directory
"might take umbrage."[612] Besides, declared Gerry, France was in a
quandary what to do and "any movement on our part" would relieve her and
put the blame on the envoys. "But," records Marshall, "in the address I
propose I would say nothing which could give umbrage, & if, as is to be
feared, France is determined to be offended, she may quarrel with our
answer to any proposition she may make or even with our silence."
Pinckney agreed with Marshall; but they yielded to Gerry in order to
"preserve unanimity."[613]

Tidings soon arrived of the crushing defeat of the Dutch fleet by the
British; and on the heels of this came reports that the Directory were
ready to negotiate with the Americans.[614] Next morning, and four days
after the mysterious intimations to the American envoys from Talleyrand
through his confidential secretary, a Parisian business man called on
Pinckney and told him that a Mr. Hottenguer,[615] "a native of
Switzerland who had been in America,"[616] and "a gentleman of
considerable credit and reputation," would call on Pinckney. Pinckney
had met Hottenguer on a former occasion, probably at The Hague. That
evening this cosmopolitan agent of financiers and foreign offices paid
the expected visit. After a while Hottenguer "whispered ... that he had
a message from Talleyrand." Into the next room went Pinckney and his
caller. There Hottenguer told Pinckney that the Directory were
"exceedingly irritated" at President Adams's speech and that "they
should be softened."

Indeed, the envoys would not be received, said Hottenguer, unless the
mellowing process were applied to the wounded and angry Directory. He
was perfectly plain as to the method of soothing that sore and sensitive
body--"money" for the pockets of its members and the Foreign Minister
which would be "at the disposal of M. Talleyrand." Also a loan must be
made to France. Becoming still more explicit, Hottenguer stated the
exact amount of financial salve which must be applied in the first step
of the healing treatment required from our envoys--a small bribe of one
million two hundred thousand livres [about fifty thousand pounds
sterling, or two hundred and fifty thousand dollars].

"It was absolutely required," reports Marshall, "that we should ... pay
the debts due by contract from France to our citizens ... pay for the
spoliations committed on our commerce ... & make a considerable loan....
Besides this, added Mr. Hottenguer, there must be something for the
pocket ... for the private use of the Directoire & Minister under the
form of satisfying claims which," says Marshall, "did not in fact
exist."[617]

Pinckney reported to his colleagues. Again the envoys divided as to the
course to pursue. "I was decidedly of opinion," runs Marshall's
chronicle, "& so expressed myself, that such a proposition could not be
made by a nation from whom any treaty, short of the absolute surrender
of the independence of the United States was to be expected, but that if
there was a possibility of accommodation, to give any countenance
whatever to such a proposition would be certainly to destroy that
possibility because it would induce France to demand from us terms to
which it was impossible for us to accede. I therefore," continues
Marshall, "thought we ought, so soon as we could obtain the whole
information, to treat the terms as inadmissible and without taking any
notice of them to make some remonstrance to the minister on our
situation & on that of our countrymen." Pinckney agreed with Marshall;
Gerry dissented and declared that "the whole negotiation ... would be
entirely broken off if such an answer was given as I [Marshall] had
hinted & there would be a war between the two nations." At last it was
decided to get Hottenguer's proposition in writing.[618]

When Pinckney so informed Hottenguer, the latter announced that he had
not dealt "immediately with Talleyrand but through another gentleman in
whom Talleyrand had great confidence." Hottenguer had no objection,
however, to writing out his "suggestions," which he did the next
evening.[619] The following morning he advised the envoys that a Mr.
Bellamy, "the confidential friend of M. Talleyrand," would call and
explain matters in person. Decidedly, the fog was thickening. The envoys
debated among themselves as to what should be done.

"I again urg'd the necessity of breaking off this indirect mode of
procedure," testifies Marshall; but "Mr. Gerry reprobated precipitation,
insisted on further explanations as we could not completely understand
the scope & object of the propositions & conceiv'd that we ought not
abruptly object to them." Marshall and Pinckney thought "that they
[Talleyrand's demands] were beyond our powers & ... amounted to a
surrender of the independence of our country."[620] But Gerry had his
way and the weaving of the spider's web went on.

Two hours after candlelight that evening Hottenguer and Bellamy entered
Marshall's room where the three Americans were waiting for them; and
Bellamy was introduced as "the confidential friend of M. Talleyrand," of
whom Hottenguer had told the envoys. Bellamy was, says Marshall, "a
genevan now residing in Hamburg but in Paris on a visit."[621] He went
straight to the point. Talleyrand, he confided to the envoys, was "a
friend of America ... the kindness and civilities he had personally
received in America" had touched his heart; and he was burning to "repay
these kindnesses." But what could this anxious friend of America do when
the cruel Directory were so outraged at the American President's address
to Congress that they would neither receive the envoys nor authorize
"Talleyrand to have any communications with" them.

Bellamy pointed out that under these circumstances Talleyrand could not,
of course, communicate directly with the envoys; but "had authorized"
him to deal with them "and to promise" that the French Foreign Minister
would do his best to get the Directory to receive the Americans if the
latter agreed to Talleyrand's terms. Nevertheless, Bellamy "stated
explicitly and repeatedly that he was clothed with no authority"--he was
not a diplomat, he said, but only the trusted friend of Talleyrand. He
then pointed out the passages from Adams's address[622] which had so
exasperated the French rulers and stated what the envoys must do to make
headway.

The American envoys, asserted Bellamy, must make "a formal disavowal in
writing ... that ... the speech of the Citizen President," Barras, was
"not offensive" to America; must offer "reparation" for President
Adams's address; must affirm that the decree of the Directory,[623]
which Adams had denounced, was not "contrary to the treaty of 1778";
must state "in writing" the depredations on American trade "by the
English and French privateers," and must make "a formal declaration"
that Adams in his speech to Congress had not referred to the French
Government or its agents: if all this were done "the French Republic is
disposed to renew their old-time relations with America" by a new treaty
which should place France "with respect to the United States exactly on
the same footing as they [the United States] should be with England."
But, said Bellamy, there must be a secret article of this new treaty
providing for a loan from America to France.[624]

Impossible as these terms were, the whole business must be preceded by a
bribe. "I will not disguise from you," said Bellamy, "that this
situation being met, the essential part of the treaty remains to be
adjusted.... _You must pay money--you must pay a great deal of money._"
Little was said about the two hundred and fifty thousand dollars bribe;
"that," declare the envoys' dispatches to the American Secretary of
State, "being completely understood on all sides to be required for the
officers of the government, and, therefore, needing no further
explanation." When all these conditions were complied with, said
Bellamy, "M. Talleyrand trusted that, by his influence with the
Directory, he could prevail on the government to receive" the
Americans. For two hours the talk ran on. Before Talleyrand's agents
left, the anxiously hospitable Gerry invited them to breakfast the next
morning.

Into consultation once more went the envoys. "I pressed strongly,"
writes Marshall in his Journal, "the necessity of declaring that the
propositions were totally inadmissible" and that "it was derogatory from
the honor and wounded the real interests of our country to permit
ourselves, while unacknowledg'd, to carry on this clandestine
negotiation with persons who produced no evidence of being authoriz'd by
the Directoire or the Minister to treat with us. Mr. Gerry was quite of
a contrary opinion & the old beaten ground about precipitation &c. was
trodden once again. Gen'l Pinckney advocated decidedly the same opinions
with myself & we determined that the next morning should positively put
an end to these conferences."[625]

"On our retiring," continues Marshall's narrative, "Mr. Gerry began to
propose further delays & that we shou'd inform them [Talleyrand's
go-betweens] that we wou'd take their propositions into consideration--I
improperly interrupted him & declared that I wou'd not consent to any
proposition of the sort, that the subject was already considered & that
so far as my voice wou'd go I wou'd not permit it to be supposed longer
that we cou'd deliberate on such propositions as were made to us."

Pinckney agreed with Marshall; but, for harmony's sake, Marshall finally
said that he would return to America to "consult our government" on
this express condition only--"that France should previously and
immediately suspend all depredations upon American commerce." For once,
Gerry assented and a letter was written accordingly.[626]

Hottenguer was prompt in his engagement to breakfast with Gerry the next
morning; but Bellamy did not come till ten o'clock, explaining that he
had been closeted with Talleyrand. Bellamy was much depressed; the
Directory, he declared, would not receive the envoys until the latter
had disavowed President Adams's speech, _unless_ they "could find the
means to change their [the Directory's] determination in this
particular." What were such "means?" asked the envoys. "I am not
authorized to state them," said Bellamy. "You must search for them and
propose them yourselves."

Still, Bellamy, merely as an individual, was willing to suggest such
"means." It was money, he explained. The "Directory were jealous of
their own honor and the honor of the nation"; they demanded the same
treatment formerly accorded to the King; and their "honor must be
maintained in the manner required" unless "the envoys substituted ...
something perhaps more valuable, and that was money."[627]

It was all so simple, according to Bellamy. All that the envoys had to
do was to buy thirty-two million florins of Dutch inscriptions at twenty
shillings to the pound. "It was certain," he assured the Americans,
"that after a time the Dutch Government would repay ... the money, so
that America would ultimately lose nothing" and everybody would be
happy. But even if the envoys made the loan in this way, the bribe of
two hundred and fifty thousand dollars must be paid in addition.
Thereupon the envoys handed him the letter which Marshall had prepared
the night before, which stated that they had no power to make a loan,
but could send one of their number to America for consultation and
instruction.

Bellamy was "disappointed" and at once modified his language. Why did
the envoys treat the money proposition as coming from the Directory? It
was only his own personal suggestion. Then "what has led to our present
conversation?" asked the envoys. Pinckney recalled Hottenguer's first
visit and the latter confirmed Pinckney's account.

Upon the envoys stating the differences between France and America, to
settle which was the purpose of their mission, and gently resenting the
demands made upon them, Bellamy became excited. The envoys' conduct was
not to be borne, he exclaimed; let them beware of the resentment of
France. They "could not help it," answered the envoys--the Directory
must look after France; the envoys must look after the United States.

Bellamy was "in despair." What a provincial view these Americans took of
a diplomatic negotiation! They must broaden their horizon. They must
acquire worldly wisdom. They must remember "the respect which the
Directory required"; they must realize that that august body "would
exact as much as was paid to the ancient kings." The envoys would not be
received without it; that was flat, Bellamy informed them; and "he
seemed to shudder at the consequences."

Marshall and Pinckney simply would not see the point. But Gerry was a
man of the world who could understand European diplomacy. Marshall
declared that the envoys were there to adjust international differences.
If, however, France "would make war," then, said they: "We regret the
unavoidable necessity of defending ourselves."[628]

For a little while Talleyrand's leeches dropped away from the perplexed
Americans. Marshall reported to Washington French conditions as he had
observed them up to that time. He confirms to the former President the
American report that French agriculture had been improved "in the course
of the present war":--

"In that part of the country through which I have passed the evidences
of plenty abound. The whole earth appears to be in cultivation & the
harvests of the present year appear to be as productive as the fields
which yield them are extensive.

"I am informed that every part of the country exhibits the same aspect.
If this be the fact, there will probably remain, notwithstanding the
demands of the armies, a surplus of provisions."

Marshall briefly but clearly analyzes the economic and commercial
outcome of the war:--

"Manufactures have declined in the same ratio that the cultivation of
the soil has increas'd. War has been made upon the great manufacturing
towns & they are in a considerable degree destroy'd. With manufactures
France does not supply herself fully from her internal resources.

"Those of Britain flow in upon her notwithstanding the most severe
prohibitory laws. The port of Rotterdam is purposely left open by the
English & their goods are imported by the Dutch under Prussian and other
neutral colors. They are smuggled in great quantities into France.

"Peace, then, will find this [French] nation entirely competent to the
full supply of her colonies with provisions and needing manufactures to
be imported for her own consumption.... France can take from America
tobacco & raw cotton she can supply us with wines, brandies & silks."

Marshall then makes a searching commentary on French politics.

"The existing political state of France is connected with certain
internal & powerfully operating causes by which it has been & will
continue to be greatly influenc'd. Not the least of these is the tenure
by which property is held.

"In the course of the revolution it is believed that more than half the
land of France has become national.[629] Of this a very considerable
proportion has been sold at a low rate.

"It is true that much of it belonged to those who have fallen under the
Guillotine or who have been termed emigrants. Among the emigrants are
many whose attachment to their country has never been shaken; & what is
remarkable, among them are many who were never out of France. The law
upon this subject is worthy of attention.

"Any two persons, no matter what their reputation, may, to some
authority, I believe the municipality of the district, write & subscribe
against any person whatever a charge, that such person is an emigrant,
on receipt of which the person so charg'd is without further
investigation inscribed on the list of emigrants.

"If the person so inscribed be afterwards apprehended while his name
remains on the list, the trial, as I understand, is, not of the fact of
emigration, but of the identity of the persons, & if this identity be
established, he is instantly fusiller'd [shot]. The law is either
rightly executed or permitted to be relax'd, as the occasion or the
temper of the times may direct.

"During intervals of humanity some disposition has been manifested to
permit the return of those who have never offended, who have been
banished by a terror which the government itself has reprobated, & to
permit in case of arrestation, an investigation of the fact of
emigration as well as of the identity of the person accus'd.

"There is too a great deal of property which has been sold as national
but which in truth was never so, & which may be reclaimed by the
original proprietors.

"In this state the acquirers of national property are of course
extremely suspicious. They form a vast proportion of the population of
France. They are not only important in consequence of their numbers, but
in consequence of their vigor, their activity & that unity of interest
which produces a unity of effort among them.

"The armies too have been promised a milliard. This promise rests upon
the national property for its performance. The effect of these
circumstances cannot escape your observation. Classes of citizens are to
be disfranchised against the next election."

Marshall and Pinckney, at this early stage of Talleyrand's
financial-diplomatic intrigue, were so disgusted that they were on the
point of "returning to America immediately." The continuance of French
depredations on the high seas caused Marshall to write to Washington as
follows:--

"The captures of our vessels seem to be only limited by the ability to
capture. That ability is increasing, as the government has let out to
hardy adventurers the national frigates. Among those who plunder us, who
are most active in this infamous business, & most loud in vociferating
criminations equally absurd and untrue, are some unprincipled apostates
who were born in America.

"These sea rovers by a variety of means seem to have acquired great
influence in the government.

"This influence will be exerted to prevent an accommodation between the
United States & France and to prevent any regulations which may
intercept the passage of the spoils they have made on our commerce, to
their pockets. The government I believe is too well disposed to promote
their views. At present it seems to me to be radically hostile to our
country.

"I cou'd wish to form a contrary opinion, but to do so I must shut my
eyes on every object which presents itself to them & fabricate in my own
mind non-existing things, to be substituted for realities, & to form the
basis of my creed.

"Might I be permitted to hazard an opinion it wou'd be the Atlantic only
can save us, & that no consideration will be sufficiently powerful to
check the extremities to which the temper of this government will carry
it, but an apprehension that we may be thrown into the arms of Britain."

Although the Treaty of Campo Formio had been signed on the 17th of
October, Paris had not yet heard of it. This treaty marked Bonaparte as
the most constructive diplomat, as well as the foremost captain, of the
age, for such he had already proved himself to be. A week later, when
Marshall wrote the above letter to Washington (October 24, 1797), he
reported that "The negotiations with the Emperor of Austria are said not
to have been absolutely broken off. Yesterday it was said that peace
with him was certain. Several couriers have arrived lately from
Buonaparte & the national debt rose yesterday from seven to ten livres
in the hundred. Whether this is founded on a real expectation of peace
with Austria or is the mere work of stock jobbers is not for me to
decide."

But three days afterward (October 27) the news reached Paris; and
Marshall adds this postscript: "The definitive peace is made with the
Emperor. You will have seen the conditions. Venice has experienced the
fate of Poland. England is threatened with an invasion."[630]

The thunders of cannon announcing Bonaparte's success were still rolling
through Paris when Talleyrand's plotters again descended upon the
American envoys. Bellamy came and, Pinckney and Gerry being at the
opera, saw Marshall alone. The triumph of Bonaparte was his theme. The
victorious general was now ready to invade England, announced Bellamy;
but "concerning America not a syllable was said."[631]

Already Talleyrand, sensitive as any hawk to coming changes in the
political weather, had begun to insinuate himself into the confidence of
the future conqueror of Europe, whose diplomatic right arm he so soon
was to become. The next morning the thrifty Hottenguer again visits the
envoys. Bonaparte's success in the negotiations of Campo Formio, which
sealed the victories of the French arms, has alarmed Hottenguer, he
declares, for the success of the American mission.

Why, he asks, have the Americans made no proposition to the Directory?
That haughty body "were becoming impatient and would take a decided
course in regard to America" if the envoys "could not soften them,"
exclaims Talleyrand's solicitous messenger. Surely the envoys can see
that Bonaparte's treaty with Austria has changed everything, and that
therefore the envoys themselves must change accordingly.

Exhibiting great emotion, Hottenguer asserts that the Directory have
determined "that all nations should aid them [the French], or be
considered and treated as enemies." Think, he cries, of the "power and
violence of France." Think of the present danger the envoys are in.
Think of the wisdom of "softening the Directory." But he hints that "the
Directory might be made more friendly." Gain time! Gain time! Give the
bribe, and gain time! the wily agent advises the Americans. Otherwise,
France may declare war against America.

That would be most unfortunate, answer the envoys, but assert that the
present American "situation was more ruinous than a declared war could
be"; for now American "commerce was floundering unprotected." In case of
war "America would protect herself."

"You do not speak to the point," Hottenguer passionately cries out; "it
is money; it is expected that you will offer money."

"We have given an answer to that demand," the envoys reply.

"No," exclaims Hottenguer, "you have not! What is your answer?"

"It is no," shouts Pinckney; "no; not a sixpence!"

The persistent Hottenguer does not desist. He tells the envoys that they
do not know the kind of men they are dealing with. The Directory, he
insists, disregard the justice of American claims; care nothing even for
the French colonies; "consider themselves as perfectly invulnerable"
from the United States. Money is the only thing that will interest such
terrible men. The Americans, parrying, ask whether, even if they give
money, Talleyrand will furnish proofs that it will produce results.
Hottenguer evades the question. A long discussion ensues.

Pay the bribe, again and again urges the irritated but tenacious
go-between. Does not your Government "know that nothing is to be
obtained here without money?"

"Our Government had not even suspected such a state of things," declare
the amazed Americans.

"Well," answers Hottenguer, "there is not an American in Paris who could
not have given that information.... Hamburgh and other states of Europe
were obliged to buy peace ... nothing could resist" the power of France;
let the envoys think of "the danger of a breach with her."[632]

Thus far Pinckney mostly had spoken for the envoys. Marshall now took up
the American case. Few utterances ever made by him more clearly reveal
the mettle of the man; and none better show his conception of the
American Nation's rights, dignity, and station among the Governments of
the world.

[Illustration: CHARLES COTESWORTH PINCKNEY]

"I told him [Hottenguer]," writes Marshall, "that ... no nation
estimated her [France's] power more highly than America or wished more
to be on amicable terms with her, but that one object was still dearer
to us than the friendship of France which was our national independence.
That America had taken a neutral station. She had a right to take it.
No nation had a right to force us out of it. That to lend ... money
to a belligerent power abounding in every thing requisite for war but
money was to relinquish our neutrality and take part in the war. To lend
this money under the lash & coercion of France was to relinquish the
government of ourselves & to submit to a foreign government imposed on
us by force," Marshall declared. "That we would make at least one manly
struggle before we thus surrendered our national independence.

"Our case was different from that of the minor nations of Europe," he
explained. "They were unable to maintain their independence & did not
expect to do so. America was a great, & so far as concerned her
self-defense, a powerful nation. She was able to maintain her
independence & must deserve to lose it if she permitted it to be wrested
from her. France & Britain have been at war for near fifty years of the
last hundred & might probably be at war for fifty years of the century
to come."

Marshall asserted that "America has no motives which could induce her to
involve herself in those wars and that if she now preserved her
neutrality & her independence it was most probable that she would not in
future be afraid as she had been for four years past--but if she now
surrendered her rights of self government to France or permitted them to
be taken from her she could not expect to recover them or to remain
neutral in any future war."[633]

For two hours Talleyrand's emissary pleads, threatens, bullies, argues,
expostulates. Finally, he departs to consult with his fellow
conspirator, or to see Talleyrand, the master of both. Thus ran the
opening dialogue between the French bribe procurers and the American
envoys. Day after day, week after week, the plot ran on like a play upon
the stage. "A Mr. Hauteval whose fortune lay in the island of St.
Domingo" called on Gerry and revealed how pained Talleyrand was that the
envoys had not visited him. Again came Hauteval, whom Marshall judged to
be the only one of the agents "solicitous of preserving peace."

Thus far the envoys had met with the same request, that they "call upon
Talleyrand at private hours." Marshall and Pinckney said that, "having
been treated in a manner extremely disrespectful" to their country, they
could not visit the Minister of Foreign Affairs "in the existing state
of things ... unless he should expressly signify his wish" to see them
"& would appoint a time & place." But, says Marshall, "Mr. Gerry having
known Mr. Talleyrand in Boston considered it a piece of personal respect
to wait on him & said that he would do so."[634]

Hottenguer again calls to explain how anxious Talleyrand was to serve
the envoys. Make "one more effort," he urges, "to enable him to do so."
Bonaparte's daring plan for the invasion of England was under way and
Hottenguer makes the most of this. "The power and haughtiness of
France," the inevitable destruction of England, the terrible
consequences to America, are revealed to the Americans. "Pay by way of
fees" the two hundred and fifty thousand dollar bribe, and the Directory
would allow the envoys to stay in Paris; Talleyrand would then even
consent to receive them while one of them went to America for
instructions.[635]

Why hesitate? It was the usual thing; the Portuguese Minister had been
dealt with in similar fashion, argues Hottenguer. The envoys counter by
asking whether American vessels will meanwhile be restored to their
owners. They will not, was the answer. Will the Directory stop further
outrages on American commerce, ask the envoys? Of course not, exclaims
Hottenguer. We do "not so much regard a little money as [you] said,"
declare the envoys, "although we should hazard ourselves by giving it
but we see only evidences of the most extreme hostility to us."
Thereupon they go into a long and useless explanation of the American
case.

Gerry's visit to his "old friend" Talleyrand was fruitless; the Foreign
Minister would not receive him.[636] Gerry persisted, nevertheless, and
finally found the French diplomat at home. Talleyrand demanded the loan,
and held a new decree of the Directory before Gerry, but proposed to
withhold it for a week so that the Americans could think it over. Gerry
hastened to his colleagues with the news. Marshall and Pinckney told
Hauteval to inform Talleyrand "that unless there is a hope that the
Directory itself might be prevailed upon by reason to alter its arrêté,
we do not wish to suspend it for an instant."[637]

The next evening, when Marshall and Pinckney were away from their
quarters, Bellamy and Hottenguer called on Gerry, who again invited them
to breakfast. This time Bellamy disclosed the fact that Talleyrand was
now intimately connected with Bonaparte and the army in Italy. Let Gerry
ponder over that! "The fate of Venice was one which might befall the
United States," exclaimed Talleyrand's mouthpiece; and let Gerry not
permit Marshall and Pinckney to deceive themselves by expecting help
from England--France could and would attend to England, invade her,
break her, force her to peace. Where then would America be? Thus for an
hour Bellamy and Hottenguer worked on Gerry.[638]

Far as Talleyrand's agents had gone in trying to force the envoys to
offer a bribe of a quarter of a million dollars, to the Foreign Minister
and Directory, they now went still further. The door of the chamber of
horrors was now opened wide to the stubborn Americans. Personal violence
was intimated; war was threatened. But Marshall and Pinckney refused to
be frightened.

The Directory, Talleyrand, and their emissaries, however, had not
employed their strongest resource. "Perhaps you believe," said Bellamy
to the envoys, "that in returning and exposing to your countrymen the
unreasonableness of the demands of this government, you will unite them
in their resistance to those demands. You are mistaken; you ought to
know that the diplomatic skill of France and the means she possesses in
your country are sufficient to enable her, with the French party in
America,[639] to throw the blame which will attend the rupture of the
negotiations on the federalists, as you term yourselves, but on the
British party as France terms you. And you may assure yourselves that
this will be done."[640]

Thus it was out at last. This was the hidden card that Talleyrand had
been keeping back. And it was a trump. Talleyrand managed to have it
played again by a fairer hand before the game was over. Yes, surely;
here was something to give the obstinate Marshall pause. For the envoys
knew it to be true. There was a French party in America, and there could
be little doubt that it was constantly growing stronger.[641] Genêt's
reception had made that plain. The outbursts throughout America of
enthusiasm for France had shown it. The popular passion exhibited, when
the Jay Treaty was made public, had proved it. Adams's narrow escape
from defeat had demonstrated the strength of French sympathy in
America.

A far more dangerous circumstance, as well known to Talleyrand as it was
to the envoys, made the matter still more serious--the democratic
societies, which, as we have seen, had been organized in great numbers
throughout the United States had pushed the French propaganda with zeal,
system, and ability; and were, to America, what the Jacobin Clubs had
been to France before their bloody excesses. They had already incited
armed resistance to the Government of the United States.[642] Thorough
information of the state of things in the young country across the ocean
had emboldened Barras, upon taking leave of Monroe, to make a direct
appeal to the American people in disregard of their own Government, and,
indeed, almost openly against it. The threat, by Talleyrand's agents, of
the force which France could exert in America, was thoroughly understood
by the envoys. For, as we have seen, there was a French party in
America--"a party," as Washington declared, "determined to advocate
French measures under _all_ circumstances."[643] It was common knowledge
among all the representatives of the American Government in Europe that
the French Directory depended upon the Republican Party in this country.
"They reckon ... upon many friends and partisans among us," wrote the
American Minister in London to the American Minister at The Hague.[644]

The Directory even had its particular agents in the United States to
inflame the American people against their own Government if it did not
yield to French demands. Weeks before the President, in 1797, had called
Congress in special session on French affairs, "the active and incessant
manoeuvres of French agents in" America made William Smith think that
any favorable action of France "will drive the great mass of knaves &
fools back into her [France's] arms," notwithstanding her piracies upon
our ships.[645]

On November 1 the envoys again decided to "hold no more indirect
intercourse with" Talleyrand or the Directory. Marshall and Pinckney
told Hottenguer that they thought it "degrading our country to carry on
further such an indirect intercourse"; and that they "would receive no
propositions" except from persons having "acknowledged authority." After
much parrying, Hottenguer again unparked the batteries of the French
party in America.

He told Marshall and Pinckney that "intelligence had been received from
the United States, that if Colonel Burr and Mr. Madison had constituted
the Mission, the difference between the two nations would have been
accommodated before this time." Talleyrand was even preparing to send a
memorial to America, threatened Hottenguer, complaining that the envoys
were "unfriendly to an accommodation with France."

The insulted envoys hotly answered that Talleyrand's "correspondents in
America took a good deal on themselves when they undertook to say how
the Directory would have received Colonel Burr and Mr. Madison"; and
they defied Talleyrand to send a memorial to the United States.[646]

Disgusted with these indirect and furtive methods, Marshall insisted on
writing Talleyrand on the subject that the envoys had been sent to
France to settle. "I had been for some time extremely solicitous" that
such a letter should be sent, says Marshall. "It appears to me that for
three envoys extraordinary to be kept in Paris thirty days without being
received can only be designed to degrade & humiliate their country & to
postpone a consideration of its just & reasonable complaints till future
events in which it ought not to be implicated shall have determined
France in her conduct towards it. Mr. Gerry had been of a contrary
opinion & we had yielded to him but this evening he consented that the
letter should be prepared."[647]

Nevertheless Gerry again objected.[648] At last the Paris newspapers
took a hand. "It was now in the power of the Administration
[Directory]," says Marshall, "to circulate by means of an enslaved press
precisely those opinions which are agreeable to itself & no printer
dares to publish an examination of them."

"With this tremendous engine at its will, it [the Directory] almost
absolutely controls public opinion on every subject which does not
immediately affect the interior of the nation. With respect to its
designs against America it experiences not so much difficulty as ...
would have been experienced had not our own countrymen labored to
persuade them that our Government was under a British influence."[649]

On November 3, Marshall writes Charles Lee: "When I clos'd my last
letter I did not expect to address you again from this place. I
calculated on being by this time on my return to the United States....
My own opinion is that France wishes to retain America in her present
situation until her negotiation with Britain, which it is believed is
about to recommence, shall have been terminated, and a present absolute
rupture with America might encourage England to continue the war and
peace with England ... will put us more in her [France's] power.... Our
situation is more intricate and difficult than you can believe.... The
demand for money has been again repeated. The last address to us ...
concluded ... that the French party in America would throw all the blame
of a rupture on the federalists.... We were warned of the fate of
Venice. All these conversations are preparing for a public letter but
the delay and the necessity of writing only in cypher prevents our
sending it by this occasion.... I wish you could ... address the
Minister concerning our reception. We despair of doing anything.... Mr.
Putnam an American citizen has been arrested and sent to jail under the
pretext of his cheating frenchmen.... This ... is a mere pretext. It is
considered as ominous toward Americans generally. He like most of them
is a creditor of the [French] government."[650]

Finally the envoys sent Talleyrand the formal request, written by
Marshall,[651] that the Directory receive them. Talleyrand ignored it.
Ten more days went by. When might they expect an answer? inquired the
envoys. Talleyrand parried and delayed. "We are not yet received," wrote
the envoys to Secretary of State Pickering, "and the condemnation of our
vessels ... is unremittingly continued. Frequent and urgent attempts
have been made to inveigle us again into negotiations with persons not
officially authorized, of which the obtaining of money is the basis; but
we have persisted in declining to have any further communication
relative to diplomatic business with persons of that description."[652]

Anxious as Marshall was about the business of his mission, which now
rapidly was becoming an intellectual duel between Talleyrand and
himself, he was far more concerned as to the health of his wife, from
whom he had heard nothing since leaving America. Marshall writes her a
letter full of apprehension, but lightens it with a vague account of the
amusements, distractions, and dissipations of the French Capital.

"I have not, since my departure from the United States," Marshall tells
his wife, "received a single letter from you or from any one of my
friends in America. Judge what anxiety I must feel concerning you. I do
not permit myself for a moment to suspect that you are in any degree to
blame for this. I am sure you have written often to me but unhappily
for me your letters have not found me. I fear they will not. They have
been thrown over board or intercepted. Such is the fate of the greater
number of the letters addressed by Americans to their friends in France,
such I fear will be the fate of all that may be address'd to me.

"In my last letter I informed you that I counted on being at home in
March. I then expected to have been able to leave this country by
christmas at furthest & such is my impatience to see you & my dear
children that I had determined to risk a winter passage." He asks his
wife to request Mr. Wickham to see that one of Marshall's law cases "may
ly till my return. I think nothing will prevent my being at the chancery
term in May.

"Oh God," cries Marshall, "how much time & how much happiness have I
thrown away! Paris presents one incessant round of amusement &
dissipation but very little I believe even for its inhabitants of that
society which interests the heart. Every day you may see something new
magnificent & beautiful, every night you may see a spectacle which
astonishes & enchants the imagination. The most lively fancy aided by
the strongest description cannot equal the reality of the opera. All
that you can conceive & a great deal more than you can conceive in the
line of amusement is to be found in this gay metropolis but I suspect it
would not be easy to find a friend.

"I would not live in Paris," Marshall tells his "dearest Polly" "[if I
could] ... be among the wealthiest of its citizens. I have changed my
lodging much for the better. I liv'd till within a few days in a house
where I kept my own apartments perfectly in the style of a miserable old
bachelor without any mixture of female society. I now have rooms in the
house of a very accomplished a very sensible & I believe a very amiable
Lady whose temper, very contrary to the general character of her country
women, is domestic & who generally sits with us two or three hours in
the afternoon.

"This renders my situation less unpleasant than it has been but nothing
can make it eligible. Let me see you once more & I ... can venture to
assert that no consideration would induce me ever again to consent to
place the Atlantic between us. Adieu my dearest Polly. Preserve your
health & be happy as possible till the return of him who is ever
yours."[653]

The American Minister in London was following anxiously the fortunes of
our envoys in Paris, and gave them frequent information and sound
advice. Upon learning of their experiences, King writes that "I will not
allow myself yet to despair of your success, though my apprehensions are
greater than my hopes." King enclosed his Dispatch number 52 to the
American Secretary of State, which tells of the Portuguese Treaty and
the decline of Spain's power in Paris.[654]

In reply, Pinckney writes King, on December 14, that the Directory "are
undoubtedly hostile to our Government, and are determined, if possible,
to effectuate a change in our administration, and to oblige our present
President [Adams] to resign," and further adds that the French
authorities contemplate expelling from France "every American who could
not prove" that he was for France and against America.

"Attempts," he continues, "are made to divide the Envoys and with that
view some civilities are shown to Mr. G.[erry] and none to the two
others [Marshall and Pinckney].... The American Jacobins here pay him
[Gerry] great Court."[655] The little New Englander already was yielding
to the seductions of Talleyrand, and was also responsive to the flattery
of a group of unpatriotic Americans in Paris who were buttering their
own bread by playing into the hands of the Directory and the French
Foreign Office.

Marshall now beheld a stage of what he believed was the natural
development of unregulated democracy. Dramatic events convinced him that
he was witnessing the growth of license into absolutism. Early in
December Bonaparte arrived in Paris. Swiftly the Conqueror had come from
Rastadt, traveling through France _incognito_, after one of his
lightning-flash speeches to his soldiers reminding them of "the Kings
whom you have vanquished, the people upon whom you have conferred
liberty." The young general's name was on every tongue.

Paris was on fire to see and worship the hero. But Bonaparte kept aloof
from the populace. He made himself the child of mystery. The future
Emperor of the French, clad in the garments of a plain citizen, slipped
unnoticed through the crowds. He would meet nobody but scholars and
savants of world renown. These he courted; but he took care that this
fact was known to the people. In this course he continued until the
stage was set and the cue for his entrance given.

Finally the people's yearning to behold and pay homage to their
soldier-statesman becomes a passion not to be denied. The envious but
servile Directory yield, and on December 10, 1797, a splendid festival
in Bonaparte's honor is held at the Luxembourg. The scene flames with
color: captured battle-flags as decorations; the members of the
Directory appareled as Roman Consuls; foreign ministers in their
diplomatic costumes; officers in their uniforms; women brilliantly
attired in the height of fashion.[656] At last the victorious general
appears on the arm of Talleyrand, the latter gorgeously clad in the
dress of his high office; but Bonaparte, short, slender, and delicate,
wearing the plainest clothes of the simplest citizen.

Upon this superb play-acting John Marshall looked with placid wonder.
Here, then, thought this Virginian, who had himself fought for liberty
on many a battlefield, were the first fruits of French revolutionary
republicanism. Marshall beheld no devotion here to equal laws which
should shield all men, but only adoration of the sword-wielder who was
strong enough to rule all men. In the fragile, eagle-faced little
warrior,[657] Marshall already saw the man on horseback advancing out of
the future; and in the thunders of applause he already heard the sound
of marching armies, the roar of shotted guns, the huzzas of charging
squadrons.

All this was something that Jefferson had not seen. Jefferson's sojourn
in France had been at the time when the French Revolution was just
sprouting; and he foresaw only that beautiful idealism into which the
glorious dreamers of the time fondly imagined the Revolution would
flower.

But Marshall was in Paris after the guillotine had done its work; when
corruption sat in the highest places of government; and when military
glory in the name of liberty had become the deity of the people. So
where Jefferson expected that the roses of peace would bloom, Marshall
saw clusters of bayonets, as the fruitage of the French Revolution.

FOOTNOTES:

[611] Marshall's Journal, Oct. 15, 4-5.

[612] Paris made an impression on the envoys as different as their
temperaments. Vans Murray records the effect on Gerry, who had written
to his friends in Boston of "how handsomely they [the envoys] were
received in Paris and how hopeful he is of settlement!!!"

"Good God--he has mistaken the lamps of Paris for an illumination on his
arrival," writes our alarmed Minister at The Hague, "and the salutations
of fisherwomen for a procession of chaste matrons hailing the great
Pacificator!... His foible is to mistake things of common worldly
politeness for deference to his rank of which he rarely loses the
idea.... Gerry is no more fit to enter the labyrinth of Paris as a
town--alone--than an innocent is, much less formed to play a game with
the political genius of that city ... without some very steady friend at
his elbow.... Of all men in America he is ... the least qualify'd to
play a part in Paris, either among the men or the women--he is too
virtuous for the last--too little acquainted with the world and himself
for the first." (Vans Murray to J. Q. Adams, April 13, 1798; _Letters_:
Ford, 394.)

[613] Marshall's Journal, 5.

[614] _Ib._, Oct. 17, 6.

[615] Probably the same Hottenguer who had helped Marshall's brother
negotiate the Fairfax loan in Amsterdam. (_Supra_, chap. IV.)

[616] Marshall's Journal, Oct. 17, 6.

[617] _Am. St. Prs., For. Rel._, ii, 158; Marshall's Journal, 6-7.

[618] Marshall's Journal, 7-8.

[619] _Am. St. Prs., For. Rel._, ii, 158.

[620] Marshall's Journal, Oct. 20, 8-9.

[621] Marshall's Journal, Oct. 20, 8-9.

[622] _Supra_, 226.

[623] Directing the capture of enemy goods on American ships, thus
nullifying the declaration in the Franco-American Treaty that "free
bottoms make free goods."

[624] _Am. St. Prs., For. Rel._, ii, 159.

[625] Marshall's Journal, Oct. 20, 10. _Am. St. Prs., For. Rel._, ii,
159.

[626] Marshall's Journal, Oct. 21, 10-11.

[627] _Am. St. Prs., For. Rel._, ii, 159-60.

[628] _Am. St. Prs., For. Rel._, ii, 159-60.

[629] By "national" lands, Marshall refers to the confiscated estates.

[630] Marshall to Washington, Paris, Oct. 24 (postscript, 27th), 1797:
_Amer. Hist. Rev._, Jan., 1897, ii, 301-03; also, Washington MSS., Lib.
Cong.; or Sparks MSS., Mass. Hist. Soc.

[631] Marshall's Journal, Oct. 26, 12.

[632] _Am. St. Prs., For. Rel._, ii, 161-62.

[633] Marshall's Journal, Oct. 27, 16-17. This statement of the American
case by Marshall is given in the dispatches, which Marshall prepared as
coming from the envoys generally. (See _Am. St. Prs., For. Rel._, ii,
161-62.)

[634] Marshall's Journal, Oct. 23, 11-12.

[635] _Am. St. Prs., For. Rel._, ii, 163; Marshall's Journal, Oct. 29,
21-22.

[636] Marshall's Journal, Oct. 23, 12.

[637] Marshall's Journal, Oct. 28, 18-19.

[638] _Am. St. Prs., For. Rel._, ii, 163.

[639] "Infinite pains have been taken there [in France] to spread
universally the idea that there are, in America, only two parties, the
one entirely devoted to France and the other to England." (J. Q. Adams
to his father, The Hague, July 2, 1797; _Writings, J. Q. A._: Ford, ii,
181.)

[640] Marshall's Journal, Oct. 30, 25-26; _Am St. Prs., For. Rel._, 164.

[641] "The French were extremely desirous of seeing Mr. Jefferson
President; ... they exerted themselves to the utmost in favor of his
election [in 1796]; ... they made a great point of his success." (Harper
to his Constituents, Jan. 5, 1797; _Bayard Papers_: Donnan, 25; and see
_supra_, chaps. I, II, III, and IV, of this volume.)

[642] See _supra_, chap. III, 86 _et seq._

[643] Washington to King, June 25, 1797; King, ii, 194.

[644] King to Murray, March 31, 1798; _ib._, 294.

[645] Smith to King, Philadelphia, April 3, 1797; King, ii, 165.

[646] _Am. St. Prs., For. Rel._, ii, 163-64.

[647] Marshall's Journal, Nov. 4, 31.

[648] _Ib._, 31.

[649] Marshall's Journal, Nov. 8, 33.

[650] Marshall to Lee, Nov. 3, 1797; MS., Lib. Cong. Lee was
Attorney-General. Marshall's letter was in cipher.

[651] Marshall to Lee, Nov. 7, 8, 9, 10, and 11; MS., Lib. Cong.

[652] _Am. St. Prs., For. Rel._, ii, 166.

[653] Marshall to his wife, Paris, Nov. 27, 1797; MS.

[654] King to Pinckney, Marshall, and Gerry, Nov. 15, 1797; enclosing
Dispatch no. 52 to Pinckney; King, ii, 240-41. See _ib._, 245; and Dec.
9, 1797; _ib._, 247.

[655] Pinckney to King, Paris, Dec. 14, 1797; King, ii, 259-60.

[656] Talleyrand, who gave the fête, wrote: "I spared no trouble to make
it brilliant and attractive; although in this I experienced some
difficulty on account of the vulgarity of the directors' wives who, of
course, enjoyed precedence over all other ladies." (_Memoirs of
Talleyrand_: Broglie's ed., i, 197; also see Sloane: _Life of Napoleon_,
ii, 20; and Lanfrey: _Life of Napoleon_, i, 254-57.)

[657] "At first sight he [Bonaparte] seemed ... to have a charming face,
so much do the halo of victory, fine eyes, a pale and almost consumptive
look, become a young hero." (_Memoirs of Talleyrand_: Broglie's ed., i,
196.)

CHAPTER VIII

THE AMERICAN MEMORIAL

Separated far from Europe, we mean not to mingle in her quarrels.
(Marshall.)

A fraudulent neutrality is no neutrality at all. (Marshall.)

We have a very considerable party in America who are strongly in
our interest. (Madame de Villette.)

Four days after the festival of triumph to Bonaparte, Talleyrand's
agents resumed their work. The sordid scenes were repeated, but their
monotony was broken. Now the lady of the plot appeared upon the scene.
In the long, vexed, and fruitless days of their stay in Paris, the
American envoys, it seems, were not without the solace and diversion of
the society of the French Capital.

Among the attractive feminine acquaintances they made, one was
undoubtedly an agent of the French Foreign Office. Madame de Villette
was one of the most engaging women in the French Capital.[658]
Cultivated, brilliant, and altogether charming, she made herself
particularly agreeable to the American envoys. She and Marshall became
especially good friends; but Madame de Villette ventured no diplomatic
suggestions to him, notwithstanding his easy good nature. She was far
too good a judge of character to commit that indiscretion. So was
Talleyrand, who by this time had begun to appreciate Marshall's
qualities. But Pinckney, hearty, handsome man of the world, but without
Marshall's penetration and adroitness, was another matter. Gerry the
intriguers could already count upon; and only one other member of the
commission was necessary to their ends. Perhaps Pinckney might be won
over by this captivating Frenchwoman. On some occasion Madame de
Villette approached him:--

"Why will you not lend us money?" said she to Pinckney. "If you were to
make us a loan, all matters will be adjusted. When you were contending
for your Revolution we lent you money." Pinckney pointed out the
differences--that America had _requested_ a loan of France, and France
now _demanded_ a loan of America. "Oh, no," said she. "We do not make a
demand; we think it more delicate that the offer should come from you;
but M. Talleyrand has mentioned to me (who am surely not in his
confidence) the necessity of your making us a loan, and I know that he
has mentioned it to two or three others; and that you have been informed
of it; and I will assure you that, if you remain here six months longer,
you will not advance a single step further in your negotiations without
a loan."

If that is so, bluntly answered Pinckney, the envoys might as well leave
at once. "Why," exclaimed Talleyrand's fair agent, "that might possibly
lead to a rupture, which you had better avoid; for we have a very
considerable party in America who are strongly in our interest."[659]

The fox-like Talleyrand had scented another hole by which he might get
at his elusive quarry. "Every man has his price" was his doctrine; and
his experience hitherto had proved it sound. He found that the brilliant
Paris adventurer, Beaumarchais, had a lawsuit against the State of
Virginia. Beaumarchais had won this suit in the lower court and it was
now pending on appeal. John Marshall was his attorney.[660] Here, then,
thought Talleyrand, was the way to reach this unknown quantity in his
problem.

On December 17, Marshall, happening into Gerry's apartment, found
Bellamy there. Beaumarchais had given a dinner to Marshall and his
fellow envoys, from which Bellamy had been kept by a toothache. The
envoys had returned Beaumarchais's courtesy; and he had retired from
this dinner "much indisposed."[661] Since then Marshall had not seen his
client. Bellamy casually remarked that he had not known, until within a
short time, that Marshall was the attorney for Beaumarchais, who, he
said, had very high regard for his Virginia attorney.

Marshall, his lawyer's instincts at once aroused, told Bellamy that
Beaumarchais's case was of very great magnitude and that he was deeply
interested in it. Whereupon, in a low tone, spoken aside for his ear
only, Bellamy told Marshall that, in case the latter won the suit,
Beaumarchais would "sacrifice £50,000 Sterling of it as the private
gratification" demanded by the Directory and Talleyrand, "so that the
gratification might be made without any actual loss to the American
government." Marshall rejected this offer and informed Pinckney of
it.[662]

Marshall's character is revealed by the entry he promptly made in his
Journal. "Having been originally the Counsel of Mr. de Beaumarchais, I
had determined & so I informed Genl. Pinckney, that I would not by my
voice establish any argument in his favor, but that I would positively
oppose any admission of the claim of any French citizen if not
accompanied with the admission of claims of the American citizens to
property captured and condemned for want of a Rôle d'équipage."[663]

Bellamy then urged upon Gerry his plan of the Marshall-Beaumarchais
arrangement. Talleyrand had been entertaining Gerry privately, and the
flattered New Englander again wished to call on the French Minister, "to
return the civility" by inviting Talleyrand to dinner.[664] To
Talleyrand, then, went Gerry in company with Bellamy and asked the
Foreign Minister to dine with him. Then Gerry tediously reviewed the
situation, concluding in a manner that must have amused the bored
Talleyrand: He would rather see the envoys depart for some city in
another nation, said Gerry, until the Directory would receive them, than
to stay in Paris under the circumstances.

Gerry was sure that the French diplomat was alarmed by this stern
threat. "M. Talleyrand appeared to be uneasy at this declaration," he
told his colleagues. Still, Talleyrand avoided "saying a word on it";
but he did say that Bellamy's representations "might always be relied
on." Talleyrand declared that he would go further; he would himself
write out his propositions. This he proceeded to do, held the writing
before Gerry's eyes and then burned it; after this performance
Talleyrand said he would dine with Gerry "the decade [ten days] after
the present."[665]

Meanwhile, however, Gerry dined with the Foreign Minister. It was not a
merry function. Aside from his guest of honor, the French Minister also
had at his board Hottenguer, Bellamy, and Hauteval. Gerry could not
speak French and Hauteval acted as translator. It must have been a
pallid feast; the brilliant, witty, accomplished Talleyrand, man of the
world, _bon vivant_, and lover of gayety; the solemn, dull, and rigid
Gerry; the three trained French agents, one of them, as interpreter, the
only means of general communication.[666] On rising from the table,
Hottenguer at once brought up the question of the bribe. Would the
envoys now give it? Had they the money ready? Gerry answered no![667]

Talleyrand, by now the mouthpiece of the rising Bonaparte, had proposed
terms of peace to Great Britain; "the price was a Bribe of a Million
Sterling to be divided among Directors, Ministers, and others.
Talleyrand's Department was to share one hundred thousand Pounds
Sterling." The British Government declined.[668]

King in London hastens to inform his American diplomatic associates in
Paris of this offer, and cautions the envoys to act in concert. To
Pinckney, King writes in cipher his anxiety about Gerry, whose integrity
King had hoped would "overcome a miserable vanity and a few little
defects of character ... which I now fear have been discovered by those
who will be assiduous to turn them to mischief."

From the same source Pinckney is warned: "You must not appear to suspect
what you may really know; ... you must ... save him [Gerry] and, in
doing so, prevent the Division that would grow out of a Schism in your
Commission." Gerry will be all right, thinks King, "unless Pride shall
be put in opposition to Duty, or Jealousy shall mislead a mind neither
ingenuous nor well organized, but habitually suspicious, and, when
assailed by personal vanity, inflexible."[669]

Pinckney informs King of the situation in Paris on December 27,
declaring "that we ought to request our Passports and no longer exhibit
to the World the unprecedented Spectacle of three Envoys Extraordinary
from a free and independent nation, in vain soliciting to be
heard."[670]

Marshall now insists that the American case be formally stated to the
French Government. Gerry at last agrees.[671] Marshall, of course,
prepares this vastly important state paper. For two weeks he works over
the first half of this historic document. "At my request Genl. Pinckney
& Mr. Gerry met in my room & I read to them the first part of a letter
to the Minister of Exterior Relations which consisted of a justification
of the American Government,"[672] he relates in his Journal.

Over the last half of the American case, Marshall spends seven days.
"The Second part of the letter to the Minister of Exterior Relations,
comprehending the claims of the United States upon France, being also
prepared, I read it to Genl Pinckney & Mr. Gerry." Both sections of
Marshall's letter to Talleyrand were submitted to his colleagues for
suggestions.[673]

It was hard work to get Gerry to examine and sign the memorial. "I had
so repeatedly pressed Mr. Gerry," notes Marshall, "on the subject of our
letter prepared for the Minister of Exterior Relations & manifested such
solicitude for its being so completed as to enable us to send it, that I
had obviously offended. Today I have urged that subject and for the last
time."[674] Two days later Marshall chronicles that "Mr. Gerry finished
the examination of our letter to the Minister of Exterior
Relations."[675] A week later the letter, translated and signed, is
delivered to Talleyrand.[676]

Upon this memorial were based future and successful American
negotiations,[677] and the statement by Marshall remains to this day one
of the ablest state papers ever produced by American diplomacy.

Marshall reminds Talleyrand of the frequent and open expressions of
America's regard for France, given "with all the ardor and sincerity of
youth." These, he says, were considered in America "as evidencing a
mutual friendship, to be as durable as the republics themselves."
Unhappily the scene changed, says Marshall, and "America looks around in
vain for the ally or the friend." He pictures the contrast in the
language and conduct of the French Government with what had passed
before, and says that the French charge of American partiality toward
Great Britain is unfounded.

Marshall then reviews the international situation and makes it so plain
that America could not take part in the European wars, that even
Talleyrand was never able to answer the argument. "When that war [began]
which has been waged with such unparalleled fury," he writes, "which in
its vast vicissitudes of fortune has alternately threatened the very
existence of the conflicting parties, but which, in its progress, has
surrounded France with splendor, and added still more to her glory than
to her territory," America found herself at peace with all the
belligerent Powers; she was connected with some of them by treaties of
amity and commerce, and with France by a treaty of alliance.

But these treaties, Marshall points out, did not require America to take
part in this war. "Being bound by no duty to enter into the war, the
Government of the United States conceived itself bound by duties, the
most sacred, to abstain from it." Upon the ground that man, even in
different degrees of social development, is still the natural friend of
man, "the state of peace, though unstipulated by treaty," was the only
course America could take. "The laws of nature" enjoined this, Marshall
announces; and in some cases "solemn and existing engagements ...
require a religious observance" of it.[678]

Such was the moral ground upon which Marshall built his argument, and he
strengthened it by practical considerations. "The great nations of
Europe," he writes, "either impelled by ambition or by existing or
supposed political interests, peculiar to themselves, have consumed more
than a third of the present century in wars." The causes that produced
this state of things "cannot be supposed to have been entirely
extinguished, and humanity can scarcely indulge the hope that the temper
or condition of man is so altered as to exempt the next century from the
ills of the past. Strong fortifications, powerful navies, immense
armies, the accumulated wealth of ages, and a full population, enable
the nations of Europe to support those wars."[679]

Problems of this character, Marshall explains, must be solved by
European countries, not by the United States. For, "encircled by no
dangerous Powers, they [the Americans] neither fear, nor are jealous of
their neighbors," says Marshall, "and are not, on that account, obliged
to arm for their own safety." He declares that America, separated from
Europe "by a vast and friendly ocean," has "no motive for a voluntary
war," but "the most powerful reasons to avoid it."[680]

America's great and undefended commerce, made necessary by her then
economic conditions, would be, Marshall contends, the "immediate and
certain victim" of engaging in European wars; and he then demonstrates
the disastrous results to America of departing from her policy of
Neutrality.

The immense and varied resources of the United States can only be used
for self-defense, reasons the Virginia lawyer. "Neither the genius of
the nation, nor the state of its own finances admit of calling its
citizens from the plough but to defend their own liberty and their own
firesides."

He then points out that, in addition to the moral wrong and material
disaster of America's taking part in France's wars, such a course means
the launching into the almost boundless ocean of European politics. It
implies "contracting habits of national conduct and forming close
political connections which must have compromitted the future peace of
the nation, and have involved it in all the future quarrels of Europe."

Marshall then describes the "long train of armies, debts, and taxes,
checking the growth, diminishing happiness, and perhaps endangering the
liberty of the United States, which must have followed." And all this
for what? Not to fulfill America's treaties; "not to promote her own
views, her own objects, her own happiness, her own safety; but to move
as a satellite around some other greater planet, whose laws she must of
necessity obey."[681]

"It was believed," he declares, "that France would derive more benefit
from the Neutrality of America than from her becoming a party in the
war." Neutrality determined upon, he insists that "increased motives of
honor and of duty commanded its faithful observance.... A fraudulent
neutrality is no neutrality at all.... A ... nation which would be
admitted to its privileges, should also perform the duties it enjoins."

If the American Government, occupying a neutral position, had granted
"favors unstipulated by treaty, to one of the belligerent Powers which
it refused to another, it could no longer have claimed the immunities of
a situation of which the obligations were forgotten; it would have
become a party to the war as certainly as if war had been openly and
formally declared, and it would have added to the madness of wantonly
engaging in such a hazardous conflict, the dishonor of insincere and
fraudulent conduct; it would have attained, circuitously, an object
which it could not plainly avow or directly pursue, and would have
tricked the people of the United States into a war which it would not
venture openly to declare."

Then follows this keen thrust which Talleyrand could not evade: "It was
a matter of real delight to the government and people of America,"
suavely writes Marshall, "to be informed that France did not wish to
interrupt the peace they [the American people] enjoyed."

Marshall then makes a sudden and sharp attack memorable in the records
of diplomatic dueling. He calls attention to the astounding conduct of
the French Minister on American soil immediately after the American
Government had proclaimed its Neutrality to the world and had notified
American citizens of the duties which that Neutrality enjoined. In
polite phrase he reminds Talleyrand of Genêt's assumption of "the
functions of the government to which he was deputed, ... although he was
not even acknowledged as a minister or had reached the authority which
should inspect his credentials."

But, notwithstanding this, says Marshall, "the American Government
resolved to see in him [Genêt] only the representative of a republic to
which it was sincerely attached" and "gave him the same warm and cordial
reception which he had experienced from its citizens without a single
exception from Charleston to Philadelphia."

Two paragraphs follow of fulsome praise of France, which would seem to
have been written by Gerry, who insisted on revising the memorial.[682]
But in swift contrast Marshall again throws on the screen the
indefensible performances of the French Minister in America and the
tolerance with which the American Government treated them. "In what
manner would France have treated any foreign minister, who should have
dared to so conduct himself toward this republic?... In what manner
would the American Government have treated him [Genêt] had he been the
representative of any other nation than France?"

No informed man can doubt the answer to these questions, says Marshall.
"From the Minister of France alone could this extraordinary conduct be
borne with temper." But "to have continued to bear it without perceiving
its extreme impropriety would have been to have merited the contempt" of
the world and of France herself. "The Government of the United States
did feel it," declares Marshall, but did not attribute Genêt's
misconduct to the French Nation. On the contrary, the American
Government "distinguished strongly between the [French] Government and
its Minister," and complained "in the language of a friend afflicted but
not irritated." Genêt's recall "was received with universal joy" in
America, "as a confirmation that his ... conduct was attributable only
to himself"; and "not even the publication of his private instructions
could persuade the American Government to ascribe any part of it to this
[French] republic."[683]

Marshall further points out "the exertions of the United States to pay
up the arrearages" of their debt to France; America's "disinterested and
liberal advances to the sufferers of St. Domingo ... whose
recommendation was that they were Frenchmen and unfortunate"; and other
acts of good-will of the American Government toward the French Republic.

He then makes a characteristically clear and convincing argument upon
the points at issue between France and America. France complained that
one article of the Jay Treaty provided that in case of war the property
of an enemy might be taken by either out of the ships of the other;
whereas, by the Treaty of 1778 between France and America, neither party
should take out of the vessels of the other the goods of its enemy.
France contended that this was a discrimination against her in favor of
Great Britain. Marshall shows that this provision in the Jay Treaty was
merely the statement of the existing law of nations, and that therefore
the Jay Treaty gave no new rights to Great Britain.

Marshall reminds Talleyrand that any two nations by treaty have the
power to alter, as to their mutual intercourse, the usages prescribed by
international law; that, accordingly, France and America had so changed,
as between themselves, the law of nations respecting enemy's goods in
neutral bottoms. He cites the ordinance of France herself in 1744 and
her long continued practice under it; and he answers so overwhelmingly
the suggestion that the law of nations had not been changed by the rules
laid down by the "Armed Neutrality" of the Northern Powers of Europe in
the war existing at the time of that confederation, that the resourceful
Talleyrand made no pretense of answering it.

The stipulation in the Franco-American Treaty of "protecting the goods
of the enemy of either party in the vessels of the other, and in turn
surrendering its own goods found in the vessels of the enemy," extended,
Marshall insists, to no other nation except to France and America; and
contends that this could be changed only by further specific agreements
between those two nations.

Marshall wishes "that the principle that neutral bottoms shall make
neutral goods" were universally established, and declares that that
principle "is perhaps felt by no nation on earth more strongly than by
the United States." On this point he is emphatic, and reiterates that
"no nation is more deeply interested in its establishment" than America.
"It is an object they [the United States] have kept in view, and which,
if not forced by violence to abandon it, they will pursue in such manner
as their own judgment may dictate as being best calculated to attain
it."

"But," he says, "the wish to establish a principle is essentially
different from a determination that it is already established....
However solicitous America might be to pursue all proper means, tending
to obtain for this principle the assent of any or all of the maritime
Powers of Europe, she never conceived the idea of attaining that consent
by force."[684] "The United States will only arm to defend their own
rights," declares Marshall; "neither their policy nor their interests
permit them to arm, in order to compel a surrender of the rights of
others."

He then gives the history of the Jay Treaty, and points out that Jay's
particular instructions not to preserve peace with Great Britain, "nor
to receive compensations for injuries sustained, nor security against
their future commission, at the expense of the smallest of its
[America's] engagements to France,"[685] were incorporated in the treaty
itself, in the clause providing that "nothing in this treaty shall,
however, be construed or operate contrary to former and existing public
treaties with other sovereignties or states."[686] So careful, in fact,
was America to meet the views of France that "previous to its
ratification" the treaty was submitted to the French Minister to the
United States, who did not even comment on the article relating to
enemy's goods in neutral bottoms, but objected only to that enlarging
the list of contraband;[687] and the American Government went to extreme
lengths to meet the views of the French Minister, who finally appeared
to be satisfied.

The articles of contraband enumerated in the Jay Treaty, to which the
French Government objected, says Marshall, were contraband by the laws
of nations and so admitted by France herself in her treaties with other
countries.[688]

Answering the charge that in the treaty the United States had agreed
that more articles should be contraband than she had in compacts with
other Powers, Marshall explains that "the United States, desirous of
liberating commerce, have invariably seized every opportunity which
presented itself to diminish or remove the shackles imposed on that of
neutrals. In pursuance of this policy, they have on no occasion
hesitated to reduce the list of contraband, as between themselves and
any nation consenting to such reduction. Their preëxisting treaties have
been with nations as willing as themselves to change this old rule." But
these treaties leave other governments, who do not accept the American
policy, "to the law which would have governed had such particular
stipulation never been made"--that is, to the law of nations.

Great Britain declined to accept this American view of the freedom of
the seas; and, therefore, America was forced to leave that nation where
it had found her on the subject of contraband and freedom of ocean-going
commerce. Thus, contends Marshall, the Jay Treaty "has not added to the
catalog of contraband a single article ... ceded no privilege ...
granted no right," nor changed, in the most minute circumstance, the
preëxisting situation of the United States in relation either to France
or to Great Britain. Notwithstanding these truths, "the Government of
the United States has hastened to assure its former friend [France],
that, if the stipulations between them are found oppressive in practice,
it is ready to offer up those stipulations a willing sacrifice at the
shrine of friendship."[689]

Stating the general purposes of the United States, Marshall strikes at
the efforts of France to compel America to do what France wishes and in
the manner that France wishes, instead of doing what American interests
require and in the manner America thinks wisest.

The American people, he asserts, "must judge exclusively for themselves
how far they will or ought to go in their efforts to acquire new rights
or establish new principles. When they surrender this privilege, they
cease to be independent, and they will no longer deserve to be free.
They will have surrendered into other hands the most sacred of
deposits--the right of self-government; and instead of approbation, they
will merit the contempt of the world."[690]

Marshall states the economic and business reasons why the United States,
of all countries, must depend upon commerce and the consequent necessity
for the Jay Treaty. He tartly informs Talleyrand that in doing so the
American Government was "transacting a business exclusively its own."
Marshall denies the insinuation that the negotiations of the Jay Treaty
had been unusually secret, but sarcastically observes that "it is not
usual for nations about to enter into negotiations to proclaim to others
the various objects to which those negotiations may possibly be
directed. Such is not, nor has it ever been, the principle of France."
To suppose that America owed such a duty to France, "is to imply a
dependence to which no Government ought willingly to submit."[691]

Marshall then sets forth specifically the American complaints against
the French Government,[692] and puts in parallel columns the words of
the Jay Treaty to which the French objected, and the rules which the
French Directory pretended were justified by that treaty. So strong is
Marshall's summing up of the case in these portions of the American
memorial that it is hard for the present-day reader to see how even the
French Directory of that lawless time could have dared to attempt to
withstand it, much less to refuse further negotiations.

Drawing to a conclusion, Marshall permits a lofty sarcasm to lighten his
weighty argument. "America has accustomed herself," he observes, "to
perceive in France only the ally and the friend. Consulting the feelings
of her own bosom, she [America] has believed that between republics an
elevated and refined friendship could exist, and that free nations were
capable of maintaining for each other a real and permanent affection. If
this pleasing theory, erected with so much care, and viewed with so much
delight, has been impaired by experience, yet the hope continues to be
cherished that this circumstance does not necessarily involve the
opposite extreme."[693]

Then, for a moment, Marshall indulges his eloquence: "So intertwined
with every ligament of her heart have been the cords of affection which
bound her to France, that only repeated and continued acts of hostility
can tear them asunder."[694]

Finally he tells Talleyrand that the American envoys, "searching only
for the means of effecting the objects of their mission, have permitted
no personal considerations to influence their conduct, but have waited,
under circumstances beyond measure embarrassing and unpleasant, with
that respect which the American Government has so uniformly paid to that
of France, for permission to lay before you, citizen Minister, these
important communications with which they have been charged." But, "if no
such hope" remains, "they [the envoys] have only to pray that their
return to their own country may be facilitated."[695]

But Marshall's extraordinary power of statement and logic availed
nothing with Talleyrand and the Directory. "I consider Marshall, whom I
have heard speak on a great subject,[696] as one of the most powerful
reasoners I ever met with either in public or in print," writes William
Vans Murray from The Hague, commenting on the task of the envoys.
"Reasoning in such cases will have a fine effect in America, but to
depend upon it in Europe is really to place Quixote with Ginés de
Passamonte and among the men of the world whom he reasoned with, and so
sublimely, on their way to the galleys. They answer him, with you know
stones and blows, though the Knight is an _armed_ as well as an eloquent
Knight."[697]

The events which had made Marshall and Pinckney more resolute in
demanding respectful treatment had made Gerry more pliant to French
influence. "Mr. Gerry is to see Mr. Talleyrand the day after to-morrow.
Three appointments have been made by that gentleman," Marshall notes in
his Journal, "each of which Mr. Gerry has attended and each of which Mr.
Talleyrand has failed to attend; nor has any apology for these
disappointments been thought necessary."[698] Once more Gerry waits on
Talleyrand, who remains invisible.[699] And now again Beaumarchais
appears. The Directory issues more and harsher decrees against American
commerce. Marshall's patience becomes finite. "I prepared to-day a
letter to the Minister remonstrating against the decree, ... subjecting
to confiscation all neutral vessels having on board any article coming
out of England or its possessions." The letter closes by "requesting our
passports."[700]

[Illustration: ELBRIDGE GERRY]

Marshall's memorial of the American case remained unread. One of
Talleyrand's many secretaries asked Gerry "what it contained? (for they
could not take the trouble to read it) and he added that such long
letters were not to the taste of the French Government who liked a short
address coming straight to the point."[701] Gerry, who at last saw
Talleyrand, "informed me [Marshall] that communications & propositions
had been made to him by that Gentleman, which he [Gerry] was not at
liberty to impart to Genl Pinckney or myself." Upon the outcome of his
secret conferences with Talleyrand, said Gerry, "probably depended peace
or war."[702]

Gerry's "communication necessarily gives birth to some very serious
reflections," Marshall confides to his Journal. He recalls the attempts
to frighten the envoys "from our first arrival"--the threats of "a
variety of ills ... among others with being ordered immediately to
quit France," none of them carried out; "the most haughty & hostile
conduct ... towards us & our country and yet ... an unwillingness ... to
profess the war which is in fact made upon us."[703]

A French agent, sent by the French Consul-General in America, just
arrived in Paris, "has probably brought with him," Marshall concludes,
"accurate details of the state of parties in America.... I should think
that if the French Government continues its hostility and does not relax
some little in its hauteur its party in the United States will no longer
support it. I suspect that some intelligence of this complexion has been
received ... whether she [France] will be content to leave us our
Independence if she can neither cajole or frighten us out of it or will
even endeavor to tear it from us by open war there can be no doubt of
her policy in one respect--she will still keep up and cherish, if it be
possible, ... her party in the United States." Whatever course France
takes, Marshall thinks will be "with a view to this her primary object."

Therefore, reasons Marshall, Talleyrand will maneuver to throw the blame
on Pinckney and himself if the mission fails, and to give Gerry the
credit if it succeeds. "I am led irresistibly by this train of thought
to the opinion that the communication made to Mr. Gerry in secret is a
proposition to furnish passports to General Pinckney and myself and to
retain him for the purpose of negotiating the differences between the
two Republics." This would give the advantage to the French party in any
event.

"I am firmly persuaded of his [Talleyrand's] unwillingness to dismiss us
while the war with England continues in its present uncertain state. He
believed that Genl Pinckney and myself are both determined to remain no
longer unless we can be accredited." Gerry had told Marshall that he
felt the same way; "but," says Marshall, "I am persuaded the Minister
[Talleyrand] does not think so. He would on this account as well as on
another which has been the base of all propositions for an accommodation
[the loan and the bribe] be well pleased to retain only one minister and
to chuse that one [Gerry]."[704]

Marshall and Pinckney decided to let Gerry go his own gait. "We shall
both be happy if, by remaining without us, Mr. Gerry can negotiate a
treaty which shall preserve the peace without sacrificing the
independence of our country. We will most readily offer up all personal
considerations as a sacrifice to appease the haughtiness of this
Republic."[705]

Marshall gave Gerry the letter on the decree and passport question "and
pressed his immediate attention to it." But Gerry was too excited by his
secret conferences with Talleyrand to heed it. Time and again Gerry,
bursting with importance, was closeted with the Foreign Minister,
hinting to his colleagues that he held peace or war in his hand.
Marshall bluntly told him that Talleyrand's plan now was "only to
prevent our taking decisive measures until the affairs of Europe shall
enable France to take them. I have pressed him [Gerry] on the subject of
the letter concerning the Decree but he has not yet read it."[706]

Talleyrand and Gerry's "private intercourse still continues," writes
Marshall on February 10. "Last night after our return from the Theatre
Mr. Gerry told me, just as we were separating to retire each to his own
apartment, that he had had in the course of the day a very extraordinary
conversation with" a clerk of Talleyrand. It was, of course, secret.
Marshall did not want to hear it. Gerry said he could tell his
colleagues that it was on the subject of money. Then, at last,
Marshall's restraint gave way momentarily and his anger, for an instant,
blazed. Money proposals were useless; Talleyrand was playing with the
Americans, he declared. "Mr. Gerry was a little warm and the
conversation was rather unpleasant. A solicitude to preserve harmony
restrained me from saying all I thought."[707]

Money, money, money! Nothing else would do! Gerry, by now, was for
paying it. No answer yet comes to the American memorial delivered to
Talleyrand nearly three weeks before. Marshall packs his belongings, in
readiness to depart. An unnamed person[708] calls on him and again
presses for money; France is prevailing everywhere; the envoys had
better yield; why resist the inevitable, with a thousand leagues of
ocean between them and home? Marshall answers blandly but crushingly.

Again Talleyrand's clerk sees Gerry. The three Americans that night talk
long and heatedly. Marshall opposes any money arrangement; Gerry urges
it "very decidedly"; while Pinckney agrees with Marshall. Gerry argues
long about the horrors of war, the expense, the risk. Marshall presents
the justice of the American cause. Gerry reproaches Marshall with being
too suspicious. Marshall patiently explains, as to a child, the real
situation. Gerry again charges Marshall and Pinckney with undue
suspicion. Marshall retorts that Gerry "could not answer the argument
but by misstating it." The evening closes, sour and chill.[709]

The next night the envoys once more endlessly debate their course.
Marshall finally proposes that they shall demand a personal meeting with
Talleyrand on the real object of the mission. Gerry stubbornly dissents
and finally yields, but indulges in long and childish discussion as to
what should be said to Talleyrand, confusing the situation with every
word.[710] Talleyrand fixes March 2 for the interview.

The following day Marshall accidentally discovers Gerry closeted with
Talleyrand's clerk, who came to ask the New Englander to attend
Talleyrand "in a particular conversation." Gerry goes, but reports that
nothing important occurred. Then it comes out that Talleyrand had
proposed to get rid of Marshall and Pinckney and keep Gerry. Gerry
admits it. Thus Marshall's forecast made three weeks earlier[711] is
proved to have been correct.

At last, for the first time in five months, the three envoys meet
Talleyrand face to face. Pinckney opens and Talleyrand answers. Gerry
suggests a method of making the loan, to which Talleyrand gives
qualified assent. The interview seems at an end. Then Marshall comes
forward and states the American case. There is much parrying for an
hour.[712]

The envoys again confer. Gerry urges that their instructions permit them
to meet Talleyrand's demands. He goes to Marshall's room to convince the
granite-like Virginian, who would not yield. "I told him," writes
Marshall, "that my judgment was not more perfectly convinced that the
floor was wood or that I stood on my feet and not on my head than that
our instructions would not permit us to make the loan required."[713]
Let Gerry or Marshall or both together return to America and get new
instructions if a loan must be made.

Two days later, another long and absurd discussion with Gerry occurs.
Before the envoys go to see Talleyrand the next day, Gerry proposes to
Marshall that, with reference to President Adams's speech, the envoys
should declare, in any treaty made, "that the complaints of the two
governments had been founded in mistake." Marshall hotly retorts: "With
my view of things, I should tell an absolute lye if I should say that
our complaints were founded in mistake. He [Gerry] replied hastily and
with warmth that he wished to God, I would propose something which was
accommodating: that I would propose nothing myself and objected to every
thing which he proposed. I observed that it was not worth while to talk
in that manner: that it was calculated to wound but not to do good: that
I had proposed every thing which in my opinion was calculated to
accommodate differences on just and reasonable grounds. He said that ...
to talk about justice was saying nothing: that I should involve our
country in a war and should bring it about in such a manner, as to
divide the people among themselves. I felt a momentary irritation, which
I afterwards regretted, and told Mr. Gerry that I was not accustomed to
such language and did not permit myself to use it with respect to him
or his opinions."

Nevertheless, Marshall, with characteristic patience, once more begins
to detail his reasons. Gerry interrupts--Marshall "might think of him
[Gerry] as I [he] pleased." Marshall answers moderately. Gerry softens
and "the conversation thus ended."[714]

Immediately after the bout between Marshall and Gerry the envoys saw
Talleyrand for a third time. Marshall was dominant at this interview,
his personality being, apparently, stronger even than his words. These
were strong enough--they were, bluntly, that the envoys could not and
would not accept Talleyrand's proposals.

A week later Marshall's client, Beaumarchais, called on his American
attorney with the alarming news that "the effects of all Americans in
France were to be Sequestered." Pay the Government money and avoid this
fell event, was Beaumarchais's advice; he would see Talleyrand and call
again. "Mr. Beaumarchais called on me late last evening," chronicles
Marshall. "He had just parted from the Minister. He informed me that he
had been told confidentially ... that the Directory were determined to
give passports to General Pinckney and myself but to retain Mr. Gerry."
But Talleyrand would hold the order back for "a few days to give us time
to make propositions conforming to the views of the Government," which
"if not made Mr. Talleyrand would be compelled to execute the order."

"I told him," writes Marshall, "that if the proposition ... was a loan
it was perfectly unnecessary to keep it [the order] up [back] a single
day: that the subject had been considered for five months" and that the
envoys would not change; "that for myself, if it were impossible to
effect the objects of our mission, I did not wish to stay another day in
France and would as cheerfully depart the next day as at any other
time."[715]

Beaumarchais argued and appealed. Of course, France's demand was not
just--Talleyrand did not say it was; but "a compliance would be useful
to our country [America]." "France," said Beaumarchais, "thought herself
sufficiently powerful to give the law to the world and exacted from all
around her money to enable her to finish successfully her war against
England."

Finally, Beaumarchais, finding Marshall flint, "hinted" that the envoys
themselves should propose which one of them should remain in France,
Gerry being the choice of Talleyrand. Marshall countered. If two were to
return for instructions, the envoys would decide that for themselves. If
France was to choose, Marshall would have nothing to do with it.

"General Pinckney and myself and especially me," said Marshall, "were
considered as being sold to the English." Beaumarchais admitted "that
our positive refusal to comply with the demands of France was attributed
principally to me who was considered as entirely English.... I felt some
little resentment and answered that the French Government thought no
such thing; that neither the government nor any man in France thought me
English: but they knew I was not French: they knew I would not sacrifice
my duty and the interest of my country to any nation on earth, and
therefore I was not a proper man to stay, and was branded with the
epithet of being English: that the government knew very well I loved my
own country exclusively, and it was impossible to suppose any man who
loved America, fool enough to wish to engage her in a war with France if
that war was avoidable."

Thus Marshall asserted his purely American attitude. It was a daring
thing to do, considering the temper of the times and the place where he
then was. Even in America, at that period, any one who was exclusively
American and, therefore, neutral, as between the European belligerents,
was denounced as being British at heart. Only by favoring France could
abuse be avoided. And to assert Neutrality in the French Capital was, of
course, even more dangerous than to take this American stand in the
United States.

But Beaumarchais persisted and proposed to take passage with his
attorney to America; not on a public mission, of course (though he had
hinted at wishing to "reconcile" the two governments), but merely "to
testify," writes Marshall, "to the moderation of my conduct and to the
solicitude I had uniformly expressed to prevent a rupture with France."

Beaumarchais "hinted very plainly," continues Marshall, "at what he had
before observed that means would be employed to irritate the people of
the United States against me and that those means would be successful. I
told him that I was much obliged to him but that I relied entirely on my
conduct itself for its justification and that I felt no sort of
apprehension for consequences, as they regarded me personally; that in
public life considerations of that sort never had and never would in any
degree influence me. We parted with a request, on his part, that,
whatever might arise, we would preserve the most perfect temper, and
with my assuring him of my persuasion that our conduct would always
manifest the firmness of men who were determined, and never the violence
of passionate men."

"I have been particular," concludes Marshall, "in stating this
conversation, because I have no doubt of its having been held at the
instance of the Minister [Talleyrand] and that it will be faithfully
reported to him. I mentioned to-day to Mr. Gerry that the Government
wished to detain him and send away General Pinckney and myself. He said
he would not stay; but I find I shall not succeed in my efforts to
procure a Serious demand of passports for Mr. Gerry and myself."[716]

During his efforts to keep Gerry from dangerously compromising the
American case, and while waiting for Talleyrand to reply to his
memorial, Marshall again writes to Washington a letter giving a survey
of the war-riven and intricate European situation. He tells Washington
that, "before this reaches you it will be known universally in
America[717] that scarcely a hope remains of" honorable adjustment of
differences between France and America; that the envoys have not been
and will not be "recognized" without "acceding to the demands of
France ... for money--to be used in the prosecution of the present war";
that according to "reports," when the Directory makes certain that the
envoys "will not add a loan to the mass of American property already in
the hands of this [French] government, they will be ordered out of
France and a nominal [formally declared] as well as actual war will be
commenc'd against the United States."[718]

Marshall goes on to say that his "own opinion has always been that this
depends on the state of war with England"; the French are absorbed in
their expected attack on Great Britain; "and it is perhaps justly
believed that on this issue is stak'd the independence of Europe and
America." He informs Washington of "the immense preparations for an
invasion" of England; the "numerous and veteran army lining the coast";
the current statement that if "50,000 men can be" landed "no force in
England will be able to resist them"; the belief that "a formidable and
organized party exists in Britain, ready, so soon as a landing shall be
effected, to rise and demand a reform"; the supposition that England
then "will be in ... the situation of the batavian and cisalpine
republics and that its wealth, its commerce, and its fleets will be at
the disposition of this [French] government."

But, he continues, "this expedition is not without its hazards. An army
which, arriving safe, would sink England, may itself be ... sunk in the
channel.... The effect of such a disaster on a nation already tir'd of
the war and groaning under ... enormous taxation" and, intimates
Marshall, none too warm toward the "existing arrangements ... might be
extremely serious to those who hold the reins of government" in France.
Many intelligent people therefore think, he says, that the "formidable
military preparations" for the invasion of England "cover and favor
secret negotiations for peace." This view Marshall himself entertains.

He then briefly informs Washington of Bonaparte's arrangement with
Austria and Prussia which will "take from England, the hope of once more
arming" those countries "in her favor," "influence the secret [French]
negotiations with England," and greatly affect "Swisserland." Marshall
then gives an extended account of the doings and purposes of the French
in Switzerland, and refers to revolutionary activities in Sardinia,
Naples, and Spain.

But notwithstanding the obstacles in its way, he concludes that "the
existing [French] government ... needs only money to enable it to effect
all its objects. A numerous brave and well disciplined army seems to be
devoted to it. The most military and the most powerful nation on earth
[the French] is entirely at its disposal.[719] Spain, Italy, and
Holland, with the Hanseatic towns, obey its mandates."

But, says he, it is hard to "procure funds to work this vast machine.
Credit being annihilated ... the enormous contributions made by foreign
nations," together with the revenue from imposts, are not enough to meet
the expenses; and, therefore, "France is overwhelmed with taxes. The
proprietor complains that his estate yields him nothing. Real property
pays in taxes nearly a third of its produce and is greatly reduc'd in
its price."[720]

While Marshall was thus engaged in studying French conditions and
writing his long and careful report to Washington, Talleyrand was in no
hurry to reply to the American memorial. Indeed, he did not answer until
March 18, 1798, more than six weeks after receiving it. The French
statement reached Marshall and Pinckney by Gerry's hands, two days after
its date. "Mr. Gerry brought in, just before dinner, a letter from the
Minister of exterior relations," writes Marshall, "purporting to be an
answer to our long memorial criminating in strong terms our government
and ourselves, and proposing that two of us should go home leaving for
the negotiation the person most acceptable to France. The person is not
named but no question is entertained that Mr. Gerry is alluded to. I
read the letter and gave it again to Mr. Gerry."[721]

The next day the three envoys together read Talleyrand's letter. Gerry
protests that he had told the French Foreign Minister that he would not
accept Talleyrand's proposal to stay, "That," sarcastically writes
Marshall, "is probably the very reason why it was made." Talleyrand's
clerk calls on Gerry the next morning, suggesting light and innocent
duties if he would remain. No, theatrically exclaims Gerry, I "would
sooner be thrown into the Seine."[722] But Gerry remained.

It is impossible, without reading Talleyrand's answer in full, to get an
idea of the weak shiftiness to which that remarkable man was driven in
his reply to Marshall. It was, as Pinckney said, "weak in argument, but
irritating and insulting in style."[723] The great diplomat complains
that the Americans have "claimed the right to take cognizance of the
validity of prizes carried into the ports of the United States by French
cruisers"; that the American Government permitted "any vessels to put
into the ports of the United States after having captured the property
of ships belonging to French citizens"; that "a French corvette had
anchored at Philadelphia and was seized by the Americans"; and that the
Jay Treaty was hostile to France.

But his chief complaint was with regard to the American newspapers
which, said Talleyrand, "have since the treaty redoubled the invectives
and calumnies against the [French] republic, and against her
principles, her magistrates, and her envoys";[724] and of the fact that
the American Government might have, but did not, repress "pamphlets
openly paid for by the Minister of Great Britain" which contained
"insults and calumnies." So far from the American Government stopping
all this, snarls Talleyrand, it encouraged "this scandal in its public
acts" and, through its President, had denounced the French Directory as
endeavoring to propagate anarchy and division within the United States.

Talleyrand then openly insults Marshall and Pinckney by stating that it
was to prevent the restoration of friendship that the American
Government had sent "to the French republic persons whose opinions and
connections are too well known to hope from them dispositions sincerely
conciliatory." Appealing directly to the French party in the United
States, he declares that he "does not hesitate to believe that the
American nation, like the French nation, sees this state of affairs with
regret, and does not consider its consequences without sorrow. He
apprehends that the American people will not commit a mistake concerning
the prejudices with which it has been desired to inspire them against an
allied people, nor concerning the engagements which it seems to be
wished to make them contract to the detriment of an alliance, which so
powerfully contributed to place them in the rank of nations, and to
support them in it; and that they will see in these new combinations
the only dangers their prosperity and importance can incur."[725]

Finally, with cynical effrontery, Talleyrand actually proposes that
Gerry alone shall conduct the negotiations. "Notwithstanding the kind of
prejudice which has been entertained with respect to them [the envoys],
the Executive Directory is disposed to treat with that one of the three,
whose opinions, presumed to be more impartial, promise, in the course of
explanations, more of that reciprocal confidence which is
indispensable."[726]

Who should answer Talleyrand? Marshall, of course. "It was agreed ...
that I should ... prepare an answer ... in which I should state that no
one of the ministers could consent to remain on a business committed to
all three."[727] In the discussion leading to this decision, "I," writes
Marshall, "was perfectly silent." Again Dutrimond, a clerk of
Talleyrand's, calls on Gerry, but sees Marshall instead, Gerry being
absent.

Dutrimond's advice to Marshall is to leave France. The truth is, he
declares, that his chief must order the envoys out of France "in three
days at farthest." But spare them Gerry; let him remain--all this in
polite terms and with plausible argument. "I told him," relates
Marshall, "that personally nothing could be more desirable to me than to
return immediately to the United States."

Then go on your own initiative, urges Talleyrand's clerk. Marshall grows
evasive; for he wishes the Directory to order his departure. A long
talk ensues. Dutrimond leaves and Gerry returns. Marshall relates what
had passed. "To prevent war I will stay," exclaims Gerry. "I made no
observation on this," dryly observes Marshall in his Journal.[728]

Beaumarchais again tries his luck with Marshall, who replies that he
will go home by "the direct passage to America" if he can get
safe-conduct, "tho' I had private business of very considerable
consequence in England."[729] Otherwise, declares Marshall, "I should
embark immediately for England." That would never do, exclaims
Beaumarchais; it would enrage the Directory and subject Marshall to
attacks at home. Marshall remarks that he prefers to sail direct,
although he knows "that the captains of privateers had received orders
to cruise for us ... and take us to the West Indies."[730]

Beaumarchais sees Talleyrand and reports that the Foreign Minister is
horrified at the thought of Marshall's returning by way of England; it
would "irritate this government" and delay "an accommodation"; it would
blast Marshall's reputation; the Directory "would immediately
publish ... that I was gone to England to receive the wages I had
earned by breaking off the treaty with France," Marshall records of
the representations made to him.

"I am entitled to safe conduct," cries Marshall; and "the calumny
threatened against myself is too contemptible to be credited for a
moment by those who would utter it." I "despise" it, exclaims the
insulted Virginian.[731] Thus back and forth went this fantastic dance
of corrupt diplomacy and cautious but defiant honesty.

At the long last, the interminable Gerry finished his review of
Marshall's reply to Talleyrand and made a lengthy and unctuous speech to
his colleagues on the righteousness of his own motives. Pinckney,
intolerably bored and disgusted, told Gerry what he thought of him. The
New Englander peevishly charged Marshall and Pinckney with concealing
their motives.

"It is false, sir," shouted Pinckney. Gerry, he said, was the one who
had concealed from his colleagues, not only his purposes, but his
clandestine appointments with Talleyrand. Pinckney rode Gerry hard, "and
insisted in plain terms on the duplicity which had been practiced [by
Gerry] upon us both." The latter ridiculously explained, evaded, and, in
general, acted according to the expectation of those who warned Adams
against his appointment. Finally, however, Marshall's reply was signed
by all three and sent to Talleyrand.[732]

The calmness, dignity, and conclusiveness of Marshall's rejoinder can be
appreciated only by reading the entire document. Marshall begins his
final statement of the American case and refutation of the French claims
by declaring what he had stated before, that the American envoys "are
ready to consider and to compensate the injury, if the American
Government has given just cause of complaint to that of France"; and
points out that the negotiations which the American envoys had sought
fruitlessly for six months, if taken up even now, would "demonstrate the
sincerity of this declaration."[733] This offer Marshall repeats again
and again.

Before taking up Talleyrand's complaints in detail, he states that if
the envoys cannot convince Talleyrand that the American Government is
not in the wrong on a single point Talleyrand mentions, the envoys will
prove their good faith; and thus, with an offer to compensate France for
any wrong, "a base for an accommodation" is established. Every grievance
Talleyrand had made is then answered minutely and at great length.
History, reason, evidence, march through these pages like infantry,
cavalry, and artillery going to battle. Marshall's paper was
irresistible. Talleyrand never escaped from it.

In the course of it there is a passage peculiarly applicable to the
present day. Answering Talleyrand's complaints about newspapers,
Marshall says:--

"The genius of the Constitution, and the opinions of the people of the
United States, cannot be overruled by those who administer the
Government. Among those principles deemed sacred in America, ... there
is no one ... more deeply impressed on the public mind, than the liberty
of the press. That this liberty is often carried to excess, that it has
sometimes degenerated into licentiousness, is seen and lamented; but the
remedy has not been discovered. Perhaps it is an evil inseparable from
the good with which it is allied; perhaps it is a shoot which cannot be
stripped from the stalk, without wounding vitally the plant from which
it is torn."

At any rate, declares Marshall, there is, in America, no redress for
"the calumnies and invectives" of the press except "legal prosecution in
courts which are alike open to all who consider themselves as injured.
Without doubt this abuse of a valuable privilege is [a] matter of
peculiar regret when it is extended to the Government of a foreign
nation." It never is so extended "with the approbation of the Government
of the United States." But, he goes on to say, this is unavoidable
"especially on points respecting the rights and interests of
America, ... in a nation where public measures are the results of public
opinion."

This practice of unrestricted criticism was not directed toward France
alone, Marshall assures Talleyrand; "it has been lavished still more
profusely on its [France's] enemies and has even been bestowed, with an
unsparing hand, on the Federal [American] Government itself. Nothing can
be more notorious than the calumnies and invectives with which the
wisest measures and most virtuous characters of the United States have
been pursued and traduced [by American newspapers]." It is plain,
therefore, that the American Government cannot influence the American
press, the excesses of which are, declares Marshall, "a calamity
incident to the nature of liberty."

He reminds Talleyrand that "the same complaint might be urged on the
part of the United States. You must well know what degrading and
unworthy calumnies against their Government, its principles, and its
officers, have been published to the world by French journalists and in
French pamphlets." Yet America had not complained of "these calumnies,
atrocious as they are.... Had not other causes, infinitely more serious
and weighty, interrupted the harmony of the two republics, it would
still have remained unimpaired and the mission of the undersigned would
never have been rendered necessary."[734]

Marshall again briefly sums up in broad outline the injuries which the
then French Government had inflicted upon Americans and American
property, and finally declares: "It requires no assurance to convince,
that every real American must wish sincerely to extricate his country
from the ills it suffers, and from the greater ills with which it is
threatened; but all who love liberty must admit that it does not exist
in a nation which cannot exercise the right of maintaining its
neutrality."

Referring to Talleyrand's desire that Gerry remain and conduct the
negotiations, Marshall remarks that the request "is not accompanied by
any assurances of receding from those demands of money heretofore made
the consideration on which alone the cessation of hostility on American
commerce could be obtained." No one of the three American envoys had
power to act alone, he maintains. In spite of neglect and insult
Marshall still hopes that negotiations may begin; but if that is
impossible, he asks for passports and safe-conduct.

Marshall made his final preparations for sailing, in order, he says,
"that I might be in readiness to depart so soon as the will of the
government should be signified to me." He was so hurried, he declares,
that "I could not even lay in a moderate stock of wine or send my foul
linen to be washed."[735] The now inescapable Beaumarchais saw Marshall
again and told him that Talleyrand said that "I [Marshall] was no
foreign minister; that I was to be considered as a private American
citizen, to obtain my passport in the manner pursued by all others
through the Consul ... I must give my name, stature, age, complexion,
&c., to our Consul."

Marshall answered with much heat. Beaumarchais conferred with
Talleyrand, taking Marshall's side. Talleyrand was obdurate and said
that "he was mistaken in me [Marshall]; that I prevented all negotiation
and that so soon as I was gone the negotiation would be carried on; that
in America I belonged to the English faction, which universally hated
and opposed the French faction; that all I sought for was to produce a
rupture in such a manner as to throw the whole blame on France."
Marshall replied that Talleyrand "endeavored to make our situation more
unpleasant than his orders required, in order to gratify his personal
feelings," and he flatly refused to leave until ordered to go.[736]

Finally Marshall and Pinckney received their passports. Pinckney, whose
daughter was ill and could leave France at that time only at the risk of
her life, had serious difficulty in getting permission to stay in the
south of France. On April 24, Marshall sailed for home. It is
characteristic of the man that, notwithstanding his humiliating
experiences and the failure of the mission, he was neither sour nor
depressed. He had made many personal friends in Paris; and on taking
ship at Bordeaux he does not forget to send them greetings, singling out
Madame de Villette for a gay message of farewell. "Present me to my
friends in Paris," he writes the American Consul-General at the French
Capital, "& have the goodness to say to Madam Vilette in my name & in
the handsomest manner, every thing which respectful friendship can
dictate. When you have done that You will have rendered not quite half
justice to my sentiments."[737]

Gerry, to whom Pinckney and Marshall did not even bid farewell,[738]
remained in Paris, "extremely miserable."[739] Infinitely disgusted,
Pinckney writes King that Gerry, "as I suspected, is resolved to remain
here," notwithstanding Pinckney's "warm remonstrances with him on the
bad consequences ... of such conduct and on the impropriety of" his
secret "correspondence with Talleyrand under injunction not to
communicate it to his colleagues." Pinckney says: "I have made great
sacrifices of my feelings to preserve union; but in vain. I never met
with a man of less candour and so much duplicity as Mr. Gerry. General
Marshall is a man of extensive ability, of manly candour, and an honest
heart."[740]

FOOTNOTES:

[658] _Am. St. Prs., For. Rel._, ii, 167. This lady was "understood to
be Madame de Villette, the celebrated Belle and Bonne of Voltaire."
(Lyman: _Diplomacy of the United States_, ii, footnote to 336.) Lyman
says that "as to the lady an intimation is given that that part of the
affair was not much to the credit of the Americans." (And see Austin:
_Gerry_, ii, footnote to 202.) Madame de Villette was the widow of a
Royalist colonel. Her brother, an officer in the King's service, was
killed while defending Marie Antoinette. Robespierre proscribed Madame
de Villette and she was one of a group confined in prison awaiting the
guillotine, of whom only a few escaped. (_Ib._)

[659] _Am. St. Prs., For. Rel._, ii, 167.

[660] Beaumarchais was one of the most picturesque figures of that
theatrical period. He is generally known to-day only as the author of
the operas, _The Barber of Seville_ and the _Marriage of Figaro_. His
suit was to recover a debt for supplies furnished the Americans during
the Revolution. Silas Deane, for our Government, made the original
contract with Beaumarchais. In addition to the contest before the
courts, in which Marshall was Beaumarchais's attorney, the matter was
before Congress three times during the claimant's life and, through his
heirs, twice after his death. In 1835 the case was settled for 800,000
francs, which was nearly 2,500,000 francs less than Alexander Hamilton,
in an investigation, ordered by Congress, found to be due the Frenchman;
and 3,500,000 livres less than Silas Deane reported that America owed
Beaumarchais.

Arthur Lee, Beaumarchais's enemy, to whom Congress in 1787 left the
adjustment, had declared that the Frenchman owed the United States two
million francs. This prejudiced report was the cause of almost a
half-century of dispute, and of gross injustice. (See Loménie:
_Beaumarchais et son temps_; also, Channing, iii, 283, and references in
the footnote; and Perkins: _France in the American Revolution_. Also see
Henry to Beaumarchais, Jan. 8, 1785; Henry, iii, 264, in which Henry
says: "I therefore feel myself gratified in seeing, as I think, ground
for hope that yourself, and those worthy and suffering of ours in your
nation, who in so friendly a manner advanced their money and goods when
we were in want, will be satisfied that nothing has been omitted which
lay in our power towards paying them.")

[661] Marshall's Journal, ii, Dec. 17, 36.

[662] _Am. St. Prs., For. Rel._, ii, 167; Marshall's Journal, Dec. 17,
36-37.

[663] Marshall's Journal, Dec. 17, 38. The "_Rôle d'équipage_" was a
form of ship's papers required by the French Government which it was
practically impossible for American masters to furnish; yet, without it,
their vessels were liable to capture by French ships under one of the
many offensive decrees of the French Government.

[664] Marshall's Journal, Dec. 17, 38.

[665] _Am. St. Prs., For. Rel._, ii, 168.

[666] This account in the dispatches is puzzling, for Talleyrand spoke
English perfectly.

[667] _Am. St. Prs., For. Rel._, ii, 230.

[668] King to Secretary of State (in cipher) London, Dec. 23, 1797;
King, ii, 261. King to Pinckney, Marshall, and Gerry, Dec. 23, 1797;
_ib._, 263.

[669] King to Pinckney (in cipher) London, Dec. 24, 1797; King, ii,
263-64.

[670] Pinckney to King, Dec. 27, 1797; King, ii, 266-67.

[671] Marshall's Journal, Dec. 18, 1797, 38.

[672] _Ib._, Jan. 2, 1798, 39.

[673] Marshall's Journal, Jan. 2 and 10, 39.

[674] _Ib._, Jan. 22, 40.

[675] _Ib._, 40.

[676] _Ib._, Jan. 31.

[677] The Ellsworth mission. (See _infra_, chap. XII.)

[678] _Am. St. Prs., For. Rel._, ii, 169.

[679] _Am. St. Prs., For. Rel._, ii, 169-70.

[680] _Ib._, 170.

[681] _Am. St. Prs., For. Rel._, ii, 170.

[682] Marshall's Journal, 39; also see Austin: _Gerry_, ii, chap. VI.

[683] _Am. St. Prs., For. Rel._, ii, 170-71.

[684] _Am. St. Prs., For. Rel._, ii, 172.

[685] _Ib._, 173.

[686] _Ib._

[687] _Ib._

[688] _Am. St. Prs., For. Rel._, ii, 175.

[689] _Am. St. Prs., For. Rel._, ii, 175.

[690] _Ib._, 176.

[691] _Am. St. Prs., For. Rel._, ii, 177.

[692] _Ib._, 178.

[693] _Am. St. Prs., For. Rel._, ii, 181.

[694] _Ib._, 181-82.

[695] _Ib._, 182.

[696] British Debts cases. (See vol. I, CHAP. V.)

[697] Murray to J. Q. Adams, Feb. 20, 1798, _Letters_: Ford, 379. Murray
thought Marshall's statement of the American case "unanswerable" and
"proudly independent." (_Ib._, 395.) Contrast Murray's opinion of
Marshall with his description of Gerry, _supra_, chap. VII, 258, and
footnote.

[698] Marshall's Journal, Jan. 31, 1798, 40.

[699] _Ib._, Feb. 2.

[700] _Ib._, Feb. 2, 41.

[701] Marshall's Journal, Feb. 3, 42.

[702] _Ib._, Feb. 4, 42.

[703] _Ib._, 42-43, 46.

[704] Marshall's Journal, Feb. 4, 42-45.

[705] Marshall's Journal, Feb. 5, 45-46.

[706] _Ib._, Feb. 6 and 7, 46.

[707] Marshall's Journal, Feb. 10, 47-48.

[708] Undoubtedly Beaumarchais. Marshall left his client's name blank in
his Journal, but Pickering, on the authority of Pinckney, in the
official copy, inserted Beaumarchais's name in later dates of the
Journal.

[709] Marshall's Journal, Feb. 26, 52-60.

[710] Marshall's Journal, Feb. 27, 61-67.

[711] _Ib._, Feb. 28, 67-68. See _supra_, 312.

[712] _Am. St. Prs., For. Rel._, ii, 186-87; Marshall's Journal, March
2, 68-72.

[713] Marshall's Journal, March 3, 74.

[714] Marshall's Journal, March 6, 79-81.

[715] Marshall's Journal, 82-88; _Am. St. Prs., For. Rel._, ii, 187-88.

[716] Marshall's Journal, March 13, 87-93.

[717] This would seem to indicate that Marshall knew that his famous
dispatches were to be published.

[718] France was already making "actual war" upon America; the threat of
formally declaring war, therefore, had no terror for Marshall.

[719] Here Marshall contradicts his own statement that the French Nation
was tired of the war, groaning under taxation, and not "universally"
satisfied with the Government.

[720] Marshall to Washington, Paris, March 8, 1798; _Amer. Hist. Rev._,
Jan., 1897, ii, 303; also MS., Lib. Cong.

[721] Marshall's Journal, March 20, 93.

[722] Marshall's Journal, March 22, 95.

[723] Murray to J. Q. Adams, April 3, 1798, quoting Pinckney; _Letters_:
Ford, 391.

[724] The exact reverse was true. Up to this time American newspapers,
with few exceptions, were hot for France. Only a very few papers, like
Fenno's _Gazette of the United States_, could possibly be considered as
unfriendly to France at this point. (See _supra_, chap. I.)

[725] _Am. St. Prs., For. Rel._, ii, 190-91.

[726] _Ib._, 191.

[727] Marshall's Journal, March 22, 95.

[728] Marshall's Journal, March 22, 95-97.

[729] The Fairfax purchase.

[730] Marshall's Journal, March 23, 99.

[731] Marshall's Journal, March 29, 99-100.

[732] _Ib._, April 3, 102-07.

[733] _Am. St. Prs., For. Rel._, ii, 191.

[734] _Am. St. Prs., For. Rel._, ii, 196.

[735] This would seem to dispose of the story that Marshall brought home
enough "very fine" Madeira to serve his own use, supply weddings, and
still leave a quantity in existence three quarters of a century after
his return. (_Green Bag_, viii, 486.)

[736] Marshall's Journal, April 10 and 11, 1798, 107-14.

[737] Marshall to Skipwith, Bordeaux, April 21, 1798; MS., Pa. Hist.
Soc.

[738] Murray to J. Q. Adams, April 24, 1798; _Letters_: Ford, 399.

[739] Same to same, May 18, 1798; _ib._, 407.

[740] Pinckney to King, Paris, April 4, 1798, enclosed in a letter to
Secretary of State, April 16, 1798; Pickering MSS., Mass. Hist. Soc.

CHAPTER IX

THE TRIUMPHANT RETURN

The present crisis is the most awful since the days of Vandalism.
(Robert Troup.)

Millions for defense but not one cent for tribute. (Toast at
banquet to Marshall.)

We shall remain free if we do not deserve to be slaves. (Marshall
to citizens of Richmond.)

What a wicked use has been made of the X. Y. Z. dish cooked up by
Marshall. (Jefferson.)

While Talleyrand's drama of shame was enacting in Paris, things were
going badly for the American Government at home. The French party in
America, with whose wrath Talleyrand's male and female agents had
threatened our envoys, was quite as powerful and aggressive against
President Adams as the French Foreign Office had been told that it
was.[741]

Notwithstanding the hazard and delay of ocean travel,[742] Talleyrand
managed to communicate at least once with his sympathizers in America,
whom he told that the envoys' "pretensions are high, that possibly no
arrangement may take place, but that there will be no declaration of war
by France."[743]

Jefferson was alert for news from Paris. "We have still not a word from
our Envoys. This long silence (if they have been silent) proves things
are not going on very roughly. If they have not been silent, it proves
their information, if made public, would check the disposition to
arm."[744] He had not yet received the letter written him March 17, by
his agent, Skipwith. This letter is abusive of the Administration of
Washington as well as of that of Adams. Marshall was "one of the
declaiming apostles of Jay's Treaty"; he and Pinckney courted the
enemies of the Revolutionary Government; and Gerry's "paralytic mind"
was "too weak" to accomplish anything.[745]

The envoys' first dispatches, sent from Paris October 22, 1797, reached
Philadelphia on the night of March 4, 1798.[746] These documents told of
the corrupt French demands and machinations. The next morning President
Adams informed Congress of their arrival.[747] Two weeks later came the
President's startling message to Congress declaring that the envoys
could not succeed "on terms compatible with the safety, the honor, or
the essential interests of the nation" and "exhorting" Congress to
prepare for war.[748]

The Republicans were dazed. White hot with anger, Jefferson writes
Madison that the President's "insane message ... has had great effect.
Exultation on the one side & a certainty of victory; while the other
[Republican] is petrified with astonishment."[749] The same day he tells
Monroe that the President's "almost insane message" had alarmed the
merchants and strengthened the Administration; but he did not despair,
for the first move of the Republicans "will be a call for papers [the
envoys' dispatches].[750] In Congress the battle raged furiously; "the
question of war & peace depends now on a toss of cross & pile,"[751] was
Jefferson's nervous opinion.

But the country itself still continued French in feeling; the
Republicans were gaining headway even in Massachusetts and Connecticut;
Jefferson expected the fall elections to increase the Republican
strength in the House; petitions against war measures were pouring into
Congress from every section; the Republican strategy was to gain time.
Jefferson thought that "the present period, ... of two or three weeks,
is the most eventful ever known since that of 1775."[752]

The Republicans, who controlled the House of Representatives, demanded
that the dispatches be made public: they were sure that these papers
would not justify Adams's grave message. If the President should refuse
to send Congress the papers it would demonstrate, said the "Aurora,"
that he "suspects the popularity of his conduct if exposed to public
view.... If he thinks he has done right, why should he be afraid of
letting his measures be known?" Let the representatives of the people
see "_the whole_ of the papers ... a _partial_ communication would be
worse than none."[753]

Adams hesitated to reveal the contents of the dispatches because of "a
regard for the _personal safety_ of the Commissioners and an
apprehension of the effect of a disclosure upon our future diplomatic
intercourse."[754] High Federalist business men, to whom an intimation
of the contents of the dispatches had been given, urged their
publication. "We wish much for the papers if they can with propriety be
made public" was Mason's reply to Otis. "The Jacobins want them. And in
the name of God let them be gratified; it is not the first time they
have wished for the means of their destruction."[755]

Both Federalists who were advised and Republicans who were still in the
dark now were gratified in their wish to see the incessantly discussed
and mysterious message from the envoys. The effect on the partisan
maneuvering was as radical and amusing as it is illuminative of partisan
sincerity. When, on April 3, the President transmitted to Congress the
dispatches thus far received, the Republicans instantly altered their
tactics. The dispatches did not show that the negotiations were at an
end, said the "Aurora"; it was wrong, therefore, to publish them--such a
course might mean war. Their publication was a Federalist trick to
discredit the Republican Party; and anyway Talleyrand was a monarchist,
the friend of Hamilton and King. So raged and protested the Republican
organ.[756]

Troup thus reports the change: The Republicans, he says, "were very
clamorous for the publication [of the dispatches] until they became
acquainted with the intelligence communicated. From that moment they
opposed publication, and finally they carried a majority against the
measure. The Senate finding this to be the case instantly directed
publication."[757] The President then transmitted to Congress the second
dispatch which had been sent from Paris two weeks after the first. This
contained Marshall's superb memorial to Talleyrand. It was another blow
to Republican hopes.

The dispatches told the whole story, simply yet with dramatic art. The
names of Hottenguer, Bellamy, and Hauteval were represented by the
letters X, Y, and Z,[758] which at once gave to this picturesque episode
the popular name that history has adopted. The effect upon public
opinion was instantaneous and terrific.[759] The first result, of
course, was felt in Congress. Vice-President Jefferson now thought it
his "duty to be silent."[760] In the House the Republicans were
"thunderstruck."[761] Many of their boldest leaders left for home;
others went over openly to the Federalists.[762] Marshall's disclosures
"produced such a shock on the republican mind, as has never been seen
since our independence," declared Jefferson.[763] He implored Madison to
write for the public an analysis of the dispatches from the Republican
point of view.[764]

After recovering from his "shock" Jefferson tried to make light of the
revelations; the envoys had "been assailed by swindlers," he said, "but
that the Directory knew anything of it is neither proved nor probable."
Adams was to blame for the unhappy outcome of the mission, declared
Jefferson; his "speech is in truth the only obstacle to
negotiation."[765] Promptly taking his cue from his master, Madison
asserted that the publication of the dispatches served "more to inflame
than to inform the country." He did not think Talleyrand guilty--his
"conduct is scarcely credible. I do not allude to its depravity, which,
however heinous, is not without example. Its unparalleled stupidity is
what fills me with astonishment."[766]

The hot-blooded Washington exploded with anger. He thought "the measure
of infamy was filled" by the "profligacy ... and corruption" of the
French Directory; the dispatches ought "to open the eyes of the
blindest," but would not "change ... the _leaders_ of the opposition
unless there shou'd appear a manifest desertion of the followers."[767]
Washington believed the French Government "capable [of] any thing bad"
and denounced its "outrageous conduct ... toward the United States"; but
he was even more wrathful at the "inimitable conduct of its partisans
[in America] who aid and abet their measures." He concluded that the
Directory would modify their defiant attitude when they found "the
spirit and policy of this country rising with resistance and that they
have falsely calculated upon support from a large part of the people
thereof."[768]

Then was heard the voice of the country. "The effects of the publication
[of the dispatches] ... on the people ... has been prodigious.... The
leaders of the opposition ... were astonished & confounded at the
profligacy of their beloved friends the French."[769] In New England,
relates Ames, "the Jacobins [Republicans] were confounded, and the
trimmers dropt off from the party, like windfalls from an apple tree in
September."[770] Among all classes were observed "the most magical
effects"; so "irresistible has been the current of public opinion ...
that ... it has broken down the opposition in Congress."[771] Jefferson
mournfully informed Madison that "the spirit kindled up in the towns is
wonderful.... Addresses ... are pouring in offering life &
fortune."[772] Long afterwards he records that the French disclosures
"carried over from us a great body of the people, real republicans &
honest men, under virtuous motives."[773] In New England, especially,
the cry was for "open and deadly war with France."[774] From Boston
Jonathan Mason wrote Otis that "war for a time we must have and our
fears ... are that ... you [Congress] will rise without a proper
_climax_.... We pray that decisive orders may be given and that accursed
Treaty [with France] may be annulled.... The time is now passed, when we
should fear giving offense.... The yeomanry are not only united but
spirited."[775]

Public meetings were held everywhere and "addresses from all bodies and
descriptions of men" poured "like a torrent on the President and both
Houses of Congress."[776] The blood of Federalism was boiling. "We
consider the present crisis as the most awful since the days of
Vandalism," declared the ardent Troup.[777] "Yankee Doodle," "Stony
Point," "The President's March," supplanted in popular favor "Ça ira"
and the "Marseillaise," which had been the songs Americans best loved to
sing.

The black cockade, worn by patriots during the Revolutionary War,
suddenly took the place of the French cockade which until the X. Y. Z.
disclosures had decorated the hats of the majority in American cities.
The outburst of patriotism produced many songs, among others Joseph
Hopkinson's "Hail Columbia!" ("The President's March"), which, from its
first presentation in Philadelphia, caught the popular ear. This song is
of historic importance, in that it expresses lyrically the first
distinctively National consciousness that had appeared among Americans.
Everywhere its stirring words were sung. In cities and towns the young
men formed American clubs after the fashion of the democratic societies
of the French party.

"Hail, Columbia! happy land!
Hail, ye heroes! heaven-born band!
Who fought and bled in Freedom's cause,"--

sang these young patriots, and "Hail, Columbia!" chanted the young women
of the land.[778] On every hilltop the fires of patriotism were
signaling devotion and loyalty to the American Government.

Then came Marshall. Unannounced and unlooked for, his ship, the
Alexander Hamilton, had sailed into New York Harbor after a voyage of
fifty-three days from Bordeaux.[779] No one knew of his coming. "General
Marshall arrived here on Sunday last. His arrival was unexpected and his
stay with us was very short. I have no other apology to make," writes
Troup, "for our not giving him a public demonstration of our love and
esteem."[780] Marshall hurried on to Philadelphia. Already the great
memorial to Talleyrand and the brilliantly written dispatches were
ascribed to his pen, and the belief had become universal that the
Virginian had proved to be the strong and resourceful man of the
mission.

On June 18, 1798, he entered the Capital, through which, twenty years
before, almost to a day, he had marched as a patriot soldier on the way
to Monmouth from Valley Forge. Never before had any American, excepting
only Washington, been received with such demonstration.[781] Fleets of
carriages filled with members of Congress and prominent citizens, and
crowds of people on horseback and on foot, went forth to meet him.

"The concourse of citizens ... was immense." Three corps of cavalry "in
full uniform" gave a warlike color to the procession which formed behind
Marshall's carriage six miles out from Philadelphia. "The occasion
cannot be mentioned on which so prompt and general a muster of the
cavalry ever before took place." When the city was reached, the church
bells rang, cannon thundered, and amid "the shouts of the exulting
multitudes" Marshall was "escorted through the principal streets to the
city Tavern." The leading Federalist newspaper, the "Gazette of the
United States," records that, "even in the Northern Liberties,[782]
where the demons of anarchy and confusion are attempting to organize
treason and death, repeated shouts of applause were given as the
cavalcade approached and passed along."[783] The next morning O'Ellers
Tavern was thronged with Senators and Representatives and "a numerous
concourse of respectable citizens" who came to congratulate
Marshall.[784]

The "Aurora" confirms this description of its Federalist rival; but adds
bitterly: "What an occasion for rejoicing! Mr. Marshall was sent to
France for the _ostensible_ purpose, at least, of effecting an amicable
accommodation of differences. He returns without having accomplished
that object, and on his return the Tories rejoice. This certainly looks
as if they did not wish him to succeed.... Many pensive and melancholy
countenances gave the glare of parade a gloom much more suited to the
occasion, and more in unison with the feelings of Americans. Well may
they despond: For tho' the patriotic Gerry may succeed in settling the
differences between the two countries--it is too certain that his
efforts can be of no avail when the late conduct of our administration,
and the unprecedented intemperance of our chief executive magistrate is
known in Europe."[785]

Jefferson watched Marshall's home-coming with keen anxiety. "We heard of
the arrival of Marshall at New York," he writes, "and I concluded to
stay & see whether that circumstance would produce any new projects. No
doubt he there received more than hints from Hamilton as to the tone
required to be assumed.... Yet I apprehend he is not hot enough for his
friends."

With much chagrin he then describes what happened when Marshall reached
Philadelphia: "M. was received here with the utmost éclat. The Secretary
of State & many carriages, with all the city cavalry, went to Frankfort
to meet him, and on his arrival here in the evening, the bells rung till
late in the night, & immense crowds were collected to see & make part of
the shew, which was circuitously paraded through the streets before he
was set down at the city tavern." But, says Jefferson, "all this was to
secure him [Marshall] to their [the Administration's] views, that he
might say nothing which would expose the game they have been
playing.[786] Since his arrival I can hear nothing directly from him."

Swallowing his dislike for the moment, Jefferson called on Marshall
while the latter was absent from the tavern. "Thomas Jefferson presents
his compliments to General Marshall" ran the card he left. "He had the
honor of calling at his lodgings twice this morning, but was so unlucky
as to find that he was out on both occasions. He wished to have
expressed in person his regret that a pre-engagement for to-day which
could not be dispensed with, would prevent him the satisfaction of
dining in company with General Marshall, and therefore begs leave to
place here the expressions of that respect which in company with his
fellow citizens he bears him."[787]

Many years afterwards Marshall referred to the adding of the syllable
"un" to the word "lucky" as one time, at least, when Jefferson came near
telling the truth.[788] To this note Marshall returned a reply as
frigidly polite as Jefferson's:--

"J. Marshall begs leave to accompany his respectful compliments to Mr.
Jefferson with assurances of the regret he feels at being absent when
Mr. Jefferson did him the honor to call on him.

"J. Marshall is extremely sensible to the obliging expressions contained
in Mr. Jefferson's polite billet of yesterday. He sets out to-morrow for
Winchester & would with pleasure charge himself with any commands of Mr.
Jefferson to that part of Virginia."[789]

Having made his report to the President and Secretary of State, Marshall
prepared to start for Virginia. But he was not to leave without the
highest compliment that the Administration could, at that time, pay him.
So gratified were the President, Cabinet, and Federalist leaders in
Congress with Marshall's conduct in the X. Y. Z. mission, and so high
their opinion of his ability, that Adams tendered him the appointment to
the place on the Supreme Bench,[790] made vacant by the death of Justice
Wilson. Marshall promptly declined. After applying to the Fairfax
indebtedness all the money which he might receive as compensation for
his services in the French mission, there would still remain a heavy
balance of obligation; and Marshall must devote all his time and
strength to business.

On the night before his departure, the members of Congress gave the hero
of the hour the historic dinner at the city's principal tavern, "as an
evidence of their affection for his person and their gratified
approbation of the patriotic firmness with which he sustained the
dignity of his country during his important mission." One hundred and
twenty enthusiastic men sat at the banquet table.

The Speaker of the National House, the members of the Cabinet, the
Justices of the Supreme Court, the Speaker of the Pennsylvania State
Senate, the field officers of the army, the Right Reverend Bishops
Carroll and White, "and other distinguished public characters attended."
Toasts "were drank with unbounded plaudits" and "many of them were
encored with enthusiasm." High rose the spirit of Federalism at
O'Eller's Tavern in Philadelphia that night; loud rang Federalist
cheers; copiously flowed Federalist wine.

"Millions for Defense but not a cent for Tribute!" was the crowning
toast of that jubilant evening. It expressed the spirit of the
gathering; out over the streets of Philadelphia rolled the huzzas that
greeted it. But its unknown author[791] "builded better than he knew."
He did more than flatter Marshall and bring the enthusiastic banqueters,
wildly shouting, to their feet: he uttered the sentiment of the Nation.
"Millions for Defense but not a cent for Tribute" is one of the few
historic expressions in which Federalism spoke in the voice of America.
Thus the Marshall banquet in Philadelphia, June 18, 1798, produced that
slogan of defiant patriotism which is one of the slowly accumulating
American maxims that have lived.

After Marshall retired from the banquet hall, the assemblage drank a
final toast to "The man whom his country delights to Honor."[792]

Marshall was smothered with addresses, congratulations, and every
variety of attention from public bodies and civic and military
organizations. A committee from the Grand Jury of Gloucester County, New
Jersey, presented the returned envoy a laudatory address. His answer,
while dignified, was somewhat stilted, perhaps a trifle pompous. The
Grand Jury compliment was, said Marshall, "a sweet reward" for his
"exertions." The envoys wished, above all things, for peace, but felt
"that not even peace was to be purchased at the price of national
independence."[793]

The officers of a militia brigade delivered to Marshall a eulogy in
which the war note was clear and dominant. Marshall answered that,
desirable as peace is, it "ought not to have been bought by dishonor and
national degradation"; and that the resort to the sword, for which the
militia officers declared themselves ready, made Marshall "feel with an
elevated pride the dignity and grandeur of the American
character."[794]

The day before Marshall's departure from Philadelphia the President,
addressing Congress, said: "I congratulate you on the arrival of General
Marshall ... at a place of safety where he is justly held in honor....
The negotiation may be considered at an end. _I will never send another
Minister to France without assurances that he will be received,
respected, and honored as the representative of a great, free, powerful,
and independent nation._"[795] Bold and defiant words expressive of the
popular sentiment of the hour; but words which were to be recalled later
by the enemies of Adams, to his embarrassment and to the injury of his
party.[796]

"Having heard that Mrs. Marshall is in Winchester I shall immediately
set out for that place,"[797] Marshall writes Washington. His departure
from the Capital was as spectacular as his arrival. He "was escorted by
detachments of cavalry," says the "Aurora." "Certainly nothing less was
due considering the distinguished services which he has rendered by his
mission--he has acquired some knowledge of the French language,"[798]
sneers that partisan newspaper in good Republican fashion. When Marshall
approached Lancaster he was met by companies of "cavalry and uniformed
militia" which escorted him into the town, where he was "welcomed by the
discharges of artillery and the ringing of bells."[799]

His journey throughout Pennsylvania and Virginia, repeating scenes of
his welcome at Philadelphia and Lancaster, ended at Richmond. There,
among his old neighbors and friends, the demonstrations reached their
climax. A long procession of citizens went out to meet him. Again rang
the cheers, again the bells pealed, again the cannon thundered. And
here, to his townsmen and friends, Marshall, for the first time,
publicly opened his heart and told, with emotion, what had befallen in
France. In this brief speech the Nationalist and fighting spirit, which
appears in all his utterances throughout his entire life, flashes like a
sword in battle.

Marshall cannot express his "emotions of joy" which his return to
Richmond has aroused; nor "paint the sentiments of affection and
gratitude towards" his old neighbors. Nobody, he assures his hearers,
could appreciate his feelings who had not undergone similar experiences.

The envoys, far from their country with no news from their Government,
were in constant anxiety, says Marshall. He tells of their trials, of
how they had discharged their duty, of his exultation over the spirit
America was now displaying. "I rejoice that I was not mistaken in the
opinion I had formed of my countrymen. I rejoice to find, though they
know how to estimate, and therefore seek to avoid the horrors and
dangers of war, yet they know also how to value the blessings of liberty
and national independence. Peace would be purchased at too high a price
by bending beneath a foreign yoke" and such a peace would be but brief;
for "the nation thus submitting would be soon involved in the quarrels
of its master.... We shall remain free if we do not deserve to be
slaves."

Marshall compares the governments of France and America. To one who,
like himself, is so accustomed to real liberty that he "almost considers
it as the indispensable companion of man, a view of [French] despotism,"
though "borrowing the garb usurping the name of freedom," teaches "the
solid safety and real security" existing in America. The loss of these
"would poison ... every other joy." Without them "freemen would turn
with loathing and disgust from every other comfort of life." To preserve
them, "all ... difficulties ought to be encountered."

Stand by "the government of your choice," urges Marshall; its officials
are from the people, "subject in common with others to the laws they
make," and must soon return to the popular body "whose destiny involves
their own and in whose ruin they must participate." This is always a
good rule, but "it is peculiarly so in a moment of peril like the
present" when "want of confidence in our government ... furnishes ... a
foreign real enemy [France] those weapons which have so often been so
successfully used."[800]

The Mayor, Recorder, Aldermen, and Common Council of Richmond presented
Marshall with an address of extravagant praise. "If reason and
argument ... if integrity, candor, and the pure spirit of conciliation"
had met like qualities in France, "smiling peace would have returned
along with you." But if Marshall had not brought peace, he had warned
America against a government "whose touch is death." Perhaps he had even
preserved "our excellent constitution and ... our well earned
liberties." In answer Marshall said that he reciprocated the "joy" of
his "fellow citizens, neighbors, and ancient friends" upon his return;
that they were right in thinking honorable peace with France was
impossible; and warned them against "the countless dangers which lurk
beneath foreign attachments."[801]

Marshall had become a national hero. Known before this time, outside of
his own State, chiefly to the eminent lawyers of America, his name now
became a household word in the remotest log cabins of Kentucky and
Tennessee, as well as in the residences of Boston and New York. "Saving
General Washington, I believe the President, Pinckney, and Marshall are
the most popular characters now in our country," Troup reported to King
in London.[802]

For the moment, only one small cloud appeared upon the horizon of
Marshall's popularity; but a vicious flash blazed from it. Marshall went
to Fredericksburg on business and attended the little theater at that
place. The band of the local artillery company furnished the music. A
Philadelphia Federalist, who happened to be present, ordered them to
play "The President's March" ("Hail, Columbia!"). Instantly the audience
was in an uproar. So violent did they become that "a considerable riot
took place." Marshall was openly insulted. Nor did their hostility
subside with Marshall's departure. "The inhabitants of Fredericksburg
waited," in anxious expectation, for an especially hated Federalist
Congressman, Harper of South Carolina, to pass through the town on his
way home, with the intention of treating him even more roughly.[803]

With this ominous exception, the public demonstrations for Marshall were
warmly favorable. His strength with the people was greater than ever. By
the members of the Federal Party he was fairly idolized. This, the first
formal party organization in our history, was, as we have seen, in sorry
case even under Washington. The assaults of the Republicans, directed by
Jefferson's genius for party management, had all but wrecked the
Federalists. That great party general had out-maneuvered his adversaries
at every point and the President's party was already nearing the
breakers.

The conduct of the French mission and the publication of Marshall's
dispatches and letters to Talleyrand saved the situation for the moment.
Those whom Jefferson's consummate skill had won over to the Republican
Party returned by thousands to their former party allegiance.[804]

Congress acted with belated decision. Our treaty with France was
abrogated; non-intercourse laws passed; a provisional army created; the
Navy Department established; arsenals provided; the building of warships
directed. For a season our National machinery was permitted to work with
vigor and effectiveness.

The voices that were wont to declaim the glories of French democracy
were temporarily silent. The people, who but yesterday frantically
cheered the "liberté, égalité, fraternité" of Robespierre and Danton,
now howled with wrath at mention of republican France. The pulpit became
a tribune of military appeal and ministers of the gospel preached
sermons against American "Jacobins."[805] Federalist orators had their
turn at assailing "despotism" with rhetoric and defending "liberty" with
eloquence; but the French Government was now the international villain
whom they attacked.

"The struggle between Liberty and Despotism, Government and Anarchy,
Religion and Atheism, has been gloriously decided.... France has been
foiled, and America is free. The elastick veil of Gallick perfidy has
been rent, ... the severing blow has been struck." Our abrogation of the
treaty with France was "the completion of our Liberties, the acme of our
Independence ... and ... emancipated us from the oppressive friendship
of an ambitious, malignant, treacherous ally." That act evidenced "our
nation's manhood"; our Government was now "an Hercules, who, no longer
amused with the coral and bells of 'liberty and equality' ... no longer
willing to trifle at the _distaff_ of a 'Lady Negociator,' boldly
invested himself in the _toga virilis_."[806] Such was the language of
the public platform; and private expressions of most men were even less
restrained.

Denouncing "the Domineering Spirit and boundless ambition of a nation
whose Turpitude has set _all objections_, divine & human, at
naught,"[807] Washington accepted the appointment as Commander-in-Chief
of the newly raised army. "Huzza! Huzza! Huzza! How transporting the
fact! The great, the good, the aged WASHINGTON has said 'I am ready
again to go with my fellow citizens to the field of battle in defense of
the Liberty & Independence of my Country,'" ran a newspaper
announcement, typically voicing the popular heart.[808]

To Marshall's brother James, who had offered his services as an
aide-de-camp, Washington wrote that the French "(although _I_ conceive
them capable of _anything_ that is unjust or dishonorable)" will not
"attempt a serious invasion of this country" when they learn of "the
preparation which [we] are making to receive them." They have "made
calculations on false ground" in supposing that Americans would not
"support Independence and the Government of their country _at every
hazard_." Nevertheless, "the highest possible obligation rests upon the
country to be prepared for the event as the most effective means to
avert the evil."[809] Military preparations were active and conspicuous:
On July 4, New York City "resembles a camp rather than a commercial
port," testifies Troup.[810]

The people for the moment believed, with Marshall and Washington, that
we were on the brink of war; had they known what Jefferson knew, their
apprehension would have been still keener. Reporting from Paris, the
French partisan Skipwith tells Jefferson that, from motives of
"commercial advantage and aggrandisement" as well as of "vengeance,"
France will probably fall upon America. "Yes sir, the moment is come
that I see the fortunes, nay, independence, of my country at hazard, and
in the hands of the most gigantic nation on earth.... Already, the
language of planting new colonies upon the ... Mississippi is the
language of Frenchmen here."[811] Skipwith blames this predicament upon
Adams's character, speech, and action and upon Marshall's and Pinckney's
conduct in Paris;[812] and advises Jefferson that "war may be prevented,
and our country saved" by "modifying or breaking" the Jay Treaty and
lending money to France.[813]

Jefferson was frantic with disappointment and anger. Not only did he see
the Republican Party, which he had built up with such patience and
skill, going to pieces before his very eyes; but the prospect of his
election to the Presidency as the successor of Adams, which until then
appeared to be inviting, now jeopardized if not made hopeless. With his
almost uncanny understanding of men, Jefferson laid all this to
Marshall; and, from the moment of his fellow Virginian's arrival from
France, this captain of the popular cause began that open and malignant
warfare upon Marshall which ended only with Jefferson's last breath.

At once he set out to repair the havoc which Marshall's work had wrought
in his party. This task was made the harder because of the very tactics
which Jefferson had employed to increase the Republican strength. For,
until now, he had utilized so thoroughly the deep and widespread French
sentiment in America as his immediate party weapon, and made so emphatic
the French issue as a policy of party tactics, that, in comparison, all
other issues, except the central one of States' Rights, were secondary
in the public mind at this particular time.

The French propaganda had gone farther than Jefferson, perhaps, intended
it to go. "They [the French] have been led to believe by their agents
and Partisans amongst _us_," testifies Washington, "that we are a
divided people, that the latter are opposed to their own
Government."[814] At any rate, it is certain that a direct connection,
between members of what the French politicians felt themselves justified
in calling "the French party" in America and the manipulators of French
public opinion, existed and was made use of. This is shown by the effect
in France of Jefferson's famous letter to Mazzei of April 24, 1796.[815]
It is proved by the amazing fact that Talleyrand's answer to the
memorial of the envoys was published in the Jeffersonian organ, the
"Aurora," before Adams had transmitted that document to Congress, if not
indeed before the President himself had received from our envoys
Talleyrand's reply to Marshall's statement of the American case.[816]

Jefferson took the only step possible to a party leader. He sought to
minimize the effect of the disclosures revealed in Marshall's
dispatches. Writing to Peter Carr, April 12, 1798, Jefferson said: "You
will perceive that they [the envoys] have been assailed by swindlers,
whether with or without the participation of Talleyrand is not very
apparent.... That the Directory knew anything of it is neither proved
nor probable."[817] On June 8, 1798, Jefferson wrote to Archibald
Stuart: "It seems fairly presumable that the douceur of 50,000 Guineas
mentioned in the former dispatches was merely from X. and Y. as not a
word is ever said by Talleyrand to our envoys nor by them to him on the
subject."[818] Thus Jefferson's political desperation caused him to deny
facts which were of record, for the dispatches show, not only that
Talleyrand had full knowledge of the disgraceful transaction, but also
that he originated and directed it.

The efforts of the Republicans to sneer away the envoys' disclosures
awakened Washington's bitter sarcasm. The Republicans were
"thunder-stricken ... on the publication of the dispatches from our
envoys," writes he, "but the contents of these dispatches are now
resolved by them into harmless chitchat--mere trifles--less than was or
ought to have been expected from the misconduct of the Administration
of this country, and that it is better to submit to such chastisement
than to hazard greater evils by shewing futile resentment."[819]

Jefferson made no headway, however, in his attempts to discredit the X.
Y. Z. revelations. Had the Federalists stopped with establishing the
Navy Department and providing for an army, with Washington at its head;
had they been content to build ships and to take other proper measures
for the National defense, Adams's Administration would have been saved,
the Federalist Party kept alive for at least four years more, the
Republican Party delayed in its recovery and Jefferson's election to the
Presidency made impossible. Here again Fate worked, through the
blindness of those whose day had passed, the doom of Federalism. The
Federalists enacted the Alien and Sedition Laws and thus hastened their
own downfall.

Even after this legislation had given him a new, real, and irresistible
"issue," Jefferson still assailed the conduct of Marshall and Pinckney;
he was resolved that not a single Republican vote should be lost. Months
later he reviews the effect of the X. Y. Z. disclosures. When the envoys
were appointed, he asserts, many "suspected ... from what was understood
of their [Marshall's and Pinckney's] dispositions," that the mission
would not only fail, but "widen the breach and provoke our citizens to
consent to a war with" France "& union with England." While the envoys
were in Paris the Administration's hostile attitude toward France
alarmed the people; "meetings were held ... in opposition to war"; and
the "example was spreading like a wildfire."

Then "most critically for the government [Administration]," says
Jefferson, "the dispatches ... prepared by ... Marshall, with a view to
their being made public, dropped into their laps. It was truly a
God-send to them & they made the most of it. Many thousands of copies
were printed & dispersed gratis, at the public expense; & the zealots
for war co-operated so heartily, that there were instances of single
individuals who printed & dispersed 10. or 12,000 copies at their own
expense. The odiousness of the corruption supposed in those papers
excited a general & high indignation among the people."

Thus, declares Jefferson, the people, "unexperienced in such maneuvers,"
did not see that the whole affair was the work of "private swindlers"
unauthorized by "the French government of whose participation there was
neither proof nor probability." So "the people ... gave a loose [tongue]
to" their anger and declared "their honest preference of war to
dishonor. The fever was long & successfully kept up and ... war measures
as ardently crowded."[820]

Jefferson's deep political sagacity did not underestimate the revolution
in the thought and feelings of the masses produced by the outcome of the
French mission; and he understood, to a nicety, the gigantic task which
must be performed to reassemble and solidify the shattered Republican
ranks. For public sentiment was, for the time being, decidedly warlike.
"We will pay tribute to no nation; ... We shall water our soil with our
blood ... before we yield,"[821] was Troup's accurate if bombastic
statement of the popular feeling.

When the first ship with American newspapers containing the X. Y. Z.
dispatches reached London, they were at once "circulated throughout
Europe,"[822] and "produced everywhere much sensation favorable to the
United States and hostile to France."[823] The intimates of Talleyrand
and the Directory were "disappointed and chagrined.... Nothing can
exceed the rage of the apostate Americans, who have so long
misrepresented and disgraced their country at Paris."[824] From the
first these self-expatriated Americans had flattered Gerry and sent
swarms of letters to America about the good intentions of the
Directory.[825]

American diplomatic representatives abroad were concerned over
Gerry's whimsical character and conduct. "Gerry is yet in Paris!...
I ... fear ... that man's more than infantine weakness. Of it you
cannot have an idea, unless you had seen him here [The Hague] and at
Paris. Erase all the two lines above; it is true, but it is cruel. If
they get hold of him they will convert him into an innocent baby-engine
against the government."[826]

And now Gerry, with whom Talleyrand had been amusing himself and whose
conceit had been fed by American partisans of France in Paris, found
himself in sorry case. Talleyrand, with cynical audacity, in which one
finds much grim humor, peremptorily demands that Gerry tell him the
names of the mysterious "X., Y., and Z." With comic self-abasement, the
New Englander actually writes Talleyrand the names of the latter's own
agents whom Gerry had met in Talleyrand's presence and who the French
Minister personally had informed Gerry were dependable men.

The Federalists made the most of Gerry's remaining in Paris. Marshall
told them that Gerry had "suffered himself to be wheedled in
Paris."[827] "I ... rejoice that I voted against his appointment,"[828]
declared Sedgwick. Cabot denounced Gerry's "course" as "the most
dangerous that cou'd have been taken."[829] Higginson asserted that
"those of us who knew him [Gerry] regretted his appointment and expected
mischief from it; but he has conducted himself worse than we had
anticipated."[830] The American Minister to Great Britain, bitterly
humiliated, wrote to Hamilton that Gerry's "answer to Talleyrand's
demands of the names of X, Y, and Z, place him in a more degraded light
than I ever believed it possible that he or any other American citizen
could be exhibited."[831] And Thomas Pinckney feared "that to want of
[Gerry's] judgment ... may be added qualities of a more criminal
nature."[832]

Such sentiments, testifies Pickering, were common to all "the public men
whom I had heard speak of Mr. G."; Pinckney, Gerry's colleague, tells
his brother that he "never met with a man _so destitute of candour and
so full of deceit as Mr. Gerry_," and that this opinion was shared by
Marshall.[833] Troup wrote: "We have seen and read with the greatest
contempt the correspondence between Talleyrand and Mr. Gerry relative to
Messrs. X. Y. and Z.... I can say nothing honorable to [of] him [Gerry].
De mortuis nil nisi bonum is a maxim as applicable to him as if he was
in his grave."[834] Washington gave his opinion with unwonted mildness:
"Nothing can excuse his [Gerry's] _secret_ negotiations.... I fear ...
that _vanity_ which may have led him into the mistake--& consciousness
of being _duped_ by the _Diplomatic skill_ of our good and magnanimous
Allies are too powerful for a weak mind to overcome."[835]

Marshall was on tenter-hooks for fear that Gerry would not leave France
before the Directory got wind "of the present temper" of the American
people, and would hint to Gerry "insidious propositions ... not with
real pacific views but for the purpose of dividing the people of this
country and separating them from their government."[836] The peppery
Secretary of State grew more and more intolerant of Gerry. He tells
Marshall that "Gerry's correspondence with Talleyrand about W.[837] X.
Y. and Z: ... is the finishing stroke to his conduct in France, by which
he has dishonoured and injured his country and sealed his own indelible
disgrace."[838]

Marshall was disgusted with the Gerry-Talleyrand correspondence about
the names of "X. Y. Z.," and wrote Pickering of Gerry's dinner to
Talleyrand at which Hottenguer, Bellamy, and Hauteval were present and
of their corrupt proposition to Gerry in Talleyrand's presence.[839]
Pickering urged Marshall to write "a short history of the mission of the
envoys extraordinary," and asked permission to show Marshall's journal
to President Adams.[840]

Marshall is "unwilling," he says, "that my hasty journal, which I had
never even read over until I received it from you, should be shown to
him. This unwillingness proceeds from a repugnance to give him the
vexation which I am persuaded it would give him." Nevertheless, Adams
did read Marshall's Journal, it appears; for Cabot believed that "the
reading of Marshall's journal has compelled the P[resident] to ...
acquiesce in the unqualified condemnation of Gerry."[841]

On his return to America, Gerry writes a turgid letter defending himself
and exculpating Talleyrand and the Directory. The Secretary of State
sends Gerry's letter to Marshall, declaring that Gerry "ought to be
impeached."[842] It "astonishes me," replies Marshall; and while he
wishes to avoid altercation, he thinks "it is proper for me to notice
this letter," and encloses a communication to Gerry, together with a
"certificate," stating the facts of Gerry's now notorious dinner to
Talleyrand.[843]

Marshall is especially anxious to avoid any personal controversy at the
particular moment; for, as will presently appear, he is again running
for office. He tells Pickering that the Virginia Republicans are
"perfectly prepared" to use Gerry in any way "which can be applied to
their purposes"; and are ready "to receive him into their bosoms or to
drop him entirely as he may be French or American." He is so
exasperated, however, that he contemplates publishing the whole truth
about Gerry, but adds: "I have been restrained from doing so by my
having as a punishment for some unknown sins, consented to be nam'd a
candidate for the ensuing election to Congress."[844]

Finding himself so violently attacked in the press, Marshall says: "To
protect myself from the vexation of these newspaper altercations ... I
wish if it be possible to avoid appearing in print myself." Also he
makes the excuse that the courts are in session, and that "my absence
has plac'd my business in such a situation as scarcely to leave a moment
which I can command for other purposes."[845]

A week later Marshall is very anxious as to what course Gerry intends to
take, for, writes Marshall, publications to mollify public opinion
toward France and to irritate it against England "and to diminish the
repugnance to pay money to the French republic are appearing every
day."[846]

The indefatigable Republican chieftain had been busily inspiring attacks
upon the conduct of the mission and particularly upon Marshall. "You
know what a wicked use has been made of the ... X. Y. Z. dish cooked up
by Marshall, where the swindlers are made to appear as the French
government," wrote Jefferson to Pendleton. "Art and industry combined
have certainly wrought out of this business a wonderful effect on the
people." But "now that Gerry comes out clearing the French government of
that turpitude, ... the people will be disposed to suspect they have
been duped."

Because Marshall's dispatches "are too voluminous for them [the people]
and beyond their reach" Jefferson begs Pendleton to write a pamphlet
"recapitulating the whole story ... short, simple & levelled to every
capacity." It must be "so concise as omitting nothing material, yet may
be printed in handbills." Jefferson proposes to "print & disperse 10.
or 20,000 copies"[847] free of postage under the franks of Republican
Congressmen.

Pickering having referred scathingly to the Gerry-Talleyrand dinner,
Gerry writes the President, to deny Marshall's account of that function.
Marshall replies in a personal letter to Gerry, which, considering
Marshall's placid and unresentful nature, is a very whiplash of rebuke;
it closes, however, with the hope that Gerry "will think justly of this
subject and will thereby save us both the pain of an altercation I do so
wish to avoid."[848]

A few months later Marshall, while even more fixed than ever in his
contempt for Gerry, is mellower in expressing it. "I am grieved rather
than surprised at Mr. Gerry's letter," he writes.[849] So ended the only
incident in Marshall's life where he ever wrote severely of any man.
Although the unfriendliness between Jefferson and himself grew through
the years into unrelenting hatred on both sides, Marshall did not
express the intensity of his feeling. While his courage, physical and
moral, was perfect, he had no stomach for verbal encounters. He could
fight to the death with arms or arguments; but personal warfare by
tongue or pen was beyond or beneath him. Marshall simply could not scold
or browbeat. He was incapable of participating in a brawl.

Soon after reaching Richmond, the domestic Marshall again shines out
sunnily in a letter to his wife at Winchester, over the Blue Ridge. He
tells his "dearest Polly" that although a week has passed he has
"scarcely had time to look into any business yet, there are so many
persons calling every hour to see me.... The hot and disagreeable ride"
to Richmond had been too much for him, but "if I could only learn that
you were entirely restored I should be happy. Your Mama & friends are in
good health & your Mama is as cheerful as usual except when some
particular conversation discomposes her.

"Your sweet little Mary is one of the most fascinating little creatures
I ever beheld. She has improved very much since I saw her & I cannot
help agreeing that she is a substitute for her lovely sister. She talks
in a way not easily to be understood tho she comprehends very well
everything that is said to her & is the most coquettish little prude &
the most prudish little coquet I ever saw. I wish she was with you as I
think she would entertain you more than all the rest of your children
put together.

"Poor little John[850] is cutting teeth & of course is sick. He appeared
to know me as soon as he saw me. He would not come to me, but he kept
his eyes fixed on me as on a person he had some imperfect recollection
of. I expect he has been taught to look at the picture & had some
confused idea of a likeness. He is small & weakly but by no means an
ugly child. If as I hope we have the happiness to raise him I trust he
will do as well as the rest. Poor little fellow, the present hot weather
is hard on him cutting teeth, but great care is taken of him & I hope he
will do well.

"I hear nothing from you my dearest Polly but I will cherish the hope
that you are getting better & will indulge myself with expecting the
happiness of seeing you in October quite yourself. Remember my love to
give me this pleasure you have only to take the cold bath, to use a
great deal of exercise, to sleep tranquilly & to stay in cheerful
company. I am sure you will do everything which can contribute to give
you back to yourself & me. This hot weather must be very distressing to
you--it is to everybody--but it will soon be colder. Let me know in time
everything relative to your coming down. Farewell my dearest Polly. I am
your ever affectionate

"J. MARSHALL."[851]

On taking up his private business, Marshall found himself hard-pressed
for money. Payments for the Fairfax estate were overdue and he had no
other resources with which to meet them but the money due him upon his
French mission. "The disarrangement," he writes to the Secretary of
State, "produc'd by my absence and the dispersion of my family oblige me
to make either sales which I do not wish or to delay payments of money
which I ought not to delay, unless I can receive from the treasury. This
state of things obliges me to apply to you and to ask whether you can
furnish me either with an order from the Secretary of the Treasury on
Colo. Carrington or with your request to him to advance money to me. The
one or the other will be sufficient."[852]

Pickering writes Marshall that Carrington can safely advance him the
needed cash. "I will lose no time to place the balance in your
hands,"[853] says Pickering, upon the receipt of Marshall's statement of
his account with the Government.

The total amount paid Marshall for his eleven months' absence upon the
French mission was $19,963.97,[854] which, allowing five thousand
dollars for his expenses--a generous estimate--was considerably more
than three times as much as Marshall's annual income from his law
practice. It was an immense sum, considering the compensation of public
officials at that period--not much less than the annual salaries of the
President and his entire Cabinet; more than the total amount annually
paid to the justices of the Supreme Court. Thus, for the time being, the
Fairfax estate was saved.

It was still necessary, however, if he, his brother, and brother-in-law,
were to discharge the remaining payments, that Marshall should give
himself to the business of making money--to work much harder than ever
he had done before and than his natural inclinations prompted.
Therefore, no more of unremunerative public life for him--no more waste
of time in the Legislature. There never could, of course, come another
such "God-send," to use Marshall's phrase as reported by Jefferson,[855]
as the French mission; and few public offices, National or State,
yielded so much as he could make in the practice of his profession. Thus
financial necessity and his own desire settled Marshall in the resolve,
which he believed nothing ever could shake, to give the remainder of his
days to his personal and private business. But Fate had her own plans
for John Marshall and again overruled what he believed to be his fixed
and unalterable purpose.

FOOTNOTES:

[741] See summary in McMaster, ii, 374.

[742] Six copies of the dispatches of the American envoys to the
Secretary of State were sent by as many ships, so that at least one of
them might reach its destination.

[743] Jefferson to Madison, Jan. 25, 1798; _Works_: Ford, viii, 259.

[744] Jefferson to Madison, Feb. 15, 1798; _Works_: Ford, viii, 368.

[745] Skipwith to Jefferson, Paris, March 17, 1798; Gibbs, ii, 160.

[746] _Am. St. Prs., For. Rel._, ii, 152, 157, 159, 161, 166.

[747] _Ib._ The President at this time communicated only the first
dispatch, which was not in cipher. It merely stated that there was no
hope that the envoys would be received and that a new decree directed
the capture of all neutral ships carrying any British goods whatever.
(_Ib._, 157.)

[748] _Ib._, 152; Richardson, i, 264; and _Works_: Adams, ix, 156.

[749] Jefferson to Madison, March 21, 1798; _Works_: Ford, viii, 386.

[750] Jefferson to Monroe, March 21, 1798; _ib._, 388-89.

[751] Jefferson to Madison, March 29, 1798; _ib._, 392.

[752] Jefferson to Pendleton, April 2, 1798; _ib._, 394-97.

[753] _Aurora_, April 3, 1798.

[754] Otis to Mason, March 22, 1798; Morison, i, 90.

[755] Jonathan Mason to Otis, March 30, 1798; _ib._, 93. And see the
valuable New England Federalist correspondence of the time in _ib._

[756] _Aurora_, April 7, 1798. A week later, under the caption, "The
Catastrophe," the _Aurora_ began the publication of a series of ably
written articles excusing the conduct of the French officials and
condemning that of Marshall and Pinckney.

[757] Troup to King, June 3, 1798; King, ii, 329. Ten thousand copies of
the dispatches were ordered printed and distributed at public expense.
Eighteen hundred were sent to Virginia alone. (Pickering to Marshall,
July 24, 1798; Pickering MSS., Mass. Hist. Soc.) This was the beginning
of the printing and distributing of public documents by the National
Government. (Hildreth, ii, 217.)

[758] Pickering's statement, April 3, 1798; _Am. St. Prs._, ii, 157.

[759] Jefferson to Madison, April 5, 1798; _Works_: Ford, viii, 398.

[760] _Ib._

[761] Pickering to Jay, April 9, 1798; _Jay_: Johnston, iv, 236.

[762] Jefferson to Madison, April 26, 1798; _Works_: Ford, viii, 411.
Among the Republicans who deserted their posts Jefferson names Giles,
Nicholas, and Clopton.

[763] Jefferson to Madison, April 6, 1798; _ib._, 403.

[764] _Ib._, April 12, 1798; _ib._, 404.

[765] Jefferson to Carr, April 12, 1798; _Works_: Ford, viii, 405-06.

[766] Madison to Jefferson, April 15, 1798; _Writings_: Hunt, vi, 315.

[767] Washington to Pickering, April 16, 1798; _Writings_: Ford, xiii,
495.

[768] Washington to Hamilton, May 27, 1798; _ib._, xiv, 6-7.

[769] Sedgwick to King, May 1, 1798; King, ii, 319.

[770] Ames to Gore, Dec. 18, 1798; _Works_: Ames, i, 245-46.

[771] Troup to King, June 3, 1798; King, ii, 329.

[772] Jefferson to Madison, May 3, 1797, _Works_: Ford, viii, 413.

[773] Jefferson to Monroe, March 7, 1801; _ib._, ix, 203.

[774] Higginson to Pickering, June 26, 1798; Pickering MSS., Mass. Hist.
Soc.

[775] Jonathan Mason to Otis, May 28, 1798; Morison, i, 95-96.

[776] Troup to King, June 3, 1798; King, ii, 329.

[777] _Ib._, 330; and see letters of Bingham, Lawrence, and Cabot to
King, _ib._, 331-34. From the newspapers of the time, McMaster has drawn
a brilliant picture of the thrilling and dramatic scenes which all over
the United States marked the change in the temper of the people.
(McMaster, ii, 376 _et seq._)

[778] "Hail Columbia exacts not less reverence in America than the
Marseillaise Hymn in France and Rule Britannia in England." (Davis,
128.)

[779] Norfolk (Va.) _Herald_, June 25, 1798.

[780] Troup to King, June 23, 1798; King, ii, 349.

[781] Even Franklin's welcome on his first return from diplomatic
service in England did not equal the Marshall demonstration.

[782] A strenuously Republican environ of Philadelphia.

[783] _Gazette of the United States_, June 20, 1798; see also
Claypoole's _American Daily Advertiser_, Wednesday, June 20, 1798.

[784] _Gazette of the United States_, June 21, 1798.

[785] _Aurora_, June 21, 1798; and see _ib._, June 20.

[786] Jefferson to Madison, June 21, 1798; _Works_: Ford, viii, 439-40.

[787] General Marshall at O'Eller's Hotel, June 23, 1798; Jefferson
MSS., Lib. Cong.

[788] _Green Bag_, viii, 482-83.

[789] Marshall to Jefferson; Jefferson MSS., Lib. Cong.

[790] Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist.
Soc.

[791] This sentiment has been ascribed to General C. C. Pinckney,
Marshall's colleague on the X. Y. Z. mission. But it was first used at
the Philadelphia banquet to Marshall. Pinckney's nearest approach to it
was his loud, and wrathful, "No! not a sixpence!" when Hottenguer made
one of his incessant demands for money. (See _supra_, 273.)

[792] Claypoole's _American Daily Advertiser_, Wednesday, June 20, 1798;
Pa. Hist. Soc. The toasts drank at this dinner to Marshall illustrate
the popular spirit at that particular moment. They also furnish good
examples of the vocabulary of Federalism at the period of its revival
and only two years before its annihilation by Jefferson's new party:--

"1. The United States--'free, sovereign & independent.'

"2. The people and the Government--'one and indivisible.'

"3. The President--'some other hand must be found to sign the
ignominious deed' that would surrender the sovereignty of his
Country.

"4. General Washington--'His name a rampart & the Knowledge that
he lives a bulwark against mean and secret enemies of his
Country's Peace.'

"5. General Pinckney. ''Tis not in mortals to command success: He
has done more--deserved it.'

"6. The Officers & Soldiers of the American Army. 'May glory be
their Theme, Victory their Companion, & Gratitude & Love their
Rewards.'

"7. The Navy of the United States. 'May its infant efforts, like
those of Hercules, be the Presage of its future Greatness.'

"8. The Militia. 'May they never cease to combine the Valor of
the Soldier with the Virtues of the Citizen.'

"9. The Gallant Youth of America. 'May they disdain to hold as
Tenants at Will, the Independence inherited from their
ancestors.'

"10. The Heroes who fell in the Revolutionary War. 'May their
memory never be dishonored by a surrender of the Freedom
purchased with their Blood.'

"11. The American Eagle. 'May it regard with disdain the crowing
of the Gallic cock.'

"12. Union & Valour--infallible Antidotes against diplomatic
skill.

"13. Millions for Defense but not a cent for Tribute.

"14. The first duties of a good citizen--Reverence for the Laws
and Respect for the Magistracy.

"15. Agriculture & Commerce--A Dissolution of whose partnership
will be the Bankruptcy of both.

"16. The Constitution--'Esto Perpetua.'

"After General Marshall Retired:--

"General Marshall--The man whom his country delights to Honor."
(_Ib._, June 25, 1798.)

[793] Claypoole's _American Daily Advertiser_, Monday, June 25, 1798;
and _Gazette of the United States_, Saturday, June 23, 1798.

[794] _Ib._, June 25, 1798; and June 23, 1798.

[795] Adams to Congress, June 21, 1798; _Works_: Adams, ix, 158; and
Richardson, i, 266. Italics are mine.

[796] _Infra_, chap. XII.

[797] Marshall to Washington, June 22, 1798; MS., Lib. Cong.

[798] _Aurora_, June 30, 1798.

[799] _Gazette of the United States_, June 28, 1797.

[800] _Columbian Centinel_, Boston, Sept. 22, 1798.

[801] Norfolk (Va.) _Herald_, Aug. 30, 1798.

[802] Troup to King, Nov. 16, 1798; King, ii, 465; and see same to same,
July 10, 1798; _ib._, 363.

[803] Carey's _United States Recorder_, Aug. 16, 1798.

[804] McMaster, ii, 380-85; Hildreth, v, 203 _et seq._

[805] McMaster, ii, 380-85.

[806] "Oration of Robert Treat Paine to Young Men of Boston," July 17,
1799; in Works of _Robert Treat Paine_, ed. 1812, 301 _et seq._

[807] Washington to Murray, Aug. 10, 1798; _Writings_: Ford, xiv, 72.

[808] Norfolk (Va.) _Herald_, July 10, 1798.

[809] Washington to Jas. Marshall, July 18, 1798; MS., N.Y. Pub. Lib.
And see Washington to Murray, Aug. 10, 1798; _Writings_: Ford, xiv, 71.
"I ... hope that ... when the Despots of France find how much they ...
have been deceived by their partisans _among us_, ... that an appeal to
arms ... will be ... unnecessary." (_Ib._)

[810] Troup to King, July 10, 1798; King, ii, 362.

[811] Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158.

[812] _Supra_, chap. VIII.

[813] Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158.

[814] Washington to Adams, July 4, 1798; _Writings_: Ford, xiv, 15-19.

[815] See _infra_, chap. XII.

[816] See Marshall (1st ed.), v, footnote to 743; Hildreth, v, 218; also
McMaster, ii, 390.

[817] Jefferson to Carr, April 12, 1798; _Works_: Ford, viii, 405.

[818] Jefferson to Stuart, June 8, 1798; _ib._, 436.

[819] Washington to McHenry, May, 1798; _Writings_: Ford, xiii, footnote
to 495.

[820] Jefferson to Gerry, Jan. 26, 1799; _Works_: Ford, ix, 21-22.

[821] Troup to King, July 10, 1798; King, ii, 363.

[822] King to Hamilton, London, July 14, 1798; _ib._, 365.

[823] Smith to Wolcott, Lisbon, Aug. 14, postscript Aug. 17, 1798;
Gibbs, ii, 120.

[824] King to Troup, July 31, 1798; King, ii, 377.

[825] King to Pickering, July 19, 1798; _ib._, 370.

[826] Murray to J. Q. Adams, June 8, 1787; _Letters_: Ford, 416.

[827] Troup to King, July 10, 1798; King, ii, 363.

[828] Sedgwick to King, July 1, 1798; _ib._, 353.

[829] Cabot to King, July 2, 1798; _ib._, 353.

[830] Higginson to Wolcott, Sept. 11, 1798; Gibbs, ii, 107.

[831] King to Hamilton, London, July 14, 1798; King, ii, 365.

[832] Thomas Pinckney to King, July 18, 1798; King, ii, 369.

[833] Pickering to King, Sept. 15, 1798, quoting Pinckney; _ib._, 414.
Italics are Pinckney's.

[834] Troup to King, Oct. 2, 1798; _ib._, 432-33.

[835] Washington to Pickering, Oct. 26, 1798; _Writings_: Ford, xiv,
121.

[836] Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist.
Soc.

[837] Beaumarchais.

[838] Pickering to Marshall, Sept. 4, 1798; Pickering MSS., Mass. Hist.
Soc.

[839] Marshall to Secretary of State, Sept. 15, 1798; _ib._

[840] Pickering to Marshall, Oct. 19, 1798; _ib._

[841] Cabot to King, April 26, 1798; King, iii, 9.

[842] Pickering to Marshall, Nov. 5, 1798; Pickering MSS.

[843] Marshall to Pickering, Nov. 12, 1798; _ib._

[844] See next chapter.

[845] Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist.
Soc.

[846] Marshall to Pickering, Oct. 22, 1798; _ib._, Mass. Hist. Soc.,
xxiii, 251.

[847] Jefferson to Pendleton, Jan. 29, 1799; _Works_: Ford, ix, 27-28.

[848] Marshall to Pickering, November 12, 1798; Pickering MSS., Mass.
Hist. Soc.

[849] Marshall to Secretary of State, Feb. 19, 1799; _ib._

[850] Marshall's fourth child, born January 15, 1798, during Marshall's
absence in France.

[851] Marshall to his wife, Richmond, Aug. 18, 1798; MS. Mrs. Marshall
remained in Winchester, where her husband had hurried to see her after
leaving Philadelphia. Her nervous malady had grown much worse during
Marshall's absence. Mrs. Carrington had been "more than usual occupied
with my poor sister Marshall ... who fell into a deep melancholy. Her
husband, who might by his usual tenderness (had he been here) have
dissipated this frightful gloom, was long detained in France.... The
malady increased." (Mrs. Carrington to Miss C[airns], 1800; Carrington
MSS.)

[852] Marshall to Pickering, August 11, 1798; Pickering MSS., Mass.
Hist. Soc., xxiii, 33.

[853] Pickering to Marshall, Sept. 4, 1798; _ib._

[854] Archives, State Department. Thirty-five hundred dollars was placed
at Marshall's disposal when he sailed for France, five hundred dollars
in specie and the remainder by letter of credit on governments and
European bankers. (Marshall to Secretary of State, July 10, 1797;
Pickering MSS. Also Archives, State Department.) He drew two thousand
dollars more when he arrived at Philadelphia on his return (June 23;
_ib._), and $14,463.97 on Oct. 13 (_ib._).

[855] The "Anas"; _Works_: Ford, i, 355.

CHAPTER X

CANDIDATE FOR CONGRESS

Of the three envoys, the conduct of General Marshall alone has
been entirely satisfactory. (Adams.)

In heart and sentiment, as well as by birth and interest, I am an
American. We should make no political connection with any nation
on earth. (Marshall to constituents.)

Tell Marshall I love him because he felt and acted as a Republican
and an American. (Patrick Henry.)

In the congressional campaign of 1798-99, the Federalists of the
Richmond District were without a strong candidate. The one they had put
up lacked that personal popularity which then counted for as much in
political contests as the issues involved. Upon Marshall's return from
France and his enthusiastic reception, ending with the Richmond
demonstration, the Federalist managers pressed Marshall to take the
place of the candidate then running, who, indeed, was anxious to
withdraw in his favor. But the returned envoy refused, urged the
Federalist then standing to continue his candidacy, and pledged that he
would do all in his power to secure his election.

Finally Washington asked Marshall to come to see him. "I received an
invitation from General Washington," writes Marshall in his account of
this important event, "to accompany his nephew ... on a visit to Mount
Vernon."[856]

When Bushrod Washington wrote that Marshall accepted the invitation, the
General was extremely gratified. "I learnt with much pleasure ... of
General Marshall's intention to make me a visit," he writes his nephew.
"I wish it of all things; and it is from the ardent desire I have to see
him that I have not delayed a moment to express it.... The crisis is
most important.... The temper of the people in this state ... is so
violent and outrageous that I wish to converse with General Marshall and
yourself on the elections which must soon come."[857] Washington says
that when his visitors arrive the matter of the fictitious Langhorne
letter will also be taken up "and we will let General Marshall into the
whole business and advise with him thereon."[858]

To Mount Vernon, therefore, Marshall and his companion journeyed on
horseback. For convenience in traveling, they had put their clothing in
the same pair of saddle-bags. They arrived in a heavy rain and were
"drenched to the skin." Unlocking the saddle-bags, the first article
they took out was a black bottle of whiskey. With great hilarity each
charged this to be the property of the other. Then came a thick twist of
tobacco, some corn bread, and finally the worn apparel of wagoners; at
some tavern on the way their saddle-bags had become exchanged for those
of drivers. The rough clothes were grotesque misfits; and when, clad in
these, his guests presented themselves, Washington, roaring with
laughter, expressed his sympathy for the wagoners when they, in turn,
discovered the exchange they had made with the lawyers.[859] In such
fashion began the conference that ended in John Marshall's candidacy for
Congress in the vital campaign of 1798-99.

This was the first time, so far as is known, that Marshall had visited
Washington at his Potomac home. No other guest except Washington's
nephew seems to have been present at this conference, so decisive of
Marshall's future. The time was September, 1798, and the conversations
were held on the broad piazza,[860] looking out upon the river, with the
new Capitol almost within sight. There, for "four or five days," his old
commander used all his influence to induce Marshall to become the
Federalist candidate.

"General Washington urged the importance of the crisis," writes Marshall
in describing the circumstance; "every man," insisted Washington, "who
could contribute to the success of sound opinions was required by the
most sacred duty to offer his services to the public." Marshall doubted
his "ability to do any good. I told him that I had made large pecuniary
engagements which required close attention to my profession and which
would distress me should the emoluments derived from it be abandoned."

Marshall told of his promise to the Federalist candidate who was then
making his campaign for election. Washington declared that this
candidate still would withdraw in Marshall's favor; but Marshall
remained unshaken. Finally Washington gave his own conduct as an
example. Marshall thus describes the final appeal which his old leader
made to him: "He had withdrawn from office with a declaration of his
determination never again, under any circumstances, to enter public
life. No man could be more sincere in making that declaration, nor could
any man feel stronger motives for adhering to it. No man could make a
stronger sacrifice than he did in breaking a resolution, thus publicly
made, and which he had believed to be unalterable. Yet I saw him,"
continues Marshall, "in opposition to his public declaration, in
opposition to his private feelings, consenting, under a sense of duty,
to surrender the sweets of retirement, and again to enter the most
arduous and perilous station which an individual could fill. My
resolution yielded to this representation."[861]

There is a tradition that, at one point in the conference, Marshall,
becoming offended by Washington's insistence, which, runs the story,
took the form of a peremptory and angrily expressed command, determined
to leave so early in the morning that his host would have no opportunity
to press the matter further; but, Washington noting Marshall's
irritation and anticipating his purpose, was on the piazza when his
departing guest appeared at dawn, and there made the final appeal which
won Marshall's reluctant consent.

Marshall felt that he was making a heavy personal sacrifice; it meant to
him the possible loss of the Fairfax estate. As we have seen, he had
just declined appointment to the Supreme Bench[862] for this very
reason, and this place later was given to Bushrod Washington, largely on
Marshall's advice.[863] Adams had been reluctant to give Marshall up as
one of the Associate Justices of the Supreme Court; "General Marshall or
Bushrod Washington will succeed Judge Wilson," wrote the President to
his Secretary of State[864] nearly three months after the first tender
of the place to Marshall in Philadelphia. Later on the President again
returned to Marshall.

"I still think that General Marshall ought to be preferred," he wrote.
"Of the three envoys, the conduct of Marshall alone has been entirely
satisfactory, and ought to be marked by the most decided approbation of
the public. He has raised the American people in their own esteem, and,
if the influence of truth and justice, reason and argument is not lost
in Europe, he has raised the consideration of the United States in that
quarter of the world.... If Mr. Marshall should decline, I should next
think of Mr. [Bushrod] Washington."[865]

Washington's appeal to Marshall's patriotism and sense of duty, however,
outbalanced the weighty financial reasons which decided him against
becoming an Associate Justice of the Supreme Court. Thus, against his
desire, he found himself once more in the hurly-burly of partisan
politics. But this time the fight which he was forced to lead was to be
desperate, indeed.

The moment Marshall announced his candidacy he became the center of
Republican attack in Virginia. The virulence of the campaign against him
was so great that it has become a tradition; and while scarcely any of
the personal assaults, which appeared in print, are extant, they are
known to have been ruthless, and utterly unrestrained both as to the
charges made and the language used in making them.

In his scurrilous review of Adams's Administration, which Adams properly
denounced as "a Mass of Lyes from the first page to the last,"[866] John
Wood repeats the substance of some of the attacks which, undoubtedly,
were launched against Marshall in this bitter political conflict. "John
Marshall," says Wood, "was an improper character in several respects;
his principles of aristocracy were well known. Talleyrand, when in
America, knew that this man was regarded as a royalist and not as a
republican, and that he was abhorred by most honest characters."[867]

The abuse must have been very harsh and unjust; for Marshall, who seldom
gave way to resentment, complained to Pickering with uncharacteristic
temper. "The whole malignancy of Anti-federalism," he writes, "not only
in the district, where it unfortunately is but too abundant, but
throughout the State, has become uncommonly active and considers itself
as peculiarly interested in the reëlection of the old member [Clopton].

"The Jacobin presses, which abound with us and only circulate within the
State, teem with publications of which the object is to poison still
further the public opinion and which are level'd particularly at me.
Anything written by me on the subject of French affairs wou'd be
ascrib'd to me, whether it appear'd with or without my signature and
wou'd whet and sharpen up the sting of every abusive scribbler who had
vanity enough to think himself a writer because he cou'd bestow personal
abuse and cou'd say things as malignant as they are ill founded."[868]

The publication of the American envoys' dispatches from France, which
had put new life into the Federalist Party, had also armed that decaying
organization with enough strength to enact the most imprudent measures
that its infatuated leaders ever devised. During June and July, 1798,
they had succeeded in driving through Congress the famous Alien and
Sedition Laws.[869]

The Alien Act authorized the President to order out of the country all
aliens whom he thought "dangerous" or "suspected" of any "treasonable or
secret machination against the government" on pain of imprisonment not
to exceed three years and of being forever afterwards incapacitated from
becoming citizens of the United States. But if the alien could prove to
the satisfaction of the President that he was not dangerous, a
presidential "license" might be granted, permitting the alien to remain
in the United States as long as the President saw fit and in such place
as he might designate. If any expelled alien returned without permission
he was to be imprisoned as long as the President thought "the public
safety may require."

The Sedition Act provided penalties for the crime of unlawful
combination and conspiracy against the Government;[870] a fine not
exceeding two thousand dollars and imprisonment not exceeding two years
for any person who should write, print, publish, or speak anything
"false, scandalous and malicious" against the Government, either House
of Congress, or the President "with intent to defame" the Government,
Congress, or the President, or "to bring them or either of them into
contempt or disrepute; or to excite against them or either or any of
them the hatred of the good people of the United States, or to stir up
sedition within the United States."

When Jefferson first heard of this proposed stupid legislation, he did
not object to it, even in his intimate letters to his lieutenant
Madison.[871] Later, however, he became the most ferocious of its
assailants. Hamilton, on the other hand, saw the danger in the Sedition
Bill the moment a copy reached him: "There are provisions in this
bill ... highly exceptionable," he wrote. "I hope sincerely the thing
may not be hurried through. Let us not establish a tyranny. Energy is a
very different thing from violence."[872] When Madison got the first
inkling of the Alien Bill, he wrote to Jefferson that it "is a monster
that must forever disgrace its parents."[873]

As soon as the country learned what the Alien and Sedition Laws
contained, the reaction against the Federalist Party began. In vain did
the Federalists plead to the people, as they had urged in the debate in
Congress, that these laws were justified by events; in vain did they
point out the presence in America of large numbers of foreigners who
were active and bitter against the American Government; in vain did they
read to citizens the abuse published in newspapers against the
Administration and cite the fact that the editors of these libelous
sheets were aliens.[874]

The popular heart and instinct were against these crowning blunders of
Federalism. Although the patriotic wave started by Marshall's return and
the X. Y. Z. disclosures was still running strong, a more powerful
counter-current was rising. "Liberty of the press," "freedom of speech,"
"trial by jury" at once became the watchwords and war-cries of
Republicanism. On the hustings, in the newspapers, at the taverns, the
Alien and Sedition Laws were denounced as unconstitutional--they were
null and void--no man, much less any State, should obey or respect them.

The Alien Law, said its opponents, merged the Judicial and the Executive
Departments, which the Constitution guaranteed should be separate and
distinct; the Sedition Act denied freedom of speech, with which the
Constitution expressly forbade Congress to interfere; both struck at the
very heart of liberty--so went the Republican argument and appeal.[875]

In addition to their solid objections, the Republicans made delirious
prophecies. The Alien and Sedition Laws were, they asserted, the
beginning of monarchy, the foundation of absolutism. The fervid
Jefferson indulged, to his heart's content, in these grotesque
predictions: "The alien & sedition laws are working hard," declared the
great Republican. Indeed, he thought them only "an experiment on the
American mind to see how far it will bear an avowed violation of the
constitution. If this goes down, we shall immediately see attempted
another act of Congress declaring that the President shall continue in
office during life, reserving to another occasion the transfer of the
succession to his heirs, and the establishment of the Senate for
life.... That these things are in contemplation, I have no doubt; nor
can I be confident of their failure, after the dupery of which our
countrymen have shewn themselves susceptible."[876]

Washington was almost as extravagant on the other side. When an opponent
of the Alien and Sedition Acts asked him for his opinion of them, he
advised his questioner to read the opposing arguments "and consider to
what lengths a certain description of men in our country have already
driven and seem resolved further to drive matters" and then decide
whether these laws are not necessary, against those "who acknowledge no
allegiance to this country, and in many instances are sent among us ...
for the express purpose of poisoning the minds of our people,--and to
sow dissensions among them, in order to alienate their affections from
the government of their choice, thereby endeavoring to dissolve the
Union."[877]

Washington thought that the ferocious Republican attack on the Alien and
Sedition Laws was but a cunning maneuver of politicians, and this,
indeed, for the moment at least, seems to have been the case. "The Alien
and Sedition Laws are now the desiderata of the Opposition.... But any
thing else would have done,--and something there will always be, for
them to torture; and to disturb the public mind with their unfounded and
ill favored forebodings" was his pessimistic judgment.[878]

He sent "to General Marshall Judge Addison's charge to the grand juries
of the county courts of the Fifth Circuit of the State of
Pennsylvania.... This charge is on the liberty of speech and of the
press and is a justification of the sedition and alien laws. But," wrote
Washington, "I do not believe that ... it ... or ... any other writing
will produce the least change in the conduct of the leaders of the
opposition to the measures of the general government. They have points
to carry from which no reasoning, no consistency of conduct, no
absurdity can divert them. If, however, such writings should produce
conviction in the mind of those who have hitherto placed faith in their
assertions, it will be a fortunate event for this country."[879]

Marshall had spoken in the same vein soon after his arrival at Richmond.
"The people ... are pretty right as it respects France," he reports to
the Secretary of State. The Republican criticisms of the X. Y. Z.
mission "make so little impression that I believe France will be given
up and the attack upon the government will be supported by the alien and
sedition laws. I am extremely sorry to observe that here they are more
successful and that these two laws, especially the sedition bill, are
viewed by a great many well meaning men, as unwarranted by the
constitution.

"I am entirely persuaded that with many the hate of Government of our
country is implacable and that if these bills did not exist the same
clamor would be made by them on some other account, but," truthfully and
judicially writes Marshall, "there are also many who are guided by very
different motives, and who tho' less noisy in their complaints are
seriously uneasy on this subject."[880]

The Republicans pressed Marshall particularly hard on the Alien and
Sedition Laws, but he found a way to answer. Within a few days after he
had become the Federalist candidate, an anonymous writer, signing
himself "Freeholder," published in the Richmond newspapers an open
letter to Marshall asking him whether he was for the Constitution;
whether the welfare of America depended on a foreign alliance; whether a
closer connection with Great Britain was desirable; whether the
Administration's conduct toward France was wise; and, above all,
whether Marshall was "an advocate of the alien and sedition bills or in
the event of your election will you use your influence to obtain a
repeal of these laws?"

In printing Marshall's answers to "Freeholder," the "Times and Virginia
Advertiser" of Alexandria remarked: "Mr. John Marshall has offered as a
candidate for a representative in the next Congress. He has already
begun his electioneering campaign. The following are answers to some
queries proposed to him. Whether the queries were propounded with a view
of discovering his real sentiments, or whether they were published by
one of his friends to serve electioneering purposes, is immaterial:--The
principles Mr. Marshall professes to possess are such as influence the
conduct of every real American."[881]

A week later Marshall published his answers. "Every citizen," says he,
"has a right to know the political sentiments of a candidate"; and
besides, the candidate wishes everybody to know his "real principles"
and not "attribute" to him "those with which active calumny has ...
aspersed" him. In this spirit Marshall answers that "in heart and
sentiment, as well as by birth and interest," he is "an American;
attached to the ... Constitution ... which will preserve us if we
support it firmly."

He is, he asserts, against any alliance, "offensive or defensive," with
Great Britain or "any closer connection with that nation than already
exists.... No man in existence is more decidedly opposed to such an
alliance or more fully convinced of the evils that would result from
it." Marshall declares that he is for American neutrality in foreign
wars; and cites his memorial to Talleyrand as stating his views on this
subject.

"The whole of my politics respecting foreign nations, are reducible to
this single position: ... Commercial intercourse with all, but political
ties with none ... buy as cheap and sell as dear as possible ... never
connect ourselves politically with any nation whatever."

He disclaims the right to speak for the Administration, but believes it
to have the same principles. If France, while at war with Great Britain,
should also make war on America, "it would be madness and folly" not to
secure the "aid of the British fleets to prevent our being invaded";
but, not even for that, would he "make such a sacrifice as ... we should
make by forming a permanent political connection with ... any nation on
earth."

Marshall says that he believes the Administration's policy as regards
France to have been correct, and necessary to the maintenance "of the
neutrality and independence of our country." Peace with France was not
possible "without sacrificing those great objects," for "the primary
object of France is ... dominion over others." The French accomplish
this purpose by "immense armies on their part and divisions among ...
those whom they wish to subdue."

Marshall declares that he is "not an advocate of the Alien and Sedition
Bills," and, had he been in Congress, "certainly would have opposed
them," although he does not "think them fraught with all those mischiefs
ascribed to them." But he thinks them "useless ... calculated to create
unnecessary discontents and jealousies"; and that, too, "at a time when
our very existence as a nation may depend on our union."

He believes that those detested laws "would never have been enacted" if
they had been opposed on these principles by a man not suspected of
intending to destroy the government or being hostile to it." The effort
to repeal them "will be made before he can become a member of Congress";
if it fails and is renewed after he takes his seat, he "will obey the
voice of his constituents." He thinks, however, it will be unwise to
revive the Alien and Sedition Acts which are, by their own terms, about
to expire; and Marshall pledges that he will "indisputably oppose their
revival."[882]

Upon Marshall as their favorite candidate for Congress, the eyes of the
Federalist leaders in other States were focused. They were particularly
anxious and uncertain as to his stand on the Alien and Sedition Laws;
for he seems to have privately expressed, while in Philadelphia on his
return from France, a mild disapproval of the wisdom and political
expediency of this absurd legislation. His answers to "Freeholder" were
therefore published everywhere. When the New England Federalists read
them in the "Columbian Centinel" of Saturday, October 20, most of them
were as hot against Marshall as were the rabid Virginia Republicans.

Ames whetted his rhetoric to razor edge and slashed without mercy. He
describes Republican dismay when Marshall's dispatches were published:
"The wretches [Republicans] looked round, like Milton's devils when
first recovering from the stunning force of their fall from Heaven, to
see what new ground they could take." They chose, says Ames, "the
alien and sedition bills, and the land tax" with which to arouse
discontent and revive their party. So "the implacable foes of the
Constitution--foes before it was made, while it was making, and
since--became full of tender fears lest it should be violated by
the alien and sedition laws."

The Federalists, complained Ames, "are forever hazarding the cause by
heedless and rash concessions. John Marshall, with all his honors in
blossom and bearing fruit, answers some newspaper queries unfavorably to
these laws.... No correct man,--no incorrect man, even,--whose
affections and feelings are wedded to the government, would give his
name to the base opposers of the law.... This he has done. Excuses may
palliate,--future zeal in the cause may partially atone,--but his
character is done for.... Like a man who in battle receives an ounce
ball in his body--it may heal, it lies too deep to be extracted....
There let it lie. False Federalists, or such as act wrong from false
fears, should be dealt hardly by, if I were Jupiter Tonans.... The
moderates [like Marshall] are the meanest of cowards, the falsest of
hypocrites."[883] Theodore Sedgwick declared that Marshall's "mysterious
& unpardonable" conduct had aided "french villainy" and that he had
"degraded himself by a mean & paltry electioneering trick."[884]

At first, the Republicans praised Marshall's stand; and this made the
New England Federalists frantic. Cabot, alone, defended Marshall in the
press, although not over his own name and only as a matter of party
tactics. He procured some one to write to the "Columbian Centinel" under
the name of "A Yankee Freeholder." This contributor tried to explain
away Marshall's offense.

"General Marshall is a citizen too eminent for his talents, his virtues
and his public services, to merit so severe a punishment as to [receive
the] applause of disorganizers [Republicans]." He should be saved from
the "admiration of the _seditious_"--that much was due to Marshall's
"spirit, firmness and eloquence" in the contest with "the Despots of
_France_." As "drowning men would catch at straws" so "the eagle-eyed
and disheartened sons of faction" had "with forlorn and desperate ...
avidity ... seized on" Marshall's answers to "Freeholder."

And no wonder; for "even _good men_ have stood appalled, at observing a
man whom they so highly venerate soliciting votes at the expense of
principles which they deem sacred and inviolable." "Yankee Freeholder"
therefore proposes "to vindicate General MARSHALL."

Marshall was the only Richmond Federalist who could be elected; he
"patriotically" had consented to run only because of "the situation and
danger of his country at this moment." Therefore "it was absolutely
necessary to take all the ordinary steps" to succeed. This "may appear
extraordinary ... to those who are only acquainted with the delicacy of
_New England_ elections where _personal_ solicitation is the
Death-warrant to success"; but it was "not only pardonable but
necessary ... in the Southern States."

"Yankee Freeholder" reminded his readers that "Calumny had assailed
General MARSHALL, in common with other men of merit." Virginia
newspapers had "slandered him"; politicians had called him
"_Aristocrat_, _Tory_, and _British Agent_. All this abuse ... would
infallibly have rendered him popular in _New-England_"--but not so in
"_Virginia_," where there were "too many ignorant, ill-informed and
inflamed minds."

Therefore, "it became necessary that General MARSHALL should explicitly
exhibit his political creed." After all, his answers to "Freeholder"
were not so bad--he did not assail the constitutionality of the Alien
and Sedition Laws. "If Gen. MARSHALL thought them unconstitutional or
dangerous to liberty, would he" be content merely to say they were
unnecessary? "Would a man of General MARSHALL'S force of reasoning,
simply denominate _laws useless_," if he thought them unconstitutional?
"No--the idea is too absurd to be indulged.... Time and General
MARSHALL'S conduct will hereafter prove that I am not mistaken in my
opinion of his sentiments."[885]

Cabot's strategy had little effect on New England, which appeared to
dislike Virginia with a curious intolerance. The Essex County
politician, nevertheless, stood by his guns; and six months later thus
reassures King: "I am ready to join you as well as Ames in reprobating
the publication of Marshall's sentiments on the Sedition & Alien Acts,
but I still _adhere_ to my first opinion that Marshall ought not to be
attacked in the Newspapers, nor too severely condemned anywhere, because
Marshall has not yet learned his whole lesson, but has a mind &
disposition which can hardly fail to make him presently an accomplished
(political) Scholar & a very useful man.

"Some allowance too should be made," contends Cabot, "for the influence
of the Atmosphere of Virginia which doubtless makes every one who
breathes it visionary &, upon the subject of Free Govt., incredibly
credulous; but it is certain that Marshall at Phila. would become a most
powerful auxiliary to the cause of order & good Govt., & _therefore_ we
ought not to diminish his fame which wou'd ultimately be a loss to
ourselves."[886]

The experienced practical politician, Sedgwick, correctly judged that
"Freeholder's" questions to Marshall and Marshall's answers were an
"electioneering trick." But Pickering stoutly defended Marshall upon
this charge. "I have not met with one good federalist, who does not
regret his answers to the Freeholder; but I am sorry that it should be
imagined to be an 'electioneering trick.'... General Marshall is
incapable of doing a dishonorable act." Only Marshall's patriotism had
induced him to accept the French mission, said the Secretary of
State.[887] Nothing but "the urging of friends ... overcame his
reluctance to come to Congress.... A man of untainted honor," had
informed Pickering that "Marshall is a _Sterling fellow_."[888]

The Federalists' complaints of him continued to be so strong and
widespread, however, that they even reached our legations in Europe: "I
too have lamented that John Marshall, after such a mission particularly,
should lend himself thus against a law which the French Jacobinism in
the United States had forced government to adopt. M[arshall] _before_,
was not, that we ever heard of, one of us."[889]

Toward the end of October Marshall gives his private opinion of the
Virginia Republicans and their real motives, and foretells the Virginia
Resolutions. "The real french party of this country again begins to
show itself," he writes. "There are very many indeed in this part of
Virginia who speak of our own government as an enemy infinitely more
formidable and infinitely more to be guarded against than the French
Directory. Immense efforts are made to induce the legislature of the
state which will meet in Dec'r to take some violent measure which may be
attended with serious consequences. I am not sure that these efforts
will entirely fail. It requires to be in this part of Virginia to know
the degree of irritation which has been excited and the probable extent
of the views of those who excite it."[890]

The most decent of the attacks on Marshall were contained in a series of
open letters first published in the "Aurora"[891] and signed "Curtius."

"You have long been regarded," writes Curtius, "as the leader of that
party in this State" which has tried "by audacious efforts to erect a
monarchy or aristocracy upon the ruins of our free constitution. The
energy of your mind and the violence of your zeal have exalted you to
this bad eminence." If you had "employed your talents in defense of the
people ... your history would have been read in a nation's eyes."

"The publication of your dispatches and the happy exercise of diplomatic
skill has produced a momentary delusion and infatuation in which an
opposition to the administration is confounded with hostility to the
government and treason to the country.... The execrations and yells
against French cruelty and French ambition, are incessantly kept up by
the hirelings of Great Britain and the enemies of liberty."

But, he cries, "the vengeance of an oppressed and insulted people is
almost as terrible as the wrath of Heaven"; and, like a true partisan,
Curtius predicts that this is about to fall on Marshall. Why, he asks,
is Marshall so vague on the constitutionality of the Alien and Sedition
Laws?[892] "Notwithstanding the magnitude ... of your talents, you are
ridiculously awkward in the arts of dissimulation and hypocrisy.... It
is painful to attack ... a man whose talents are splendid and whose
private character is amiable"; but "sacred duties ... to the cause of
truth and liberty require it." Alas for Marshall! "You have lost
forever," Curtius assures him, "the affection of a nation and the
applause of a world. In vain will you pursue the thorny and rugged path
that leads to fame."[893]

But while "monarchist," "aristocrat," "British agent," "enemy of free
speech," "destroyer of trial by jury" were among the more moderate
epithets that filled the air from Republican lips; and "anarchist,"
"Frenchman," "traitor," "foe of law and order," "hater of government"
were the milder of the counter-blasts from the Federalists, all this was
too general, scattered, and ineffective to suit the leader of the
Republican Party. Jefferson saw that the growing popular rage against
the Alien and Sedition Laws must be gathered into one or two
concentrated thunderbolts and thus hurled at the heads of the already
quaking Federalists.

How to do it was the question to which Jefferson searched for an answer.
It came from the bravest, most consistent, most unselfish, as well as
one of the very ablest of Republicans, John Taylor "of Caroline,"
Virginia. In a letter to Jefferson concerning the Alien and Sedition
Laws, this eminent and disinterested radical suggested that "_the right
of the State governments to expound the constitution_ might possibly be
made the basis of a movement towards its amendment. If this is
insufficient the people in state conventions are incontrovertibly the
contracting parties and, possessing the infringing rights, may proceed
by orderly steps to attain the object."[894]

So was planted in Jefferson's mind the philosophy of secession. In that
fertile and receptive soil it grew with magic rapidity and bore fatal
fruit. Within two months after he received Taylor's letter, Jefferson
wrote the historic resolutions which produced a situation that, a few
years afterward, called forth Marshall's first great constitutional
opinion, and, not many decades later, gave the battle-cry that rallied
heroic thousands to armed resistance to the National Government.[895] On
October 5, 1798, Nicholas writes Jefferson that he has delivered to "Mr.
John Breckenridge a copy of the resolutions that you sent me."[896] They
were passed by the Legislature of Kentucky on November 14, 1798; and the
tremendous conflict between Nationality and States' Rights, which for so
long had been preparing, at last was formally begun.[897] Jefferson's
"Kentucky Resolutions" declared that parts of the Alien and Sedition
Laws were "altogether void and of no effect."[898] Thus a State
asserted the "right" of any or all States to annul and overthrow a
National law.

As soon as Kentucky had acted, Jefferson thus writes Madison: "I enclose
you a copy of the draught of the Kentucky resolves. I think we should
distinctly affirm all the important principles they contain so as to
hold that ground in future, and leave the matter in such a train as that
we may not be committed absolutely to push the matter to extremities, &
yet may be free to push as far as events will render prudent."[899]

Madison accordingly drew the resolutions adopted by the Legislature of
Virginia, December 21, 1798. While declaring the Alien and Sedition Laws
unconstitutional, the Virginia Resolutions merely appealed to the other
States to "co-operate with this state in maintaining unimpaired the
authority, rights, and liberties reserved to the states respectively or
to the people."[900]

The Legislature promptly adopted them and would gladly have approved far
stronger ones. "The leaders ... were determined upon the overthrow of
the General Government; and if no other measure would effect it, that
they would risk it upon the chance of war.... Some of them talked of
'seceding from the Union,'"[901] Iredell writes his wife: "The General
Assembly of Virginia are pursuing steps which directly lead to a civil
war; but there is a respectable minority struggling in defense of the
General Government, and the Government itself is fully prepared for
anything they can do, resolved, if necessary, to meet force with
force."[902] Marshall declared that he "never saw such intemperance as
existed in the V[irginia] Assembly."[903]

Following their defiant adoption of Madison's resolutions, the
Republican majority of the Legislature issued a campaign pamphlet, also
written by Madison,[904] under the form of an address to the people. The
"guardians of State Sovereignty would be perfidious if they did not
warn" the people "of encroachments which ... may" result in "usurped
power"; the State Governments would be "precipitated into impotency and
contempt" in case they yielded to such National laws as the Alien and
Sedition Acts; if like "infractions of the Federal Compact" were
repeated "until the people arose ... in the majesty of their strength,"
it was certain that "the way for a revolution would be prepared."

The Federalist pleas "to disregard usurpation until foreign danger shall
have passed" was "an artifice which may be forever used," because those
who wished National power extended "can ever create national
embarrassments to soothe the people to sleep whilst that power is
swelling, silently, secretly and fatally."

Such was the Sedition Act which "commits the sacrilege of arresting
reason; ... punishes without trial; ... bestows on the President
despotic powers ... which was never expected by the early friends of
the Constitution." But now "Federal authority is deduced by implication"
by which "the states will be stript of every right reserved." Such
"tremendous pretensions ... inflict a death wound on the Sovereignty of
the States." Thus wrote the same Madison who had declared that nothing
short of a veto by the National Government on "any and every act of the
states" would suffice. There was, said Madison's campaign document, no
"specified power" in the National Government "embracing a right against
freedom of the press"--that was a "constitutional" prerogative of the
States.

"Calumny" could be redressed in the State courts; but "usurpation can
only be controuled by the act of society [revolution]." Here Madison
quotes _verbatim_ and in italics from Marshall's second letter to
Talleyrand in defense of the liberty of the press, without, however,
giving Marshall credit for the language or argument.[905] Madison's
argument is characteristically clear and compact, but abounds in
striking phrases that suggest Jefferson.[906]

This "Address" of the Virginia Legislature was aimed primarily at
Marshall, who was by far the most important Federalist candidate for
Congress in the entire State. It was circulated at public expense and
Marshall's friends could not possibly get his views before the people so
authoritatively or so widely. But they did their best, for it was plain
that Madison's Jeffersonized appeal, so uncharacteristic of that former
Nationalist, must be answered. Marshall wrote the reply[907] of the
minority of the Legislature, who could not "remain silent under the
unprecedented" attack of Madison. "Reluctantly," then, they "presented
the present crisis plainly before" the people.

"For ... national independence ... the people of united America" changed
a government by the British King for that of the Constitution. "The will
of the majority produced, ratified, and conducts" this constitutional
government. It was not perfect, of course; but "the best rule for
freemen ... in the opinion of our ancestors, was ... that ... of
obedience to laws enacted by a majority of" the people's
representatives.

Two other principles "promised immortality" to this fundamental idea:
power of amendment and frequency of elections. "Under a Constitution
thus formed, the prosperity of America" had become "great and
unexampled." The people "bemoaned foreign war" when it "broke out"; but
"they did not possess even a remote influence in its termination." The
true American policy, therefore, was in the "avoiding of the existing
carnage and the continuance of our existing happiness." It was for this
reason that Washington, after considering everything, had proclaimed
American Neutrality. Yet Genêt had "appealed" to the people "with
acrimony" against the Government. This was resented "for a while only"
and "the fire was rekindled as occasion afforded fuel."

Also, Great Britain's "unjustifiable conduct ... rekindled our ardor for
hostility and revenge." But Washington, averse to war, "made his last
effort to avert its miseries." So came the Jay Treaty by which "peace
was preserved with honor."

Marshall then reviews the outbursts against the Jay Treaty and their
subsidence. France "taught by the bickerings of ourselves ... reëchoed
American reproaches with French views and French objects"; as a result
"our commerce became a prey to French cruisers; our citizens were
captured" and British outrages were repeated by the French, our "former
friend ... thereby committing suicide on our national and individual
happiness."

Emulating Washington, Adams had twice striven for "honorable"
adjustment. This was met by "an increase of insolence and affront." Thus
America had "to choose between submission ... and ... independence. What
American," asks Marshall, "could hesitate in the option?" And, "the
choice being made, self-preservation commanded preparations for
self-defense....--the fleet, ... an army, a provision for the removal
of dangerous aliens and the punishment of seditious citizens." Yet
such measures "are charged with the atrocious design of creating a
monarchy ... and violating the constitution." Marshall argues that
military preparation is our only security.

"Upon so solemn an occasion what curses would be adequate," asks
Marshall, "to the supineness of our government, if militia were the
only resort for safety, against the invasion of a veteran army, flushed
with repeated victories, strong in the skill of its officers, and led by
distinguished officers?" He then continues with the familiar arguments
for military equipment.

Then comes his attack on the Virginia Resolutions. Had the criticisms of
the Alien and Sedition Laws "been confined to ordinary peaceable and
constitutional efforts to repeal them," no objection would have been
made to such a course; but when "general hostility to our government"
and "proceedings which may sap the foundations of our union" are
resorted to, "duty" requires this appeal to the people.

Marshall next defends the constitutionality of these acts. "Powers
necessary for the attainment of all objects which are general in their
nature, which interest all America" and "can only be obtained by the
coöperation of the whole ... would be naturally vested in the government
of the whole." It is obvious, he argues, that States must attend to
local subjects and the Nation to general affairs.

The power to protect "the nation from the intrigues and conspiracies of
dangerous aliens; ... to secure the union from their wicked
machinations, ... which is essential to the common good," belongs to the
National Government in the hands of which "is the force of the nation
and the general power of protection from hostilities of every kind."
Marshall then makes an extended argument in support of his Nationalist
theory. Occasionally he employs almost the exact language which, years
afterwards, appears in those constitutional opinions from the Supreme
Bench that have given him his lasting fame. The doctrine of implied
powers is expounded with all of his peculiar force and clearness, but
with some overabundance of verbiage. In no writing or spoken word,
before he became Chief Justice of the United States, did Marshall so
extensively state his constitutional views as in this unknown
paper.[908]

The House of Delegates, by a vote of 92 against 52,[909] refused to
publish the address of the minority along with that of the majority.
Thereupon the Federalists printed and circulated it as a campaign
document. It was so admired by the supporters of the Administration in
Philadelphia that, according to the untrustworthy Callender, ten
thousand copies were printed in the Capital and widely distributed.[910]

Marshall's authorship of this paper was not popularly known; and it
produced little effect. Its tedious length, lighted only by occasional
flashes of eloquence, invited Republican ridicule and derision. It
contained, said Callender, "such quantities of words ... that you turn
absolutely tired"; it abounded in "barren tautology"; some sentences
were nothing more than mere "assemblages of syllables"; and "the
hypocritical canting that so strongly marks it corresponds very well
with the dispatches of X. Y. and Z."[911]

Marshall's careful but over-elaborate paper was not, therefore,
generally read. But the leading Federalists throughout the country were
greatly pleased. The address was, said Sedgwick, "a masterly performance
for which we are indebted to the pen of General Marshall, who has, by
it, in some measure atoned for his pitiful electioneering epistle."[912]

When Murray, at The Hague, read the address, he concluded that Marshall
was its author: "He may have been weak enough to declare _against_ those
laws that _might_ be against the _policy_ or necessity, etc., etc.,
etc., yet sustain their constitutionality.... I _hope_ J. Marshall did
write the Address."[913]

The Republican appeal, unlike that of Marshall, was brief, simple, and
replete with glowing catchwords that warmed the popular heart and fell
easily from the lips of the multitude. And the Republican spirit was
running high. The Virginia Legislature provided for an armory in
Richmond to resist "encroachments" of the National Government.[914]
Memorials poured into the National Capital.[915] By February "the tables
of congress were loaded with petitions against" the unpopular Federalist
legislation.[916]

Marshall's opinion of the motives of the Republican leaders, of the
uncertainty of the campaign, of the real purpose of the Virginia
Resolutions, is frankly set forth in his letter to Washington
acknowledging the receipt of Judge Addison's charge: "No argument,"
wrote Marshall, "can moderate the leaders of the opposition.... However
I may regret the passage of one of the acts complained of [Sedition Law]
I am firmly persuaded that the tempest has not been raised by them. Its
cause lies much deeper and is not easily to be removed. Had they [Alien
and Sedition Laws] never been passed, other measures would have been
selected. An act operating on the press in any manner, affords to its
opposers arguments which so captivate the public ear, which so mislead
the public mind that the efforts of reason" are unavailing.

Marshall tells Washington that "the debates were long and animated" upon
the Virginia Resolutions "which were substantiated by a majority of
twenty-nine." He says that "sentiments were declared and ... views were
developed of a very serious and alarming extent.... There are men who
will hold power by any means rather than not hold it; and who would
prefer a dissolution of the union to a continuance of an administration
not of their own party. They will risk all ills ... rather than permit
that happiness which is dispensed by other hands than their own."

He is not sure, he says, of being elected; but adds, perhaps
sarcastically, that "whatever the issue ... may be I shall neither
reproach myself, nor those at whose instance I have become a candidate,
for the step I have taken. The exertions against me by" men in Virginia
"and even from other states" are more "active and malignant than
personal considerations would excite. If I fail," concludes Marshall,
"I shall regret the failure more" because it will show "a temper hostile
to our government ... than of" his own "personal mortification."[917]

The Federalists were convinced that these extreme Republican tactics
were the beginning of a serious effort to destroy the National
Government. "The late attempt of Virginia and Kentucky," wrote Hamilton,
"to unite the State Legislatures in a direct resistance to certain laws
of the Union can be considered in no other light than as an attempt to
change the government"; and he notes the "hostile declarations" of the
Virginia Legislature; its "actual preparation of the means of supporting
them by force"; its "measures to put their militia on a more efficient
footing"; its "preparing considerable arsenals and magazines"; and its
"laying new taxes on its citizens" for these purposes.[918]

To Sedgwick, Hamilton wrote of the "tendency of the doctrine advanced by
Virginia and Kentucky to destroy the Constitution of the United States,"
and urged that the whole subject be referred to a special committee of
Congress which should deal with the Virginia and Kentucky Resolutions
and justify the laws at which they were aimed. "No pains or expense," he
insisted, "should be spared to disseminate this report.... A little
pamphlet containing it should find its way into every house in
Virginia."[919]

Thus the congressional campaign of 1798-99 drew to a close. Marshall
neglected none of those personal and familiar campaign devices which the
American electorate of that time loved so well. His enemies declared
that he carried these to the extreme; at a rally in Hanover County he
"threw billets into the bonfires and danced around them with his
constituents";[920] he assured the voters that "his sentiments were the
same as those of Mr. Clopton [the Republican candidate]"; he "spent
several thousands of dollars upon barbecues."[921]

These charges of the besotted Callender,[922] written from his cell in
the jail at Richmond, are, of course, entirely untrue, except the story
of dancing about the bonfire. Marshall's answers to "Freeholder" dispose
of the second; his pressing need of money for the Fairfax purchase shows
that he could have afforded no money for campaign purposes; and, indeed,
this charge was so preposterous that even the reckless Callender
concludes it to be unworthy of belief.

From the desperate nature of the struggle and the temper and political
habit of the times, one might expect far harder things to have been
said. Indeed, as the violence of the contest mounted to its climax,
worse things were charged or intimated by word of mouth than were then
put into type. Again it is the political hack, John Wood, who gives us a
hint of the baseness of the slanders that were circulated; he describes
a scandal in which Marshall and Pinckney were alleged to have been
involved while in Paris, the unhappy fate of a woman, her desperate
voyage to America, her persecution and sad ending.[923]

Marshall was profoundly disgusted by the methods employed to defeat him.
Writing to his brother a short time before election day he briefly
refers to the Republican assaults in stronger language than is to be
found in any other letter ever written by him:--

"The fate of my election is extremely uncertain. The means us'd to
defeat it are despicable in the extreme and yet they succeed. Nothing I
believe more debases or pollutes the human mind than faction
[party]."[924]

[Illustration: PART OF LETTER FROM JOHN MARSHALL TO HIS BROTHER, DATED
APRIL 3, 1799 (_Facsimile_)]

The Republicans everywhere grew more confident as the day of voting drew
near. Neutrality, the Alien and Sedition Laws, the expense of the
provisional army, the popular fear and hatred of a permanent military
force, the high taxes, together with the reckless charges and slanders
against the Federalists and the perfect discipline exacted of the
Republicans by Jefferson--all were rapidly overcoming the patriotic
fervor aroused by the X. Y. Z. disclosures. "The tide is evidently
turning ... from Marshall's romance" was the Republican commander's
conclusion as the end of the campaign approached.[925]

For the first time Marshall's personal popularity was insufficient to
assure victory. But the animosity of the Republicans caused them to make
a false move which saved him at the very last. They circulated the
report that Patrick Henry, the archenemy of "aristocrats," was against
Marshall because the latter was one of this abhorred class. Marshall's
friend, Archibald Blair, Clerk of the Executive Council, wrote Henry of
this Republican campaign story.

Instantly both the fighter and the politician in Henry were roused; and
the old warrior, from his retirement at Red Hill, wrote an extraordinary
letter, full of affection for Marshall and burning with indignation at
the Republican leaders. The Virginia Resolutions meant the "dissolution"
of the Nation, wrote Henry; if that was not the purpose of the
Republicans "they have none and act _ex tempore_." As to France, "her
conduct has made it to the interest of the great family of mankind to
wish the downfall of her present government." For the French Republic
threatened to "destroy the great pillars of all government and social
life--I mean virtue, morality, and religion," which "alone ... is the
armour ... that renders us invincible." Also, said Henry, "infidelity,
in its broad sense, under the name of philosophy, is fast spreading ...
under the patronage of French manners and principles."

Henry makes "these prefatory remarks" to "point out the kind of
character amongst our countrymen most estimable in my [his] eyes." The
ground thus prepared, Henry discharges all his guns against Marshall's
enemies. "General Marshall and his colleagues exhibited the American
character as respectable. France, in the period of her most triumphant
fortune, beheld them as unappalled. Her threats left them as she found
them....

"Can it be thought that with these sentiments I should utter anything
tending to prejudice General Marshall's election? Very far from it
indeed. Independently of the high gratification I felt from his public
ministry, he ever stood high in my esteem as a private citizen. His
temper and disposition were always pleasant, his talents and integrity
unquestioned.

"These things are sufficient to place that gentleman far above any
competitor in the district for congress. But when you add the particular
information and insight which he has gained, and is able to communicate
to our public councils, it is really astonishing, that even blindness
itself should hesitate in the choice....

"Tell Marshall I love him, because he felt and acted as a republican, as
an American. The story of the Scotch merchants and old torys voting for
him is too stale, childish, and foolish, and is a French _finesse;_ an
appeal to prejudice, not reason and good sense.... I really should give
him my vote for Congress, preferably to any citizen in the state at this
juncture, one only excepted [Washington]."[926]

Henry's letter saved Marshall. Not only was the congressional district
full of Henry's political followers, but it contained large numbers of
his close personal friends. His letter was passed from hand to hand
among these and, by election day, was almost worn out by constant
use.[927]

But the Federalist newspapers gave Henry no credit for turning the tide;
according to these partisan sheets it was the "anarchistic" action of
the Kentucky and Virginia Legislatures that elected Marshall. Quoting
from a letter of Bushrod Washington, who had no more political acumen
than a turtle, a Federalist newspaper declared: "We hear that General
Marshall's election is placed beyond all doubt. I was firmly convinced
that the violent measures of our Legislature (which were certainly
intended to influence the election) would favor the pretensions of the
Federal candidates by disclosing the views of the opposite party."[928]

Late in April the election was held. A witness of that event in Richmond
tells of the incidents of the voting which were stirring even for that
period of turbulent politics. A long, broad table or bench was placed on
the Court-House Green, and upon it the local magistrates, acting as
election judges, took their seats, their clerks before them. By the side
of the judges sat the two candidates for Congress; and when an elector
declared his preference for either, the favored one rose, bowing, and
thanked his supporter.

Nobody but freeholders could then exercise the suffrage in
Virginia.[929] Any one owning one hundred acres of land or more in any
county could vote, and this landowner could declare his choice in every
county in which he possessed the necessary real estate. The voter did
not cast a printed or written ballot, but merely stated, in the presence
of the two candidates, the election officials, and the assembled
gathering, the name of the candidate of his preference. There was no
specified form for this announcement.[930]

"I vote for John Marshall."

"Thank you, sir," said the lank, easy-mannered Federalist candidate.

"Hurrah for Marshall!" shouted the compact band of Federalists.

"And I vote for Clopton," cried another freeholder.

"May you live a thousand years, my friend," said Marshall's competitor.

"Three cheers for Clopton!" roared the crowd of Republican enthusiasts.

Both Republican and Federalist leaders had seen to it that nothing was
left undone which might bring victory to their respective candidates.
The two political parties had been carefully "drilled to move together
in a body." Each party had a business committee which attended to every
practical detail of the election. Not a voter was overlooked. "Sick men
were taken in their beds to the polls; the halt, the lame, and the blind
were hunted up and every mode of conveyance was mustered into service."
Time and again the vote was a tie. No sooner did one freeholder announce
his preference for Marshall than another gave his suffrage to Clopton.

"A barrel of whisky with the head knocked in," free for everybody, stood
beneath a tree; and "the majority took it straight," runs a narrative of
a witness of the scene. So hot became the contest that fist-fights were
frequent. During the afternoon, knock-down and drag-out affrays became
so general that the county justices had hard work to quell the raging
partisans. Throughout the day the shouting and huzzaing rose in volume
as the whiskey sank in the barrel. At times the uproar was "perfectly
deafening; men were shaking fists at each other, rolling up their
sleeves, cursing and swearing.... Some became wild with agitation." When
a tie was broken by a new voter shouting that he was for Marshall or for
Clopton, insults were hurled at his devoted head.

"You, sir, ought to have your mouth smashed," cried an enraged
Republican when Thomas Rutherford voted for Marshall; and smashing of
mouths, blacking of eyes, and breaking of heads there were in plenty.
"The crowd rolled to and fro like a surging wave."[931] Never before and
seldom, if ever, since, in the history of Virginia, was any election so
fiercely contested. When this "democratic" struggle was over, it was
found that Marshall had been elected by the slender majority of
108.[932]

Washington was overjoyed at the Federalist success. He had ridden ten
miles to vote for General Lee, who was elected;[933] but he took a
special delight in Marshall's victory. He hastened to write his
political protégé: "With infinite pleasure I received the news of your
Election. For the honor of the District I wish the majority had been
greater; but let us be content, and hope, as the tide is turning, the
current will soon run strong in your favor."[934]

Toward the end of the campaign, for the purpose of throwing into the
contest Washington's personal influence, Marshall's enthusiastic friends
had published the fact of Marshall's refusal to accept the various
offices which had been tendered him by Washington. They had drawn a long
bow, though very slightly, and stated positively that Marshall could
have been Secretary of State.[935] Marshall hastened to apologize:--

"Few of the unpleasant occurrences" of the campaign "have given me more
real chagrin than this. To make a parade of proffered offices is a
vanity which I trust I do not possess; but to boast of one never in my
power would argue a littleness of mind at which I ought to blush."
Marshall tells Washington that the person who published the report
"never received it directly or indirectly from me." If he had known
"that such a publication was designed" he "would certainly have
suppressed it." It was inspired "unquestionably ... by a wish to serve
me," says Marshall, "and by resentment at the various malignant
calumnies which have been so profusely bestowed on me."[936]

Washington quickly reassured Marshall: "I am sorry to find that the
publication you allude to should have given you a moment's disquietude.
I can assure you it made no impression on my mind, of the tendency
apprehended by you."[937]

As soon as all the election returns were in, Marshall reported to
Washington that the defeat of two of the Federalist candidates for
Congress was unexpected and "has reduced us to eight in the legislature
of the Union"; that the Republicans maintained their "majority in the
house of Delegates," which "means an antifederal senator and governor,"
and that "the baneful influence of a legislature hostile perhaps to the
Union--or if not so--to all its measures will be kept up."[938]

Marshall's campaign attracted the attention of the whole country, and
the news of his success deeply interested both Federalists and
Republicans. Pickering, after writing King of the Federalist success in
New York City, declared that "the other domestic intelligence, still
more important, is, that Genl. Marshall is elected a member of Congress
for his district."[939]

Speaker Sedgwick also informed King of Marshall's election. "General
Marshall you know is a member of the House of Representatives. His
talents, his character and the situation he has been in, will combine to
give him an influence, which will be further aided by the scene which he
immediately represents. He may and probably will give a tone to the
federal politics South of the Susquehannah. I well know the respect he
entertains for you and for your opinions."[940]

But the Federalist leaders were none too sure of their Virginia
congressional recruit. He was entirely too independent to suit the party
organization. His campaign statement on the Alien and Sedition Laws
angered and troubled them when it was made; and, now that Marshall was
elected, his opinion on this, to the Federalists, vital subject, his
admitted power of mind and character, and his weighty influence over the
Southern wing of the Federalists caused serious apprehension among the
party's Northern leaders. Sedgwick advises King to write Marshall on the
subject of party regularity.

"I have brought this subject to your mind, that you may decide on the
propriety of a communication of your sentiments to him, which you may do
in season to be useful. Should he, which, indeed, I do not expect,
conform his political conduct generally, to what seems indicated by his
public declaration relative to the alien & sedition acts, it would have
been better that his insignificant predecessor should have been
reëlected. There never has been an instance where the commencement of a
political career was so important as is that of General Marshall."[941]

Apprehension and uncertainty as to Marshall's course in the House was in
the minds of even the Federalist leaders who were out of the country.
The American Minister at The Hague was as much troubled about Marshall
as were the Federalist politicians at home: "If M[arshall]'s silly
declaration on the _inexpediency_ of the Sedition law does not entangle
him he may be very useful."[942] But Murray was uneasy: "Marshall, I
fear, comes in on middle ground, and when a man plays the amiable in a
body like that [House of Representatives] he cannot be counted [on], but
he will vote generally right. I was amiable the first session! It cannot
last."[943]

Jefferson, of course, was much depressed by the Federalist congressional
victories, which he felt "are extremely to be regretted." He was
especially irritated by Marshall's election: It "marks a taint in that
part of the State which I had not expected." He was venomous toward
Henry for having helped Marshall: "His [Henry's] apostacy, must be
unaccountable to those who do not know all the recesses of his
heart."[944]

A week later, however, Jefferson decided that the Federalist success did
not mean a permanent Republican reverse. Spoils and corruption, he
concluded, were the real cause of the Federalist gain. "The Virginia
congressional elections have astonished every one," he informs Tench
Coxe. "This result has proceeded from accidental combinations of
circumstances, & not from an unfavorable change of sentiment.... We are
not incorruptible; on the contrary, corruption is making sensible tho'
silent progress. Offices are as acceptable here as elsewhere, & whenever
a man has cast a longing on them, a rottenness begins in his
conduct."[945]

Jefferson, with settled and burning hatred, now puts his branding-iron
on Henry: "As to the effect of his name among the people, I have found
it crumble like a dried leaf the moment they become satisfied of his
apostacy."[946]

During the weeks which immediately followed his election, Marshall was
busy reporting to Washington on the best men to be appointed as officers
in the provisional army; and his letters to the Commander-in-Chief show
a wide and careful acquaintance with Virginians of military training,
and a delicate judgment of their qualities.[947]

By now the hated Sedition Law was justifying the political hydrophobia
which it had excited among the Republicans.[948] All over the country
men were being indicted and convicted for wholly justifiable political
criticisms,--some of them trivial and even amusing,--as well as for
false and slanderous attacks on public officers. President Adams himself
had begun to urge these prosecutions. He was particularly bitter against
the "Aurora," the Republican organ, which, according to Adams, contained
an "uninterrupted stream of slander on the American government."[949] He
thought that the editor ought to be expelled from the country.[950]

All this was more fuel to the Republican furnace. Wicked and outrageous
as were some of these prosecutions, they were not so extravagant as the
horrors which Republican politicians declared that the Sedition Laws
would bring to every fireside.

During the summer after his election Marshall visited his father in
Kentucky. Thomas Marshall was ill, and his son's toilsome journey was
solely for the purpose of comforting him; but Jefferson could see in it
nothing but a political mission. He writes to Wilson Cary Nicholas to
prepare an answer to the States that had opposed the Kentucky and
Virginia Resolutions; but, says Jefferson, "As to the preparing anything
[myself] I must decline it, to avoid suspicions (which were pretty
strong in some quarters on the last occasion) [the Kentucky
Resolutions].... The visit of the apostle Marshall[951] to Kentucky,
excite[s] anxiety. However, we doubt not that his poisons will be
effectually counter-worked."[952]

Jefferson's suspicions were groundless. Marshall did not even sound
public opinion on the subject. On his return to Richmond he writes the
Secretary of State, who was the most active politician of Adams's
Cabinet, and to whom Marshall freely opened his mind on politics, that
"a visit to an aged & rever'd Father" prevented an earlier answer to a
letter from Pickering; and, although Marshall has much to say, not one
word is written of the Kentucky and Virginia Resolutions. He is obsessed
with the French question and of the advantage the French "party in
America" may secure by the impression that France was not really
hostile. "This will enable her [France's] party in America to attack
from very advantageous ground the government of the United States."[953]

Now came the public circumstance that made the schism in the Federalist
Party an open and remorseless feud. The President's militant
declaration, that he would "never send another minister to France
without assurances that he will [would] be received, respected, and
honored as the representative of a great, free, powerful, and
independent people,"[954] was perfectly attuned to the warlike spirit of
the hour. The country rang with approval. The Federalist politicians
were exultant.

Thereupon the resourceful Talleyrand wrote the Secretary of the French
Legation at The Hague to intimate to Murray, the American Minister, that
the French Directory would now receive a minister from the United
States.[955] Murray hastened the news to Adams.[956] It was a frail
assurance, indirect, irregular, unacknowledged to the world; and from
men who had insulted us and who would not hesitate to repudiate Murray's
statement if their purposes so required. Yet the President grasped by
the forelock this possibility for peace, and, against the emphatic
protest of his Cabinet, suddenly sent a second commission to try again
for that adjustment which Marshall and his associates had failed to
secure. It was the wisest and most unpopular act of Adams's troubled
Administration.

The leading Federalist politicians were enraged. Indeed, "the whole
[Federalist] party were prodigiously alarmed."[957] They thought it a
national humiliation. What! said they, kiss the hand that had slapped
our face! "The new embassy ... disgusts most men here," reported
Ames from New England.[958] Cabot confirmed Ames's doleful
message--"Surprise, indignation, grief, & disgust followed each other in
swift succession in the breasts of the true friends of our country," he
advised King.[959]

The Federalist leaders really wanted war with France, most of them as a
matter of patriotism; some, undoubtedly, because war would insure party
success in the approaching presidential election. Upon his return
Marshall had prophesied formal declaration of hostilities from the
Republic of France, when news of the dispatches reached Europe; and the
war Federalists were sorely disappointed at the failure of his
prediction. "Genl. Marshall unfortunately held the decided opinion that
France would DECLARE war when the Dispatches should appear; and T.
Sewell with other good men were so strongly impressed with the advantage
of such a declaration by them that they could not be persuaded to
relinquish the belief in it--I was astonished that they should have
attributed to the French such miserable policy." So wrote the able and
balanced Cabot.[960] That France refused to adopt "such miserable
policy" as Marshall had expected was sufficiently exasperating to the
war Federalists; but to meet that country three fourths of the way on
the road to peace was intolerable.

"The end [peace] being a bad one all means are unwise and indefensible"
was the ultra-Federalist belief.[961] Adams's second mission was, they
said, party surrender to the Republicans; it was "a policy that
threatens ... to revive the Jacobin faction in our bosom."[962]
Federalist members of Congress threatened to resign. "I have sacrificed
as much as most men ... to support this Govt. and root out Democracy, &
French principles, but ... I feel it to be lost and worse ... I can &
will resign if all must be given up to France," cried the enraged
Tracy.[963]

These "enemies of government" had said all along that things could be
arranged with France; that the X. Y. Z. disclosures were merely a
Federalist plot; and that the army was a wicked and needless expense.
What answer could the Federalists make to these Republican charges now?
Adams's new French mission, the Federalist chieftains declared, was "a
measure to _make_ dangers, and to nullify resources; to make the navy
without object; the army an object of popular terror."[964]

And the presidential election was coming on! To hold the situation just
as it was might mean Federalist victory. Suppose events did develop a
formal declaration of war with France? That would make Federalist
success more certain. The country would not turn out a party in charge
of the Government when cannon were roaring. Even more important, an open
and avowed conflict with the "bloody Republic" would, reasoned the
Federalist leaders, check the miasmic growth of French revolutionary
ideas among the people.

In short, a declaration of war with France would do everything which the
Federalists wished and hoped for. "Peace [with France] ... is not
desired as it should not be"[965] was their opinion of the statesmanship
demanded by the times. And now Adams, without one word to the men who
reluctantly had made him President,[966] had not only prevented a
rupture which would have accomplished every Federalist purpose, but had
delivered his party into the hands of the "Jacobins." He had robbed the
Federalists of their supreme campaign "issue." "Peace with France, they
think an evil and holding out the hope of it another, as it tends to
chill the public fervor";[967] and the "public fervor" surely needed no
further reduction of temperature, for Federalist health.

If Adams did not wish for a formal declaration of war, at least he might
have let things alone. But now! "Government will be weakened by the
friends it loses and betrayed by those it will gain. It will lose ...
the friendship of the sense, and worth, and property of the United
States, and get in exchange the prejudice, vice, and bankruptcy of the
nation,"[968] wrote Ames to Pickering. "In Resistance alone there is
safety,"[969] was Cabot's opinion. "The Jacobin influence is rising,
and has been ever since the mission to France was determined on; ... if
a Treaty be made with France their [Republican] ascendancy will be
sure";[970] and, after that, the deluge.

The Federalist leaders felt that, even without a declaration of
hostilities by Congress, they might make shift to win the approaching
election. For on the sea we already were waging war on France, while
formally at peace with her. Our newborn navy was taking French
privateers, defeating French men-of-war, and retaliating with pike,
cutlass, and broadside for the piratical French outrages upon American
commerce.[971] As things stood, it was certain that this would continue
until after the election, and with each glorious victory of a Truxton or
a Hull, National pride and popular enthusiasm would mount higher and
grow stronger. So the Federalist politicians thought that "the only
negotiation compatible with our honor or our safety is that begun by
Truxton in the capture of the L'Insurgente."[972]

Priceless campaign ammunition was this for the Federalist political
guns. Early in the year the bilious but keen-eyed watchman on the
ramparts of New England Federalism had noted the appearance of "a little
patriotism, and the capture of the _Insurgente_ cherishes it."[973] And
now Adams's second mission might spoil everything. "The Jacobins will
rise in consequence of this blunder,"[974] was the doleful prophecy.
Indeed, it was already in fulfillment even with the utterance: "Already
the Jacobins raise their disgraced heads from the mire of
contempt!"[975] The "country gentlemen" were the hands as the business
interests were the brain and heart of the Federalist Party; "the
President destroyed their influence, and ... left them prostrate before
their vindictive adversaries."[976]

The Republicans were overjoyed. Adams had reversed himself, eaten his
own words, confessed the hypocrisy of the "infamous X. Y. Z. plot."
"This renders their [Federalists'] efforts for war desperate, & silences
all further denials of the sincerity of the French government,"
gleefully wrote Jefferson.[977]

Marshall alone of the commanding Federalists, approved Adams's action.
"I presume it will afford you satisfaction to know that a measure which
excited so much agitation here, has met the approbation of so good a
judge as Mr. Marshall," Lee reported to the President.[978] Marshall's
support cheered the harried Chief Executive. "Esteeming very highly the
opinion and character of your friend General Marshall, I thank you for
inclosing his letter," responded Adams.[979]

The President had done still worse. Auctioneer John Fries, a militia
captain, had headed an armed mob in resistance to the National officers
who were levying the National direct tax on the houses and lands of the
farmers of eastern Pennsylvania. He had been finally taken prisoner,
tried, and convicted of sedition and treason, and sentenced to death.
Against the unanimous written advice of his Cabinet, formally
tendered,[980] the President pardoned the "traitor" and "his fellow
criminals."[981] And this clemency was granted at the plea of McKean,
the arch-"Jacobin" of Pennsylvania,[982] without even consulting the
judges of the courts in which they were twice tried and convicted.[983]

What was this, asked the Federalist leaders in dazed and angry
amazement! Paralyze the arm of the law! Unloose the fingers of outraged
authority from the guilty throat which Justice had clutched! What was to
become of "law and order" when the Nation's head thus sanctioned
resistance to both?[984] In his charge to the Federal Grand Jury, April
11, 1799, Justice Iredell declared that if "traitors" are not punished
"anarchy will ride triumphant and all lovers of order, decency, truth &
justice will be trampled under foot."[985]

How, now, could the Federalists repel Republican assaults on this direct
tax? How, now, could they reply to the Republican attacks upon the army
to support which the tax was provided! In pardoning Fries, Adams had
admitted everything which the hated Jefferson had said against both tax
and army.[986] If Adams was right in pardoning Fries, then Washington
was wrong in suppressing the Whiskey Rebellion. The whole Federalist
system was abandoned.[987] The very roots of the Federalist philosophy
of government and administration were torn from their none too firm hold
upon the scanty soil which Federalist statesmen had laboriously gathered
for their nourishment. And why had Adams done this? Because, said the
Federalist politicians, it was popular in Pennsylvania;[988] that was
the President's motive--the same that moved him to send the new mission
to France.[989]

Bending under heavy burdens of state, harassed by the politicians, Adams
was enduring a private pain sharper than his public cares. His wife, the
incomparable Abigail, was in Massachusetts and seriously ill. The
President had left her to meet his Cabinet and dispatch the second
mission to France. That done, he hastened back to the bedside of his
sick wife. But the politicians made no allowances. Adams's absence "from
the seat of government ... is a source of much disgust," chronicles the
ardent Troup. "It ... has the air of an abdication."[990] A month later
he records that the President "still continues at Braintree,[991] and
the government, like Pope's wounded snake, drags its slow length
along."[992]

Such was the condition of the country and the state of political parties
when Marshall took his seat in Congress. For the Federalists, the House
was a very "cave of the winds," with confusion, uncertainty, suspicion,
anger, and all the disintegrating passions blowing this way and that.
But the Republicans were a compact, disciplined, determined body full of
spirit and purpose.

FOOTNOTES:

[856] Marshall to Paulding, April 4, 1835; _Lippincott's Magazine_
(1868), ii, 624-25.

[857] Washington to Bushrod Washington, Aug. 27, 1798; _Writings_: Ford,
xiv, 75.

[858] _Ib._ In September, 1797, when Marshall was absent on the X. Y. Z.
mission, Washington received a letter from one "John Langhorne" of
Albemarle County. Worded with skillful cunning, it was designed to draw
from the retired President imprudent expressions that could be used
against him and the Federalists. It praised him, denounced his
detractors, and begged him to disregard their assaults. (Langhorne to
Washington, Sept. 25, 1797; _Writings_: Sparks, xi, 501.) Washington
answered vaguely. (Washington to Langhorne, Oct. 15, 1797; _Writings_:
Ford, xiii, 428-30.) John Nicholas discovered that the Langhorne letter
had been posted at Charlottesville; that no person of that name lived in
the vicinity; and that Washington's answer was called for at the
Charlottesville post-office (where Jefferson posted and received
letters) by a person closely connected with the master of Monticello. It
was suspected, therefore, that Jefferson was the author of the
fictitious letter. The mystery caused Washington much worry and has
never been cleared up. (See Washington to Nicholas, Nov. 30, 1797;
_ib._, footnote to 429-30; to Bushrod Washington, March 8, 1798; _ib._,
448; to Nicholas, March 8, 1798; _ib._, 449-50.) It is not known what
advice Marshall gave Washington when the latter asked for his opinion;
but from his lifelong conduct in such matters and his strong repugnance
to personal disputes, it is probable that Marshall advised that the
matter be dropped.

[859] Paulding: _Washington_, ii, 191-92.

[860] Marshall to Paulding, _supra._

[861] Marshall to Paulding, _supra._ This letter was in answer to one
from Paulding asking Marshall for the facts as to Washington's part in
inducing Marshall to run for Congress.

[862] Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist.
Soc.

[863] _Ib._

[864] Adams to Pickering, Sept. 14, 1798; _Works_: Adams, viii, 595.

[865] Adams to Pickering, Sept. 26, 1798; _Works_: Adams, viii, 597.

[866] Adams to Rush, June 25, 1807; _Old Family Letters_, 152.

[867] Wood, 260. Wood's book was "suppressed" by Aaron Burr, who bought
the plates and printer's rights. It consists of dull attacks on
prominent Federalists. Jefferson's friends charged that Burr suppressed
it because of his friendship for the Federalist leaders. (See Cheetham's
letters to Jefferson, Dec. 29, 1801, Jan. 30, 1802, _Proceedings_, Mass.
Hist. Soc. (April and May, 1907) 51-58.) Soon afterward Jefferson began
his warfare on Burr.

[868] Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist.
Soc. This campaign was unusually acrimonious everywhere. "This
Electioneering is worse than the Devil." (Smith to Bayard, Aug. 2, 1798;
_Bayard Papers_: Donnan, 69.)

[869] See Statutes at Large, 566, 570, 577, for Alien Acts of June 18,
June 25, and July 6, and _ib._, 196, for Sedition Law of July 14, 1798.

[870] This section was not made a campaign issue by the Republicans.

[871] Jefferson to Madison, May 10, 1798; _Works_: Ford, viii, 417; and
to Monroe, May 21, 1798; _ib._, 423. Jefferson's first harsh word was to
Madison, June 7, 1798; _ib._, 434.

[872] Hamilton to Wolcott, June 29, 1798; _Works_: Lodge, x, 295.

[873] Madison to Jefferson, May 20, 1798; _Writings_: Hunt, vi, 320.

[874] For the Federalists' justification of the Alien and Sedition Laws
see Gibbs, ii, 78 _et seq._

[875] As a matter of fact, the anger of Republican leaders was chiefly
caused by their belief that the Alien and Sedition Laws were aimed at
the Republican Party as such, and this, indeed, was true.

[876] Jefferson to S. T. Mason, Oct. 11, 1798; _Works_: Ford, viii, 450.

[877] Washington to Spotswood, Nov. 22, 1798; _Writings_: Ford, xiv,
121-22.

[878] Washington to Murray, Dec. 26, 1798; _Writings_: Ford, xiv, 132.

[879] Washington to Bushrod Washington, Dec. 31, 1798; _ib._, 135-36.
Judge Addison's charge was an able if intemperate interpretation of the
Sedition Law. The Republican newspapers assailed and ridiculed this very
effectively in the presidential campaign of 1800. "Alexander Addison has
published in a volume a number of his _charges_ to juries--and
_precious_ charges they are--brimstone and saltpetre, assifoetida and
train oil." (_Aurora_, Dec. 6, 1800. See Chief Justice Ellsworth's
comments upon Judge Addison's charge in Flanders, ii, 193.)

[880] Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist.
Soc.

[881] Oct. 11, 1798. The questions of "Freeholder" were, undoubtedly,
written with Marshall's knowledge. Indeed a careful study of them leads
one to suspect that he wrote or suggested them himself.

[882] The _Times and Virginia Advertiser_, Alexandria, Virginia, October
11, 1798. This paper, however, does not give "Freeholder's" questions.
The _Columbian Centinel_, Boston, October 20, 1798, prints both
questions and answers, but makes several errors in the latter. The
correct version is given in Appendix III, _infra_, where "Freeholder's"
questions and Marshall's answers appear in full.

[883] Ames to Gore, Dec. 18, 1798; _Works_: Ames, i, 245-47.

[884] Sedgwick to Pickering, Oct. 23, 1798; Pickering MSS., Mass. Hist.
Soc.

[885] _Columbian Centinel_ (Boston), Oct. 24, 1798.

[886] Cabot to King, April 26, 1799; King, iii, 9.

[887] This was not true. The Fairfax embarrassment, alone, caused
Marshall to go to France in 1797.

[888] Pickering to Sedgwick, Nov. 6, 1798; Pickering MSS., Mass. Hist.
Soc.

[889] Murray to J. Q. Adams, March 22, 1799; _Letters_: Ford, 530.
Murray had been a member of Congress and a minor Federalist politician.
By "us" he means the extreme Federalist politicians.

[890] Marshall to Pickering, Oct. 22, 1798; Pickering MSS., Mass. Hist.
Soc.

[891] Adams: _Gallatin_, 212.

[892] "Freeholder" had not asked Marshall what he thought of the
constitutionality of these laws.

[893] Thompson: _The Letters of Curtius._ John Thompson of Petersburg
was one of the most brilliant young men that even Virginia ever
produced. See Adams: _Gallatin_, 212, 227. There is an interesting
resemblance between the uncommon talents and fate of young John Thompson
and those of Francis Walker Gilmer. Both were remarkably intellectual
and learned; the characters of both were clean, fine, and high. Both
were uncommonly handsome men. Neither of them had a strong physical
constitution; and both died at a very early age. Had John Thompson and
Francis Walker Gilmer lived, their names would have been added to that
wonderful list of men that the Virginia of that period gave to the
country.

The intellectual brilliancy and power, and the lofty character of
Thompson and Gilmer, their feeble physical basis and their early passing
seem like the last effort of that epochal human impulse which produced
Henry, Madison, Mason, Jefferson, Marshall, and Washington.

[894] Taylor to Jefferson, June 25, 1798; as quoted in _Branch
Historical Papers_, ii, 225. See entire letter, _ib._, 271-76.

[895] For an excellent treatment of the Kentucky and Virginia
Resolutions see Von Holst: _Constitutional History of the United
States_, i, chap. iv.

[896] Nicholas to Jefferson, Oct. 5, 1798; quoted by Channing in
"Kentucky Resolutions of 1798"; _Amer. Hist. Rev._, xx, no. 2, Jan.,
1915, 333-36.

[897] Writing nearly a quarter of a century later, Jefferson states that
Nicholas, Breckenridge, and he conferred on the matter; that his draft
of the "Kentucky Resolutions" was the result of this conference; and
that he "strictly required" their "solemn assurance" that no one else
should know that he was their author. (Jefferson to Breckenridge, Dec.
11, 1821; _Works_: Ford, viii, 459-60.)

Although this letter of Jefferson is positive and, in its particulars,
detailed and specific, Professor Channing has demonstrated that
Jefferson's memory was at fault; that no such conference took place; and
that Jefferson sent the resolutions to Nicholas, who placed them in the
hands of Breckenridge for introduction in the Kentucky Legislature; and
that Breckenridge and Nicholas both thought that the former should not
even see Jefferson, lest the real authorship of the resolutions be
detected. (See "The Kentucky Resolutions": Channing, in _Amer. Hist.
Rev._, xx, no. 2, Jan., 1915, 333-36.)

[898] See Jefferson's "Rough Draught" and "Fair Copy" of the Kentucky
Resolutions; and the resolutions as the Kentucky Legislature passed them
on Nov. 10, 1798; _Works_: Ford, viii, 458-79. See examination of
Marshall's opinion in Marbury _vs._ Madison, vol. III of this work.

[899] Jefferson to Madison, Nov. 17, 1798; _Works_: Ford, viii, 457.

[900] _Writings_: Hunt, vi, 326-31.

[901] Davie to Iredell, June 17, 1799; quoting from a Virginia
informant--very probably Marshall; McRee, ii, 577.

[902] Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543.

[903] Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes,
Dec. 18, 1798; _Letters_: Ford, 534.

[904] _Writings_: Hunt, vi, 332-40.

[905] For Marshall's defense of the liberty of the press, quoted by
Madison, see _supra_, chap. VIII.

[906] Address of the General Assembly to the People of the Commonwealth
of Virginia, Journal, H.D. (Dec., 1798), 88-90.

[907] Sedgwick to Hamilton, Feb. 7, 1799; _Works_: Hamilton, vi, 392-93;
and to King, March 20, 1799; King, ii, 581. And Murray to J. Q. Adams,
April 5, 1799; _Letters_: Ford, 536.

[908] Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. Also
printed as a pamphlet. Richmond, 1798.

[909] Journal, H.D. (1799), 90.

[910] Callender: _Prospect Before Us_, 91.

[911] _Ib._, 112 _et seq._

[912] Sedgwick to King, March 20, 1799; King, ii, 581.

[913] Murray to J. Q. Adams, April 5, 1799; _Letters_: Ford, 536.

[914] Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii,
147-48.

[915] Jefferson to Pendleton, Feb. 14, 1799; _Works_: Ford, ix, 46; and
to Madison, Jan. 30, 1799; _ib._, 31.

[916] Jefferson to Bishop James Madison, Feb. 27, 1799; _ib._, 62.

[917] Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. Cong.

[918] Hamilton to Dayton, 1799; _Works_: Lodge, x, 330. The day of the
month is not given, but it certainly was early in January. Mr. Lodge
places it before a letter to Lafayette, dated Jan. 6, 1799.

[919] Hamilton to Sedgwick, Feb. 2, 1799; _Works_: Lodge, x, 340-42.

[920] This was probably true; it is thoroughly characteristic and fits
in perfectly with his well-authenticated conduct after he became Chief
Justice. (See vol. III of this work.)

[921] Callender: _Prospect Before Us_, 90 _et seq._

[922] See Hildreth, v, 104, 210, 214, 340, 453-55.

[923] Wood, 261-62. This canard is an example of the methods employed in
political contests when American democracy was in its infancy.

[924] Marshall to his brother James M., April 3, 1799; MS. Marshall uses
the word "faction" in the sense in which it was then employed. "Faction"
and "party" were at that time used interchangeably; and both words were
terms of reproach. (See _supra_, chap. II.) If stated in the vernacular
of the present day, this doleful opinion of Marshall would read:
"Nothing, I believe, more debases or pollutes the human mind than
partisan politics."

[925] Jefferson to Pendleton, April 22, 1799; _Works_: Ford, ix, 64-65.

[926] Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94.

[927] Henry to Blair, Jan. 8, 1799; Henry, ii, 595.

[928] _Virginia Herald_ (Fredericksburg), March 5, 1799.

[929] This was true in most of the States at that period.

[930] This method of electing public officials was continued until the
Civil War. (See John S. Wise's description of a congressional election
in Virginia in 1855; Wise: _The End of An Era_, 55-56. And see Professor
Schouler's treatment of this subject in his "Evolution of the American
Voter"; _Amer. Hist. Rev._, ii, 665-74.)

[931] This account of election day in the Marshall-Clopton contest is
from Munford, 208-10. For another fairly accurate but mild description
of a congressional election in Virginia at this period, see Mary
Johnston's novel, _Lewis Rand_, chap. iv.

[932] Henry, ii, 598.

[933] Randall, ii, 495.

[934] Washington to Marshall, May 5, 1799; _Writings_: Ford, xiv, 180.

[935] As a matter of fact, they were not far wrong. Marshall almost
certainly would have been made Secretary of State if Washington had
believed that he would accept the portfolio. (See _supra_, 147.) The
assertion that the place actually had been offered to Marshall seems to
have been the only error in this campaign story.

[936] Marshall to Washington, May 1, 1799; _Writings_: Ford, xiv,
footnote to 180-81; also Flanders, ii, 389.

[937] Washington to Marshall, May 5, 1799; _Writings_: Ford, xiv, 180.

[938] Marshall to Washington, May 16, 1799; Washington MSS., Lib. Cong.

[939] Pickering to King, May 4, 1799; King, iii, 13.

[940] Sedgwick to King, July 26, 1799; King, iii, 69.

[941] Sedgwick to King, July 26, 1799; King, iii, 69.

[942] Murray to J. Q. Adams, June 25, 1799; _Letters_: Ford, 566.

[943] Murray to J. Q. Adams, July 1, 1799; _ib._, 568.

[944] Jefferson to Stuart, May 14, 1799; _Works_: Ford, ix, 67.

[945] Jefferson to Coxe, May 21, 1799; _Works_: Ford, ix, 69-70.

[946] _Ib._, 70.

[947] For instances of these military letters, see Marshall to
Washington, June 12, 1799; Washington MSS., Lib. Cong.

[948] See Morison, i, 156-57; also Hudson: _Journalism in the United
States_, 160. Party newspapers and speakers to-day make statements, as a
matter of course, in every political campaign much more violent than
those for which editors and citizens were fined and imprisoned in
1799-1800. (See _ib._, 315; and see summary from the Republican point of
view of these prosecutions in Randall, ii, 416-20.)

[949] Adams to Pickering, July 24, 1799; _Works_: Adams, ix, 3.

[950] Adams to Pickering, Aug. 1, 1799; _ib._, 5; and same to same. Aug.
3, 1799; _ib._, 7.

[951] Professor Washington, in his edition of Jefferson's _Writings_,
leaves a blank after "apostle." Mr. Ford correctly prints Marshall's
name as it is written in Jefferson's original manuscript copy of the
letter.

[952] Jefferson to Wilson Cary Nicholas, Sept. 5, 1799; _Works_: Ford,
ix, 79-81.

[953] Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. Hist.
Soc. Marshall had not yet grasped the deadly significance of Jefferson's
States' Rights and Nullification maneuver.

[954] _Supra._

[955] Talleyrand to Pichon, Aug. 28, and Sept. 28; _Am. St. Prs._, ii,
241-42; Murray to Adams, Appendix of _Works_: Adams, viii. For familiar
account of Pichon's conferences with Murray, see Murray's letters to J.
Q. Adams, then U.S. Minister to Berlin, in _Letters_: Ford, 445, 473,
475-76; and to Pickering, _ib._, 464.

[956] "Murray, I guess, wanted to make himself a greater man than he is
by going to France," was Gallatin's shrewd opinion. Gallatin to his
wife, March 1, 1799; Adams: _Gallatin_, 227-28.

[957] _Ib._

[958] Ames to Dwight, Feb. 27, 1799; _Works_: Ames, i, 252.

[959] Cabot to King, March 10, 1799; King, ii, 551.

[960] Cabot to King, Feb. 16, 1799; _ib._, 543.

[961] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 253.

[962] Ames to Pickering, Oct. 19, 1799; _ib._, 257.

[963] Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417.

[964] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 260-61.

[965] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 254.

[966] "Men of principal influence in the Federal party ... began to
entertain serious doubts about his [Adams's] fitness for the station,
yet ... they thought it better to indulge their hopes than to listen to
their fears, [and] ... determined to support Mr. Adams for the Chief
Magistracy." ("Public Conduct, etc., John Adams"; Hamilton: _Works_:
Lodge, vii, 318.)

[967] Ames to Dwight, Feb. 27, 1799; _Works_: Ames, i, 252.

[968] Ames to Pickering, Nov. 5, 1799; _ib._, 260.

[969] Cabot to King, March 10, 1799; King, ii, 552.

[970] Higginson to Pickering, April 16, 1800; Pickering MSS., Mass.
Hist. Soc., printed in _An. Rept._, Amer. Hist. Assn., 1896, i, 836.

[971] For an excellent summary of this important episode in our history
see Allen: _Our Naval War with France_.

[972] Pickering to King, March 6, 1799; King, ii, 548-49.

[973] Ames to Pickering, March 12, 1799; _Works_: Ames, i, 254.

[974] Ames to Dwight, Oct. 20, 1799; _ib._, 259.

[975] Ames to Pickering, Oct. 19, 1799; _ib._, 257.

[976] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403.

[977] Jefferson to Pendleton, Feb. 19, 1799; _Works_: Ford, ix, 54.

[978] Lee to Adams, March 14, 1799; _Works_: Adams, viii, 628.

[979] Adams to Lee, March 29, 1799; _ib._, 629.

[980] Cabinet to President, Sept. 7, 1799; _Works_: Adams, ix, 21-23;
and same to same, May 20, 1799; _ib._, 59-60.

[981] Adams to Lee, May 21, 1800; _ib._, 60. For account of Fries's
Rebellion see McMaster, ii, 435-39. Also Hildreth, v, 313.

[982] Pickering to Cabot, June 15, 1800; Lodge: _Cabot_, 275.

[983] "Public Conduct, etc., John Adams"; Hamilton: _Works_: Lodge, vii,
351-55; and see Gibbs, ii, 360-62.

[984] See Hamilton's arraignment of the Fries pardon in "Public Conduct,
etc., John Adams"; _Works_: Lodge, vii, 351-55.

[985] McRee, ii, 551.

[986] "The Aurora, in analyzing the reasons upon which Fries, Hainy, and
Getman have been pardoned brings the President forward as, by this act,
condemning: 1. The tax law which gave rise to the insurrection; 2. The
conduct of the officers appointed to collect the tax; 3. The marshal; 4.
The witnesses on the part of the United States; 5. The juries who tried
the prisoners; 6. The court, both in their personal conduct and in their
judicial decisions. In short, every individual who has had any part in
passing the law--in endeavoring to execute it, or in bringing to just
punishment those who have treasonably violated it." (_Gazette of the
United States_, reviewing bitterly the comment of the Republican organ
on Adams's pardon of Fries.)

[987] Many Federalists regretted that Fries was not executed by
court-martial. "I suppose military execution was impracticable, but if
some executions are not had, of the most notorious offenders--I shall
regret the events of lenity in '94 & '99--as giving a fatal stroke to
Government.... Undue mercy to villains, is cruelty to all the good &
virtuous. Our people in this State are perfectly astonished, that cost
must continually be incurred for insurrections in Pennsylvania for which
they say they are taxed & yet no punishment is inflicted on the
offenders. I am fatigued & mortified that our Govt. which is weak at
best, would withhold any of its strength when all its energies should be
doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; Steiner, 436.)
And "I am in fear that something will occur to release that fellow from
merited Death." (Same to same, May 20, 1790; _ib._)

[988] "Public Conduct, etc., John Adams"; Hamilton: _Works_: Lodge, vii,
351-55.

[989] Ames to Pickering, Nov. 23, 1799; _Works_: Ames, i, 270.

[990] Troup to King, May 6, 1799; King, iii, 14.

[991] Adams's home, now Quincy, Massachusetts.

[992] Troup to King, June 5, 1799; King, iii, 34.

CHAPTER XI

INDEPENDENCE IN CONGRESS

The Constitution is not designed to secure the rights of the
people of Europe or Asia or to direct proceedings against
criminals throughout the universe. (Marshall.)

The whole world is in arms and no rights are respected but those
that are maintained by force. (Marshall.)

Marshall is disposed to express great respect for the sovereign
people and to quote their expressions as evidence of truth.
(Theodore Sedgwick.)

"I have been much in Company with General Marshall since we arrived in
this City. He possesses great powers and has much dexterity in the
application of them. He is highly & deservedly respected by the friends
of Government [Federalists] from the South. In short, we can do nothing
without him. I believe his intentions are perfectly honorable, & yet I
do believe he would have been a more decided man had his education been
on the other side of the Delaware, and he the immediate representative
of that country."[993]

So wrote the Speaker of the House of Representatives after three weeks
of association with the Virginia member whom he had been carefully
studying. After another month of Federalist scrutiny, Cabot agreed with
Speaker Sedgwick as to Marshall's qualities.

"In Congress, you see Genl. M.[arshall] is a leader. He is I think a
virtuous & certainly an able man; but you see in him the faults of a
Virginian. He thinks too much of that State, & he expects the world
will be governed according to the Rules of Logic. I have seen such men
often become excellent legislators after experience has cured their
errors. I hope it will prove so with Genl. M.[arshall], who seems
calculated to act a great part."[994]

The first session of the Sixth Congress convened in Philadelphia on
December 2, 1799. Marshall was appointed a member of the joint committee
of the Senate and the House to wait upon the President and inform him
that Congress was in session.[995]

The next day Adams delivered his speech to the Senators and
Representatives. The subject which for the moment now inflamed the minds
of the members of the President's party was Adams's second French
mission. Marshall, of all men, had most reason to resent any new attempt
to try once more where he had failed, and to endeavor again to deal with
the men who had insulted America and spun about our representatives a
network of corrupt intrigue. But if Marshall felt any personal
humiliation, he put it beneath his feet and, as we have seen, approved
the Ellsworth mission. "The southern federalists have of course been
induced [by Marshall] to vindicate the mission, as a sincere, honest,
and politic measure," wrote Wolcott to Ames.[996]

Who should prepare the answer of the House to the President's speech?
Who best could perform the difficult task of framing a respectful reply
which would support the President and yet not offend the rebellious
Federalists in Congress? Marshall was selected for this delicate work.
"Mr. Marshall, from the committee appointed to draught an Address in
answer to the Speech of the President of the United States ... reported
same."[997] Although written in admirable temper, Marshall's address
failed to please; the result was pallid.

"Considering the state of the House, it was necessary and proper that
the answer to the speech should be prepared by Mr. Marshall," testifies
Wolcott. "He has had a hard task to perform, and you have seen how it
has been executed. The object was to unite all opinions, at least of the
federalists; it was of course necessary to appear to approve the
mission, and yet to express the approbation in such terms as when
critically analyzed would amount to no approbation at all. No one
individual was really satisfied; all were unwilling to encounter the
danger and heat which a debate would produce and the address passed with
silent dissent; the President doubtless understood the intention, and in
his response has expressed his sense of the dubious compliment in terms
inimitably obscure."[998] Levin Powell, a Federalist Representative from
Virginia, wrote to his brother: "There were members on both sides that
disliked that part of it [Marshall's address] where he spoke of the
Mission to France."[999]

The mingled depression, excitement, and resentment among Marshall's
colleagues must have been great indeed to have caused them thus to look
upon his first performance in the House; for the address, which, even
now, is good reading, is a strong and forthright utterance. While, with
polite agreement, gliding over the controverted question of the mission,
Marshall's speech is particularly virile when dealing with domestic
politics. In coupling Fries's Pennsylvania insurrection with the
Kentucky and Virginia Resolutions Marshall displayed as clever political
dexterity as even Jefferson himself.

The address enumerates the many things for which Americans ought to
thank "the benevolent Deity," and laments "that any portion of the
people ... should permit themselves, amid such numerous blessings, to
_be seduced_ by ... _designing men_ into an open resistance to the laws
of the United States.... Under a Constitution where the public burdens
can only be imposed by the people themselves, for their own benefit, and
to promote their own objects, a hope might well have been indulged that
the general interest would have been too well understood, and the
general welfare too highly prized, to have produced in any of our
citizens a disposition to hazard so much felicity, by the criminal
effort of a part, to oppose with lawless violence the will of the
whole."[1000]

While it augured well that the courts and militia coöperated with "the
military force of the nation" in "restoring order and submission to the
laws," still, this only showed the necessity of Adams's "recommendation"
that "the judiciary system" should be extended. As to the new French
mission, the address "approves the pacific and humane policy" which met,
by the appointment of new envoys, "the first indications on the part of
the French Republic" of willingness to negotiate; and "offers up fervent
prayers to the Supreme Ruler of the Universe for the success of their
embassy."

Marshall declares "the present period critical and momentous. The
important changes which are occurring, the new and great events which
are every hour preparing ... the spirit of war ... prevalent in almost
every nation ... demonstrate" the need of providing "means of
self-defense." To neglect this duty from "love of ease or other
considerations" would be "criminal and fatal carelessness." No one could
tell how the new mission would terminate: "It depends not on America
alone. The most pacific temper will not ensure peace." Preparation for
"national defense ... is an ... obvious duty. Experience the parent of
wisdom ... has established the truth ... that ... nothing short of the
power of repelling aggression will" save us from "war or national
degradation."[1001]

Gregg of Pennsylvania moved to strike out the italicized words in
Marshall's address to the President, but after a short debate the motion
was defeated without roll-call.[1002]

Wolcott gives us a clear analysis of the political situation and of
Marshall's place and power in it at this particular moment: "The federal
party is composed of the old members who were generally re-elected in
the northern, with new members from the southern states. New York has
sent an anti-federal majority; Pennsylvania has done the same;
opposition principles are gaining ground in New Jersey and Maryland, and
in the present Congress, the votes of these states will be fluctuating
and undecided."

Nothing shows more clearly the intimate gossip of the time than the
similarity of Wolcott's and Cabot's language in describing Marshall. "A
number of distinguished men," continues Wolcott, "appear from the
southward, who are not pledged by any act to support the system of the
last Congress; these men will pay great respect to the opinions of
General Marshall; he is doubtless a man of virtue and distinguished
talents, but he will think much of the State of Virginia, and is too
much disposed to govern the world according to rules of logic; he will
read and expound the constitution as if it were a penal statute, and
will sometimes be embarrassed with doubts of which his friends will not
perceive the importance."[1003]

Marshall headed the committee to inquire of the President when he would
receive the address of the House, and on December 10, "Mr. Speaker,
attended by the members present, proceeded to the President's house, to
present him their Address in answer to his Speech."[1004] A doleful
procession the hostile, despondent, and irritated Representatives made
as they trudged along Philadelphia's streets to greet the equally
hostile and exasperated Chief Magistrate.

Presidential politics was much more on the minds of the members of
Congress than was the legislation needed by the country. Most of the
measures and practically all the debates of this remarkable session were
shaped and colored by the approaching contest between the Federalists
and Republicans and, personally, between Jefferson and Adams. Without
bearing this fact in mind the proceedings of this session cannot be
correctly understood. A mere reading of the maze of resolutions,
motions, and debates printed in the "Annals" leaves one bewildered. The
principal topic of conversation was, of course, the impending
presidential election. Hamilton's faction of extreme Federalists had
been dissatisfied with Adams from the beginning. Marshall writes his
brother "in confidence" of the plots these busy politicians were
concocting.

"I can tell you in confidence," writes Marshall, "that the situation of
our affairs with respect to domestic quiet is much more critical than I
had conjectured. The eastern people are very much dissatisfied with the
President on account of the late [second] Mission to France. They are
strongly disposed to desert him & push some other candidate. King or
Ellsworth with one of the Pinckneys--most probably the General, are
thought of.

"If they are deter'd from doing this by the fear that the attempt might
elect Jefferson I think it not improbable that they will vote generally
for Adams & Pinckney so as to give the latter gentleman the best chance
if he gets the Southern vote to be President.

"Perhaps this ill humor may evaporate before the election comes on--but
at present it wears a very serious aspect. This circumstance is rendered
the more unpleasant by the state of our finances. The impost received
this year has been less productive than usual & it will be impossible to
continue the present armament without another loan. Had the impost
produced the sum to which it was calculated, a loan would have been
unavoidable.

"This difficulty ought to have been foreseen when it was determined to
execute the law for raising the army. It is now conceiv'd that we cannot
at the present stage of our negotiation with France change the defensive
position we have taken without much hazard.

"In addition to this many influential characters not only contend that
the army ought not now to be disbanded but that it ought to be continued
so long as the war in Europe shall last. I am apprehensive that our
people would receive with very ill temper a system which should keep up
an army of observation at the expense of the annual addition of five
millions to our debt. The effect of it wou'd most probably be that the
hands which hold the reins wou'd be entirely chang'd. You perceive the
perplexities attending our situation.

"In addition to this there are such different views with respect to the
future, such a rancorous malignity of temper among the democrats,[1005]
such [an ap]parent disposition--(if the Aurora be the index of the
[mind of] those who support it) to propel us to a war with B[ritain] &
to enfold us within the embrace of Fran[ce], [s]uch a detestation & fear
of France among others [that I] look forward with more apprehension than
I have ever done to the future political events of our country."[1006]

On December 18 a rumor of the death of Washington reached the Capital.
Marshall notified the House. His grief was so profound that even the dry
and unemotional words of the formal congressional reports express it.
"Mr. Marshall," says the "Annals" of Congress, "in a voice that bespoke
the anguish of his mind, and a countenance expressive of the deepest
regret, rose, and delivered himself as follows:--

"Mr. Speaker: Information has just been received, that our illustrious
fellow-citizen, the Commander-in-Chief of the American Army, and the
late President of the United States, is no more!

"Though this distressing intelligence is not certain, there is too much
reason to believe its truth. After receiving information of this
national calamity, so heavy and so afflicting, the House of
Representatives can be but ill fitted for public business. I move,
therefore, they adjourn."[1007]

The next day the news was confirmed, and Marshall thus addressed the
House:--

"Mr. Speaker: The melancholy event which was yesterday announced with
doubt, has been rendered but too certain.

"Our WASHINGTON is no more! The Hero, the Sage, and the Patriot of
America--the man on whom in times of danger every eye was turned and all
hopes were placed--lives now only in his own great actions, and in the
hearts of an affectionate and afflicted people.

"If, sir, it has even not been usual openly to testify respect for the
memory of those whom Heaven had selected as its instrument for
dispensing good to men, yet such has been the uncommon worth, and such
the extraordinary incidents, which have marked the life of him whose
loss we all deplore, that the American Nation,[1008] impelled by the
same feelings, would call with one voice for a public manifestation of
that sorrow which is so deep and so universal.

"More than any other individual, and as much as to one individual was
possible, has he contributed to found this our wide-spread empire,[1009]
and to give to the Western World its independence and its freedom.

"Having effected the great object for which he was placed at the head of
our armies, we have seen him converting the sword into the plough-share,
and voluntarily sinking the soldier in the citizen.

"When the debility of our federal system had become manifest, and the
bonds which connected the parts of this vast continent were dissolving,
we have seen him the Chief of those patriots who formed for us a
Constitution, which, by preserving the Union, will, I trust,
substantiate and perpetuate those blessings our Revolution had promised
to bestow.

"In obedience to the general voice of his country, calling on him to
preside over a great people, we have seen him once more quit the
retirement he loved, and in a season more stormy and tempestuous than
war itself, with calm and wise determination, pursue the true interests
of the Nation, and contribute, more than any other could contribute, to
the establishment of that system of policy which will, I trust, yet
preserve our peace, our honor and our independence.

"Having been twice unanimously chosen the Chief Magistrate of a free
people, we see him, at a time when his re-election with the universal
suffrage could not have been doubted, affording to the world a rare
instance of moderation, by withdrawing from his high station to the
peaceful walks of private life. However the public confidence may
change, and the public affections fluctuate with respect to others, yet
with respect to him they have in war and in peace, in public and in
private life, been as steady as his own firm mind, and as constant as
his own exalted virtues.

"Let us, then, Mr. Speaker, pay the last tribute of respect and
affection to our departed friend--let the Grand Council of the Nation
display those sentiments which the Nation feels. For this purpose I
hold in my hand some resolutions which I will take the liberty to offer
to the House."[1010]

The resolutions offered by Marshall declared that:--

"The House of Representatives of the United States, having received
intelligence of the death of their highly valued fellow-citizen, GEORGE
WASHINGTON, General of the Armies of the United States, and sharing the
universal grief this distressing event must produce, _unanimously
resolve_:--

"1. That this House will wait on the President of the United States, in
condolence of this national calamity.

"2. That the Speaker's chair be shrouded with black, and that the
members and officers of the House wear mourning during the session.

"3. That a joint committee of both Houses be appointed to report
measures suitable to the occasion, and expressive of the profound sorrow
with which Congress is penetrated on the loss of a citizen, first in
war, first in peace, and first in the hearts of his countrymen."[1011]

Thus it came about that the designation of Washington as "First in war,
first in peace, and first in the hearts of his countrymen" was
attributed to Marshall. But Marshall's colleague, Henry Lee, was the
author of these words. Marshall's refusal to allow history to give him
the credit for this famous description is characteristic. He might
easily have accepted that honor. Indeed, he found it difficult to make
the public believe that he did not originate this celebrated
phraseology. He presented the resolutions; they stand on the record in
Marshall's name; and, for a long time, the world insisted on ascribing
them to him.

In a last effort to make history place the laurels on General Lee, where
they belong, Marshall, three years before his death, wrote the exact
facts:--

"As the stage passed through Philadelphia," says Marshall, "some
passenger mentioned to a friend he saw in the street the death of
General Washington. The report flew to the hall of Congress, and I was
asked to move an adjournment. I did so.

"General Lee was not at the time in the House. On receiving the
intelligence which he did on the first arrival of the stage, he retired
to his room and prepared the resolutions which were adopted with the
intention of offering them himself.

"But the House of Representatives had voted on my motion, and it was
expected by all that I on the next day announce the lamentable event and
propose resolutions adapted to the occasion.

"General Lee immediately called on me and showed me his resolutions. He
said it had now become improper for him to offer them, and wished me to
take them. As I had not written anything myself and was pleased with his
resolutions which I entirely approved, I told him I would offer them the
next day when I should state to the House of Representatives the
confirmation of the melancholy intelligence received the preceding day.
I did so.

"You will see the fact stated in a note to the preface of the Life of
Washington on p. [441] v. [2] and again in a note to the 5th vol. p.
765. Whenever the subject has been mentioned in my presence," Marshall
adds in a postscript, "I have invariably stated that the resolution was
drawn by General Lee and have referred to these notes in the Life of
Washington."[1012]

During the first session Marshall was incessantly active, although his
work was done with such ease that he gave to his colleagues the
impression of indolence. Few questions came before the House on which he
did not take the floor; and none, apparently, about which he did not
freely speak his mind in private conversation. The interminable
roll-calls of the first session show that Marshall failed to vote only
six times.[1013] His name is prominent throughout the records of the
session. For example, the Republicans moved to amend the army laws so
that enlistments should not exempt non-commissioned officers and
privates from imprisonment for debt. Marshall spoke against the motion,
which was defeated.[1014] He was appointed chairman of a special
committee to bring in a bill for removing military forces from election
places and "preventing their interference in elections." Marshall drew
this measure, reported it to the House, where it passed, only to be
defeated in the Senate.[1015]

Early in the session Marshall was appointed chairman of the committee to
report upon the cession by Connecticut to the United States of that
priceless domain known as the Western Reserve. He presented the
committee report recommending the acceptance of the lands and introduced
the bill setting out the terms upon which they could be taken
over.[1016] After much debate, which Marshall led, Gallatin fighting by
his side, the bill was passed by a heavy majority.[1017]

Marshall's vote against abrogating the power of the Governor of the
Territory of the Mississippi to prorogue the Legislature;[1018] his vote
for the resolution that the impertinence of a couple of young officers
to John Randolph at the theater did not call "for the interposition of
this House," on the ground of a breach of its privileges;[1019] his vote
against that part of the Marine Corps Bill which provided that any
officer, on the testimony of two witnesses, should be cashiered and
incapacitated forever from military service for refusing to help arrest
any member of the service who, while on shore, offended against the
person or property of any citizen,[1020] are fair examples of the level
good sense with which Marshall invariably voted.

On the Marine Corps Bill a debate arose so suddenly and sharply that the
reporter could not record it. Marshall's part in this encounter reveals
his military bent of mind, the influence of his army experience, and his
readiness in controversy, no less than his unemotional sanity and his
disdain of popular favor if it could be secured only by sacrificing
sound judgment. Marshall strenuously objected to subjecting the Marine
Corps officers to trial by jury in the civil courts; he insisted that
courts-martial were the only tribunals that could properly pass on their
offenses. Thereupon, young John Randolph of Roanoke, whose pose at this
particular time was extravagant hostility to everything military,
promptly attacked him. The incident is thus described by one who
witnessed the encounter "which was incidentally and unexpectedly started
and as suddenly and warmly debated":--

"Your representative, Mr. Marshall, was the principal advocate for
_letting the power remain with courts martial and for withholding it
from the courts of law_. In the course of the debate there was some
warmth and personality between him and Mr. Randolph, in consequence of
the latter charging the former with adopting opinions, and using
arguments, which went to sap the mode of trial by jury.

"Mr. Marshall, with leave, rose a third time, and exerted himself to
repel and invalidate the deductions of Mr. Randolph, who also obtained
permission, and defended the inference he had drawn, by stating that Mr.
Marshall, in the affair of Robbins,[1021] had strenuously argued against
the jurisdiction of the American courts, and had contended that it was
altogether an _Executive_ business; that in the present instance he
strongly contended that the business ought not to be left with the civil
tribunals, but that it ought to be transferred to military tribunals,
and thus the trial by jury would be lessened and frittered away, and
insensibly sapped, at one time by transferring the power to the
Executive, and at another to the military departments; and in other
ways, as occasions might present themselves. The debate happened so
unexpectedly that the shorthand man did not take it down, although its
manner, its matter, and its tendency, made it more deserving of
preservation, than most that have taken place during the session."[1022]

Marshall's leadership in the fight of the Virginia Revolutionary
officers for land grants from the National Government, strongly resisted
by Gallatin and other Republican leaders, illustrates his unfailing
support of his old comrades. Notwithstanding the Republican opposition,
he was victorious by a vote of more than two to one.[1023]

But Marshall voted to rebuke a petition of "free men of color" to revive
the slave-trade laws, the fugitive from justice laws, and to take "such
measures as shall in due course" free the slaves.[1024] The debate over
this resolution is important, not only as explaining the vote of
Marshall, who came from Virginia and was himself a slaveholder, as were
Washington and Jefferson, but also as showing the mind of the country on
slavery at that particular time.

Marshall's colleague, General Lee, said that the petition "contained
sentiments ... highly improper ... to encourage."[1025] John Rutledge of
South Carolina exclaimed: "They now tell the House these people are in
slavery--I thank God they are! if they were not, dreadful would be the
consequences.... Some of the states would never have adopted the Federal
form of government if it had not been secured to them that Congress
never would legislate on the subject of slavery."[1026]

Harrison Gray Otis of Massachusetts was much disgusted by the
resolution, whose signers "were incapable of writing their names or of
reading the petitions"; he "thought those who did not possess that
species of property [slaves] had better leave the regulation of it to
those who were cursed with it." John Brown of Rhode Island "considered
[slaves] as much personal property as a farm or a ship.... We want
money; we want a navy; we ought therefore to use the means to obtain
it.... Why should we see Great Britain getting all the slave trade to
themselves; why may not our country be enriched by that lucrative
traffic?"[1027] Gabriel Christie of Maryland hoped the petition would
"go under the table instead of upon it."[1028] Mr. Jones of Georgia
thought that the slaves "have been immensely benefited by coming amongst
us."[1029]

Finally, after two days of debate, in which the cause of freedom for the
blacks was almost unsupported, Samuel Goode of Virginia moved: "That the
parts of the said petition which invite Congress to legislate upon
subjects from which the General Government is precluded by the
Constitution have a tendency to create disquiet and jealousy, and ought
therefore to receive the pointed disapprobation of this House."[1030] On
this motion, every member but one, including John Marshall, voted aye.
George Thacher, a Congregationalist preacher from Massachusetts, alone
voted nay.[1031] Such, in general, and in spite of numerous humanitarian
efforts against slavery, was American sentiment on that subject at the
dawn of the nineteenth century.[1032]

Five subjects of critical and historic importance came before the
session: the Federalists' Disputed Elections Bill; the Republican attack
on the provisional army raised for the probable emergency of war with
France; the Republican attack on the Executive power in the Jonathan
Robins case; the Republican onslaught upon the Alien and Sedition Laws;
and the National Bankruptcy Bill. In each of these Marshall took a
leading and determining part.

Early in the session (January 23) the Republicans brought up the vexed
question of the Sedition Law. A resolution to repeal the obnoxious
section of this measure was presented on January 29, and after a hot
debate was adopted by the close vote of 50 to 48. Marshall voted for the
repeal and against his own party.[1033] Had he voted with his party, the
Republican attack would have failed. But no pressure of party regularity
could influence Marshall against his convictions, no crack of the party
whip could frighten him.

Considering the white heat of partisan feeling at the time, and
especially on the subject of the Alien and Sedition Laws; considering,
too, the fact that these offensive acts were Administration measures;
and taking into account the prominence as a Federalist leader which
Marshall had now achieved, his vote against the reprobated section of
the Sedition Law was a supreme act of independence of political ties and
party discipline. He had been and still was the only Federalist to
disapprove, openly, the Alien and Sedition Laws.[1034] "To make a little
saving for our friend Marshall's address," Chief Justice Ellsworth
sarcastically suggested that, in case of the repeal of the Sedition Law,
"the preamble ... should read thus: 'Whereas the increasing danger and
depravity of the present time require that the law against seditious
practices _should be restored to its full rigor_, therefore,'
etc."[1035]

From the point of view of its probable effect on Marshall's political
fortunes, his vote appeared to spell his destruction, for it practically
left him outside of either party. He abhorred the doctrine of State
Sovereignty which Jefferson now was making the rallying-point of the
Republican Party; he believed, quite as fervently as had Washington
himself, that the principle of Nationality alone could save the
Republic. So Marshall could have no hopes of any possible future
political advancement through the Republican Party.

On the other hand, his vote against his own party on its principal
measure killed Marshall's future as a Federalist in the opinion of all
the politicians of his time, both Federal and Republican.[1036] And we
may be certain that Marshall saw this even more clearly than did the
politicians, just as he saw most things more clearly than most men.

But if Marshall's vote on the Sedition Law was an act of
insubordination, his action on the Disputed Elections Bill was nothing
short of party treason. This next to the last great blunder of the
Federalists was in reality a high-handed attempt to control the coming
presidential election, regardless of the votes of the people. It was
aimed particularly at the anticipated Republican presidential majority
in Pennsylvania which had just elected a Republican Governor over the
Federalist candidate.

On January 3, Senator Ross of Pennsylvania, the defeated Federalist
candidate for Governor of that State, offered a resolution that a
committee should be appointed to consider a law "for deciding disputed
elections of President and Vice-President ... and ... the legality or
illegality of the votes given for those officers in the different
states." In a brief but pointed debate, the Republicans insisted that
such a law would be unconstitutional.

The Federalist position was that, since the Constitution left open the
manner of passing upon votes, Congress had the power to regulate that
subject and ought to provide some method to meet anticipated
emergencies. Suppose, said Senator Ross, that "persons should claim to
be Electors who had never been _properly_ appointed [elected], should
their vote be received? Suppose they should vote for a person to be
President who had not the age required by the Constitution or who had
not been long enough a citizen of the United States or for two persons
who were both citizens of the same State?... What situation would the
country be in if such a case was to happen?"[1037]

So lively was the interest and high the excitement that Marshall did not
go to Richmond when his fifth child was born on February 13, 1800.[1038]
He spoke in the House February 12, and was appointed on an important
committee February 13.[1039]

On February 14, the bill was reported to the Senate. Five days later the
Republican organ, the "Aurora," made shift to get a copy of the
measure,[1040] and printed it in full with a bold but justifiable attack
upon it and the method of its origin.[1041] On March 28, the bill passed
the Senate by a strict party vote.[1042] It provided that a "Grand
Committee," consisting of six Senators and six Representatives elected
by ballot and the Chief Justice of the Supreme Court, should take charge
of the certificates of electoral votes immediately after they had been
opened and read in the presence of Congress.

This Grand Committee was to be given power to send for papers and
persons and, in secret session, to consider and _determine_ all
questions concerning the election. Had bribery been employed, had force
been used, had threats or intimidation, persuasion or cajolery polluted
the voters?--the Grand Committee was to decide these questions; it was
to declare what electoral votes should be counted; it was to throw out
electoral votes which it thought to be tainted or improper; and the
report of this Grand Committee was to be final and conclusive. In
short, it was to settle absolutely the Presidency; from its decree
there was to be no appeal.[1043]

On March 31, this bill reached the House. While no action was taken on
it for more than two weeks, it was almost the sole topic of conversation
among the members. In these cloak-room talks, Marshall, to the intense
disgust and anger of the Federalist leaders, was outspoken against this
attempt to seize the Presidency under the forms of a National law.

Two weeks later Marshall expressed his opinion on the floor. He thought
that "some salutary mode" to guard against election frauds and to settle
disputed presidential contests should be adopted; but he did not think
that the Senate should appoint the chairman of the Grand Committee, and
he objected especially to the finality of its authority.[1044] He moved
that these portions of the bill be stricken out and offered a
substitute.[1045]

Opposed as he was to the measure as it came from the Senate, he
nevertheless was against its indefinite postponement and so voted.[1046]
His objections were to the autocratic and definitive power of the Grand
Committee; with this cut from the measure, he was in favor of a joint
committee of the House and Senate to examine into alleged election
frauds and illegalities. The Senate bill was referred to a special
committee of the House,[1047] which reported a measure in accordance
with Marshall's views.[1048] After much debate and several roll-calls,
the bill, as modified by Marshall, passed the House.[1049]

Marshall's reconstruction of the Senate's Disputed Elections Bill killed
that measure. It no longer served the purpose of the Federalist
presidential conspiracy. By a strict party vote, the Senate disagreed
with the House amendments;[1050] and on the day before adjournment, the
bill was finally disposed of by postponement.[1051]

Thus did Marshall destroy the careful plans for his party's further
control of the National Government, and increase the probability of the
defeat of his friend, John Adams, and of the election of his enemy,
Thomas Jefferson. Had not Marshall interfered, it seems certain that the
Disputed Elections Bill would have become a law. If it had been enacted,
Jefferson's election would have been impossible. Once again, as we shall
see, Marshall is to save the political life of his great and remorseless
antagonist.

Yet Jefferson had no words of praise for Marshall. He merely remarks
that "the bill ... has undergone much revolution. Marshall made a
dexterous manoeuver; he declares against the constitutionality of the
Senate's bill, and proposes that the right of decision of their grand
committee should be controllable by the _concurrent_ vote of the two
houses of congress; but to stand good if not rejected by a concurrent
vote. You will readily estimate the amount of this sort of
controul."[1052]

[Illustration: _Statue of John Marshall By Randolph Rogers_]

The party leaders labored hard and long with Marshall while the Disputed
Elections Bill was before the House. Speaker Sedgwick thus describes the
Federalist plot and the paralyzing effect of Marshall's private
conversations with his fellow members: "Looking forward to the ensuing
election," writes the disgusted Speaker, "it was deemed indispensable to
prescribe a mode for canvassing the votes, provided there should be a
dispute. There being no law in the state [Pennsylvania], the governor
had declined, and the jacobins [Republicans] propagated the report ...
that he would return their votes. A bill was brought into the Senate &
passed, wisely & effectually providing against the evil, by the
constitution of a committee with ultimate powers of decision.

"Mr. Marshall in the first place called in question the constitutional
powers of the legislature to delegate such authority to a Committee. On
this question I had a long conversation with him, & he finally confessed
himself (for there is not a more candid man on earth) to be convinced.

"He then resorted to another ground of opposition. He said the people
having authorized the members to decide, personally, all disputes
relative to those elections, altho' the power was not indelegable, yet
he thought, in its nature, it was too delicate to be delegated, until
experience had demonstrated that great inconveniences would attend its
exercise by the Legislature; altho' he had no doubt such would be the
result of the attempt.

"This objection is so attenuated and unsubstantial as to be hardly
perceivable by a mind so merely practical as mine. He finally was
convinced that it was so and abandoned it.

"In the mean time, however, he had dwelt so much, in conversation, on
these subjects that he had dissipated our majority, and it never could
again be compacted. The consequence was that the bill was lost."[1053]

Marshall's most notable performance while in Congress was his effort in
the celebrated Jonathan Robins case--"a speech," declares that capable
and cautious critic, Henry Adams, "that still stands without a parallel
in our Congressional debates."[1054] In 1797 the crew of the British
ship Hermione mutinied, murdered their officers, took the ship to a
Spanish port, and sold it. One of the murderers was Thomas Nash, a
British subject. Two years later, Nash turned up at Charleston, South
Carolina, as the member of a crew of an American schooner.

On the request of the British Consul, Nash was seized and held in jail
under the twenty-seventh article of the Jay Treaty. Nash swore that he
was not a British subject, but an American citizen, Jonathan Robins,
born in Danbury, Connecticut, and impressed by a British man-of-war. On
overwhelming evidence, uncontradicted except by Nash, that the accused
man was a British subject and a murderer, President Adams requested
Judge Bee, of the United States District Court of South Carolina, to
deliver Nash to the British Consul pursuant to the article of the treaty
requiring the delivery.[1055]

Here was, indeed, a campaign issue. The land rang with Republican
denunciation of the President. What servile truckling to Great Britain!
Nay, more, what a crime against the Constitution! Think of it! An
innocent American citizen delivered over to British cruelty. Where now
were our free institutions? When President Adams thus surrendered the
Connecticut "Yankee," Robins, he not only prostituted patriotism, showed
himself a tool of British tyranny, but also usurped the functions of the
courts and struck a fatal blow at the Constitution. So shouted
Republican orators and with immense popular effect.

The fires kindled by the Alien and Sedition Laws did not heat to greater
fervency the public imagination. Here was a case personal and concrete,
flaming with color, full of human appeal. Jefferson took quick party
advantage of the incident. "I think," wrote he, "no circumstance since
the establishment of our government has affected the popular mind more.
I learn that in Pennsylvania it had a great effect. I have no doubt the
piece you inclosed will run through all the republican papers, & carry
the question home to every man's mind."[1056]

"It is enough to call a man an _Irishman_, to make it _no murder_ to
pervert the law of nations and to degrade national honor and
character.... Look at what has been done in the case of _Jonathan
Robbins_," [_sic_] exclaimed the "Aurora." "A British lieutenant who
never saw him until he was prisoner at Charleston swears his name is
Thomas Nash." So "The man is hanged!"[1057]

For the purposes of the coming presidential campaign, therefore, the
Robins affair was made the principal subject of Republican congressional
attack on the Administration. On February 4, the House requested the
President to transmit all the papers in the case. He complied
immediately.[1058] The official documents proved beyond a doubt that the
executed sailor had not been an American citizen, but a subject of the
British King and that he had committed murder while on board a British
vessel on the high seas.

The selectmen of Danbury, Connecticut, certified that no such person as
Jonathan Robins nor any family of the name of Robins ever had lived in
that town. So did the town clerk. On the contrary, a British naval
officer, who knew Nash well, identified him.[1059]

Bayard, for the Federalists, took the aggressive and offered a
resolution to the effect that the President's conduct in the Robins case
"was conformable to the duty of the Government and to ... the 27th
article of the Treaty ... with Great Britain."[1060]

Forced to abandon their public charge that the Administration had
surrendered an innocent American citizen to British cruelty,[1061] the
Republicans based their formal assault in Congress upon the ground that
the President had disobeyed the laws, disregarded the Constitution, and
taken upon himself the discharge of duties and functions which belonged
exclusively to the courts. They contended that, even if Nash were
guilty, even if he were not an American citizen, he should,
nevertheless, have been tried by a jury and sentenced by a court.

On February 20, Livingston of New York offered the Republican
resolutions to this effect. Not only was the President's conduct in this
serious business a "dangerous interference of the Executive with
judicial decisions," declared the resolution, but the action of the
court in granting the President's request was "a sacrifice of the
Constitutional independence of the judicial power and exposes the
administration thereof to suspicion and reproach."[1062]

The House decided to consider the Livingston resolutions rather than
those offered by Bayard, the Federalists to a man supporting this method
of meeting the Republicans on the ground which the latter, themselves,
had chosen. Thus the question of constitutional power in the execution
of treaties came squarely before the House, and the great debate was
on.[1063] For two weeks this notable discussion continued. The first day
was frittered away on questions of order.

The next day the Republicans sought for delay[1064]--there were not
sufficient facts before the House, they said, to justify that body in
passing upon so grave a question. The third day the Republicans proposed
that the House should request the President to secure and transmit the
proceedings before the South Carolina Federal Court on the ground that
the House could not determine the matter until it had the court
proceedings.[1065]

Marshall's patience was exhausted. He thought this procrastinating
maneuver a Republican trick to keep the whole matter open until after
the coming presidential campaign,[1066] and he spoke his mind sharply to
the House.

"Let gentlemen recollect the nature of the case," exclaimed Marshall;
"the President of the United States is charged by this House with having
violated the Constitution and laws of his country, by having committed
an act of dangerous interference with a judicial decision--he is so
charged by a member of this House. Gentlemen were well aware how much
the public safety and happiness depended on a well or a misplaced
confidence in the Executive.

"Was it reasonable or right," he asked, "to receive this charge--to
receive in part the evidence in support of it--to receive so much
evidence as almost every gentleman declared himself satisfied with, and
to leave the charge unexamined, hanging over the head of the President
of the United States ... how long it was impossible to say, but
certainly long enough to work a very bad effect? To him it seemed of
all things the most unreasonable and unjust; and the mischief resulting
therefrom must be very great indeed."

The House ought to consider the evidence it already had; if, on such
examination, it appeared that more was needed, the matter could then be
postponed. And, in any event, why ask the President to send for the
court proceedings? The House had as much power to procure the papers as
the President had. "Was he [the President] to be a _menial_ to the House
in a business wherein himself was seriously charged?"[1067]

Marshall was aroused. To his brother he thus denounces the tactics of
the Republicans: "Every stratagem seems to be used to give to this
business an undue impression. On the motion to send for the evidence
from the records of South Carolina altho' it was stated & prov'd that
this would amount to an abandonment of the enquiry during the present
session & to an abandonment under circumstances which would impress the
public mind with the opinion that we really believed Mr. Livingston's
resolutions maintainable; & that the record could furnish no
satisfaction since it could not contain the parol testimony offered to
the Judge & further that it could not be material to the President but
only to the reputation of the Judge what the amount of the testimony
was, yet the debate took a turn as if we were precipitating a decision
without enquiry & without evidence."[1068]

This Republican resolution was defeated. So was another by Gallatin
asking for the papers in the case of William Brigstock, which the
Republicans claimed was similar to that of Jonathan Robins. Finally the
main question came on. For two hours Gallatin made an ingenious argument
in support of the Livingston resolutions.[1069]

The next day, March 7, Marshall took the floor and made the decisive
speech which put a period to this partisan controversy. He had carefully
revised his argument,[1070] and it is to this prevision, so unlike
Marshall's usual methods, that we owe the perfection of the reporter's
excellent transcript of his performance. This great address not only
ended the Republican attack upon the Administration, but settled
American law as to Executive power in carrying out extradition treaties.
Marshall's argument was a mingling of impressive oratory and judicial
finality. It had in it the fire of the debater and the calmness of the
judge.

It is the highest of Marshall's efforts as a public speaker. For many
decades it continued to be published in books containing the
masterpieces of American oratory as one of the best examples of the
art.[1071] It is a landmark in Marshall's career and a monument in the
development of the law of the land. They go far who assert that
Marshall's address is a greater performance than any of the speeches of
Webster, Clay, Sumner, or other American orators of the first class; and
yet so perfect is this speech that the commendation is not extreme.

The success of a democratic government, said Marshall, depended not only
on its right administration, but also on the public's right
understanding of its measures; public opinion must be "rescued from
those numerous prejudices which ... surround it." Bayard and others had
so ably defended the Administration's course that he would only
"reëstablish" and "confirm" what they had so well said.

Marshall read the section of the Jay Treaty under which the President
acted: This provided, said he, that a murderer of either nation, fleeing
for "asylum" to the other, when charged with the crime, and his delivery
demanded on such proof as would justify his seizure under local laws if
the murder had been committed in that jurisdiction, must be surrendered
to the aggrieved nation. Thus Great Britain had required Thomas Nash at
the hands of the American Government. He had committed murder on a
British ship and escaped to America.

Was this criminal deed done in British jurisdiction? Yes; for "the
jurisdiction of a nation extends to the whole of its territory, and to
its own citizens in every part of the world.... The nature of civil
union" involves the "principle" that "the laws of a nation are
rightfully obligatory on its own citizens in every situation where those
laws are really extended to them."

This "is particularly recognized with respect to the fleets of a nation
on the high seas." By "the opinion of the world ... a fleet at sea is
within the jurisdiction of the nation to which it belongs," and crimes
there committed are punishable by that nation's laws. This is not
contradicted by the right of search for contraband, as Gallatin had
contended, for "in the sea itself no nation has any jurisdiction," and a
belligerent has a right to prevent aid being carried to its enemy. But,
as to its crew, every ship carried the law of its flag.

Marshall denied that the United States had jurisdiction, concurrent or
otherwise, over the place of the murder; "on the contrary, no nation has
any jurisdiction at sea but over its own citizens or vessels or offenses
against itself." Such "jurisdiction ... is personal, reaching its own
citizens only"; therefore American authority "cannot extend to a murder
committed by a British sailor on board a British frigate navigating the
high seas." There is no such thing as "common [international]
jurisdiction" at sea, said Marshall; and he exhaustively illustrated
this principle by hypothetical cases of contract, dueling, theft, etc.,
upon the ocean. "A common jurisdiction ... at sea ... would involve the
power of punishing the offenses ... stated." Piracy was the one
exception, because "against all and every nation ... and therefore
punishable by all alike." For "a pirate ... is an enemy of the human
race."

Any nation, however, may by statute declare an act to be piratical which
is not so by the law of nations; and such an act is punishable only by
that particular state and not by other governments. But an act
universally recognized as criminal, such as robbery, murder, and the
like, "is an offense against the community of nations."

The Republican contention was that murder and robbery (seizure of ships)
constituted piracy "by the law of nations," and that, therefore, Nash
should have been indicted and tried by American authority as a pirate;
whereas he had been delivered to Great Britain as a criminal against
that nation.

But, said Marshall, a single act does not necessarily indicate piratical
intent unless it "manifests general hostility against the world"; if it
shows an "intention to rob generally, then it is piracy." If, however,
"it be merely mutiny and murder in a vessel with the intention of
delivering it up to the enemy, it" is "an offense against a single
nation and not piracy." It was only for such murder and "not piracy"
that "Nash was delivered." And, indisputably, this was covered by the
treaty. Even if Nash had been tried and acquitted for piracy, there
still would have remained the crime of murder over which American courts
had no jurisdiction, because it was not a crime punishable by
international law, but only by the law of the nation in whose
jurisdiction the crime was committed, and to which the criminal
belonged.

American law and American courts could not deal with such a condition,
insisted Marshall, but British law and courts could and the treaty bound
America to deliver the criminal into British hands. "It was an act to
which the American Nation was bound by a most solemn compact." For an
American court to have convicted Nash and American authorities to have
executed him "would have been murder"; while for them to have "acquitted
and discharged him would have been a breach of faith and a violation of
national duty."

It was plain, then, said he, that Nash should have been delivered to the
British officers. By whom? The Republicans insisted that this authority
was in the courts. Marshall demonstrated that the President alone could
exercise such power. It was, he said, "a case for Executive and not for
judicial decision." The Republican resolutions declared that the
judicial power extends to _all_ questions arising under the
Constitution, treaties, and laws of the United States; but the
Constitution itself provided that the judicial power extends only to all
cases "_in law and equity_" arising under the Constitution, laws, and
treaties of the United States.

"The difference was material and apparent," said Marshall. "A case in
law or equity was a term well understood and of limited signification.
It was a controversy between parties which had taken a shape for
judicial decision. If the judicial power extended to every question
under the Constitution, it would involve almost every subject proper for
Legislative discussion and decision; if to every question under the laws
and treaties of the United States, it would involve almost every subject
on which the Executive could act. The division of power ... could exist
no longer, and the other departments would be swallowed up in the
Judiciary."

The Constitution did not confer on the Judiciary "any political power
whatever." The judicial power covered only cases where there are
"parties to come into court, who can be reached by its process and bound
by its power; whose rights admit of ultimate decision by a tribunal to
which they are bound to submit." Such a case, said Marshall, "may arise
under a treaty where the rights of individuals acquired or secured by a
treaty are to be asserted or defended in court"; and he gave examples.
"But the judicial power cannot extend to political compacts; as the
establishment of the boundary line between American and British
Dominions ... or the case of the delivery of a murderer under the
twenty-seventh article of our present Treaty with Britain....

"The clause of the Constitution which declares that 'the trial of all
crimes ... shall be by jury'" did not apply to the decision of a case
like that of Robins. "Certainly this clause ... cannot be thought
obligatory on ... the whole world. It is not designed to secure the
rights of the people of Europe or Asia or to direct and control
proceedings against criminals throughout the universe. It can, then, be
designed only to guide the proceedings of our own courts" in cases "to
which the jurisdiction of the nation may rightfully extend." And the
courts could not "try the crime for which Thomas Nash was delivered up
to justice." The sole question was "whether he should be delivered up to
a foreign tribunal which was alone capable of trying and punishing him."
A provision for the trial of crimes in the courts of the United States
is clearly "not a provision for the surrender to a foreign Government of
an offender against that Government."

If the murder by Nash were a crime, it is one "not provided for by the
Constitution"; if it were not a crime, "yet it is the precise case in
which his surrender was stipulated by treaty" which the President,
alone, must execute. That in the Executive decision "judicial questions"
must also be determined, argued nothing; for this often must be the
case, as, for instance, in so simple and ordinary matter as issuing
patents for public lands, or in settling whether vessels have been
captured within three miles of our coasts, or in declaring the legality
of prizes taken by privateers or the restoration of such vessels--all
such questions, of which these are familiar examples, are, said
Marshall, "questions of political law proper to be decided by the
Executive and not by the courts."

This was the Nash case. Suppose that a murder were "committed within the
United States and the murderer should seek an asylum in Great Britain!"
The treaty covered such a case; but no man would say "that the British
courts should decide" it. It is, in its nature, a National demand made
upon the Nation. The parties are two nations. They cannot come into
court to litigate their claims, nor can a court decide on them. "Of
consequence," declares Marshall, "the demand is not a case for judicial
cognizance."

"The President is the sole organ of the nation in its external
relations"; therefore "the demand of a foreign nation can only be made
on him. He possesses the whole Executive power. He holds and directs the
force of the nation. Of consequence, any act to be performed by the
force of the nation is to be performed through him. He is charged to
execute the laws. A treaty is ... a law. He must, then, execute a
treaty, where he, and he alone, possesses the means of executing it."

This, in rough outline, is Marshall's historic speech which helped to
direct a new nation, groping blindly and with infinite clamoring, to a
straight and safe pathway. Pickering immediately reported to Hamilton:
"Mr. Marshall delivered a very luminous argument on the case, placing
the 27th article of the treaty in a clear point of view and giving
constructions on the questions arising out of it perfectly satisfactory,
but, as it would seem, wholly unthought of when the meaning of the
article was heretofore considered. His argument will, I hope, be fully
and correctly published; it illustrates an important national
question."[1072]

The Republicans were discomfited; but they were not without the power to
sting. Though Marshall had silenced them in Congress, the Republican
press kept up the attack. "_Mr. Marshall_ made an ingenious and
_specious_ defence of the administration, in relation to executive
interference in the case of _Robbins_," [_sic_] says the "Aurora," "but
he was compelled to admit, what certainly implicates both the President
and Judge Bee.... He admitted that an American seaman was justifiable,
in rescuing himself from impressment, to put to death those who kept
him in durance.... Robbins [_sic_] claimed to be an American citizen,
and asserted upon his oath, that he had been impressed and yet his claim
was not examined into by the Judge, neither did the President _advise_
and _request_ that this should be a subject of enquiry. The enquiry into
his citizenship was made _after_ his surrender and execution, and the
evidence exhibited has a very suspicious aspect.... Town clerks may be
found to certify to anything that Timothy Pickering shall desire."[1073]
Nevertheless, even the "Aurora" could not resist an indirect tribute to
Marshall, though paying it by way of a sneer at Samuel W. Dana of
Connecticut, who ineffectually followed him.

"In the debate on _Mr. Livingston's_ resolutions, on Friday last," says
the "Aurora," "Mr. Marshall made, in the minds of some people, a very
satisfactory defense of the conduct of the _President_ and _Judge Bee_
in the case of _Jonathan Robbins_ [_sic_]. Mr. Dana, however, thought
the subject exhausted, and very _modestly_ (who does not know his
_modesty_) resolved with his inward man to shed a few more rays of light
on the subject; a federal judge, much admired for his wit and humour,
happened to be present, when Mr. Dana began his flourishes.

"The judge thought the seal of conviction had been put upon the case by
Mr. Marshall, and discovered symptoms of uneasiness when our little
Connecticut Cicero displayed himself to catch Mr. Speaker's vacant
eye--'Sir,' said the wit to a byestander, 'what can induce that man to
rise, he is nothing but a shakebag, and can only shake out the ideas
that have been put into the members' heads by Mr. Marshall.'"[1074]

Marshall's argument was conclusive. It is one of the few speeches ever
delivered in Congress that actually changed votes from one party to the
other in a straight-out party fight. Justice Story says that Marshall's
speech "is one of the most consummate juridical arguments which was ever
pronounced in the halls of legislation; ... equally remarkable for the
lucid order of its topics, the profoundness of its logic, the extent of
its research,[1075] and the force of its illustrations. It may be said
of that speech ... that it was '_Réponse sans réplique_,' an answer so
irresistible that it admitted of no reply. It silenced opposition and
settled then and forever the points of international law on which the
controversy hinged.... An unequivocal demonstration of public opinion
followed. The denunciations of the Executive, which had hitherto been
harsh and clamorous everywhere throughout the land, sunk away at once
into cold and cautious whispers only of disapprobation.

"Whoever reads that speech, even at this distance of time, when the
topics have lost much of their interest, will be struck with the
prodigious powers of analysis and reasoning which it displays, and
which are enhanced by the consideration that the whole subject was then
confessedly new in many of its aspects."[1076]

The Republican leaders found their own members declaring themselves
convinced by Marshall's demonstration and announcing their intentions of
voting with the Administration. Gallatin, Livingston, and Randolph had
hard work to hold their followers in line. Even the strongest efforts of
these resourceful men would not rally all of their shattered forces.
Many Republican members ignored the pleadings of their leaders and
supported Marshall's position.

This is not to be wondered at, for Marshall had convinced even Gallatin
himself. This gifted native of Switzerland was the Republican leader of
the House. Unusually well-educated, perfectly upright, thorough in his
industry, and careful in his thinking, Gallatin is the most admirable of
all the characters attracted to the Republican ranks. He had made the
most effective argument on the anti-Administration side in the debate
over the Livingston resolutions, and had been chosen to answer
Marshall's speech. He took a place near Marshall and began making notes
for his reply; but soon he put his pencil and paper aside and became
absorbed in Marshall's reasoning. After a while he arose, went to the
space back of the seats, and paced up and down while Marshall proceeded.

When the Virginian closed, Gallatin did not come forward to answer him
as his fellow partisans had expected. His Republican colleagues crowded
around the brilliant little Pennsylvania Swiss and pleaded with him to
answer Marshall's speech without delay. But Gallatin would not do it.
"Answer it yourself," exclaimed the Republican leader in his quaint
foreign accent; "for my part, I think it unan_swer_able," laying the
accent on the _swer_.[1077]

Nicholas of Virginia then tried to reply, but made no impression; Dana
spoke to no better purpose, and the House ended the discussion by a vote
which was admitted to be a distinctively personal triumph for Marshall.
The Republican resolutions were defeated by 61 to 35, in a House where
the parties were nearly equal in numbers.[1078]

For once even Jefferson could not withhold his applause for Marshall's
ability. "Livingston, Nicholas & Gallatin distinguished themselves on
one side & J. Marshall greatly on the other," he writes in his curt
account of the debate and its result.[1079] And this grudging tribute of
the Republican chieftain is higher praise of Marshall's efforts than the
flood of eulogy which poured in upon him; Jefferson's virulence toward
an enemy, and especially toward Marshall, was such that he could not
see, except on rare occasions, and this was one, any merit whatever in
an opponent, much less express it.

Marshall's defense of the army law was scarcely less powerful than his
speech in the Robins case; and it reveals much more clearly Marshall's
distinctively military temper of mind.

Congress had scarcely organized when the question came up of the
reduction of the army. On this there was extended debate. Nicholas of
Virginia offered a resolution to repeal the act for the provisional army
of which Washington had been the Commander-in-Chief. The expense of this
military establishment greatly alarmed Nicholas, who presented an array
of figures on which his anxieties fed.[1080] It was nonsense, he held,
to keep this army law on the statute books for its effect on the
negotiations with France.

Marshall promptly answered. "If it was true," said he, "that America,
commencing her negotiation with her present military force would appear
in the armor which she could only wear for a day, the situation of our
country was lamentable indeed. If our debility was really such ... our
situation was truly desperate." There was "no cheaper mode of
self-defense"; to abandon it "amounted to a declaration that we were
unable to defend ourselves." It was not necessary to repeal the law
entirely or to put it, "not modified," in full effect. Marshall
suggested a middle ground by which "the law might be modified so as to
diminish the estimated expense, without dismissing the troops already in
actual service."[1081]

Answering the favorite argument made by the opponents of the army, that
no power can invade America, he asked: "What assurance have gentlemen
that invasion is impracticable?" Who knows the real conditions in
Europe?--the "effect of the late decisive victories of France?... It was
by no means certain" that these had not resulted in the release of
forces which she "may send across the Atlantic."

Why be precipitate? asked Marshall; by the opening of the next campaign
in Europe we should have more information. Let us look the situation in
the face: "We are, in fact, at war with France, though it is not
declared in form"; commerce is suspended; naval battles are being
fought; property is "captured and confiscated"; prisoners are taken and
incarcerated. America is of "vast importance to France"; indeed, "the
monopoly of our commerce in time of peace" is invaluable to both France
and England "for the formation of a naval power."

The Republicans, he said, had "urged not only that the army is useless,"
but that we could not afford the expense of maintaining it. "Suppose
this had been the language of '75!" exclaimed Marshall. "Suppose a
gentleman had risen on the floor of Congress, to compare our revenues
with our expenses--what would have been the result of the calculation?"
It would have shown that we could not afford to strike for our
independence! Yet we did strike and successfully. "If vast exertions
were then made to acquire independence, will not the same exertions be
now made to maintain it?"

The question was, "whether self-government and national liberty be worth
the money which must be expended to preserve them?"[1082] He exposed
the sophistry of an expensive economy. It should never be forgotten that
true economy did not content itself with inquiring into the mere saving
of the present moment; it should take an enlarged view of the subject,
and determine, on correct calculations, whether the consequence of a
present saving might not be a much more considerable future expenditure.

Marshall admitted that the reduction of the army would certainly
diminish the expense of the present year, but contended that the present
saving would bear no proportion to the immense waste of blood, as well
as treasure, which it might occasion.[1083] "And consider," he
exclaimed, "the effect the army already had produced on the mind and
conduct of France. While America was humbly supplicating for peace, and
that her complaints might be heard, France spurned her contemptuously
and refused to enter on a discussion of differences, unless that
discussion was preceded by a substantial surrender of the essential
attributes of independence."

"America was at length goaded into resistance," asserted Marshall, "and
resolved on the system of defense, of which the army now sought to be
disbanded forms a part." What was the result? "Immediately the tone of
France was changed, and she consented to treat us as an independent
nation. Her depredations indeed did not cease; she continued still to
bring war upon us; but although peace was not granted, the door to peace
was opened."

If "a French army should be crossing the Atlantic to invade our
territory," would anybody insist on disbanding our army? "Was it wise,
then, to do so while such a probability existed?" In a few months we
should know; and, if danger should disappear, "the army expires by the
law which gave it being." Meantime the expense would be trifling.[1084]

In a private letter Marshall states, with even more balance, his views
of the conflicting questions of the expense involved in, and the
necessity for, military equipment. He regrets that a loan is "absolutely
unavoidable"; but "attention must be paid to our defenses":--

"The whole world is in arms and no rights are respected but those that
[are] maintained by force. In such a state of things we dare not be
totally unmindful of ourselves or totally neglectful of that military
position to which, in spite of the prudence and pacific disposition of
our government, we may be driven for the preservation of our liberty and
national independence.

"Altho' we ought never to make a loan if it be avoidable, yet when
forc'd to it much real consolation is to be deriv'd from the future
resources of America. These resources, if we do not throw them away [by]
dissolving the union, are invaluable. It is not to be doubted that in
twenty years from this time the United States would be less burthen'd by
a revenue of twenty millions than now by a revenue of ten. It is the
plain & certain consequence of our increasing population & our
increasing wealth....

"The system of defence which has rendered this measure necessary was
not [only] essential to our character as an independent nation, but it
has actually sav'd more money to the body of the people than has been
expended & has very probably prevented either open war or such national
degradation as would make us the objects of general contempt and injury.

"A bill to stop recruiting in the twelve additional regiments has been
brought in and will pass without opposition. An attempt was made
absolutely to disband them, but [it] was negativ'd. It has been so
plainly prov'd to us that french aggression has been greatly increased,
& that their contemptuous refusal even to treat with us as an
independent nation has been entirely occasioned by a belief that we
could not resist them; & it is so clear that their present willingness
to treat is occasioned by perceiving our determination to defend
ourselves, that it was thought unwise to change materially our system at
the commencement of negotiation.

"In addition to this it had much weight, that we should know in a few
months the facts of our negotiation & should then be able to judge
whether the situation & temper of France rendered an invasion
pro[bable]. Then would be the time to decide on diminishing [or]
augmenting our military forces. A French 64 has it is said arrived in
the west indies & three frigates expected."[1085]

Although the debate dragged on and the army was attacked and defended
with brilliant ability, Marshall's argument remained the Gibraltar of
the Administration, upon which all the assaults of the Republicans were
centered unavailingly. For his army speech was never answered. Only once
more during this debate did Marshall rise and then but briefly, to bring
his common sense to bear upon the familiar contention that, if the
country is in danger, its citizens will rise spontaneously to defend it.
He said that it would be absurd to call men to arms, as had been done,
and then "dismiss them before the service was performed ... merely
because their zeal could be depended on" hereafter. He "hoped the
national spirit would never yield to that false policy."[1086]

The fourth important subject in which Marshall was a decisive influence
was the National Bankruptcy Law, passed at this session of Congress. He
was the second member of the committee that drafted this
legislation.[1087] For an entire month the committee worked on the bill
and reported it on January 6, 1800.[1088] After much debate, which is
not given in the official reports, the bill passed the House on February
21 and the Senate March 28.[1089]

While the "Annals" do not show it, we know from the testimony of the
Speaker of the House that Marshall was the vital force that shaped this
first National Bankruptcy Act. He was insistent that the law should not
be too extensive in its provisions for the curing of bankruptcy, and it
was he who secured the trial by jury as to the fact of bankruptcy.

"It [the Bankruptcy Law] is far from being such an one as I wished,"
writes Sedgwick. "The _acts_ in curing bankruptcy are too restricted,
and the trial of the question Bankrupt or not, by jury, will be found
inconvenient, embarrassing & dilatory. The mischief was occasioned by
Virginia Theory. It was the whim of General Marshall; with him a _sine
qua non_ of assent to the measure, & without him the bill must have been
lost, for it passed the House by my casting vote."

"Besides the bankrupt bill, we have passed [only] one more of great
importance," writes the Speaker of the House in a review of the work of
the session.[1090] Much of the Speaker's summary is devoted to Marshall.
Sedgwick was greatly disappointed with the laws passed, with the
exception of the Bankruptcy Bill "and one other."[1091] "All the rest we
have made here are, as to any permanently beneficial effects, hardly
worth the parchment on which they are written. The reason of this
feebleness is a real feebleness of character in the house." Sedgwick
lays most of this at Marshall's door, and in doing so, draws a vivid
picture of Marshall the man, as well as of Marshall the legislator:--

"Marshall was looked up to as the man whose great and commanding genius
was to enlighten & direct the national councils. This was the general
sentiment, while some, and those of no inconsiderable importance,
calculating on his foolish declaration, relative to the alien & sedition
laws, thought him temporizing while others deemed him feeble.

"None had in my opinion justly appreciated his character. As his
character has stamped itself on the measures of the present session, I
am desirous of letting you know how I view it.

"He is a man of a very affectionate disposition, of great simplicity of
manners and honest & honorable in all his conduct.

"He is attached to pleasures, with convivial habits strongly fixed.

"He is indolent, therefore; and indisposed to take part in the common
business of the house.

"He has a strong attachment to popularity but indisposed to sacrifice to
it his integrity; hence it is that he is disposed on all popular
subjects to feel the public pulse and hence results indecision and _an
expression_ of doubt.

"Doubts suggested by him create in more feeble minds those which are
irremovable. He is disposed ... to express great respect for the
sovereign people, and to quote their opinions as an evidence of truth.

"The latter is of all things the most destructive of personal
independence & of that weight of character which a great man ought to
possess.

"This gentleman, when aroused, has strong reasoning powers; they are
almost unequalled. But before they are excited, he has frequently,
nearly, destroyed any impression from them."[1092]

Such was Marshall's work during his six months' service in Congress, the
impression he made, and the estimate of him by his party friends. His
"convivial habits, strongly fixed," his great good nature, his personal
lovableness, were noted by his associates in the National House of
Representatives quite as much as they had been observed and commented on
by his fellow members in the Virginia Legislature and by his friends and
neighbors in Richmond.

The public qualities which his work in Congress again revealed in
brilliant light were his extraordinary independence of thought and
action, his utter fearlessness, and his commanding mental power. But his
personal character and daily manners applied a soothing ointment to any
irritation which his official attitude and conduct on public questions
created in the feelings of his associates.

So came the day of adjournment of Congress; and with it the next step
which Fate had arranged for John Marshall.

FOOTNOTES:

[993] Sedgwick to King, Dec. 29, 1799; King, iii, 163.

[994] Cabot to King, Jan. 20, 1800; _ib._, 184.

[995] _Annals_, 6th Cong., 1st Sess., 187.

[996] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

[997] _Annals_, 6th Cong. 1st Sess., 194. The speech as reported passed
with little debate.

[998] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. And see McMaster,
ii, 452.

[999] Levin Powell to Major Burr Powell, Dec. 11, 1799; _Branch
Historical Papers_, ii, 232.

[1000] _Annals_, 6th Cong., 1st Sess., 194.

[1001] _Annals_, 6th Cong., 1st Sess., 194-97.

[1002] _Ib._, 194.

[1003] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

[1004] _Annals_, 6th Cong., 1st Sess., 198.

[1005] The Federalists called the Republicans "Democrats," "Jacobins,"
etc., as terms of contempt. The Republicans bitterly resented the
appellation. The word "Democrat" was not adopted as the formal name of a
political party until the nomination for the Presidency of Andrew
Jackson, who had been Jefferson's determined enemy.

[1006] Marshall to James M. Marshall, Philadelphia, Dec. 16, 1799; MS.

[1007] _Annals_, 6th Cong., 1st Sess., 203.

[1008] Marshall appears to have been the first to use the expression
"the American Nation."

[1009] The word "empire" as describing the United States was employed by
all public men of the time. Washington and Jefferson frequently spoke of
"our empire."

[1010] _Annals_, 6th Cong., 1st. Sess., 203-04.

[1011] _Ib._, 204.

[1012] Marshall to Charles W. Hannan, of Baltimore, Md., March 29, 1832;
MS., N.Y. Pub. Lib.; also Marshall, ii, 441.

[1013] These were: On the bill to enable the President to borrow money
for the public (_Annals_, 6th Cong., 1st Sess., 632); a bill for the
relief of Rhode Island College (_ib._, 643); a salt duty bill (_ib._,
667); a motion to postpone the bill concerning the payment of admirals
(_ib._, 678); a bill on the slave trade (_ib._, 699-700); a bill for the
additional taxation of sugar (_ib._, 705).

[1014] _Ib._, 521-22.

[1015] _Annals_, 6th Cong., 1st Sess., _House_, 522-23, 527, 626;
_Senate_, 151.

[1016] _Ib._, 633-34.

[1017] _Ib._, 662. See _ib._, Appendix II, 495, 496. Thus Marshall was
the author of the law under which the great "Western Reserve" was
secured to the United States. The bill was strenuously resisted on the
ground that Connecticut had no right or title to this extensive and
valuable territory.

[1018] _Ib._, 532. On this vote the _Aurora_ said: "When we hear such
characters as General Lee calling it _innovation_ and _speculation_ to
withhold from the Executive magistrate the dangerous and unrepublican
power of _proroguing_ and dissolving a legislature at his pleasure, what
must be the course of our reflections? When we see men like General
Marshall voting for such a principle in a Government of a portion of the
American people is there no cause for alarm?" (_Aurora_, March 20,
1800.)

[1019] _Annals_, 6th Cong., 1st Sess., 504-06.

[1020] _Annals_, 6th Cong., 1st Sess., 623-24.

[1021] See _infra_, 458 _et seq._

[1022] "Copy of a letter from a gentleman in Philadelphia, to his friend
in Richmond, dated 13th March, 1800," printed in _Virginia Gazette and
Petersburg Intelligencer_, April 1, 1800.

[1023] _Annals_, 6th Cong., 1st Sess., 668-69.

[1024] _Ib._, 229.

[1025] _Ib._, 231.

[1026] _Ib._, 230-32.

[1027] _Annals_, 6th Cong., 1st Sess., 233.

[1028] _Ib._, 234.

[1029] _Ib._, 235.

[1030] _Ib._, 240.

[1031] _Ib._, 245.

[1032] Concerning a similar effort in 1790, Washington wrote: "The
memorial of the Quakers (and a very _malapropos_ one it was) has at
length been put to sleep, and will scarcely awake before the year 1808."
(Washington to Stuart, March 28, 1790; _Writings_: Ford, xi, 474.)

[1033] _Annals_, 6th Cong., 1st Sess., Resolution and debate, ii,
404-19.

[1034] Bassett, 260.

[1035] Ellsworth to Pickering, Dec. 12, 1798; Flanders, ii, 193.

[1036] Adams: _Gallatin_, 211. And see Federalist attacks on Marshall's
answers to "Freeholder," _supra_.

[1037] _Annals_, 6th Cong., 1st Sess., 29.

[1038] James Keith Marshall.

[1039] _Annals_, 6th Cong., 1st Sess., 520, 522.

[1040] At this period the Senate still sat behind closed doors and its
proceedings were secret.

[1041] _Annals_, 6th Cong., 1st Sess., 105. This led to one of the most
notably dramatic conflicts between the Senate and the press which has
occurred during our history. For the prosecution of William Duane,
editor of the _Aurora_, see _ib._, 105, 113-19, 123-24. It was made a
campaign issue, the Republicans charging that it was a Federalist plot
against the freedom of the press. (See _Aurora_, March 13 and 17, 1800.)

[1042] _Ib._, 146.

[1043] For a review of this astonishing bill, see McMaster, ii, 462-63,
and Schouler, i, 475.

[1044] _Annals_, 6th Cong., 1st Sess., 670.

[1045] Marshall's substitute does not appear in the _Annals_.

[1046] _Annals_, 6th Cong., 1st Sess., 674.

[1047] _Ib._, 678.

[1048] _Annals_, 6th Cong., 1st Sess., 691-92.

[1049] _Ib._, 687-710.

[1050] _Ib._, 179.

[1051] _Ib._, 182.

[1052] Jefferson to Livingston, April 30, 1800; _Works_: Ford, ix, 132.

[1053] Sedgwick to King, May 11, 1800; King, iii, 237-38.

[1054] Adams: _Gallatin_, 232.

[1055] United States _vs._ Nash _alias_ Robins, Bee's _Reports_, 266.

[1056] Jefferson to Charles Pinckney, Oct. 29, 1799; _Works_: Ford, ix,
87.

[1057] _Aurora_, Feb. 12, 1800.

[1058] _Annals_, 6th Cong., 1st Sess., 511.

[1059] _Ib._, 515-18. Nash himself confessed before his execution that
he was a British subject as claimed by the British authorities and as
shown by the books of the ship Hermione.

[1060] _Ib._, 526.

[1061] The Republicans, however, still continued to urge this falsehood
before the people and it was generally believed to be true.

[1062] _Annals_, 6th Congress, 1st Sess., 532-33.

[1063] _Ib._, 541-47.

[1064] _Ib._, 548.

[1065] _Annals_, 6th Cong., 1st Sess., 558.

[1066] This, in fact, was the case.

[1067] _Annals_, 6th Cong., 1st Sess., 565.

[1068] Marshall to James M. Marshall, Feb. 28, 1800; MS.

[1069] _Annals_, 6th Cong., 1st Sess., 595-96.

[1070] Pickering to James Winchester, March 17, 1800; Pickering MSS.,
Mass. Hist. Soc. Also Binney, in Dillon, iii, 312.

[1071] See Moore: _American Eloquence_, ii, 20-23. The speech also
appears in full in _Annals_, 6th Cong., 1st Sess., 596-619; in Benton:
_Abridgment of the Debates of Congress_; in Bee's _Reports_, 266; and in
the Appendix to Wharton: _State Trials_, 443.

[1072] Pickering to Hamilton, March 10, 1800; Pickering MSS., Mass.
Hist. Soc.

[1073] _Aurora_, March 10, 1800.

[1074] _Aurora_, March 14, 1800.

[1075] Marshall's speech on the Robins case shows some study, but not so
much as the florid encomium of Story indicates. The speeches of Bayard,
Gallatin, Nicholas, and others display evidence of much more research
than that of Marshall, who briefly refers to only two authorities.

[1076] Story, in Dillon, iii, 357-58.

[1077] Grigsby, i, 177; Adams: _Gallatin_, 232.

[1078] _Annals_, 6th Cong., 1st Sess., 619.

[1079] Jefferson to Madison, March 8, 1800; _Works_: Ford, ix, 121. In
sending the speeches on both sides to his brother, Levin Powell, a
Virginia Federalist Representative, says: "When you get to Marshall's it
will be worth a perusal." (Levin Powell to Major Burr Powell, March 26,
1800; _Branch Historical Papers_, ii, 241.)

[1080] _Annals_, 6th Cong., 1st Sess., 247-50.

[1081] _Ib._, 252.

[1082] _Annals_, 6th Cong., 1st Sess., 253-54.

[1083] _Ib._

[1084] _Annals_, 6th Cong., 1st Sess., 254, 255.

[1085] Marshall to Dabney, Jan. 20, 1800; MS. Colonel Charles Dabney of
Virginia was commander of "Dabney's Legion" in the Revolution. He was an
ardent Federalist and a close personal and political friend of Marshall.

[1086] _Annals_, 6th Cong., 1st Sess., 395-96.

[1087] _Ib._, 191.

[1088] _Ib._, 247.

[1089] _Ib._, 126; see law as passed, 1452-71.

[1090] Sedgwick to King, May 11, 1800; King, iii, 236.

[1091] The act requiring the Secretary of the Treasury to lay before
Congress at each session a report of financial conditions with his
recommendations. (_Annals_, 6th Cong., 1st Sess., Appendix, 1523.) The
Speaker thought this law important because it "will give splendor to the
officer [Secretary of the Treasury] and respectability to the Executive
Department of the Govt." (Sedgwick to King, _supra_.) Yet the session
passed several very important laws, among them the act accepting the
cession of the Western Reserve (_Annals_, 6th Cong., 1st Sess.,
Appendix, 1495-98) and the act prohibiting American citizens "or other
persons residing within the United States" to engage in the slave trade
between foreign countries (_ib._, 1511-14.)

[1092] Sedgwick to King, May 11, 1800; King, iii, 237.

CHAPTER XII

CHIEF JUSTICE OF THE UNITED STATES

I consider General Marshall as more than a secretary--as a state
conservator. (Oliver Wolcott.)

To Mr. Jefferson I have felt insuperable objections. The morals of
the author of the letter to Mazzei cannot be pure. (Marshall.)

You have given an opinion in exact conformity with the wishes of
your party. Come forward and defend it. (George Hay to Marshall.)

"The P. requests Mr. McHenry's company for one minute," wrote President
Adams to his Secretary of War on the morning of May 5, 1800.[1093] The
unsuspicious McHenry at once responded. The President mentioned an
unimportant departmental matter; and then, suddenly flying into a rage,
abused his astounded Cabinet adviser in "outrageous"[1094] fashion and
finally demanded his resignation.[1095] The meek McHenry resigned. To
the place thus made vacant, the harried President, without even
consulting him, immediately appointed Marshall, who "as immediately
declined."[1096] Then Adams tendered the office to Dexter, who accepted.

And resign, too, demanded Adams of his Secretary of State.[1097] The
doughty Pickering refused[1098]--"I did not incline to accept this
insidious favor,"[1099] he reported to Hamilton. Adams dismissed
him.[1100] Again the President turned to Marshall, who, deeply troubled,
considered the offer. The Federalist Cabinet was broken to pieces, and a
presidential election was at hand which would settle the fate of the
first great political party in American history.

The campaign had already started. The political outlook was dark enough
before the President's outburst; this shattering of his Cabinet was a
wicked tongue of lightning from the threatening clouds which, after the
flash, made them blacker still.[1101]

Few Presidents have ever faced a more difficult party condition than did
John Adams when, by a humiliating majority of only three votes, he was
elected in 1796. He succeeded Washington; the ruling Federalist
politicians looked to Hamilton as their party chieftain; even Adams's
Cabinet, inherited from Washington, was personally unfriendly to the
President and considered the imperious New York statesman as their
supreme and real commander. "I had all the officers and half the crew
always ready to throw me overboard," accurately declared Adams some
years later.[1102]

Adams's temperament was the opposite of Washington's, to which the
Federalist leaders had so long been accustomed that the change
exasperated them.[1103] From the very beginning they bound his hands.
The new President had cherished the purpose of calling to his aid the
ablest of the Republicans, but found himself helpless. "When I first
took the Chair," bitterly records Adams, "I was extremely desirous of
availing myself of Mr. Madison's abilities, ... and experience. But the
violent Party Spirit of Hamilton's Friends, jealous of every man who
possessed qualifications to eclipse him, prevented it. I could not do it
without quarreling outright with my Ministers whom Washington's
appointment had made my Masters."[1104]

On the other hand, the high Federalist politicians, most of whom were
Hamilton's adherents, felt that Adams entertained for their leader
exactly the same sentiments which the President ascribed to them. "The
jealousy which the P.[resident] has felt of H.[amilton] he now indulges
toward P.[inckney], W.[olcott] & to'd _very many of their friends_ who
are suspected of having too much influence in the Community, & of not
knowing how to appreciate his [Adams's] merits.... The Consequence is
that his ears are shut to his best real friends & open to Flatterers, to
Time servers & even to some Jacobins."[1105]

Adams, the scholar and statesman, but never the politician, was the last
man to harmonize these differences. And Hamilton proved to be as inept
as Adams.

After the President had dispatched the second mission to France,
Hamilton's followers, including Adams's Cabinet, began intriguing in a
furtive and vicious fashion to replace him with some other Federalist at
the ensuing election. While, therefore, the President, as a personal
matter, was more than justified in dismissing McHenry and Pickering (and
Wolcott also[1106]), he chose a fatal moment for the blow; as a matter
of political strategy he should have struck sooner or not at all.

At this late hour the great party task and duty of the President was, by
any and every honorable means, to unite all Federalist factions for the
impending battle with the eager, powerful, and disciplined Republicans.
Frank and full conference, tolerance, and conciliation, were the methods
now required. These might not have succeeded, but at least they would
not have irritated still more the ragged edges of party dissension. Not
only did the exasperated President take the opposite course, but his
manner and conduct were acid instead of ointment to the raw and angry
wounds.[1107]

This, then, was the state of the Federalist Party, the frame of mind of
the President, and the distracted condition of the Cabinet, when
Marshall was asked to become Secretary of State in the late spring of
1800. He was minded to refuse this high station as he had that of
Secretary of War. "I incline to think Mr. Marshall will decline this
office also," wrote McHenry to his brother.[1108] If he accepted, he
would be loyal to the President--his nature made anything else
impossible. But he was the personal friend of all the Federalist
leaders, who, in spite of his disapproval of the Alien and Sedition Laws
and of his dissent from his party's plans in Congress, in spite, even,
of his support of the President's detested second mission to
France,[1109] nevertheless trusted and liked him.

The President's selection of Marshall had been anticipated by the
Republicans. "General Marshall ... has been nominated to hold the
station of Secretary of War," said the "Aurora," in an article heavy
with abuse of Pickering. "This ... however, is said to be but
preparatory to General Marshall's appointment to succeed Mr. Pickering
who is expected to resign."[1110]

Strangely enough the news of his elevation to the head of the Cabinet
called forth only gentle criticism from the Republican press. "From what
is said of Mr. Marshall," the "Aurora" thought that he was "as little
likely to conciliate" France as Pickering. He "is well known to have
been the disingenuous writer of all the X. Y. Z. Dispatches," which the
Federalists had "confessed to be one of the best and most successful
political _tricks_ that was ever _played off_.... General Marshall's
fineering and var[ni]shing capacity" was "well known," said the
"Aurora." "General Marshall consequently has been nominated and
appointed.... In genuine federal principles, General Marshall is as
inflexible as Mr. Pickering; but in the negotiation with France, the
General may not have imbibed so strong prejudices--and, having been one
of the Envoys to that Republic, he may be supposed to be more conversant
with some of the points in dispute, than Col. Pickering, and
consequently to be preferred.

"We find him very well spoken of in the _reformed Gazettes of France_,"
continues the "Aurora," "which being now under guardianship[1111] may
be considered as speaking the language of the government--'_Le Bien
Informé_,' after mentioning the motion Gen. M. made in announcing to
Congress the death of Gen. Washington, adds--'This is the gentleman
who some time since came as Envoy from the _United States_; and who so
virtuously and so spiritedly refused to fill the pockets of some of
_our gentry_ with Dutch inscriptions, and millions of livres.'"[1112]

For nearly two weeks Marshall pondered over the President's offer. The
prospect was not inviting. It was unlikely that he could hold the place
longer than three quarters of a year, for Federalist defeat in the
presidential election was more than probable; and it seemed certain that
the head of the Cabinet would gather political cypress instead of laurel
in this brief and troubled period. Marshall consulted his friends among
the Federalist leaders; and, finally, accepted the proffered portfolio.
Thereupon the "Aurora," quoting Pickering's statement that the office of
Secretary of State "was never better filled than by General Marshall,"
hopes that "Gen. Marshall will take care of his _accounts_," which that
Republican paper had falsely charged that Pickering had manipulated
corruptly.[1113]

Expressing the Republican temper the "Aurora" thus analyzes the new
Federalist Cabinet: "The Secretary of the Treasury [Oliver Wolcott]" was
"scarcely qualified to hold the second desk in a Mercantile
Counting-House"; the Attorney-General [Charles Lee] was "without
talents"; the Secretary of the Navy [Benjamin Stoddert] was "a small
Georgetown politician ... cunning, gossiping, ... of no ... character
or ... principles"; the Secretary of War [Samuel Dexter] was no more fit
for the place than "his MOTHER"; and Marshall, Secretary of State, was
"more distinguished as a _rhetorician_ and a _sophist_ than as a
_lawyer_ and a _statesman_--sufficiently pliant to succeed in a corrupt
court, too insincere to command respect, or confidence in a republic."
However, said the "Aurora," Adams was "able to teach Mr. Marshall 'l'art
diplomatique.'"[1114]

Some of the Federalist leaders were not yet convinced, it appears, of
Marshall's party orthodoxy. Pinckney reassures them. Writing from
Virginia, he informs McHenry that "Marshall with reluctance accepts, but
you may rely on his federalism, & be certain that he will not unite with
Jefferson & the Jacobins."[1115] Two months later even the Guy Fawkes of
the Adams Cabinet declares himself more than satisfied: "If the
gentlemen now in office [Marshall and Dexter] had declined," declares
Wolcott, "rage, vexation & despair would probably have occasioned the
most extravagant conduct[1116] [on the part of the President]." After
Marshall had been at the head of the Cabinet for four months, Cabot
writes that "Mr. Wolcott thinks Mr. Marshall accepted the secretaryship
from good motives, and with a view of preserving union, and that he and
Dexter, by _accepting_, have rendered the nation great service; for, if
they had refused, we should have had--_Heaven alone knows whom!_ He
thinks, however, as all must, that under the present chief they will be
disappointed in their hopes, and that if Jefferson is President they
will probably resign."[1117]

In view of "the temper of his [Adams's] mind," which, asserts the
unfaithful Wolcott, was "revolutionary, violent, and vindictive, ...
their [Marshall's and Dexter's] acceptance of their offices is the best
evidence of their patriotism.... I consider Gen. Marshall and Mr. Dexter
as more than secretaries--as state conservators--the value of whose
services ought to be estimated, not only by the good they do, but by the
mischief they have prevented. If I am not mistaken, however, Gen.
Marshall will find himself out of his proper element."[1118]

No sooner was Marshall in the Secretary's chair than the President
hastened to his Massachusetts home and his afflicted wife. Adams's part
in directing the Government was done by correspondence.[1119] Marshall
took up his duties with his characteristically serious, yet nonchalant,
patience.

The National Capital had now been removed to Washington; and here,
during the long, hot summer of 1800, Marshall remained amidst the
steaming swamps and forests where the "Federal City" was yet to be
built.[1120] Not till October did he leave his post, and then but
briefly and on urgent private business.[1121]

The work of the State Department during this period was not onerous.
Marshall's chief occupation at the Capital, it would appear, was to act
as the practical head of the Government; and even his political enemies
admitted that he did this well. Jefferson's most partial biographer says
that "under the firm and steady lead [of Marshall and Dexter] ... the
Government soon acquired an order, system, and character which it never
had before possessed."[1122] Still, enough routine business came to his
desk to give the new Secretary of State something to do in his own
department.

Office-seeking, which had so annoyed Washington, still vexed Adams,
although but few of these hornets' nests remained for him to deal with.
"Your knowledge of persons, characters, and circumstances," wrote the
President to Marshall concerning the applications for the office of
United States Marshal for Maryland, "are so much better than mine, and
my confidence in your judgment and impartiality so entire, that I pray
you ... give the commission to him whom you may prefer."[1123] Adams
favored the son of Judge Chase; but, on the advice of Stoddert of
Maryland, who was Secretary of the Navy, Marshall decided against him:
"Mr. Chase is a young man who has not yet acquired the public confidence
and to appoint him in preference to others who are generally known and
esteem'd, might be deem'd a mere act of favor to his Father. Mr.
Stoddert supposes it ineligible to accumulate, without superior
pretensions, offices in the same family."

Marshall generally trimmed his sails, however, to the winds of
presidential preference. He undoubtedly influenced the Cabinet, in
harmony with the President's wish, to concur in the pardon of Isaac
Williams, convicted, under the Jay Treaty, of waging war on the high
seas against Great Britain. Williams, though sailing under a French
commission, was a pirate, and accumulated much wealth from his
indiscriminate buccaneering.[1125] But the President wrote Marshall that
because of "the man's generosity to American prisoners," and "his
present poverty and great distress," he desired to pardon
Williams.[1126]

Marshall informed the President that "repeated complaints are made to
this department of the depredations committed by the Spaniards on the
American commerce."[1127] The French outrages were continuing; indeed,
our naval war with France had been going on for months and Spain was
aiding the French. An American vessel, the Rebecca Henry, had been
captured by a French privateer. Two Yankee sailors killed the French
prize master in recapturing the vessel, which was taken again by another
French sea rover and conveyed into a Spanish port. The daring Americans
were imprisoned and threatened with death. Marshall thought "proper to
remonstrate and to threaten retaliation if the prisoners should be
executed."[1128]

The French ship Sandwich was captured by Captain Talbot, an American
officer, in a Spanish port which Spain had agreed to transfer to France.
Marshall considered this a violation of our treaty with Spain. "I have
therefore directed the Sandwich to be given up to the minister of his
Catholic Majesty,"[1129] he advised the President. The Spanish Minister
thanked Marshall for his "justice" and "punctuality."[1130]

But Talbot would not yield his prize; the United States Marshal
declined to act. Marshall took "measures[1131] which will," he reported
to the President, "I presume occasion the delivery of this vessel,
unless ... the government has no right to interpose, so far as captors
are interested." Talbot's attitude perplexed Marshall; for, wrote he,
"if the Executive of the United States cannot restore a vessel captured
by a national ship, in violation of the law of nations, ... cause for
war may be given by those who, of all others, are, perhaps, most apt to
give it, and that department of the government, under whose orders they
are plac'd will be unable to correct the mischief."[1132]

That picturesque adventurer, Bowles, whose plots and activities among
the Indians had been a thorn to the National Government since the early
part of Washington's Administration,[1133] again became annoying. He was
stirring up the Indians against the Spanish possessions in Florida and
repeated his claim of having the support of Great Britain. The Spaniards
eagerly seized on this as another pretext for annoying the American
Government. Measures were taken to break Bowles's influence with the
Indians and to suppress the adventurer's party.[1134]

But, although the President was of the opinion that "the military
forces ... should join [the Spaniards] in an expedition against
Bowles,"[1135] Marshall did not think "that the Spaniards require any
military aid; nor," continues he, "do I suppose they would be willing to
receive it.... American troops in either of the Floridas wou'd excite
very much their jealousy, especially when no specific requisition for
them has been made, and when their own force is entirely competent to
the object."[1136]

Liston, the British Minister, assured Marshall that the British
Government had no connection with Bowles.[1137] But, irritated by gossip
and newspaper stories, he offensively demanded that Marshall "meet these
insidious calumnies by a flat and formal contradiction."[1138] Without
waiting for the President's approval, Marshall quickly retorted:[1139]
the "suspicions ... were not entirely unsupported by appearances."
Newspaper "charges and surmises ... are always causes of infinite
regret" to the Government "and wou'd be prevented if the means of
prevention existed." But, said Marshall, the British Government itself
was not blameless in that respect; "without going far back you may find
examples in your own of the impunity with which a foreign friendly
nation [America] may be grossly libel'd." As to the people's hostility
to Great Britain, he tartly reminded the British Minister that "in
examining the practice of your officers employ'd in the business of
impressment, and of your courts of Vice Admiralty, you will perceive at
least some of the causes, by which this temper may have been
produc'd."[1140]

Sweden and Denmark proposed to maintain, jointly with the United States,
a naval force in the Mediterranean to protect their mutual commerce from
the Barbary Powers. Marshall declined because of our treaties with those
piratical Governments; and also because, "until ... actual hostilities
shall cease between" France and America, "to station American frigates
in the Mediterranean would be a hazard, to which our infant Navy ought
not perhaps to be exposed."[1141]

Incidents amusing, pathetic, and absurd arose, such as announcements of
the birth of princes, to which the Secretary of State must prepare
answers;[1142] the stranding of foreign sailors on our shores, whose
plight we must relieve;[1143] the purchase of jewels for the Bey of
Tunis, who was clamoring for the glittering bribes.[1144]

In such fashion went on the daily routine work of his department while
Marshall was at the head of the Cabinet.

The only grave matters requiring Marshall's attention were the
perplexing tangle of the British debts and the associated questions of
British impressment of American seamen and interference with American
commerce.

Under the sixth article of the Jay Treaty a joint commission of five
members had been appointed to determine the debts due British subjects.
Two of the Commissioners were British, two Americans, and the fifth
chosen by lot. Chance made this deciding member British also. This
Commission, sitting at Philadelphia, failed to agree. The treaty
provided, as we have seen, that the United States should pay such
British debts existing at the outbreak of the Revolutionary War as the
creditors were not able to collect because of the sequestration laws and
other "legal impediments," or because, during the operation of these
statutes, the debtor had become insolvent.

Having a majority of the Commission, the British members made rules
which threw the doors wide open.[1145] "They go the length to make the
United States at once the debtor for all the _outstanding_ debts of
British subjects contracted before the peace of 1783.... The amount of
the claims presented exceeds nineteen millions of dollars."[1146] And
this was done by the British representatives with overbearing personal
insolence. Aside from the injustice of the British contention, this
bullying of the American members[1147] made the work of the Commission
all but impossible.

A righteous popular indignation arose. "The construction put upon the
Treaty by the British Commissioners ... will never be submitted to by
this country.... The [British] demand ... excites much ill blood."[1148]
The American Commissioners refused to attend further sittings of the
Board. Thereupon, the British Government withdrew its members of the
associate Commission sitting in London, under the seventh article of the
treaty, to pass upon claims of American citizens for property destroyed
by the British.

The situation was acute. It was made still sharper by the appointment of
our second mission to France. For, just as France had regarded Jay's
mission and treaty as offensive, so now Great Britain looked upon the
Ellsworth mission as unfriendly. As a way out of the difficulty, the
American Government insisted upon articles explanatory of the sixth
article of the Jay Treaty which would define exactly what claims the
Commission should consider.[1149] The British Government refused and
suggested a new commission.[1150]

This was the condition that faced Marshall when he became Secretary of
State. War with Great Britain was in the air from other causes and the
rupture of the two Commissions made the atmosphere thicker. On June 24,
1800, Marshall wrote the President that we ought "still to press an
amicable explanation of the sixth article of our treaty"; perhaps during
the summer or autumn the British Cabinet might feel "more favorable to
an accommodation." But he "cannot help fearing that ... the British
Ministry" intends "to put such a construction on the law of nations ...
as to throw into their hands some equivalent to the probable claims of
British creditors on the United States."[1151]

Lord Grenville then suggested to Rufus King, our Minister at London,
that the United States pay a gross sum to Great Britain in settlement of
the whole controversy.[1152] Marshall wondered whether this simple way
out of the tangle could "afford just cause of discontent to
France?"[1153] Adams thought not. "We surely have a right to pay our
honest debts in the manner least inconvenient to ourselves and no
foreign power has anything to do with it," said the President. Adams,
however, foresaw many other difficulties;[1154] but Marshall concluded
that, on the whole, a gross payment was the best solution in case the
British Government could not be induced to agree to explanatory
articles.[1155]

Thereupon Marshall wrote his memorable instructions to our Minister to
Great Britain. In this, as in his letters to Talleyrand two years
earlier, and in the notable one on British impressment, contraband, and
freedom of the seas,[1156] he shows himself an American in a manner
unusual at that period. Not the least partiality does he display for any
foreign country; he treats them with exact equality and demands from all
that they shall deal with the American Government as a _Nation_,
independent of and unconnected with any of them.[1157]

The United States, writes Marshall, "can never submit to" the
resolutions adopted by the British Commissioners, which put "new and
injurious burthens" upon the United States "unwarranted by compact," and
to which, if they had been stated in the treaty, "this Government never
could and never would have assented." Unless the two Governments can
"forget the past," arbitration cannot be successful; it is idle to
discuss who committed the first fault, he says, when two nations are
trying to adjust their differences.

The American Commissioners, declares Marshall, withdrew from the Board
because the hostile majority established rules under which "a vast mass
of cases never submitted to their consideration" could and would be
brought in against American citizens. The proceedings of the British
Commissioners were not only "totally unauthorized," but "were conducted
in terms and in a spirit only calculated to destroy all harmony between
the two nations."

The cases which the Board could consider were distinctly and
specifically stated in the fifth article of the treaty. Let the two
Governments agree to an explanation, instead of leaving the matter to
wrangling commissioners. But, if Minister King finds that the British
Government will not agree to explanatory articles, he is authorized to
substitute "a gross sum in full compensation of all claims made or to be
made on this Government."

It would, of course, be difficult to agree upon the amount. "The
extravagant claims which the British creditors have been induced to
file," among which "are cases ... so notoriously unfounded that no
commissioners retaining the slightest degree of self-respect can
establish them; ... others where the debt has been fairly and
voluntarily compromised by agreement between creditor and debtor";
others "where the money has been paid in specie, and receipts in full
given"; and still others even worse, all composing that "enormous mass
of imagined debt," will, says Marshall, make it hard to agree on a
stated amount.[1158]

The British creditors, he asserts, had been and then were proceeding to
collect their debts through the American courts, and "had they not been
seduced into the opinion that the trouble and expense inseparable from
the pursuit of the old debts, might be avoided by one general resort to
the United States, it is believed they would have been still more
rapidly proceeding in the collection of the very claims, so far as they
are just, which have been filed with the commissioners. They meet with
no objection, either of law or fact, which are not common to every
description of creditors, in every country.... Our judges are even
liberal in their construction of the 4th article of the treaty of peace"
and have shown "no sort of partiality for the debtors."

Marshall urges this point with great vigor, and concludes that, if a
gross amount can be agreed upon, the American Minister must see to it,
of course, that this sum is made as small as possible, not "to exceed
one million sterling" in any event.[1159] In a private letter, Marshall
informs King that "the best opinion here is that not more than two
million Dollars could justly be chargeable to the United States under
the treaty."[1160]

Adams was elated by Marshall's letter. "I know not," he wrote, "how the
subject could have been better digested."[1161]

Almost from the exchange of ratifications of the Jay compact,
impressment of American seamen by the British and their taking from
American ships, as contraband, merchandise which, under the treaty, was
exempt from seizure, had injured American commerce and increasingly
irritated the American people.[1162] The brutality with which the
British practiced these depredations had heated still more American
resentment, already greatly inflamed.[1163]

In June, 1799, Marshall's predecessor had instructed King "to
persevere ... in denying the right of British Men of War to take from
our Ships of War any men whatever, and from our merchant vessels any
Americans, or foreigners, or even Englishmen."[1164] But the British had
disregarded the American Minister's protests and these had now been
entirely silenced by the break-up of the British Debts Commissions.

Nevertheless, Marshall directed our Minister at the Court of St. James
to renew the negotiations. In a state paper which, in ability, dignity,
and eloquence, suggests his famous Jonathan Robins speech and equals his
memorial to Talleyrand, he examines the vital subjects of impressment,
contraband, and the rights of neutral commerce.

It was a difficult situation that confronted the American Secretary of
State. He had to meet and if possible modify the offensive, determined,
and wholly unjust British position by a statement of principles based on
fundamental right; and by an assertion of America's just place in the
world.

The spirit of Marshall's protest to the British Government is that
America is an independent nation, a separate and distinct political
entity, with equal rights, power, and dignity with all other
nations[1165]--a conception then in its weak infancy even in America
and, apparently, not entertained by Great Britain or France. These
Powers seemed to regard America, not as a sovereign nation, but as a
sort of subordinate state, to be used as they saw fit for their plans
and purposes.

But, asserts Marshall, "the United States do not hold themselves in any
degree responsible to France or to Britain for their negotiations with
the one or the other of these Powers, but are ready to make amicable and
reasonable explanations with either.... An exact neutrality ... between
the belligerent Powers" is the "object of the American Government....
Separated far from Europe, we mean not to mingle in their quarrels....
We have avoided and we shall continue to avoid any ... connections not
compatible with the neutrality we profess.... The aggressions, sometimes
of one and sometimes of another belligerent power have forced us to
contemplate and prepare for war as a probable event.... But this is a
situation of necessity, not of choice." France had compelled us to
resort to force against her, but in doing so "our preference for peace
was manifest"; and now that France makes friendly advances, "America
meets those overtures, and, in doing so, only adheres to her pacific
system."

Marshall lays down those principles of international conduct which have
become the traditional American policy. Reviewing our course during the
war between France and Great Britain, he says: "When the combination
against France was most formidable, when, if ever, it was dangerous to
acknowledge her new Government" and maintain friendly relations with the
new Republic, "the American Government openly declared its determination
to adhere to that state of impartial neutrality which it has ever since
sought to maintain; nor did the clouds which, for a time, lowered over
the fortunes of the [French] Republic, in any degree shake this
resolution. When victory changed sides and France, in turn, threatened
those who did not arrange themselves under her banners, America,
pursuing with undeviating step the same steady course," nevertheless
made a treaty with Great Britain; "nor could either threats or artifices
prevent its ratification."

"At no period of the war," Marshall reminds the British Government, "has
France occupied such elevated ground as at the very point of time when
America armed to resist her: triumphant and victorious everywhere, she
had dictated a peace to her enemies on the continent and had refused one
to Britain." On the other hand, "in the reverse of her fortune, when
defeated both in Italy and on the Rhine, in danger of losing Holland,
before the victory of Massena had changed the face of the last campaign,
and before Russia had receded from the coalition against her, the
present negotiation [between America and France] was resolved on. During
this pendency," says Marshall, "the state of the war has changed, but
the conduct of the United States" has not.

"Our terms remain the same: we still pursue peace. We still embrace it,
if it can be obtained without violating our national honor or our
national faith; but we will reject without hesitation all propositions
which may compromit the one or the other."

All this, he declares, "shows how steadily it [the American Government]
pursues its system [Neutrality and peace] without regarding the dangers
from the one side or the other, to which the pursuit may be exposed. The
present negotiation with France is a part of this system, and ought,
therefore, to excite in Great Britain no feelings unfriendly to the
United States."

Marshall then takes up the British position as to contraband of war. He
declares that even under the law of nations, "neutrals have a right to
carry on their usual commerce; belligerents have a right to prevent them
from supplying the enemy with instruments of war." But the eighteenth
article of the treaty itself covered the matter in express terms, and
specifically enumerated certain things as contraband and also "generally
whatever may serve _directly_ to the equipment of vessels." Yet Great
Britain had ruthlessly seized and condemned American vessels regardless
of the treaty--had actually plundered American ships of farming material
upon the pretense that these articles might, by some remote possibility,
be used "to equip vessels." The British contention erased the word
"_directly_"[1166] from the express terms of the treaty. "This
construction we deem alike unfriendly and unjust," he says. Such
"garbling a compact ... is to substitute another agreement for that of
the parties...."

"It would swell the list of contraband to" suit British convenience,
contrary to "the laws and usages of nations.... It would prohibit ...
articles ... necessary for the ordinary occupations of men in peace" and
require "a surrender, on the part of the United States, of rights in
themselves unquestionable, and the exercise of which is essential to
themselves.... A construction so absurd and so odious ought to be
rejected."[1167]

Articles, "even if contraband," should not be confiscated, insists
Marshall, except when "they are attempted to be carried to an enemy."
For instance, "vessels bound to New Orleans and laden with cargoes
proper for the ordinary use of the citizens of the United States who
inhabit the Mississippi and its waters ... cannot be justly said to
carry those cargoes to an enemy.... Such a cargo is not a just object of
confiscation, although a part of it should also be deemed proper for the
equipment of vessels, because it is not attempted to be carried to an
enemy."

On the subject of blockade, Marshall questions whether "the right to
confiscate vessels bound to a blockaded port ... can be applied to a
place not completely invested by land as well as by sea." But waiving
"this departure from principle," the American complaint "is that ports
not effectually blockaded by a force capable of completely investing
them, have yet been declared in a state of blockage, and vessels
attempting to enter therein have been seized, and, on that account,
confiscated." This "vexation ... may be carried, if not resisted, to a
very injurious extent."

If neutrals submit to it, "then every port of the belligerent powers may
at all times be declared in that [blockaded] state and the commerce of
neutrals be thereby subjected to universal capture." But if complete
blockage be required, then "the capacity to blockade will be limited by
the naval force of the belligerent, and, of consequence, the mischief to
neutral commerce can not be very extensive. It is therefore of the last
importance to neutrals that this principle be maintained unimpaired."

The British Courts of Vice-Admiralty, says Marshall, render "unjust
decisions" in the case of captures. "The temptation which a rich neutral
commerce offers to unprincipled avarice, at all times powerful, becomes
irresistible unless strong and efficient restraints be imposed by the
Government which employs it." If such restraints are not imposed, the
belligerent Government thereby "causes the injuries it tolerates." Just
this, says Marshall, is the case with the British Government.

For "the most effectual restraint is an impartial judiciary, which will
decide impartially between the parties and uniformly condemn the captor
in costs and damages, where the seizure has been made without probable
cause." If this is not done, "indiscriminate captures will be made." If
an "unjust judge" condemns the captured vessel, the profit is the
captor's; if the vessel is discharged, the loss falls upon the owner.
Yet this has been and still is the indefensible course pursued against
American commerce.

"The British Courts of Vice Admiralty, whatever may be the case, seldom
acquit and when they do, costs and damages for detention are never
awarded." Marshall demands that the British Government shall "infuse a
spirit of justice and respect for law into the Courts of Vice
Admiralty"--this alone, he insists, can check "their excessive and
irritating vexations.... This spirit can only be infused by uniformly
discountenancing and punishing those who tarnish alike the seat of
justice and the honor of their country, by converting themselves from
judges into mere instruments of plunder." And Marshall broadly intimates
that these courts are corrupt.

As to British impressment, "no right has been asserted to impress"
Americans; "yet they are impressed, they are dragged on board British
ships of war with the evidence of citizenship in their hands, and forced
by violence there to serve until conclusive testimonials of their birth
can be obtained." He demands that the British Government stop this
lawless, violent practice "by punishing and frowning upon those who
perpetrate it. The mere release of the injured, after a long course of
service and of suffering, is no compensation for the past and no
security for the future.... The United States therefore require
positively that their seamen ... be exempt from impressments." Even
"alien seamen, not British subjects, engaged in our merchant service
ought to be equally exempt with citizens from impressments.... Britain
has no pretext of right to their persons or to their service. To tear
them, then, from our possession is, at the same time, an insult and an
injury. It is an act of violence for which there exists no palliative."

Suppose, says Marshall, that America should do the things Great Britain
was doing? "Should we impress from the merchant service of Britain not
only Americans but foreigners, and even British subjects, how long would
such a course of injury, unredressed, be permitted to pass unrevenged?
How long would the [British] Government be content with unsuccessful
remonstrance and unavailing memorials?"

Or, were America to retaliate by inducing British sailors to enter the
more attractive American service, as America might lawfully do, how
would Great Britain look upon it? Therefore, concludes Marshall, "is it
not more advisable to desist from, and to take effectual measures to
prevent an acknowledged wrong, than be perseverant in that wrong, to
excite against themselves the well founded resentment of America, and to
force our Government into measures which may possibly terminate in an
open rupture?"[1168]

Thus boldly and in justifiably harsh language did Marshall assert
American rights as against British violation of them, just as he had
similarly upheld those rights against French assault. Although France
desisted from her lawless practices after Adams's second mission
negotiated with Bonaparte an adjustment of our grievances,[1169] Great
Britain persisted in the ruthless conduct which Marshall and his
successors denounced until, twelve years later, America was driven to
armed resistance.

Working patiently in his stuffy office amidst the Potomac miasma and
mosquitoes during the sweltering months, it was Marshall's unhappy fate
to behold the beginning of the break-up of that great party which had
built our ship of state, set it upon the waters, navigated it for twelve
tempestuous years, through the storms of domestic trouble and foreign
danger.[1170] He was powerless to stay the Federalist disintegration.
Even in his home district Marshall's personal strength had turned to
water, and at the election of his successor in Congress, his party was
utterly crushed. "Mr. Mayo, who was proposed to succeed Gen. Marshall,
lost his election by an immense majority," writes the alert Wolcott;
"was grossly insulted in public by a brother-in-law of the late Senator
Taylor, and was afterwards wounded by him in a duel. This is a specimen
of the political influence of the Secretary of State in his own
district."[1171]

Marshall himself was extremely depressed. "Ill news from Virginia," he
writes Otis. "To succeed me has been elected by an immense majority one
of the most decided democrats[1172] in the union." Upon the political
horizon Marshall beheld only storm and blackness: "In Jersey, too, I am
afraid things are going badly. In Maryland the full force of parties
will be tried but the issue I should feel confident would be right if
there did not appear to be a current setting against us of which the
force is incalculable. There is a tide in the affairs of nations, of
parties, and of individuals. I fear that of real Americanism is on the
ebb."[1173] Never, perhaps, in the history of political parties was
calm, dispassionate judgment and steady courage needed more than they
were now required to avert Federalist defeat.

Yet in all the States revenge, apprehension, and despair blinded the
eyes and deranged the councils of the supreme Federalist managers.[1174]
The voters in the party were confused and angered by the dissensions of
those to whom they looked for guidance.[1175] The leaders agreed that
Jefferson was the bearer of the flag of "anarchy and sedition," captain
of the hordes of "lawlessness," and, above all, the remorseless
antagonist of Nationalism. What should be done "by the friends of order
and true liberty to keep the [presidential] chair from being occupied by
an enemy [Jefferson] of both?" was the question which the distressed
Federalist politicians asked one another.[1176]

In May, Hamilton thought that "to support _Adams_ and _Pinckney_ equally
is the only thing that can save us from the fangs of _Jefferson_."[1177]
Yet, six days later, Hamilton wrote that "_most_ of the most
_influential men_ of that [Federalist] party consider him [Adams] as a
very _unfit_ and _incapable_ character.... My mind is made up. I will
never more be responsible for him by any direct support, even though the
consequence should be the election of _Jefferson_.... If the cause is to
be sacrificed to a weak and perverse man, I withdraw from the
party."[1178]

As the summer wore on, so acrimonious grew the feeling of Hamilton's
supporters toward the President that they seriously considered whether
his reëlection would not be as great a misfortune as the success of the
Republican Party.[1179] Although the Federalist caucus had agreed to
support Adams and Pinckney equally as the party's candidates for
President,[1180] yet the Hamiltonian faction decided to place Pinckney
in the presidential chair.[1181]

But, blindly as they groped, their failing vision was still clear enough
to discern that the small local leaders in New England, which was the
strong Federalist section of the country, were for Adams;[1182] and that
everywhere the party's rank and file, though irritated and perplexed,
were standing by the President. His real statesmanship had made an
impression on the masses of his party: Dayton declared that Adams was
"the most popular man in the United States."[1183] Knox assured the
President that "the great body of the federal sentiment confide
implicitly in your knowledge and virtue.... They will ... cling to you
in preference to all others."[1184]

Some urged Adams to overthrow the Hamiltonian cabal which opposed him.
"Cunning half Jacobins assure the President that he can combine the
virtuous and moderate men of both parties, and that all our difficulties
are owing to an oligarchy which it is in his power to crush, and thus
acquire the general support of the nation,"[1185] testifies Wolcott.

The President heeded this mad counsel. Hamilton and his crew were not
the party, said Adams; they were only a faction and a "British faction"
at that.[1186] He would "rip it up."[1187] The justly angered
President, it appears, thought of founding a new party, an American
Party, "a constitutionalist party."[1188] It was said that the astute
Jefferson so played upon him that Adams came to think the engaging but
crafty Virginian aspired only to be and to be known as the first
lieutenant of the Massachusetts statesman.[1189] Adams concluded that he
could make up any Federalist loss at the polls by courting the
Republicans, whose "friendship," wrote Ames, "he seeks for
himself."[1190]

But the Republicans had almost recovered from the effect of the X. Y. Z.
disclosures. "The _rabies canina_ of Jacobinism has gradually spread ...
from the cities, where it was confined to docks and mob, to the
country,"[1191] was the tidings of woe that Ames sent to Gore. The
Hamiltonian leaders despaired of the continuance of the Government and
saw "a convulsion of revolution" as the result of "excessive
democracy."[1192] The union of all Federalist votes was "the only
measure by which the government can be preserved."[1193] But Federalist
union! As well ask shattered glass to remould itself!

The harmonious and disciplined Republicans were superbly led. Jefferson
combined their battle-cries of the last two years into one mighty
appeal--simple, affirmative, popular. Peace, economy, "freedom of the
press, freedom of religion, trial by jury, ... no standing armies," were
the issues he announced, together with the supreme issue of all, States'
Rights. Upon this latter doctrine Jefferson planted all the Republican
guns and directed their fire on "centralization" which, said he, would
"monarchise" our Government and make it "the most corrupt on earth,"
with increased "stock-jobbing, speculating, plundering, office-holding,
and office-hunting."[1194]

The Federalists could reply but feebly. The tax-gatherer's fingers were
in every man's pockets; and Adams had pardoned the men who had resisted
the collectors of tribute. The increased revenue was required for the
army and navy, which, thought the people, were worse than needless[1195]
if there were to be no war and the President's second mission made
hostilities improbable (they had forgotten that this very preparation
had been the principal means of changing the haughty attitude of
France). The Alien and Sedition Laws had infuriated the "foreign"
voters[1196] and alarmed thousands of American-born citizens. Even that
potent bribe of free institutions, the expectation of office, could no
longer be employed effectively with the party workers, who, testifies
Ebenezer Huntington, were going over "to Jefferson in hopes to partake
of the loaves and fishes, which are to be distributed by the new
President."[1197]

The Federalist leaders did nothing, therefore, but write letters to one
another denouncing the "Jacobins" and prophesying "anarchy." "Behold
France--what is theory here is fact there."[1198] Even the tractable
McHenry was disgusted with his stronger associates. "Their conduct,"
said he, "is tremulous, timid, feeble, deceptive & cowardly. They write
private letters. To whom? To each other. But they do nothing.... If the
party recover its pristine energy & splendor, shall I ascribe it to such
cunning, paltry, indecisive, backdoor conduct?"[1199]

What had become of the French mission?[1200] Would to God it might fail!
That outcome might yet save the Federalist fortunes. "If Mr. Marshall
has any [news of the second French mission] beg him to let it out,"
implored Chauncey Goodrich.[1201] But Marshall had none for public
inspection. The envoys' dispatches of May 17,[1202] which had reached
him nearly seven weeks afterward, were perplexing. Indeed, Marshall was
"much inclined to think that ... the French government may be inclined
to protract it [the negotiation] in the expectation that events in
America[1203] may place them on higher ground than that which they now
occupy."[1204] To Hamilton, he cautiously wrote that the dispatches
contained nothing "on which a positive opinion respecting the result of
that negotiation can be formed."[1205]

But he told the President that he feared "the impression which will
probably be made by the New York Election,"[1206] and that European
military developments might defeat the mission's purpose. He advised
Adams to consider what then should be done. Should "hostilities against
France with the exception of their West India privateers ... be
continued if on their part a change of conduct shall be
manifest?"[1207] Adams was so perturbed that he asked Marshall whether,
in case the envoys returned without a treaty, Congress ought not to be
asked to declare war, which already it had done in effect. For, said
Adams, "the public mind cannot be held in a state of suspense; public
opinion must be always a decided one whether right or not."[1208]

Marshall counseled patience and moderation. Indeed, he finally informed
Adams that he hoped for an adjustment: "I am greatly disposed to think,"
he advised the President, "that the present [French] government is much
inclined to correct, at least in part, the follies of the past. Of
these, none were perhaps more conspicuous or more injurious to the
french nation, than their haughty and hostile conduct to neutrals.
Considerable retrograde steps in this respect have already been taken,
and I expect the same course will be continued." If so, "there will
exist no cause for war, but to obtain compensation for past injuries";
and this, Marshall is persuaded, is not "a sufficient motive" for
war.[1209]

To others, however, Marshall was apprehensive: "It is probable that
their [the French] late victories and the hope which many of our papers
[Republican] are well calculated to inspire, that America is disposed
once more to crouch at her [France's] feet may render ineffectual our
endeavors to obtain peace."[1210]

But the second American mission to France had dealt with Bonaparte
himself, who was now First Consul. The man on horseback had arrived, as
Marshall had foreseen; a statesman as well as a soldier was now the
supreme power in France. Also, as we have seen, the American Government
had provided for an army and was building a navy which, indeed, was even
then attacking and defeating French ships. "America in arms was treated
with some respect," as Marshall expresses it.[1211] At any rate, the
American envoys did not have to overcome the obstacles that lay in the
way two years earlier and the negotiations began without difficulty and
proceeded without friction.

Finally a treaty was made and copies sent to Marshall, October 4,
1800.[1212] The Republicans were rejoiced; the Federalist politicians
chagrined.[1213] Hamilton felt that in "the general politics of the
world" it "is a make-weight in the wrong scale," but he favored its
ratification because "the contrary ... would ... utterly ruin the
federal party," and "moreover it is better to close the thing where it
is than to leave it to a Jacobin to do much worse."[1214]

Marshall also advised ratification, although he was "far, very far, from
approving"[1215] the treaty. The Federalists in the Senate, however,
were resolved not to ratify it; they were willing to approve only with
impossible amendments. They could not learn the President's opinion of
this course; as to that, even Marshall was in the dark. "The Secretary
of State knows as little of the intentions of the President as any other
person connected with the government."[1216] Finally the Senate rejected
the convention; but it was so "extremely popular," said the Republicans,
that the Federalist Senators were "frightened" to "recant."[1217] They
reversed their action and approved the compact. The strongest influence
to change their attitude, however, was not the popularity of the treaty,
but the pressure of the mercantile interests which wanted the
business-destroying conflict settled.[1218]

The Hamiltonian group daily became more wrathful with the President. In
addition to what they considered his mistakes of policy and party
blunders, Adams's charge that they were a "British faction" angered them
more and more as the circulation of it spread and the public credited
it. Even "General M[arshall] said that the hardest thing for the
Federalists to bear was the charge of British influence."[1219] That was
just what the "Jacobins" had been saying all along.[1220] "If this
cannot be counteracted, our characters are the sacrifice," wrote
Hamilton in anger and despair.[1221] Adams's adherents were quite as
vengeful against his party enemies. The rank and file of the Federalists
were more and more disgusted with the quarrels of the party leaders. "I
cannot describe ... how broken and scattered your federal friends are!"
lamented Troup. "We have no rallying-point; and no mortal can divine
where and when we shall again collect our strength.... Shadows, clouds,
and darkness rest on our future prospects."[1222] The "Aurora"
chronicles that "the disorganized state of the anti-Republican
[Federalist] party ... is scarcely describable."[1223]

Marshall, alone, was trusted by all; a faith which deepened, as we shall
see, during the perplexing months that follow. He strove for Federalist
union, but without avail. Even the most savage of the President's party
enemies felt that "there is not a man in the U. S. of better intentions
[than Marshall] and he has the confidence of all good men--no man
regrets more than he does the disunion which has taken place and no one
would do more to heal the wounds inflicted by it. In a letter ... he
says 'by union we can securely maintain our ground--without it we must
sink & with us all sound correct American principle.' His efforts
will ... prove ineffectual."[1224]

It seems certain, then, that Hamilton did not consult the one strong man
in his party who kept his head in this hour of anger-induced madness.
Yet, if ever any man needed the advice of a cool, far-seeing mind,
lighted by a sincere and friendly heart, Hamilton required it then. And
Marshall could and would have given it. But the New York Federalist
chieftain conferred only with those who were as blinded by hate as he
was himself. At last, in the midst of an absurd and pathetic confusion
of counsels,[1225] Hamilton decided to attack the President, and, in
October, wrote his fateful and fatal tirade against Adams.[1226] It was
an extravaganza of party folly. It denounced Adams's "extreme egotism,"
"terrible jealousy," "eccentric tendencies," "violent rage"; and
questioned "the solidity of his understanding." Hamilton's screed went
back to the Revolution to discover faults in the President. Every act of
his Administration was arraigned as a foolish or wicked mistake.

This stupid pamphlet was not to be made public, but to be circulated
privately among the Federalist leaders in the various States. The
watchful Burr secured a copy[1227] and published broadcast its bitterest
passages. The Republican politicians shook with laughter; the Republican
masses roared with glee.[1228] The rank and file of the Federalists were
dazed, stunned, angered; the party leaders were in despair. Thus
exposed, Hamilton made public his whole pamphlet. Although its purpose
was to further the plan to secure for Pinckney more votes than would be
given Adams, it ended with the apparent advice to support both. Absurd
conclusion! There might be intellects profound enough to understand why
it was necessary to show that Adams was not fit to be President and yet
that he should be voted for; but the mind of the average citizen could
not fathom such ratiocination. Hamilton's influence was irreparably
impaired.[1229] The "Washington Federalist" denounced his attack as
"the production of a disappointed man" and declared that Adams was "much
his superior as a statesman."[1230]

The campaign was a havoc of virulence. The Federalists' hatred for one
another increased their fury toward the compact Republicans, who
assailed their quarreling foes with a savage and unrestrained ferocity.
The newspapers, whose excesses had whipped even the placid Franklin into
a rage a few years before, now became geysers spouting slander,
vituperation, and unsavory[1231] insinuations. "The venal, servile,
base and stupid"[1232] "newspapers are an overmatch for any government,"
cried Ames. "They will first overawe and then usurp it."[1233] And Noah
Webster felt that "no government can be durable ... under the
licentiousness of the press that now disgraces our country."[1234]
Discordant Federalists and harmonious Republicans resorted to shameful
methods.[1235] "Never ... was there such an Election in America."[1236]

As autumn was painting the New England trees, Adams, still tarrying at
his Massachusetts home, wrote Marshall to give his "sentiments as soon
as possible in writing" as to what the President should say to Congress
when it met December 3.[1237] Three days later, when his first request
was not yet halfway to Washington, Adams, apparently forgetful of his
first letter, again urged Marshall to advise him as President in regard
to his forthcoming farewell address to the National Legislature.[1238]

[Illustration: _Statue of John Marshall_
_By W. W. Story, at the Capitol, Washington, D. C._]

Marshall not only favored the President with his "sentiments"--he wrote
every word of the speech which Adams delivered to Congress and sent it
to the distressed Chief Magistrate in such haste that he did not
even make a copy.[1239] This presidential address, the first ever made
to Congress in Washington, was delivered exactly as Marshall wrote it,
with a change of only one word "much" for "such" and the omission of an
adjective "great."[1240]

The address is strong on the necessity for military and naval
preparation. It would be "a dangerous imprudence to abandon those
measures of self-protection ... to which ... violence and the injustice
of others may again compel us to resort.... Seasonable and systematic
arrangements ... for a defensive war" are "a wise and true economy." The
navy is described as particularly important, coast defenses are urged,
and the manufacture of domestic arms is recommended in order to
"supercede the necessity of future importations." The extension of the
national Judiciary is pressed as of "primary importance ... to the
public happiness."[1241]

The election, at last, was over. The Republicans won, but only by a
dangerously narrow margin. Indeed, outside of New York, the Federalists
secured more electoral votes in 1800 than in the election of Adams four
years earlier.[1242] The great constructive work of the Federalist Party
still so impressed conservative people; the mercantile and financial
interests were still so well banded together; the Federalist revival of
1798, brought about by Marshall's dispatches, was, as yet, so strong;
the genuine worth of Adams's statesmanship[1243] was so generally
recognized in spite of his unhappy manner, that it would seem as though
the Federalists might have succeeded but for the quarrels of their
leaders and Burr's skillful conduct of the Republican campaign in New
York.

Jefferson and Burr each had seventy-three votes for President. Under
the Constitution, as it stood at that time, the final choice for
President was thus thrown into the House of Representatives.[1244] By
united and persistent effort, it was possible for the Federalists to
elect Burr, or at least prevent any choice and, by law, give the
Presidency to one of their own number until the next election. This,
Jefferson advises Burr, "they are strong enough to do."[1245] The
Federalists saw their chance; the Republicans realized their
danger.[1246] Jefferson writes of the "great dismay and gloom on the
republican gentlemen here and equal exultation on the federalists who
openly declare they will prevent an election."[1247] This "opens upon us
an abyss, at which every sincere patriot must shudder."[1248]

Although Hamilton hated Burr venomously, he advised the Federalist
managers in Washington "to throw out a lure for him, in order to tempt
him to start for the plate, and then lay the foundation of dissension
between" him and Jefferson.[1249] The Federalists, however, already were
turning to Burr, not according to Hamilton's unworthy suggestion, but in
deadly earnest. At news of this, the fast-weakening New York Federalist
chieftain became frantic. He showered letters upon the party leaders in
Congress, and upon all who might have influence, appealing, arguing,
persuading, threatening.[1250]

But the Federalists in Congress were not to be influenced, even by the
once omnipotent Hamilton. "The Federalists, almost with one Mind, from
every Quarter of the Union, say elect Burr" because "they must be
disgraced in the Estimation of the People if they vote for Jefferson
having told Them that He was a Man without Religion, the Writer of the
Letter to Mazzei, a Coward, &c., &c."[1251] Hamilton's fierce warnings
against Burr and his black prophecies of "the _Cataline_ of
America"[1252] did not frighten them. They knew little of Burr,
personally, and the country knew less. What was popularly known of this
extraordinary man was not unattractive to the Federalists.

Burr was the son of the President of Princeton and the grandson of the
celebrated Jonathan Edwards, the greatest theologian America had
produced. He had been an intrepid and efficient officer in the
Revolutionary War, and an able and brilliant Senator of the United
States. He was an excellent lawyer and a well-educated, polished man of
the world. He was a politician of energy, resourcefulness, and decision.
And he was a practical man of affairs. If he were elected by Federalist
votes, the fury with which Jefferson and his friends were certain to
assail Burr[1253] would drive that practical politician openly into
their camp; and, as President, he would bring with him a considerable
Republican following. Thus the Federalists would be united and
strengthened and the Republicans divided and weakened.[1254]

This was the reasoning which drew and bound the Federalists together in
their last historic folly; and they felt that they might succeed.
"It is ... certainly within the compass of possibility that Burr may
ultimately obtain nine States," writes Bayard.[1255] In addition to the
solid Federalist strength in the House, there were at least three
Republican members, two corrupt and the other light-minded, who might by
"management" be secured for Burr.[1256] The Federalist managers felt
that "the high Destinies ... of this United & enlightened people are
up";[1257] and resolved upon the hazard. Thus the election of Burr, or,
at least, a deadlock, faced the Republican chieftain.

At this critical hour there was just one man who still had the
confidence of all Federalists from Adams to Hamilton. John Marshall,
Secretary of State, had enough influence to turn the scales of
Federalist action. Hamilton approached Marshall indirectly at first.
"You may communicate this letter to _Marshall_," he instructed Wolcott,
in one of his most savage denunciations of Burr.[1258] Wolcott obeyed
and reported that Marshall "has yet expressed no opinion."[1259]
Thereupon Hamilton wrote Marshall personally.

This letter is lost; but undoubtedly it was in the same vein as were
those to Wolcott, Bayard, Sedgwick, Morris, and other Federalists. But
Hamilton could not persuade Marshall to throw his influence to
Jefferson. The most Marshall would do was to agree to keep hands off.

"To Mr. Jefferson," replies Marshall, "whose political character is
better known than that of Mr. Burr, I have felt almost insuperable
objections. His foreign prejudices seem to me totally to unfit him for
the chief magistracy of a nation which cannot indulge those prejudices
without sustaining deep and permanent injury.

"In addition to this solid and immovable objection, Mr. Jefferson
appears to me to be a man, who will embody himself with the House of
Representatives.[1260] By weakening the office of President, he will
increase his personal power. He will diminish his responsibility, sap
the fundamental principles of the government, and become the leader of
that party which is about to constitute the majority of the legislature.
The morals of the author of the letter to Mazzei[1261] cannot be
pure....

"Your representation of Mr. Burr, with whom I am totally unacquainted,
shows that from him still greater danger than even from Mr. Jefferson
may be apprehended. Such a man as you describe is more to be feared, and
may do more immediate, if not greater mischief.

"Believing that you know him well, and are impartial, my preference
would certainly not be for him, but I can take no part in this business.
I cannot bring myself to aid Mr. Jefferson. Perhaps respect for myself
should, in my present situation, deter me from using any influence (if,
indeed I possessed any) in support of either gentleman.

"Although no consideration could induce me to be the Secretary of State
while there was a President whose political system I believed to be at
variance with my own; yet this cannot be so well known to others, and it
might be suspected that a desire to be well with the successful
candidate had, in some degree, governed my conduct."[1262]

Marshall had good personal reasons for wishing Burr to be elected, or at
least that a deadlock should be produced. He did not dream that the
Chief Justiceship was to be offered to him; his law practice, neglected
for three years, had passed into other hands; the head of the Cabinet
was then the most important[1263] office in the Government, excepting
only the Presidency itself; and rumor had it that Marshall would remain
Secretary of State in case Burr was chosen as Chief Magistrate. If the
tie between Jefferson and Burr were not broken, Marshall might even be
chosen President.[1264]

"I am rather inclined to think that Mr. Burr will be preferred....
General Marshall will then remain in the department of state; but if Mr.
Jefferson be chosen, Mr. Marshall will retire," writes Pickering.[1265]
But if Marshall cherished the ambition to continue as Secretary of
State, as seems likely, he finally stifled it and stood aloof from the
struggle. It was a decision which changed Marshall's whole life and
affected the future of the Republic. Had Marshall openly worked for
Burr, or even insisted upon a permanent deadlock, it is reasonably
certain that the Federalists would have achieved one of their alternate
purposes.

Although Marshall refrained from assisting the Federalists in their plan
to elect Burr, he did not oppose it. The "Washington Federalist," which
was the Administration organ[1266] in the Capital, presented in glowing
terms the superior qualifications of Burr over Jefferson for the
Presidency, three weeks after Marshall's letter to Hamilton.[1267] The
Republicans said that Marshall wrote much that appeared in this
newspaper.[1268] If he was influential with the editor, he did not
exercise his power to exclude the paper's laudation of the New York
Republican leader.

It was reported that Marshall had declared that, in case of a deadlock,
Congress "may appoint a Presidt. till another election is made."[1269]
The rumor increased Republican alarm and fanned Republican anger. From
Richmond came the first tidings of the spirit of popular resistance to
"such a usurpation,"[1270] even though it might result in the election
of Marshall himself to the Presidency. If they could not elect Burr,
said Jefferson, the Federalists planned to make Marshall or Jay the
Chief Executive by a law to be passed by the expiring Federalist
Congress.[1271]

Monroe's son-in-law, George Hay, under the _nom de guerre_ of
"Hortensius," attacked Marshall in an open letter in the "Richmond
Examiner," which was copied far and wide in the Republican press.
Whether Congress will act on Marshall's opinion, says Hay, "is a
question which has already diffused throughout America anxiety and
alarm; a question on the decision of which depends not only the peace of
the nation, but the existence of the Union." Hay recounts the many
indications of the Federalists' purpose and says: "I understand that
you, Sir, have not only examined the Constitution, but have given an
opinion in exact conformity with the wishes of your party." He
challenges Marshall to "come forward ... and defend it." If a majority
of the House choose Burr the people will submit, says Hay, because such
an election, though contrary to their wishes, would be constitutional.
But if, disregarding the popular will and also violating the
Constitution, Congress "shall elect a stranger to rule over us, peace
and union are driven from the land.... The usurpation ... will be
instantly and firmly repelled. The government will be at an end."[1272]

Although the "Washington Federalist" denounced as "a lie"[1273] the
opinion attributed to him, Marshall, personally, paid no attention to
this bold and menacing challenge. But Jefferson did. After waiting a
sufficient time to make sure that this open threat of armed revolt
expressed the feeling of the country, he asserted that "we thought best
to declare openly and firmly, one & all, that the day such an act
passed, the Middle States would arm, & that no such usurpation, even for
a single day, should be submitted to."[1274] The Republicans determined
not only to resist the "usurpation ... by arms," but to set aside the
Constitution entirely and call "a convention to reorganize and amend the
government."[1275]

The drums of civil war were beating. Between Washington and Richmond "a
chain of expresses" was established, the messengers riding "day and
night."[1276] In Maryland and elsewhere, armed men, wrought up to the
point of bloodshed, made ready to march on the rude Capital, sprawling
among the Potomac hills and thickets. Threats were openly made that any
man appointed President by act of Congress, pursuant to Marshall's
reputed opinion, would be instantly assassinated. The Governor of
Pennsylvania prepared to lead the militia into Washington by the 3d of
March.[1277]

To this militant attitude Jefferson ascribed the final decision of the
Federalists to permit his election. But no evidence exists that they
were intimidated in the least, or in any manner influenced, by the
ravings of Jefferson's adherents. On the contrary, the Federalists
defied and denounced the Republicans and met their threats of armed
interference with declarations that they, too, would resort to the
sword.[1278]

The proof is overwhelming and decisive that nothing but Burr's refusal
to help the Federalists in his own behalf,[1279] his rejection of their
proposals,[1280] and his determination, if chosen, to go in as a
Republican untainted by any promises;[1281] and, on the other hand, the
assurances which Jefferson gave Federalists as to offices and the
principal Federalist policies--Neutrality, the Finances, and the
Navy[1282]--only all of these circumstances combined finally made
Jefferson president. Indeed, so stubborn was the opposition that, in
spite of his bargain with the Federalists and Burr's repulsion of their
advances, nearly all of them, through the long and thrillingly dramatic
days and nights of balloting,[1283] with the menace of physical violence
hanging over them, voted against Jefferson and for Burr to the very
end.

The terms concluded with Jefferson, enough Federalists cast blank
ballots[1284] to permit his election; and so the curtain dropped on this
comedy of shame.[1285] "Thus has ended the most wicked and absurd
attempt ever tried by the Federalists," said the innocent
Gallatin.[1286] So it came about that the party of Washington, as a
dominant and governing force in the development of the American Nation,
went down forever in a welter of passion, tawdry politics, and
disgraceful intrigue. All was lost, including honor.

But no! All was not lost. The Judiciary remained. The newly elected
House and President were Republican and in two years the Senate also
would be "Jacobin"; but no Republican was as yet a member of the
National Judiciary. Let that branch of the Government be extended; let
new judgeships be created, and let new judges be made while Federalists
could be appointed and confirmed, so that, by means, at least, of the
National Courts, States' Rights might be opposed and retarded, and
Nationalism defended and advanced--thus ran the thoughts and the plans
of the Federalist leaders.

Adams, in the speech to Congress in December of the previous year, had
urged the enactment of a law to this end as "indispensably
necessary."[1287] In the President's address to the expiring Federalist
Congress on December 3, 1800, which Marshall wrote, the extension of the
National Judiciary, as we have seen, was again insistently urged.[1288]
Upon that measure, at least, Adams and all Federalists agreed. "Permit
me," wrote General Gunn to Hamilton, "to offer for your consideration,
the policy of the federal party _extending the influence of our
judiciary_; if neglected by the federalists the ground will be occupied
by the enemy, the very next session of Congress, and, sir, we shall see
---- and many other scoundrels placed on the seat of justice."[1289]

Indeed, extension of the National Judiciary was now the most cherished
purpose of Federalism.[1290] A year earlier, after Adams's first
recommendation of it, Wolcott narrates that "the steady men" in the
Senate and House were bent upon it, because "there is no other way to
combat the state opposition [to National action] but by an efficient and
extended organization of judges."[1291]

Two weeks after Congress convened, Roger Griswold of Connecticut
reported the eventful bill to carry out this Federalist plan.[1292] It
was carefully and ably drawn and greatly widened the practical
effectiveness of the National Courts. The Supreme Court was reduced,
after the next vacancy, to five members--to prevent, said the
Republicans, the appointment of one of their party to the Nation's
highest tribunal.[1293] Many new judgeships were created. The Justices
of the Supreme Court, who had sat as circuit judges, were relieved of
this itinerant labor and three circuit judges for each circuit were to
assume these duties. At first, even the watchful and suspicious
Jefferson thought that "the judiciary system will not be pushed, as the
appointments, if made, by the present administration, could not fall on
those who create them."[1294]

But Jefferson underestimated the determination of the Federalists.
Because they felt that the bill would "greatly extend the judiciary
power and of course widen the basis of government," they were resolved,
writes Rutledge, to "profit of our shortlived majority, and do as much
good as we can before the end of this session"[1295] by passing the
Judiciary Bill.

In a single week Jefferson changed from confidence to alarm. After all,
he reflected, Adams could fill the new judgeships, and these were life
appointments. "I dread this above all the measures meditated, because
appointments in the nature of freehold render it difficult to undo what
is done,"[1296] was Jefferson's second thought.

The Republicans fought the measure, though not with the vigor or
animosity justified by the political importance they afterwards attached
to it. Among the many new districts created was an additional one in
Virginia. The representatives from that State dissented; but, in the
terms of that period, even their opposition was not strenuous. They said
that, in Virginia, litigation was declining instead of increasing. "At
the last term the docket was so completely cleared in ... ten days ...
that the court ... had actually decided on several [suits] returnable to
the ensuing term."[1297]

That, replied the Federalists, was because the courts were too far away
from the citizens. As for the National revenues, they could be collected
only through National tribunals; for this purpose,[1298] two Federal
Courts in Virginia, as provided by the bill, were essential. But, of
course, sneered the Federalists, "Virginia would be well satisfied with
one court in preference to two or with no court whatever in preference
to one."[1299]

But there was a defect in the bill, intimated the Virginia Republicans,
that affected tenants and landowners of the Northern Neck. A clause of
section thirteen gave the newly established National Court jurisdiction
of all causes arising under the Constitution where original or exclusive
jurisdiction was not conferred upon the Supreme Court or Admiralty
Courts.[1300] The National Court of the new Virginia District was to be
held at Fredericksburg. Thus all suits for quitrents or other claims
against those holding their lands under the Fairfax title could be
brought in this near-by National Court, instead of in State Courts. This
criticism was so attenuated and so plainly based on the assumption that
the State Courts would not observe the law in such actions, that it was
not pressed with ardor even by the impetuous and vindictive Giles.

But Nicholas went so far as to move that the jurisdiction of National
Courts should be limited to causes exceeding five hundred dollars. This
would cut out the great mass of claims which the present holders of the
Fairfax title might lawfully have against tenants or owners. The
Marshalls were the Fairfax assignees, as we have seen. No Republican,
however, mentioned them in debate; but some one procured the insertion
in the record of an insinuation which nobody made on the floor. In
brackets, the "Annals," after the brief note of Nicholas's objection,
states: "[It is understood that the present assignees of the claims of
Lord Fairfax, are General Marshall, General Lee, and a third individual
and that they maintain their claims under the British Treaty.]"[1301]

For three weeks the debate in the House dragged along. Republican
opposition, though united, was languid.[1302] At last, without much
Republican resistance, the bill passed the House on January 20, 1801,
and reached the Senate the next day.[1303] Two weeks later the Senate
Republicans moved a substitute providing for fewer circuits, fewer
judges, and a larger Supreme Court, the members of which were to act as
circuit judges as formerly.[1304] It was defeated by a vote of 17 to
13.[1305] The next day the bill was passed by a vote of 16 to 11.[1306]

When the debate began, the National Judiciary was without a head.
Ellsworth, broken in health, had resigned. Adams turned to Jay, the
first Chief Justice, and, without asking his consent, reappointed him.
"I have nominated you to your old station,"[1307] wrote the President.
"This is as independent of the inconstancy of the people, as it is of
the will of a President." But Jay declined.[1308] Some of the Federalist
leaders were disgruntled at Jay's appointment. "Either Judge Paterson
[of New Jersey] or General Pinckney ought to have been appointed; but
both these worthies were your friends,"[1309] Gunn reported to Hamilton.
The Republicans were relieved by Jay's nomination--they "were afraid of
something worse."[1310]

Then, on January 20, 1801, with no herald announcing the event, no
trumpet sounding, suddenly, and without previous notification even to
himself, John Marshall was nominated as Chief Justice of the United
States a few weeks before the Federalists went out of power forever. His
appointment was totally unexpected. It was generally thought that Judge
Paterson was the logical successor to Ellsworth.[1311] Marshall, indeed,
had recommended his selection.[1312] The letters of the Federalist
leaders, who at this period were lynx-eyed for any office, do not so
much as mention Marshall's name in connection with the position of Chief
Justice.

Doubtless the President's choice of Marshall was influenced by the fact
that his "new minister, Marshall, did all to" his "entire
satisfaction."[1313] Federalist politicians afterward caviled at this
statement of Adams. It was quite the other way around, they declared.
"Every one who knew that great man [Marshall] knew that he possessed to
an extraordinary degree the faculty of putting his own ideas into the
minds of others, unconsciously to them. The secret of Mr. Adams's
satisfaction [with Marshall] was, that he obeyed his Secretary of State
without suspecting it."[1314]

The President gave Marshall's qualifications as the reason of his
elevation. Boudinot reported to Adams that the New Jersey bar hailed
with "the greatest pleasure" a rumor that "the office of Chief
Justice ... may be filled by" Adams himself "after the month of March
next." The President, who admitted that he was flattered, answered:
"I have already, by the nomination of a gentleman in the full vigor of
middle age, in the full habits of business, and whose reading of the
science is fresh in his head,[1315] to this office, put it wholly out of
my power as it never was in my hopes or wishes."[1316]

Marshall's appointment as Chief Justice was not greeted with applause
from any quarter; there was even a hint of Federalist resentment because
Paterson had not been chosen. "I see it denied in your paper that Mr.
Marshall was nominated Chief Justice of the U.S. The fact is so and he
will without doubt have the concurrence of the Senate, tho' some
hesitation was at first expressed from respect for the pretensions of
Mr. Paterson."[1317] The Republican politicians were utterly
indifferent; and the masses of both parties neither knew nor cared about
Marshall's elevation.

The Republican press, of course, criticized the appointment, as it felt
bound to attack any and every thing, good or bad, that the Federalists
did. But its protests against Marshall were so mild that, in view of the
recklessness of the period, this was a notable compliment. "The vacant
Chief Justiceship is to be conferred on John Marshall, one time General,
afterwards ambassador to X. Y. and Z., and for a short time incumbent of
the office of Secretary of State.... Who is to receive the salary of the
Secretary of State, after Mr. Marshall's resignation, we cannot
foretell, because the wisdom of our wise men surpasseth
understanding."[1318] Some days later the "Aurora," in a long article,
denounced the Judiciary Law as a device for furnishing defeated
Federalist politicians with offices,[1319] and declared that the act
would never be "carried into execution, ... unless" the Federalists
still meant to usurp the Presidency. But it goes on to say:--

"We cannot permit ourselves to believe that _John Marshall_ has been
called to the bench to foster such a plot.... Still, how can we account
for the strange mutations which have passed before us--Marshall for a
few weeks Secretary of State ascends the bench of the Chief
Justice."[1320] The principal objection of the Republican newspapers to
Marshall, however, was that he, "before he left the office [of Secretary
of State], made provision for all the Federal printers to the extent of
his power.... He employed the _aristocratic presses alone_ to publish
laws ... for ... one year."[1321]

Only the dissipated and venomous Callender, from his cell in prison,
displayed that virulent hatred of Marshall with which an increasing
number of Jefferson's followers were now obsessed. "We are to have that
precious acquisition John Marshall as Chief Justice.... The very sound
of this man's name is an insult upon truth and justice"; and the
dissolute scribbler then pours the contents of his ink-pot over
Marshall's X. Y. Z. dispatches, bespatters his campaign for election to
Congress, and continues thus:--

"John Adams first appointed John Jay in the room of Ellsworth. A strong
suspicion exists that John did this with the previous certainty that
John Jay would refuse the nomination. It was then in view to name John
Marshall: first, because President Jefferson will not be able to turn
him out of office, unless by impeachment; and in the second place that
the faction [Federalist Party] who burnt the war office might, with
better grace, attempt, forsooth, to set him up as a sort of president
himself. _Sus ad Minervam!_"[1322]

That the voice of this depraved man, so soon to be turned against his
patron Jefferson, who had not yet cast him off, was the only one raised
against Marshall's appointment to the highest judicial office in the
Nation, is a striking tribute, when we consider the extreme partisanship
and unrestrained abuse common to the times.

Marshall himself, it appears, was none too eager to accept the position
which Ellsworth had resigned and Jay refused; the Senate delayed the
confirmation of his nomination;[1323] and it was not until the last day
of the month that his commission was executed.

On January 31, 1801, the President directed Dexter "to execute the
office of Secretary of State so far as to affix the seal of the United
States to the inclosed commission to the present Secretary of State,
John Marshall, of Virginia, to be Chief Justice of the United States,
and to certify in your own name on the commission as executing the
office of Secretary of State _pro hac vice_."[1324]

It was almost a week before Marshall formally acknowledged and accepted
the appointment. "I pray you to accept my grateful acknowledgments for
the honor conferred on me in appointing me Chief Justice of the United
States. This additional and flattering mark of your good opinion has
made an impression on my mind which time will not efface. I shall enter
immediately on the duties of the office, and hope never to give you
occasion to regret having made this appointment."[1325] Marshall's
acceptance greatly relieved the President, who instantly acknowledged
his letter: "I have this moment received your letter of this morning,
and am happy in your acceptance of the office of Chief Justice."[1326]

Who should be Secretary of State for the remaining fateful four weeks?
Adams could think of no one but Marshall, who still held that office
although he had been appointed, confirmed, and commissioned as Chief
Justice. Therefore, wrote Adams, "the circumstances of the times ...
render it necessary that I should request and authorize you, as I do by
this letter, to continue to discharge all the duties of Secretary of
State until ulterior arrangements can be made."[1327]

Thus Marshall was at the same time Chief Justice of the Supreme Court
and Secretary of State. Thus for the second time these two highest
appointive offices of the National Government were held simultaneously
by the same man.[1328] He drew but one salary, of course, during this
period, that of Chief Justice,[1329] the salary of Secretary of State
remaining unpaid.

The President rapidly filled the newly created places on the Federal
Bench. Marshall, it appears, was influential in deciding these
appointments. "I wrote for you to Dexter, requesting him to show it
to Marshall,"[1330] was Ames's reassuring message to an aspirant to
the Federal Bench. With astounding magnanimity or blindness, Adams
bestowed one of these judicial positions upon Wolcott, and Marshall
"transmits ... the commission ... with peculiar pleasure. Permit me," he
adds, "to express my sincere wish that it may be acceptable to you." His
anxiety to make peace between Adams and Wolcott suggests that he induced
the President to make this appointment. For, says Marshall, "I will
allow myself the hope that this high and public evidence, given by the
President, of his respect for your services and character, will efface
every unpleasant sensation respecting the past, and smooth the way to a
perfect reconciliation."[1331]

Wolcott "cordially thanks" Marshall for "the obliging expressions of"
his "friendship." He accepts the office "with sentiments of gratitude
and good will," and agrees to Marshall's wish for reconciliation with
Adams, "not only without reluctance or reserve but with the highest
satisfaction."[1332] Thus did Marshall end one of the feuds which so
embarrassed the Administration of John Adams.[1333]

Until nine o'clock[1334] of the night before Jefferson's inauguration,
Adams continued to nominate officers, including judges, and the Senate
to confirm them. Marshall, as Secretary of State, signed and sealed the
commissions. Although Adams was legally within his rights, the only
moral excuse for his conduct was that, if it was delayed, Jefferson
would make the appointments, control the National Judiciary, and through
it carry out his States' Rights doctrine which the Federalists believed
would dissolve the Union; if Adams acted, the most the Republicans
could do would be to oust his appointees by repealing the law.[1335]

The angry but victorious Republicans denounced Adams's appointees as
"midnight judges." It was a catchy and clever phrase. It flew from
tongue to tongue, and, as it traveled, it gathered force and volume.
Soon a story grew up around the expression. Levi Lincoln, the incoming
Attorney-General, it was said, went, Jefferson's watch in his hand, to
Marshall's room at midnight and found him signing and sealing
commissions. Pointing to the timepiece, Lincoln told Marshall that, by
the President's watch, the 4th of March had come, and bade him instantly
lay down his nefarious pen; covered with humiliation, Marshall rose from
his desk and departed.[1336]

This tale is, probably, a myth. Jefferson never spared an enemy, and
Marshall was his especial aversion. Yet in his letters denouncing these
appointments, while he savagely assails Adams, he does not mention
Marshall.[1337] Jefferson's "Anas," inspired by Marshall's "Life of
Washington," omits no circumstance, no rumor, no second, third, or
fourth hand tale that could reflect upon an enemy. Yet he never once
refers to the imaginary part played by Marshall in the "midnight judges"
legend.[1338]

Jefferson asked Marshall to administer to him the presidential oath of
office on the following day. Considering his curiously vindictive
nature, it is unthinkable that Jefferson would have done this had he
sent his newly appointed Attorney-General, at the hour of midnight, to
stop Marshall's consummation of Adams's "indecent"[1339] plot.

Indeed, in the flush of victory and the multitude of practical and
weighty matters that immediately claimed his entire attention, it is
probable that Jefferson never imagined that Marshall would prove to be
anything more than the learned but gentle Jay or the able but innocuous
Ellsworth had been. Also, as yet, the Supreme Court was, comparatively,
powerless, and the Republican President had little cause to fear from it
that stern and effective resistance to his anti-national principles,
which he was so soon to experience. Nor did the Federalists themselves
suspect that the Virginia lawyer and politician would reveal on the
Supreme Bench the determination, courage, and constructive genius which
was presently to endow that great tribunal with life and strength and
give to it the place it deserved in our scheme of government.

In the opinions of those who thought they knew him, both friend and foe,
Marshall's character was well understood. All were agreed as to his
extraordinary ability. No respectable person, even among his enemies,
questioned his uprightness. The charm of his personality was admitted by
everybody. But no one had, as yet, been impressed by the fact that
commanding will and unyielding purpose were Marshall's chief
characteristics. His agreeable qualities tended to conceal his
masterfulness. Who could discern in this kindly person, with "lax,
lounging manners," indolent, and fond of jokes, the heart that dared all
things? And all overlooked the influence of Marshall's youth, his
determinative army life, his experience during the disintegrating years
after Independence was achieved and before the Constitution was adopted,
the effect of the French Revolution on his naturally orderly mind, and
the part he had taken and the ineffaceable impressions necessarily made
upon him by the tremendous events of the first three Administrations of
the National Government.

Thus it was that, unobtrusively and in modest guise, Marshall took that
station which, as long as he lived, he was to make the chief of all
among the high places in the Government of the American Nation.

FOOTNOTES:

[1093] Adams to McHenry, May 5, 1800; Steiner, 453.

[1094] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348.

[1095] According to McHenry, Adams's complaints were that the Secretary
of War had opposed the sending of the second mission to France, had not
appointed as captain a North Carolina elector who had voted for Adams,
had "EULOGIZED GENERAL WASHINGTON ... attempted to praise Hamilton,"
etc. (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348; and see
Hamilton's "Public Conduct, etc., of John Adams"; Hamilton: _Works_:
Lodge, vii, 347-49.)

[1096] Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to
Hamilton, May 7, 1800; _Works_: Hamilton, vi, 437-38.

[1097] Adams to Pickering, May 10, 1800; _Works_: Adams, ix, 53.

[1098] Pickering to Adams, May 11, 1800; _ib._, 54.

[1099] Pickering to Hamilton, May 15, 1800; _Works_: Hamilton, vi, 443.

[1100] Adams to Pickering, May 12, 1800; _Works_: Adams, ix, 55.

[1101] Sedgwick to Hamilton, May 13, 1800; _Works_: Hamilton, vi, 442.

[1102] Adams to Rush, March 4, 1809; _Old Family Letters_, 219.

[1103] "There never was perhaps a greater contrast between two
characters than between those of the present President & his
predecessor.... The one [Washington] cool, considerate, & cautious, the
other [Adams] headlong & kindled into flame by every spark that lights
on his passions; the one ever scrutinizing into the public opinion and
ready to follow where he could not lead it; the other insulting it by
the most adverse sentiments & pursuits; W. a hero in the field, yet
overweighing every danger in the Cabinet--A. without a single pretension
to the character of a soldier, a perfect Quixotte as a statesman."
(Madison to Jefferson, Feb., 1798; _Writings_: Hunt, vi, 310.) And
[Adams] "always an honest man, often a wise one, but sometimes wholly
out of his senses." (Madison to Jefferson, June 10, 1798; _ib._, 325.)

[1104] Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 76.

[1105] Cabot to King, April 26, 1799; King, iii, 8.

[1106] Wolcott was as malicious as, but more cautious than, Pickering in
his opposition to the President.

[1107] "He [Adams] is liable to gusts of passion little short of
frenzy.... I speak of what I have seen." (Bayard to Hamilton, Aug. 18,
1800; _Works_: Hamilton, vi, 457.) "He would speak in such a manner ...
as to persuade one that he was actually insane." (McHenry to John
McHenry, May 20, 1800; Gibbs, ii, 347.) "Mr. Adams had conducted
strangely and unaccountably." (Ames to Hamilton, Aug. 26, 1800; _Works_:
Ames, i, 280.) These men were Adams's enemies; but the extreme
irritability of the President at this time was noted by everybody.
Undoubtedly this was increased by his distress over the illness of his
wife.

[1108] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347.

[1109] See preceding chapter.

[1110] _Aurora_, May 9, 1800; the _Aurora_ had been attacking Pickering
with all the animosity of partisanship.

[1111] The French press had been quite as much under the control of the
Revolutionary authorities as it was under that of Bonaparte as First
Consul or even under his rule when he had become Napoleon I.

[1112] _Aurora_, May 27, 1800.

[1113] _Ib._, June 4, 1800; and June 17, 1800. The _Aurora_ now made a
systematic campaign against Pickering. It had "_substantial and damning
facts_" which it threatened to publish if Adams did not subject
Pickering to a "scrutiny" (_ib._, May 21, 1800). Pickering was a
"disgrace to his station" (_ib._, May 23); several hundred thousand
dollars were "unaccounted for" (_ib._, June 4, and 17).

The attack of the Republican newspaper was entirely political, every
charge and innuendo being wholly false. Adams's dismissal of his
Secretary of State was not because of these charges, but on account of
the Secretary's personal and political disloyalty. Adams also declared,
afterwards, that Pickering lacked ability to handle the grave questions
then pending and likely to arise. (_Cunningham Letters_, nos. xii, xiii,
and xiv.) But that was merely a pretense.

[1114] _Aurora_, June 12, 1800.

[1115] Pinckney to McHenry, June 10, 1800; Steiner, 460.

[1116] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 402.

[1117] Cabot to Gore, Sept. 30, 1800; Lodge: _Cabot_, 291.

[1118] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 401-02.

[1119] Adams's correspondence shows that the shortest time for a letter
to go from Washington to Quincy, Massachusetts, was seven days, although
usually nine days were required. "Last night I received your favor of
the 4th." (Adams at Quincy to Dexter at Washington, Aug. 13, 1800;
_Works_: Adams, ix, 76; and to Marshall, Aug. 14; _ib._, 77; and Aug.
26; _ib._, 78; and Aug. 30; _ib._, 80.)

[1120] Washington at this time was forest, swamp, and morass, with only
an occasional and incommodious house. Georgetown contained the only
comfortable residences. For a description of Washington at this period,
see chap. I, vol. III, of this work.

[1121] Marshall to Adams, Sept. 17, 1800; Adams MSS. This trip was to
argue the case of Mayo _vs._ Bentley (4 Call, 528), before the Court of
Appeals of Virginia. (See _supra_, chap. VI.)

[1122] Randall, ii, 547. Although Randall includes Dexter, this tribute
is really to Marshall who was the one dominating character in Adams's
reconstructed Cabinet.

[1123] Adams to Marshall, July 30, 1800; _Works_: Adams, ix, 66; also
Marshall to Adams, Aug. 1, Aug. 2, and July 29, 1800; Adams MSS.

[1124] Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams the
support of young Chase's powerful father. (McHenry to John McHenry, Aug.
24, 1800; Gibbs, ii, 408.)

[1125] McMaster, ii, 448.

[1126] Adams to Marshall, Aug. 7, 1800; _Works_: Adams, ix, 72; and
Marshall to Adams, Aug. 16, 1800; Adams MSS. Chief Justice Ellsworth
presided at the trial of Williams, who was fairly convicted. (Wharton:
_State Trials_, 652-58.) The Republicans, however, charged that it was
another "political" conviction. It seems probable that Adams's habitual
inclination to grant the request of any one who was his personal friend
(Adams's closest friend, Governor Trumbull, had urged the pardon) caused
the President to wish to extend clemency to Williams.

[1127] Marshall to Adams, June 24, 1800; Adams MSS.

[1128] Marshall to Adams, Aug. 2, 1800; _ib._

[1129] Marshall to Adams, July 26, 1800; _ib._

[1130] De Yrujo to Marshall, July 31, 1800; _ib._

[1131] Marshall does not state what these measures were.

[1132] Marshall to Adams, Sept. 6, 1800; Adams MSS.

[1133] _Am. St. Prs._, v, _Indian Affairs_, i, 184, 187, 246. For
picturesque description of Bowles and his claim of British support see
Craig's report, _ib._, 264; also, 305. Bowles was still active in 1801.
(_Ib._, 651.)

[1134] Adams to Marshall, July 31, 1800; _Works_: Adams, ix, 67;
Marshall to De Yrujo, Aug. 15, 1800; Adams MSS.

[1135] Adams to Marshall, Aug. 11, 1800; _Works_: Adams, ix, 73.

[1136] Marshall to Adams, Aug. 12, 1800; Adams MSS.

[1137] _Ib._

[1138] Liston to Marshall, Aug. 25, 1800; _ib._

[1139] Marshall to Adams, Sept. 6, 1800; _ib._

[1140] Marshall to Liston, Sept. 6, 1800; Adams MSS.

[1141] Marshall to J. Q. Adams, July 24, 1800; MS. It is incredible that
the Barbary corsairs held the whole of Europe and America under tribute
for many years. Although our part in this general submission to these
brigands of the seas was shameful, America was the first to move against
them. One of Jefferson's earliest official letters after becoming
President was to the Bey of Tripoli, whom Jefferson addressed as "Great
and Respected Friend ... Illustrious & honored ... whom God preserve."
Jefferson's letter ends with this fervent invocation: "I pray God, very
great and respected friend, to have you always in his holy keeping."
(Jefferson to Bey of Tripoli, May 21, 1801; _Am. St. Prs., For. Rel._,
ii, 349.)

And see Jefferson to Bey of Tunis (Sept. 9, 1801; _ib._, 358), in which
the American President addresses this sea robber and holder of Americans
in slavery, as "Great and Good Friend" and apologizes for delay in
sending our tribute. In Jefferson's time, no notice was taken of such
expressions, which were recognized as mere forms. But ninety years later
the use of this exact expression, "Great and Good Friend," addressed to
the Queen of the Hawaiian Islands, was urged on the stump and in the
press against President Cleveland in his campaign for re-election. For
an accurate and entertaining account of our relations with the Barbary
pirates see Allen: _Our Navy and the Barbary Corsairs_.

[1142] Marshall to Adams, Aug. 1, 1800; Adams MSS.

[1143] Marshall to Adams, June 24, 1800; Adams MSS.

[1144] Marshall to Adams, Aug. 16, 1800; July 24, 1800; _Ib._ and see
Adams to Marshall, Aug. 2, and to Secretary of State, May 25; King, iii,
243-46. The jewels were part of our tribute to the Barbary pirates.

[1145] King to Secretary of State, Oct. 11, 1799; note to Grenville;
King, iii, 129.

[1146] Secretary of State to King, Feb. 5, 1799; _Am. St. Prs., For.
Rel._, ii, 383. Hildreth says that the total amount of claims filed was
twenty-four million dollars. (Hildreth, v, 331; and see Marshall to
King, _infra_.)

[1147] Secretary of State to King, Sept. 4, 1799; _Am. St. Prs., For.
Rel._, ii, 383.

[1148] Troup to King, Sept. 2, 1799; King, iii, 91.

[1149] Secretary of State to King, Dec. 31, 1799; _Am. St. Prs._, _For.
Rel._, ii, 384-85.

[1150] King to Secretary of State, April 7, 1800; King, iii, 215.

[1151] Marshall to Adams, June 24, 1800; Adams MSS.

[1152] King to Secretary of State, April 22, 1800; King, iii, 222.

[1153] Marshall to Adams, July 21, 1800; Adams MSS.

[1154] Adams to Marshall, Aug. 1, 1800; _Works_: Adams, ix, 68-69.

[1155] Marshall to Adams, Aug. 12, 1800; Adams MSS.

[1156] _Infra_, 507 _et seq._

[1157] _Am. St. Prs._, _For. Rel._, ii, 386.

[1158] _Am. St. Prs., For. Rel._, ii, 387.

[1159] _Am. St. Prs., For. Rel._, ii, 387.

[1160] Marshall to Adams, Sept. 9, 1800; Adams MSS.

[1161] Adams to Marshall, Sept. 18, 1800; _Works_: Adams, ix, 84. After
Jefferson became President and Madison Secretary of State, King settled
the controversy according to these instructions of Marshall. But the
Republicans, being then in power, claimed the credit.

[1162] Secretary of State to King, Oct. 26, 1796; King, ii, 102.

[1163] For a comprehensive though prejudiced review of British policy
during this period see Tench Coxe: _Examination of the Conduct of Great
Britain Respecting Neutrals_. Coxe declares that the purpose and policy
of Great Britain were to "monopolize the commerce of the world.... She
denies the lawfulness of supplying and buying from her enemies, and, in
the face of the world, enacts statutes to enable her own subjects to do
these things. (_Ib._, 62.) ... She now aims at the Monarchy of the
ocean.... Her trade is war.... The spoils of neutrals fill her
warehouses, while she incarcerates their bodies in her floating castles.
She seizes their persons and property as the rich fruit of bloodless
victories over her unarmed friends." (_Ib._, 72.)

This was the accepted American view at the time Marshall wrote his
protest; and it continued to be such until the War of 1812. Coxe's book
is packed closely with citations and statistics sustaining his position.

[1164] Secretary of State to King, June 14, 1799; King, iii, 47; and see
King to Secretary of State, July 15, 1799; _ib._, 58-59; and King to
Grenville, Oct. 7, 1799; _ib._, 115-21.

[1165] This complete paper is in _Am. St. Prs., For. Rel._, ii, 486-90.

[1166] At one place the word "distinctly" is used and at another the
word "directly," in the _American State Papers_ (ii, 487 and 488). The
word "directly" is correct, the word "distinctly" being a misprint. This
is an example of the inaccuracies of these official volumes, which must
be used with careful scrutiny.

[1167] _Am. St. Prs., For. Rel._, ii, 488.

[1168] _Am. St. Prs., For. Rel._, ii, 490.

[1169] _Infra_, 524.

[1170] While political parties, as such, did not appear until the close
of Washington's first Administration, the Federalist Party of 1800 was
made up, for the most part, of substantially the same men and interests
that forced the adoption of the Constitution and originated all the
policies and measures, foreign and domestic, of the first three
Administrations.

[1171] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 404.

[1172] During this period, the word "Democrat" was used by the
Federalists as a term of extreme condemnation, even more opprobrious
than the word "Jacobin." For many years most Republicans hotly resented
the appellation of "Democrat."

[1173] Marshall to Otis, Aug. 5, 1800; Otis MSS.

[1174] For a vivid review of factional causes of the Federalists'
decline see Sedgwick to King, Sept. 26, 1800; King, iii, 307-10; and
Ames to King, Sept. 24, 1800; _ib._, 304.

[1175] "The Public mind is puzzled and fretted. People don't know what
to think of measures or men; they are mad because they are in the dark."
(Goodrich to Wolcott, July 28, 1800; Gibbs, ii, 394.)

[1176] Ames to Hamilton, Aug. 26, 1800; _Works_: Ames, i, 280.

[1177] Hamilton to Sedgwick, May 4, 1800; _Works_: Lodge, x, 371.

[1178] Same to same, May 10, 1800; _ib._, 375.

[1179] "In our untoward situation we should do as well with Jefferson
for President and Mr. Pinckney Vice President as with anything we can
now expect. Such an issue of the election, if fairly produced, is the
only one that will keep the Federal Party together." (Cabot to Wolcott,
Oct. 5, 1800; Lodge: _Cabot_, 295.)

"If Mr. Adams should be reëlected, I fear our constitution would be more
injured by his unruly passions, antipathies, & jealousy, than by the
whimsies of Jefferson." (Carroll to McHenry, Nov. 4, 1800; Steiner,
473.)

"He [Adams] has palsied the sinews of the party, and" another four years
of his administration "would give it its death wound." (Bayard to
Hamilton, Aug. 18, 1800; _Works_: Hamilton, vi, 457.)

[1180] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. According
to the caucus custom, two candidates were named for President, one of
whom was understood really to stand for Vice-President, the Constitution
at that time not providing for a separate vote for the latter officer.

[1181] "You may rely upon my co-operation in every reasonable measure
for effecting the election of General Pinckney." (Wolcott to Hamilton,
July 7, 1800; _Works_: Hamilton, vi, 447-48.)

"The affairs of this government will not only be ruined but ... the
disgrace will attach to the federal party if they permit the re-election
of Mr. Adams." (_Ib._) "In Massachusetts almost all the leaders of the
first class are dissatisfied with Mr. Adams and enter heartily into the
policy of supporting General Pinckney." (Hamilton to Bayard, Aug. 6,
_ib._, 452 (also in _Works_: Lodge, x, 384); and see Jefferson to
Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.)

[1182] Hamilton to Carroll, July 1, 1800; _Works_: Lodge, x, 378; and
see Hamilton to Bayard, Aug. 6, 1800; _ib._, 384.

[1183] Sedgwick to Hamilton, May 7, 1800, quoting "our friend D.[ayton]
who is not perfectly right" (_Works_: Hamilton, vi, 437; and see Cabot
to Hamilton, Aug. 10, 1800; _ib._, 454; also Cabot to Wolcott, July 20,
1800; Lodge: _Cabot_, 282.)

[1184] Knox to Adams, March 5, 1799; _Works_: Adams, viii, 626-27. Knox
had held higher rank than Hamilton in the Revolutionary War and Adams
had tried to place him above Hamilton in the provisional army in 1798.
But upon the demand of Washington Knox was given an inferior rank and
indignantly declined to serve. (Hildreth, v, 242-44. And see Washington
to Knox, July 16, 1798; _Writings_: Ford, xiv, 43-46.) Thereafter he
became the enemy of Hamilton and the ardent supporter of Adams.

[1185] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 315.

[1186] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382, and see
390; Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396; Wolcott to Ames,
Dec. 29, 1799; _ib._, 315.

The public discussion of Adams's charge of a "British faction" against
his party enemies began with the publication of a foolish letter he had
written to Coxe, in May of 1792, insinuating that Pinckney's appointment
to the British Court had been secured by "much British influence."
(Adams to Coxe, May, 1792; Gibbs, ii, 424.) The President gave vitality
to the gossip by talking of the Hamiltonian Federalists as a "British
faction." He should have charged it publicly and formally or else kept
perfectly silent. He did neither, and thus only enraged his foe within
the party without getting the advantage of an open and aggressive
attack. (See Steiner, footnote 3, to 468.)

[1187] Phelps to Wolcott, July 15, 1800; relating Noah Webster's
endorsement of Adams's opinions; Gibbs, ii, 380.

[1188] Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396.

[1189] In the summer of 1800, Jefferson dined with the President. Adams
was utterly unreserved to the Republican leader. After dinner, General
Henry Lee, also a guest, remonstrated with the President, who responded
that "he believed Mr. Jefferson never had the ambition, or desire to
aspire to any higher distinction than to be his [Adams's] first
Lieutenant." (Lee to Pickering, 1802; Pickering MSS., Mass. Hist. Soc.;
also partly quoted in Gibbs, ii, 366; and see Ames to Wolcott, June 12,
1800; Gibbs, ii, 368; and to King, Sept. 24, 1800; King, iii, 304.)

[1190] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 261.

[1191] Ames to Gore, Nov. 10, 1799; _ib._, 265.

[1192] Ames to Gore, Nov. 10, 1799; Ames, i, 268.

[1193] Cabot to Wolcott, June 14, 1800; Lodge: _Cabot_, 274.

[1194] Jefferson to Granger, Aug. 13, 1800; _Works_: Ford, ix, 138-41;
and see Jefferson to Gerry, January 26, 1799; _ib._, 17-19.

[1195] "The Jacobins and the half federalists are ripe for attacking the
permanent force, as expensive, and unnecessary, and dangerous to
liberty." (Ames to Pickering, Oct. 19, 1799; _Works_: Ames, i, 258.)

[1196] "In my lengthy journey through this State [Pennsylvania] I have
seen many, very many Irishmen and with very few exceptions, they are
United Irishmen, Free Masons, and the most God-provoking Democrats on
this side of Hell," who, "with the joy and ferocity of the damned, are
enjoying the mortification of the few remaining honest men and
Federalists, and exalting their own hopes of preferment, and that of
their friends, in proportion as they dismiss the fears of the
gallows.... The Democrats are, without doubt, increasing." (Uriah Tracy
to Wolcott, Aug. 7, 1800; Gibbs, ii, 399.)

[1197] Huntington to Wolcott, Aug. 6, 1800; _ib._, 398.

[1198] Ames to Wolcott, June 12, 1800; _ib._, 369.

[1199] McHenry to Wolcott, July 22, 1800; Steiner, 462. "Your very wise
political correspondents will tell you anything sooner than the truth.
For not one of them will look for anything but profound reasons of state
at the bottom of the odd superstructure of parties here. There is
nothing of the kind at the bottom." (Ames to King, Aug. 19, 1800; King,
iii, 294.)

[1200] The Republicans were making much political capital out of the
second mission. They had "saved the country from war," they said, by
forcing Adams to send the envoys: "What a roaring and bellowing did this
excite among all the hungry gang that panted for blood only to obtain
pelf in every part of the country." (_Aurora_, March 4, 1800.)

[1201] Goodrich to Wolcott, Aug. 26, 1800; Gibbs, ii, 412.

[1202] _Am. St. Prs., For. Rel._, ii, 325.

[1203] Republican success in the approaching election.

[1204] Marshall to Adams, July 21, 1800; Adams MSS.

[1205] Marshall to Hamilton, Aug. 23, 1800; _Works_: Hamilton, vi, 460.

[1206] A Republican victory.

[1207] Marshall to Adams, Aug. 25, 1800; Adams MSS.

[1208] Adams to Marshall, Sept. 4 and 5, 1800; _Works_: Adams, ix,
80-82.

[1209] Marshall to Adams, Sept. 17, 1800; Adams MSS. The "retrograde
steps" to which Marshall refers were the modification of the French
_arrêts_ and decrees concerning attacks on our commerce.

[1210] Marshall to Tinsley, Sept. 13, 1800; MS., Mass. Hist. Soc.

[1211] Marshall, ii, 438.

[1212] _Am. St. Prs., For. Rel._, ii, 342 _et seq._

[1213] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492; and
Rutledge to Hamilton, Jan. 10, 1801; _ib._, 511; Ames to Gore, Nov. 10,
1799; _Works_: Ames, i, 265.

[1214] Hamilton to Sedgwick, Dec. 22, 1800; _Works_: Lodge, x, 397;
also, to Morris, Dec. 24, 1800; _ib._, 398.

[1215] Marshall to Hamilton, Jan. 1, 1801; _Works_: Hamilton, vi,
502-03; and see Brown: _Ellsworth_, 314-15. The principal American
demand was compensation for the immense spoliation of American commerce
by the French. The treaty not only failed to grant this, but provided
that we should restore the French ships captured by American vessels
during our two years' maritime war with France, which, though formally
undeclared, was vigorous and successful. "One part of the treaty
abandons all our rights, and the other part makes us the dupes of France
in the game she means to play against the maritime power of England....
We lose our honor, by restoring the ships we have taken, and by so
doing, perhaps, make an implicit acknowledgment of the injustice of our
hostile operations." (Rutledge to Hamilton, Jan. 10, 1801; _Works_:
Hamilton, vi, 511.)

[1216] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan,
121.

[1217] Gallatin to his wife, Feb. 5, 1801; Adams: _Gallatin_, 259.

[1218] _Ib._, 254.

[1219] Ames to Gore, Dec. 29, 1800; reviewing political events of the
year; _Works_: Ames, i, 286-87.

[1220] Hamilton to Wolcott, Aug. 3, 1800; _Works_: Lodge, x, 383; and
Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 400.

[1221] Hamilton to Wolcott, Sept. 26, 1800; _Works_: Lodge, x, 389 (also
in Gibbs, ii, 422); and see same to same, Aug. 3, 1800; _Works_: Lodge,
x, 883.

[1222] Troup to King, Oct. 1, 1800; King, iii, 315.

[1223] _Aurora_, May 20, 1800.

[1224] Sedgwick to King, Sept. 26, 1800; King, iii, 309.

[1225] Ames to Hamilton, Aug. 26, 1800; _Works_: Hamilton, vi, 463; also
Cabot to Hamilton, Aug. 21, 1800; ib., 458; and Aug. 23, 1800; _ib._,
460 (also in Lodge: _Cabot_, 284-88); and to Wolcott, Aug. 23, 1800;
Lodge: _Cabot_, 288-89.

The local politicians were loyal to the President; Ames bitterly
complains of "the small talk among the small politicians, about
disrespect to the President, &c., &c." (Ames to Pickering, Nov. 23,
1799; _Works_: Ames, i, 272.)

[1226] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382; and same
to same, Oct. 1, 1800; _ib._, 390. Wolcott supplied most of the material
and revised Hamilton's manuscript. (Wolcott to Hamilton, Oct. 1, 2,
1800; _Works_: Hamilton, vi, 470-71.) For entire attack see Hamilton:
"Public Conduct and Character of John Adams"; _Works_: vii, 687-726
(also in _Works_: Lodge, vii, 309-65.)

[1227] Parton: _Burr_, 256-57; Davis: _Burr_, ii, 65 _et seq._

[1228] "This pamphlet has done more mischief to the parties concerned
than all the labors of the _Aurora_!" (Duane to Collot; Parton: _Burr_,
258.)

[1229] "Our friends ... lamented the publication.... Not a man ... but
condemns it.... Our enemies are universally in triumph.... His
[Hamilton's] usefulness hereafter will be greatly lessened." (Troup to
King, Nov. 9, 1800; King, iii, 331.) "All ... blame ... Mr. Hamilton."
(Carroll to McHenry, Nov. 4, 1800; Steiner, 476.)

Some Federalist politicians, however, observed Hamilton's wishes. For
example: "You must at all events secure to the Genr. [Pinckney] a
majority in Cong., it may there be done with _safety_, his success
depends on the accomplishment of this measure. You know a friend of ours
who can arrange this necessary business with the utmost perfect
suavity." (Dickinson to McHenry, Oct. 7, 1800; Steiner, 471.)

Again Dickinson writes of "the absolute necessity of obtaining a
_majority_ (if it should only be by a _single_ vote) in Cong. to favor
the man who interests us most" and hopes "Hamilton's publication ...
will produce the desired effect." (Oct. 31, 1800; _ib._, 472.)

[1230] _Washington Federalist_, Nov. 29, 1800.

[1231] For instance see the _Aurora's_ editorial on women in the army,
January 14, 1800; and see titles of imaginary books editorially
suggested for use by the various Federalist leaders, especially
Hamilton, Harper, and Gouverneur Morris, in _ib._, May 10, 1800. On
August 21 it described some Federalist leaders as "completely bankrupt
of character as well as fortune."

Although it did not equal the extravagance of the Republican newspapers,
the Federalist press was also violent. See, for instance, a satirical
poem "by an Hibernian and an Alien" in the _Alexandria Advertiser_,
reprinted in the _Washington Federalist_ of February 12, 1801, of which
the last verse runs:--

"With J[effer]son, greatest of men,
Our President next we will dash on.
Republican marriages then,
And drowning boats will be in fashion.
Co-alitions, tri-color we'll form
'Twixt white Men, Mulattos, and Negroes.
The banks of the treasury we'll storm--
Oh! how we'll squeeze the old Quakers,
_Philosophy is a fine thing_!"

The familiar campaign arguments were, of course, incessantly reiterated
as: "The Government" cost only "FIVE MILLION dollars ... before the
British treaty"; now it costs "FIFTEEN MILLIONS. Therefore every man who
paid _one dollar_ taxes then pays _three_ dollars now." (_Aurora_, Oct.
30, 1800.)

[1232] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 264.

[1233] Ames to Dwight, March 19, 1801; _ib._, 294.

[1234] Webster to Wolcott, June 23, 1800; Gibbs, ii, 374.

[1235] The _Washington Federalist_, Jan. 12, 1801, charged that, in
Virginia, public money was used at the election and that a resolution to
inquire into its expenditures was defeated in the Legislature.

[1236] Charles Pinckney to Jefferson, Oct. 12, 1800; _Amer. Hist. Rev._,
iv, 117. For election arguments and methods see McMaster, ii, 499 _et
seq._

[1237] Adams to Marshall, Sept. 27, 1800; _Works_: Adams, ix, 85; and
see Graydon, footnote to 362.

[1238] Adams to Marshall, Sept. 30, 1800; Adams MSS.

[1239] Marshall to Adams, without date; Adams MSS.

[1240] Adams MSS. Marshall wrote two speeches for Adams. Both are in
Marshall's handwriting. The President selected and delivered the one
which appears in Adams's _Works_ and in Richardson. The undelivered
speech was the better, although it was written before the French treaty
arrived, and was not applicable to the state of our relations with
France when Congress convened. Marshall also wrote for Adams the two
brief separate addresses to the Senate and the House. (_Ib._)

[1241] The original manuscripts of these speeches, in Marshall's
handwriting, are in the Adams MSS. They are notable only as an evidence
of Adams's confidence in Marshall at this, the most irritating period of
his life.

[1242] Beard: _Econ. O. J. D._, chap. xiii.

[1243] When it was certain that Adams had been defeated, "Solon," in the
_Washington Federalist_ of Jan. 9, 1801, thus eulogized him:--

"The die is cast!... Our beloved ADAMS will now close his bright
career.... Immortal sage! May thy counsels continue to be our saving
Angel! Retire and receive ... the ... blessings of all _good_ men....

"Sons of faction [party]! demagogues and high priests of anarchy, now
have you cause to triumph. Despots and tyrants! now may you safely
pronounce 'ingratitude is the common vice of all republics. Envy and
neglect are the only reward of superior merit. Calumny, persecution and
banishment are the laurels of the hoary patriot.'...

"... We have to contend ... for national existence. Magistrates and
rulers, be firm.... Our constitution is our last fortress. Let us
entrench it against every innovation. When this falls, our country is
lost forever."

This editorial, as well as all political matter appearing in the
_Washington Federalist_ during 1800-01, is important because of
Marshall's reputed influence over that paper. (See _infra_, 541.)

At news of Jefferson's success the leading Federalist journal declared
that some Republicans in Philadelphia "huzzaed until they were seized
with lockjaw ... and three hundred are now drunk beyond hope of
recovery. Gin and whiskey are said to have risen in price 50 per cent
since nine o'clock this morning. The bells have been ringing, guns
firing, dogs barking, cats meuling, children crying, and jacobins
getting drunk, ever since the news of Mr. Jefferson's election arrived
in this city." (_Gazette of the United States_, Feb. 19, 1801.)

[1244] At that time, the presidential electors did not vote for a
Vice-President, but only for President. The person receiving the largest
number of electoral votes became President and the one for whom the
second largest number of votes were cast became Vice-President. When
Jefferson and Burr each had seventy-three votes for President, the
election was thrown into the House of Representatives.

Thus, although, in casting their ballots for electors, the people really
voted for Jefferson for President and for Burr for Vice-President, the
equal number of votes received by each created a situation where it was
possible to defeat the will of the people. Indeed, as appears in the
text, that result was almost accomplished. It was this constitutional
defect that led to the Twelfth Amendment which places the election of
President and Vice-President on its present basis. (See "The Fifth Wheel
in our Government"; Beveridge: _Century Magazine_, December, 1909.)

[1245] Jefferson to Burr, Dec. 15, 1800; _Works_: Ford, ix, 155.

[1246] "Jefferson & Burr have each 73 votes and ... the Democrats are in
a sweat." (Uriah Tracy to McHenry, Dec. 30, 1800; Steiner, 483.)

[1247] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 158.

[1248] Jefferson to Breckenridge, Dec. 18, 1800; _ib._, 157.

[1249] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392.

[1250] See these letters in _ib._, 392 _et seq._; and to Bayard, Jan.
16, 1801; _ib._, 412 (also in _Works_: Hamilton, vi, 419, but misplaced
and misdated).

[1251] Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; and see
Carroll to Hamilton, April 18, 1800; _Works_: Hamilton, vi, 434-35.

The _Washington Federalist_, even when the balloting was in progress,
thus stimulated the members of its party in the House: "_Unworthy_
will he be and consecrate his name to infamy, who ... has hitherto
opposed ... Mr. Jefferson ... and shall now meanly and inconsistently
lend his aid to promote it [Jefferson's election].... Will they confer
on Mr. Jefferson the Federal suffrage in reward for the calumnies he
has indiscriminately cast upon the Federal character; or will they
remunerate him ... for the very honorable epithets of _pander, to the
whore of England, 'timid men, office hunters, monocrats, speculators and
plunderers'_ which he has missed no opportunity to bestow upon them."
(_Washington Federalist_, Feb. 12, 1801.)

[1252] Hamilton to Wolcott, Dec. 17, 1800; _Works_: Lodge, x, 395.

[1253] Jefferson rightly attributed to Burr Republican success in the
election. "He has certainly greatly merited of his country, & the
Republicans in particular, to whose efforts his have given a chance of
success." (Jefferson to Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.)

[1254] Sedgwick to Hamilton, Jan. 10, 1800; _Works_: Hamilton, vi,
511-14; Cabot to Hamilton, Aug. 10, 1800; _ib._, 453 (also in Lodge:
_Cabot_, 284); Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90;
Morris to Hamilton, Jan. 5, 1801; Morris, ii, 398; and same to same,
Jan. 26, 1801; _ib._, 402 (also in _Works_: Hamilton, vi, 503); Carroll
to McHenry, Nov. 4, 1800; Steiner, 473-76; Rutledge to Hamilton, Jan.
10, 1801; _Works_: Hamilton, vi, 510.

[1255] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan,
121.

[1256] Bayard to Hamilton, March 8, 1801; _Works_: Hamilton, vi, 524.

[1257] Tracy to McHenry, Jan. 15, 1801; Steiner, 488-99; and see Bayard
to Andrew Bayard, Jan. 26, 1801; _supra_.

[1258] Hamilton to Wolcott, Dec. 16, 1800; _Works_: Lodge, x, 392.

[1259] Wolcott to Hamilton, Dec. 25, 1800; _Works_: Hamilton, vi, 498.

[1260] See Chief Justice Ellsworth's statement of the conservative
opinion of Jefferson. (Brown: _Ellsworth_, 324-25.)

[1261] Jefferson to Mazzei, April 24, 1796; _Works_: Ford, viii, 237-41.
The letter as published in America, although it had undergone three
translations (from English into Italian, from Italian into French, and
from French into English again), does not materially differ from
Jefferson's original.

It greatly angered the Federalist leaders. Jefferson calls the
Federalists "an Anglican, monarchical & aristocratical party." The
Republicans had "the landed interests and men of talent"; the
Federalists had "the Executive, the Judiciary," the office-holders and
office-seekers--"all timid men who prefer the calm of despotism to the
boisterous sea of liberty, British merchants & Americans trading on
British capital, speculators & holders in the banks & public funds, a
contrivance invented for the purposes of corruption," etc.

Jefferson thus refers to Washington: "It would give you a fever were I
to name to you the apostates who have gone over to these heresies, men
who were Samsons in the field & Solomons in the council, but who have
had their heads shorn by the whore England." It was this insult to
Washington which Marshall resented most bitterly.

Jefferson must have known that Mazzei would probably publish this
letter. Writing at Paris, in 1788, of Mazzei's appointment by the French
King as "intelligencer," Jefferson said: "The danger is that he will
overact his part." (Jefferson to Madison, July 31, 1788; _Works_: Ford,
v, 425.)

The Republicans frankly defended the Mazzei letter; both its facts and
"predictions" were correct, said the _Aurora_, which found scarcely "a
line in it which does not contain something to admire for elegance of
expression, striking fact, and profound and accurate penetration."
(_Aurora_, May 26, 1800.)

[1262] Marshall to Hamilton, January 1, 1801; _Works_: Hamilton, vi,
501-03.

[1263] Following is a list of the annual salaries of different
officers:--

President $25,000
Vice-President 5,000
Chief Justice 4,000
Associate Justices 3,500
Attorney-General 1,500
Secretary of the Treasury 3,500
Secretary of State 3,500
Secretary of War 3,000
(_Annals_, 1st Cong., 1st Sess., Appendix, 2233-38.)

[1264] At the very beginning of the movement in his favor, Burr refused
to encourage it. "Every man who knows me ought to know that I disclaim
all competition. Be assured that the Federalist party can entertain no
wish for such a change.... My friends would dishonor my views and insult
my feelings by a suspicion that I would submit to be instrumental in
counteracting the wishes and expectations of the United States. And I
now constitute you my proxy to declare these sentiments if the occasion
shall require." (Burr to Smith, Dec. 16, 1800; _Washington Federalist_,
Dec. 31, 1800.)

[1265] Pickering to King, Jan. 5, 1801; King, iii, 366.

[1266] See _Aurora_, Jan. 21, 1801.

[1267] "Lucius," of Fredericksburg, Virginia, in the _Washington
Federalist_, Jan. 21, 25, and Feb. 6, 1801.

The following extracts from the first of these articles reveal the
temper and beliefs of the Federalists: "Burr never _penned_ a
declaration of independence; ... but he ... has _engraved that
declaration_ in _capitals_ with the point of his sword: It is yet
_legible_ on the _walls of Quebeck_. He has _fought_ for that
_independency_, for which Mr. _Jefferson_ only _wrote_. _He_ has
gallantly exposed his life in support of that declaration and for the
_protection_ of its _penn-man_. He has been _liberal_ of his _blood_,
_while_ Mr. _Jefferson_ has _only hazarded_ his _ink_....

"_He never shrank from the post of danger._ _He_ is _equally fitted for_
service in the _field_ and in the _public counsels_: He has been _tried_
in _both_: in the one we have seen him _an able and distinguished
Senator_;--in the _other_ a _brave_ and _gallant officer_....

"_Mr. Jefferson_ is better qualified to give the description of a
butterfly's wing or to write an essay on the bones of the Mammouth; ...
but Mr. Burr ... in ... knowledge ... necessary to form the _great and
enlightened statesman_, is _much superior_ to Mr. Jefferson....

"Mr. Burr is not ... _consecrated_ to the _French_; ... nor has he
unquenchable hatred to ... Great Britain. Unlike the _penn-man_ of the
declaration he feels the _full force_ of the expression, 'in _war
enemies_, in _peace friends_'... Mr. Burr ... will _only_ consult
_national honor_ and _national_ happiness, having no improper passions
to gratify.

"Mr. Burr is ... a friend of the Constitution ... a friend of the
commercial interests ... the firm and decided friend of the _navy_ ...
the _Eastern_ States have had a President and Vice President; So have
the _Southern_. It is proper that the _middle_ states should also be
respected....

"Mr. Burr has never procured or encouraged those infamous Calumnies
against those who have filled the Executive departments ... which we
long have witnessed: Nor have those polluted _Sinks_, the Aurora, the
Argus, the Press, the Richmond Examiner, and the like, poured forth
their _impure_ and _foetid streams_ at the influence of Mr. Burr, or
to subserve his vanity or his ambition.

"If Mr. Burr is elected, the _Federalists_ have nothing to _fear_....
The vile calumniators ... of all who have ... supported our government,
and the _foreign incendiaries_, who, having no interest in _Heaven_,
have called _Hell_ to their assistance, ... from Mr. Burr have nothing
to _hope_....

"Mr. Burr can be raised to the Presidency without any _insult_ to the
feelings of the Federalists, the friends of Government; ... WITHOUT an
_insult_ to the _Memory_ of _our_ Washington; for it was not by Mr.
_Burr_, nor was it by _his_ friends, nor to _serve him that the great,
the good, the immortal_ Washington was charged with having, by his name,
given a sanction to corruption, with being meanly jealous of the fame of
even that contemptible wretch Tom Paine, with being an unprincipled
Hypocrite and with being a foul murderer! a murderer under circumstances
of such peculiar atrocity as to shock with horror the merciless savages,
and to cause them indignantly to fly from his blood polluted banner!"

[1268] "John Marshall ... is the reputed author of a great part of the
[rubbish] in the Washington Federalist." (Scots Correspondent
[Callender] in _Richmond Examiner_, Feb. 24, 1801.) There is no proof of
Callender's assertion; but some of the matter appearing in the
_Washington Federalist_ is characteristic of Marshall's style and
opinions. See, for instance, the editorial on the prosecution of
Theodore Dwight, denouncing "party spirit" (_Washington Federalist_,
March 1, 1801). The _Aurora_ of March 26, 1801, denounced "John
Marshall's Federal Gazette at Washington."

[1269] Monroe to Jefferson, Jan. 18, 1801; Monroe's _Writings_:
Hamilton, iii, 256. An article signed "Horatius" in the _Washington
Federalist_ of Jan. 6, 1801, stated this position with great ability.
The argument is able and convincing; and it is so perfectly in
Marshall's method of reasoning and peculiar style of expression that his
authorship would appear to be reasonably certain.

"Horatius's" opinion concluded that the power of Congress "is completely
adequate ... to provide by law for the vacancy that may happen by the
removal of both President and Vice President on the 3d of March next,
and the non-election of a successor in the manner prescribed by the
constitution."

[1270] Monroe to Jefferson, Jan. 18, 1801; Monroe's _Writings_:
Hamilton, iii, 256.

[1271] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161-62.

[1272] "Hortensius" to John Marshall, Secretary of State, in the
_Richmond Examiner_; reprinted in the _Aurora_, Feb. 9, 1801. George
Hay, the writer of this letter, was a lawyer in Richmond. Jefferson
appointed him United States Attorney for the District of Virginia, and,
as such, he conducted the prosecution of Aaron Burr for treason before
John Marshall, who, as Chief Justice of the United States, presided at
the trial. (See vol. III of this work.)

Marshall was again attacked in two open letters, signed "Lucius," in the
_Richmond Examiner_, Feb. 10, 13, 1801. His reported opinion, said
"Lucius," alarmed "the active friends of freedom"; Marshall was "the
Idol of his party" and knew the influence of his views: unless he
publicly disclaimed the one now attributed to him, "Lucius" proposed to
"unveil" Marshall's "motives" and "expose" him "uncovered to the sight
of the people"--his "depravity shall excite their odium," etc.
"Lucius's" attacks ended with Jefferson's election.

[1273] The paper criticized "the intemperate counsel of a certain _would
be attorney-general_ of the United States (George Hay, _Esq._ of the
antient dominion) ... under the signature of Hortensius, and addressed
to General Marshall, in consequence of a lie fabricated against him
relative to an opinion said to have been given by him upon the late
presidential election, which the honorable attorney knew to be a lie as
well as we did, but was fearful of being forgot, and despaired of
getting a better opportunity to shew himself!!!" (_Washington
Federalist_, Feb. 12, 1801.)

[1274] Jefferson to Monroe, Feb. 15, 1801; _Works_: Ford, ix, 178-79;
and see Jefferson to McKean, March 9, 1801; _ib._, 206.

[1275] Jefferson to Madison, Feb. 18, 1801; _ib._, 182.

[1276] Monroe to Hoomes, Feb. 14, 1801; Monroe's _Writings_: Hamilton,
iii, 259; and Monroe to Nicholas, Feb. 18, 1801; _ib._, 260.

[1277] For these incidents and reports see Gallatin to his wife, May 8,
1801; Adams: _Gallatin_, 249.

[1278] Thus, for example, the _Washington Federalist_ of Feb. 12, 1801,
after the House had balloted "upwards of 30 times":--

"But say the bold and impetuous partisans of Mr. Jefferson, and that,
too, _in the Teeth of the Assembled Congress of America_--'_Dare_ to
designate any officer whatever, even temporarily, to administer the
government in the event of a non-agreement on the part of the House of
Representatives, and we will march and _dethrone him as an usurper_.
_Dare_ (_in fact_) to exercise the right of opinion, and place in the
presidential chair any other than the philosopher of Monticello, and ten
thousand republican _swords will instantly leap from their scabbards_,
in defence of the violated rights of the _People_!!!

"Can our Countrymen be caught by so flimsy a pretext?

"Can it possibly interest either their feelings or their judgment?

"Are they, then, ripe for civil war, and ready to imbrue their hands in
kindred blood?

"If the tumultuous meetings of a set of factious foreigners in
Pennsylvania or a few _fighting_ bacchanals of Virginia, mean the
_people_, and are to dictate to the Congress of the United States whom
to elect as President--if the constitutional rights of this body are so
soon to become the prey of anarchy and faction--... it would be prudent
to prepare for the contest: the woeful experiment if tried at all could
never be tried at a more favorable conjuncture!

"With the militia of Massachusetts consisting of 70,000 (_regulars let
us call them_) in arms--with those of New Hampshire and Connecticut
united almost to a man, with half the number at least of the citizens of
eleven other States ranged under the federal banner in support of the
Constitution, what could Pennsylvania aided by Virginia--the militia of
the latter untrained and farcically performing the manual exercise with
_corn-stalks_ instead of muskets--... What, may it be asked, would be
the issue of the struggle?"

[1279] "The means existed of electing Burr, but this required his
co-operation. By deceiving one man (a great blockhead) and tempting two
(not incorruptible) he might have secured a majority of the States."
(Bayard to Hamilton, March 8, 1801; _Works_: Hamilton, vi, 522-24.)

"The Federalists were confident at first, they could debauch Col.
B.[urr].... His conduct has been honorable and decisive, and greatly
embarrasses them." (Jefferson to his daughter, Jan. 4, 1801; _Works_:
Ford, ix, 166.)

[1280] "I was enabled soon to discover that he [Burr] was determined not
to shackle himself with federal principles.... When the experiment was
fully made, and acknowledged upon all hands, ... that Burr was resolved
not to commit himself, ... I came out ... for Jefferson." (Bayard to
Hamilton, March 8, 1801; _Works_: Hamilton, vi, 523.)

[1281] The Federalist managers were disgusted with Burr because he
refused to aid them in their plot to elect him. "Burr has acted a
miserable paultry part," writes Bayard. "The election was in his power,
but he was determined to come in as a Democrat.... We have been
counteracted in the whole business by letters he has written to this
place." (Bayard to Bassett, Feb. 16, 1801; _Bayard Papers_: Donnan;
126.)

Burr had not "used the least influence" to be elected. (Bayard's
Deposition; Davis: _Burr_, ii, 127.)

"_Had Burr done anything, for himself, he would, long ere this, have
been President._" (Cooper to Morris, Feb. 13, 1801; Davis: _Burr_, ii,
113.)

[1282] Depositions of Bayard and Smith, in Gillespie _vs._ Smith;
Randall, ii, 613-17; and Davis: _Burr_, ii, 135-37; also Baer to Bayard,
April 19, 1830; _ib._, 118; and see Bayard's account; Remarks in the
Senate, Jan. 31, 1835; also, Bayard to McLane, Feb. 17, 1801; _Bayard
Papers_: Donnan, 126 _et seq._

In his "Anas" (_Works_: Ford, i, 392-93) Jefferson flatly denied his
deal with the Federalists, and this, afterwards, provoked much
controversy. It now is established that the bargain was made. See
Professor McMaster's conclusion: "The price settled ... the Republicans
secured ten states." (McMaster, ii, 526.)

[1283] For accounts by participants in this exciting and historic
contest, see Gallatin's letters to his wife and to Nicholson from Feb. 5
to Feb. 19, 1801; Adams: _Gallatin_, 257-63; Dana to Wolcott, Feb. 11,
1801; Gibbs, ii, 489-90; Bayard to several friends, Feb. 22, 1801;
_Bayard Papers_, _supra_.

[1284] Jefferson to Madison, Feb. 18, 1801; _Works_: Ford, ix, 183.

[1285] After Jefferson's election, for many days the _Washington
Federalist_ carried in italics at the head of its editorial columns a
sentiment characteristic of Marshall: "_May he discharge its duties in
such a manner as to merit and receive the blessings of all good men and
without redding the cheek of the American Patriot with blushes for his
country!!!_"

[1286] Gallatin to his wife, Feb. 17, 1801; Adams: _Gallatin_, 262.

[1287] Adams to Congress, Dec. 3, 1799; _Annals_, 6th Cong., 1st Sess.,
187-88; and Richardson, i, 289. Yet at this period the business of the
courts was actually decreasing. (See Brown: _Ellsworth_, 198.) But the
measure was demanded by the bar generally and insisted upon by the
Justices of the Supreme Court. (See Gibbs, ii, 486.)

[1288] Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams
MSS.

[1289] Gunn to Hamilton, Dec. 13, 1800; _Works_: Hamilton, vi, 483.

[1290] The Federalist attitude is perfectly expressed in the following
toast drunk at a banquet to Wolcott, attended by "the heads of
departments" and the Justices of the Supreme Court: "_The Judiciary of
the United States! Independent of party, independent of power and
independent of popularity._" (_Gazette of the United States_, Feb. 7,
1801.)

[1291] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 316.

[1292] _Annals_, 6th Cong., 1st Sess., Dec. 19, 837-38.

[1293] _Richmond Examiner_, Feb. 6, 1801.

[1294] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. The
Republicans were chiefly alarmed because, in the extension of the
National Judiciary, offices would be provided for Federalists. Even
Jefferson then saw nothing but patronage in the Judiciary Act.

The "evident" purpose of the bill, said the _Aurora_, Feb. 4, 1801, was
to "increase the influence of the present Executive and provide a
_comfortable retreat_ for some of those _good federalists_ who have
found it convenient to resign from their offices or been dismissed from
them by the people."

In comparison to this objection little attention was paid to the more
solid ground that the National Judiciary would be used to "force the
introduction of the common law of England as a part of the law of the
United States"; or even to the objection that, if the Judiciary was
extended, it would "strengthen the system of terror by the increase of
prosecutions under the Sedition law"; or to the increase of the
"enormous influence" given the National Courts by the Bankruptcy Law.

The _Aurora_, March 18, 1801, sounded the alarm on these and other
points in a clanging editorial, bidding "_the people beware_," for "the
hell hounds of persecution may be let loose ... and the people be
ROASTED into implicit acquiescence with every measure of the 'powers
that be.'" But at this time it was the creation of offices that the
Federalists would fill to which the Republicans chiefly objected.

[1295] Rutledge to Hamilton, Jan. 10, 1801; _Works_: Hamilton, vi, 511.

[1296] Jefferson to Madison, Dec. 26, 1800; _Works_: Ford, ix, 161.

[1297] _Annals_, 6th Cong., 1st Sess., 878.

[1298] _Annals_, 6th Cong., 1st Sess., 879.

[1299] _Ib._ The person who made this absurd speech is not named in the
official report.

[1300] _Ib._, 896.

[1301] _Annals_, 6th Cong., 1st Sess., 897. This curious entry is,
plainly, the work of some person who wished to injure Marshall and Lee.
Nicholas's motion was lost, but only by the deciding vote of the
Speaker. (_Ib._) The bill, as finally passed, limited the jurisdiction
of the National Courts to causes exceeding four hundred dollars. (_Ib._)

[1302] _Ib._, 900, 901, 903, and 905.

[1303] _Ib._, 734.

[1304] _Ib._, 740-41.

[1305] _Ib._, 741.

[1306] _Ib._, 742.

[1307] Adams to Jay, Dec. 19, 1800; _Works_: Adams, ix, 91.

[1308] Jay to Adams, Jan. 2, 1801; _Jay_: Johnston, iv, 284. Jay refused
the reappointment because he believed the Supreme Court to be fatally
lacking in power. See chap. I, vol. III, of this work.

[1309] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492.

[1310] Jefferson to Madison, Dec. 19, 1800; _Works_: Ford, ix, 159. It
is impossible to imagine what this "something worse" was. It surely was
not Marshall, who was in nobody's mind for the Chief Justiceship when
Jay was named.

[1311] Pickering to King, Jan. 12, 1801; King, iii, 367.

[1312] Story, in Dillon, iii, 359.

[1313] Adams to William Cunningham, Nov. 7, 1808; _Cunningham Letters_,
no. xiv, 44; also mentioned in Gibbs, ii, 349.

[1314] Gibbs, ii, 349, 350.

[1315] As we have seen, Marshall's "reading of the science," "fresh" or
stale, was extremely limited.

[1316] Adams to Boudinot, Jan. 26, 1801; _Works_: Adams, ix, 93-94.
Adams's description of Marshall's qualifications for the Chief
Justiceship is by way of contrast to his own. "The office of Chief
Justice is too important for any man to hold of sixty-five years of age
who has wholly neglected the study of the law for six and twenty years."
(_Ib._) Boudinot's "rumor" presupposes an understanding between
Jefferson and Adams.

[1317] Bayard to Andrew Bayard, Jan. 26, 1801; _Bayard Papers_: Donnan,
122.

[1318] _Aurora_, Jan. 22, 1801.

[1319] It is worthy of repetition that practically all the emphasis in
their attacks on this act was laid by the Republicans on the point that
offices were provided for Federalists whose characters were bitterly
assailed. The question of the law's enlargement of National power was,
comparatively, but little mentioned; and the objections enlarged upon in
recent years were not noticed by the fierce partisans of the time.

[1320] _Aurora_, Feb. 3, 1801.

[1321] _Baltimore American_; reprinted in the _Aurora_, April 2, 1801.

[1322] _Richmond Examiner_, Feb. 6, 1801.

[1323] Marshall's nomination was confirmed January 27, 1801, a week
after the Senate received it. Compare with the Senate's quick action on
the nomination of Marshall as Secretary of State, May 12, 1800,
confirmed May 13. (Executive Journal of the Senate, iii.)

[1324] Adams to Dexter, Jan. 31, 1801; _Works_: Adams, ix, 95-96.

[1325] Marshall to Adams, Feb. 4, 1801; _ib._, 96.

[1326] Adams to Marshall, Feb. 4, 1801; _ib._, 96.

[1327] Same to same, Feb. 4, 1801; _ib._, 96-97.

[1328] Jay held both offices for six months.

[1329] Auditor's Files, Treasury Department, no. 12, 166. This fact is
worthy of mention only because Marshall's implacable enemies intimated
that he drew both salaries. He could have done so, as a legal matter,
and would have been entirely justified in doing so for services actually
rendered. But he refused to take the salary of Secretary of State.

[1330] Ames to Smith, Feb. 16, 1801; _Works_: Ames, i, 292.

[1331] Marshall to Wolcott, Feb. 24, 1801; Gibbs, ii. 495.

[1332] Wolcott to Marshall, March 2, 1801; Gibbs, ii, 496.

[1333] The irresponsible and scurrilous Callender, hard-pressed for some
pretext to assail Marshall, complained of his having procured the
appointment of relatives to the Judiciary establishment. "Mr. John
Marshall has taken particular care of his family," writes Jefferson's
newspaper hack, in a characteristically partisan attack upon Adams's
judicial appointments. (Scots Correspondent, in _Richmond Examiner_,
March 13, 1801.)

Joseph Hamilton Davies, a brother-in-law of Marshall's, was appointed
United States Attorney for the District of Kentucky; George Keith
Taylor, another brother-in-law, was appointed United States Judge of the
Fourth Circuit; and Marshall's brother, James M. Marshall, was appointed
Assistant Judge of the Territory (District) of Columbia. These
appointments were made, however, before the new Judiciary Act was
passed. (Executive Journal of the Senate, i, 357, 381, 387.) Callender
appears to have been the only person to criticize these appointments.
Even Jefferson did not complain of them or blame Marshall for them. The
three appointees were competent men, well fitted for the positions; and
their appointment, it seems, was commended by all.

[1334] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 231.

[1335] The Republicans did so later. "This outrage on decency should not
have its effect, except in life appointments [judges] which are
irremovable." (Jefferson to Knox, March 27, 1801; _Works_: Ford, ix,
237.)

[1336] Parton: _Jefferson_, 585-86. Parton relates this absurd tale on
the authority of Jefferson's great-granddaughter. Yet this third-hand
household gossip has been perpetuated by serious historians. The only
contemporary reference is in the address of John Fowler of Kentucky to
his constituents published in the _Aurora_ of April 9, 1801: "This
disgraceful abuse was continued to the latest hour of the President's
holding his office." The "shameful abuse" was thus set forth: "It
[Judiciary Law of 1801] creates a host of judges, marshalls, attorneys,
clerks, &c, &c, and is calculated, if it could endure, to unhinge the
state governments and render the state courts contemptible, while it
places the courts of law in the hands of creatures of those who have
lost the confidence of the people by their misconduct. The insidiousness
of its design has been equalled only by the shameless manner of its
being carried into execution. The Constitution disables any member of
Congress from filling an office created during his period of service.
The late President [Adams] removed persons from other branches of the
Judiciary, to the offices created by this law & then put members of
Congress into the thus vacated offices.... This law can be considered in
no other light than as providing pensions for the principals and
adherents of a party [Federalist]. The evil however will not I trust be
durable and as it was founded in fraud the return of a wiser system will
release the country from the shame and imposition." (Fowler to his
constituents in the _Aurora_, April 9, 1801.)

[1337] Jefferson to Rush, March 24, 1801; _Works_: Ford, ix, 230-31; to
Knox, March 27, 1801; _ib._, 237; to Mrs. Adams, June 13, 1804; _ib._,
x, 85.

[1338] Neither Randall nor Tucker, Jefferson's most complete and
detailed biographers, both partisans of the great Republican, mentions
the Lincoln-Marshall story, although, if it had even been current at the
time they wrote, it is likely that they would have noticed it.

[1339] Jefferson to Knox, _supra_.

END OF VOLUME II

APPENDIX

I. LIST OF CASES

ARGUED BY MARSHALL BEFORE THE COURT OF APPEALS OF VIRGINIA

_Case_ _Date_ _Reported_

Joseph Cutchin _v._ William
Wilkinson Spring Term, 1797 1 Call, 1

William Fairclaim, lessee, _v._
Richardand Elizabeth Guthrie Spring Term, 1797 1 Call, 5

Cabell _et al._ _v._ Hardwick Fall Term, 1798 1 Call, 301

Hopkins _v._ Blane Fall Term, 1798 1 Call, 315

Pryor _v._ Adams Fall Term, 1798 1 Call, 332

Proudfit _v._ Murray Fall Term, 1798 1 Call, 343

Harrison _v._ Harrison, _et al._ Fall Term, 1798 1 Call, 364

Shaw _et al._ _v._ Clements Fall Term, 1798 1 Call, 373

Graves _v._ Webb Fall Term, 1798 1 Call, 385

Jones _v._ Jones Fall Term, 1798 1 Call, 396

Auditor of Public Accounts _v._
Graham Fall Term, 1798 1 Call, 411

Beverley _v._ Fogg Spring Term, 1799 1 Call, 421

Rowe _et al._ _v._ Smith Spring Term, 1799 1 Call, 423

Ritchie & Co. _v._ Lyne Spring Term, 1799 1 Call, 425

Eckhols _v._ Graham, _et al._ Spring Term, 1799 1 Call, 428

Noel _v._ Sale Spring Term, 1799 1 Call, 431

Lee _v._ Love & Co. Spring Term, 1799 1 Call, 432

Wilson _v._ Rucker Spring Term, 1799 1 Call, 435

Garlington _v._ Clutton Spring Term, 1799 1 Call, 452

Taliaferro _v._ Minor Spring Term, 1799 1 Call, 456

Hacket _v._ Alcock Spring Term, 1799 1 Call, 463

Rose _v._ Shore Spring Term, 1799 1 Call, 469

Smith _v._ Dyer Spring Term, 1799 1 Call, 488

Macon _v._ Crump Spring Term, 1799 1 Call, 500

Flemings _v._ Willis _et ux._ Fall Term, 1799 2 Call, 5

Eppes, Ex'r, _v._ DeMoville, Adm'r Fall Term, 1799 2 Call, 19

Cooke _v._ Simms Fall Term, 1799 2 Call, 33

Lawrason, Adm'r _v._ Davenport
_et al._ Fall Term, 1799 2 Call, 79

Price _et al._ _v._ Campbell Fall Term, 1799 2 Call, 92

Eppes _et al._, Ex'rs, _v._ Randolph Fall Term, 1799 2 Call, 103

Taliaferro _v._ Minor Fall Term, 1799 2 Call, 156

Anderson _v._ Anderson Fall Term, 1799 2 Call, 163

Crump _et al._ _v._ Dudley _et ux._ June, 1790 3 Call, 439

Beall _v._ Edmondson June, 1790 3 Call, 446

Johnsons _v._ Meriwether July, 1790 3 Call, 454

Barrett _et al._ _v._ Floyd _et al._ July, 1790 3 Call, 460

Syme _v._ Johnston December, 1790 3 Call, 482

Ross _v._ Pynes December, 1790 3 Call, 490

Rev. John Bracken _v._ The Visitors
of William and Mary College December, 1790 3 Call, 495

Hite _et al._ _v._ Fairfax _et al._ May, 1786 4 Call, 42

Pickett _v._ Claiborne October, 1787 4 Call, 99

Beall _v._ Cockburn July, 1790 4 Call, 162

Hamilton _v._ Maze June, 1791 4 Call, 196

Calvert _v._ Bowdoin June, 1791 4 Call, 217

Tabb _v._ Gregory April, 1792 4 Call, 225

Ross _v._ Gill et ux. April, 1794 4 Call, 250

White _v._ Jones October, 1792 4 Call, 253

Marshall _et al._ _v._ Clark November, 1791 4 Call, 268

Foushee _v._ Lea April, 1795 4 Call, 279

Braxton _et al._ _v._ Winslow
_et al._ April, 1791 4 Call, 308

Commonwealth _v._ Cunningham & Co. October, 1793 4 Call, 331

Johnston _v._ Macon December, 1790 4 Call, 367

Hooe _v._ Marquess October, 1798 4 Call, 416

Chapman _v._ Chapman April, 1799 4 Call, 430

Mayo _v._ Bentley October, 1800 4 Call, 528

Turberville _v._ Self April, 1795 4 Call, 580

Executors of William Hunter and
the Executors of Herndon _v._
Alexander Spotswood Fall Term, 1792 1 Wash. 145

Stevens _v._ Taliaferro, Adm'r Spring Term, 1793 1 Wash. 155

Kennedy _v._ Baylor Spring Term, 1793 1 Wash. 162

Baird and Briggs _v._ Blaigove, Ex'r Spring Term, 1793 1 Wash. 170

Bannister's Ex'rs _v._ Shore Spring Term, 1793 1 Wash. 173

Clayborn, Ex'r _v._ Hill Spring Term, 1793 1 Wash. 177

Anderson _v._ Bernard Spring Term, 1793 1 Wash. 186

Johnson _v._ Bourn Spring Term, 1793 1 Wash. 187

Eustace _v._ Gaskins, Ex'r Spring Term, 1793 1 Wash. 188

Wilson and McRae _v._ Keeling Fall Term, 1793 1 Wash. 195

Payne, Ex'r, _v._ Dudley, Ex'r Fall Term, 1793 1 Wash. 196

Hawkins _v._ Berkley Fall Term, 1793 1 Wash. 204

Hooe & Harrison _et al._ _v._ Mason Fall Term, 1793 1 Wash. 207

Thweat & Hinton _v._ Finch Fall Term, 1793 1 Wash. 217

Brown's Adm'r _v._ Garland _et al._ Fall Term, 1793 1 Wash. 221

Jones _v._ Williams & Tomlinson Fall Term, 1793 1 Wash. 230

Coleman _v._ Dick & Pat Fall Term, 1793 1 Wash. 233

Taylor's Adm'rs _v._ Peyton's
Adm'rs Spring Term, 1794 1 Wash. 252

Smith and Moreton _v._ Wallace Spring Term, 1794 1 Wash. 254

Carr _v._ Gooch Spring Term, 1794 1 Wash. 260

Cole _v._ Clayborn Spring Term, 1794 1 Wash. 262

Shermer _v._ Shermer Fall Term, 1794 1 Wash. 266

Ward _v._ Webber _et ux._ Fall Term, 1794 1 Wash. 274

Applebury _et al._ _v._
Anthony's Ex'rs Fall Term, 1794 1 Wash. 287

Smallwood _v._ Mercer _et al._ Fall Term, 1794 1 Wash. 290

Minnis Ex'r, _v._ Philip Aylett Fall Term, 1794 1 Wash. 300

Brown's Ex'rs _v._ Putney Fall Term, 1794 1 Wash. 302

Leftwitch _et ux._ _v._ Stovall Fall Term, 1794 1 Wash. 303

Lee, Ex'r, _v._ Cooke Fall Term, 1794 1 Wash. 306

Burnley _v._ Lambert Fall Term, 1794 1 Wash. 308

Cooke _v._ Beale's Ex'rs Fall Term, 1794 1 Wash. 313

Dandridge _v._ Harris Fall Term, 1794 1 Wash. 326

Nicolas _v._ Fletcher Fall Term, 1794 1 Wash. 330

Watson & Hartshorne _v._ Alexander Fall Term, 1794 1 Wash. 340

Wroe _v._ Washington _et al._ Fall Term, 1794 1 Wash. 357

Cosby, Ex'r, _v._ Hite Fall Term, 1794 1 Wash. 365

Hewlett _v._ Chamberlayne Fall Term, 1794 1 Wash. 367

Pendleton _v._ Vandevier Fall Term, 1794 1 Wash. 381

Walden, Ex'r, _v._ Payne Fall Term, 1794 2 Wash. 1

James Roy _et al._ _v._ Muscoe
Garnett Fall Term, 1794 2 Wash. 9

James Ferguson _et al._ _v._ Moore Spring Term, 1795 2 Wash. 54

Currie _v._ Donald Spring Term, 1795 2 Wash. 58

Shelton _v._ Barbour Spring Term, 1795 2 Wash. 64

Brock _et al._ _v._ Philips Spring Term, 1795 2 Wash. 68

Turner _v._ Moffett Spring Term, 1795 2 Wash. 70

Turberville _v._ Self Spring Term, 1795 2 Wash. 71

Brydie _v._ Langham Spring Term, 1795 2 Wash. 72

Bernard _v._ Brewer Fall Term, 1795 2 Wash. 76

Philip McRae _v._ Richard Woods Fall Term, 1795 2 Wash. 80

Newell _v._ The Commonwealth Fall Term, 1795 2 Wash. 88

White _v._ Atkinson Fall Term, 1795 2 Wash. 94

Martin & William Picket _v._ James
Dowdall Fall Term, 1795 2 Wash. 106

Claiborne _v._ Parrish Fall Term, 1795 2 Wash. 146

Brown _et al._ _v._ Adm'r, Thomas
Brown, dec'd Fall Term, 1795 2 Wash. 151

Harrison, Ex'r, _v._ Sampson Fall Term, 1795 2 Wash. 155

Harvey _et ux._ _v._ Borden Fall Term, 1795 2 Wash. 156

Lee _v._ Turberville Fall Term, 1795 2 Wash. 162

Jordan _v._ Neilson Fall Term, 1795 2 Wash. 164

Ruffin _v._ Pendleton & Courtney Spring Term, 1796 2 Wash. 184

Pearpoint _v._ Henry Spring Term, 1796 2 Wash. 192

Sarah Walker & Thomas Walker,
Ex'rs, _v._ Thomas Walke[r] Spring Term, 1796 2 Wash. 195

Davenport _v._ Mason Spring Term, 1796 2 Wash. 200

Lewis Stephens _v._ Alexander White Fall Term, 1796 2 Wash. 203

Picket _v._ Morris Fall Term, 1796 2 Wash. 255

Booth's Ex'rs _v._ Armstrong Fall Term, 1796 2 Wash. 301

II. GENERAL MARSHALL'S ANSWER TO AN ADDRESS OF THE CITIZENS OF RICHMOND,
VIRGINIA

I will not, Gentlemen, attempt to describe the emotions of joy which my
return to my native country, and particularly to this city, has excited
in my mind; nor can I paint the sentiments of affection and gratitude
towards you which my heart has ever felt, and which the kind and partial
reception now given me by my fellow citizens cannot fail to increase. He
only who has been ... absent from a much loved country, and from friends
greatly and deservedly esteemed--whose return is welcomed with
expressions, which, di[rec]ted by friendship, surpass his merits or his
ho[pes,] will judge of feelings to which I cannot do justice.

The situation in which the late Envoys from [the] United States to the
_French Republic_ found themselves in _Paris_ was, indeed, attended with
the unpleasant circumstances which you have traced.--Removed far from
the councils of their country, and receiving no intelligence concerning
it, the scene before them could not fail to produce the most anxious and
disquieting sensations. Neither the ambition, the power, nor the hostile
temper of _France_, was concealed from them; nor could they be
unacquainted with the earnest and unceasing solicitude felt by the
government and people of the _United States_ for peace. But midst these
difficulties, they possessed, as guides, clear and explicit
instructions, a conviction of the firmness and magnanimity, as well as
of the justice and pacific temper of their government, and a strong
reliance on that patriotism and love of liberty, which can never cease
to glow in the American bosom. With these guides, however thorny the
path of duty might be, they could not mistake it. It was their duty,
unmindful of personal considerations, to pursue peace with unabating
zeal, through all the difficulties with which the pursuit was
embarrassed by a haughty and victorious government, holding in perfect
contempt the rights of others, but to repel, with unhesitating decision,
any propositions, an acceptance of which would subvert the independence
of the _United States_.--This they have endeavoured to do. I delight to
believe that their endeavours have not dissatisfied their government or
country, and it is most grateful to my mind to be assured that they
receive the approbation of my fellow-citizens in _Richmond_, and its
vicinity.

I rejoice that I was not mistaken in the opinion I had formed of my
countrymen. I rejoice to find, though they know how to estimate, and
therefore seek to avoid the horrors and dangers of war, yet they know
also how to value the blessings of liberty and national
independence:--They know that peace would be purchased at too high a
price by bending beneath a foreign yoke, and that peace so purchased
could be but of short duration. The nation thus submitting would be soon
involved in the quarrels of its master, and would be compelled to
exhaust its blood and its treasure, not for its own liberty, its own
independence, or its own rights, but for the aggrandizement of its
oppressor. The modern world unhappily exhibits but too plain a
demonstration of this proposition. I pray heaven that _America_ may
never contribute its still further elucidation.

Terrible to her neighbors on the continent of _Europe_, as all must
admit _France_ to be, I believe that the _United States_, if indeed
united, if awake to the impending danger, if capable of employing their
whole, their undivided force--are so situated as to be able to preserve
their independence. An immense ocean placed by a gracious Providence,
which seems to watch over this rising empire, between us and the
European world, opposes of itself such an obstacle to an invading
ambition, must so diminish the force which can be brought to bear upon
us, that our resources, if duly exerted, must be adequate to our
protection, and we shall remain free if we do not deserve to be slaves.

You do me justice, gentlemen, when you suppose that consolation must be
derived from a comparison of the Administration of the American
Government, with that which I have lately witnessed. To a citizen of the
_United States_, so familiarly habituated to the actual possession of
liberty, that he almost considers it as the inseparable companion of
man, a view of the despotism, which borrowing the garb and usurping the
name of freedom, tyrannizes over so large and so fair a proportion of
the earth, must teach the value which he ought to place on the solid
safety and real security he enjoys at home. In support of these, all
temporary difficulties, however great, ought to be encountered, and I
agree with you that the loss of them would poison and embitter every
other joy; and that deprived of them, men who aspire to the exalted
character of freemen, would turn with loathing and disgust from every
other comfort of life.

To me, gentlemen, the attachment you manifest to the government of your
choice affords the most sincere satisfaction. Having no interests
separate from or opposed to those of the people, being themselves
subject in common with others, to the laws they make, being soon to
return to that mass from which they are selected for a time in order to
conduct the affairs of the nation, it is by no means probable that those
who administer the government of the _United States_ can be actuated by
other motives than the sincere desire of promoting the real prosperity
of those, whose destiny involves their own, and in whose ruin they must
participate. Desirable as it is at all times, a due confidence in our
government, it is peculiarly so in a moment of peril like the present,
in a moment when the want of that confidence must impair the means of
self defence, must increase a danger already but too great, and furnish,
or at least give the appearance of furnishing, to a foreign real enemy,
those weapons, which have so often been so successfully used.

Accept, gentlemen, my grateful acknowledgments for your kind expressions
concerning myself, and do me the justice to believe, that your
prosperity, and that of the city of _Richmond_ and its vicinity, will
ever be among the first wishes of my heart.

(From _Columbian Centinel_, Saturday, Sept. 22, 1798.)

III. FREEHOLDER'S QUESTIONS TO GENERAL MARSHALL

VIRGINIA. Fredericksburg, Oct. 2

POLITICAL QUESTIONS

_Addressed to General_ MARSHALL _with his Answer thereto_

To J. MARSHALL, Esq.

RICHMOND, Sept. 12.

DEAR SIR,

Under a conviction that it will be of utility, should the answers to the
following questions be such as I anticipate, I state them with a
confidence of your readiness to give replies. They will, at all events,
greatly satisfy my mind.

_1st._ Do you not in heart, and sentiment, profess yourself an
American--attached to the genuine principles of the Constitution, as
sanctioned by the will of the people, for their general liberty,
prosperity and happiness?

_2d._ Do you conceive that the true interest and prosperity of
_America_, is materially, or at all, dependent upon an alliance with any
foreign nation? If you do, please state the causes, and a preference, if
any exists, with the reasons for that preference.

_3d._ Are you in favor of an alliance, offensive and defensive, with
_Great Britain_? In fine, are you disposed to advocate any other, or a
closer connection with that nation, than exists at the ratification of
the treaty of 1794? If so, please state your reasons.

_4th._ By what general principles, in your view, have the measures of
our Administration and Government, in respect to _France_, been
consistent with true policy or necessity? And could not the consequences
have been avoided by a different line of conduct on our part?

_5th._ Are you an advocate for the Alien and Sedition Bills? Or, in the
event of your election, will you use your influence to obtain a appeal
of these laws?

A FREEHOLDER

(_Columbian Centinel_, Boston, Mass., Saturday, October 20, 1798.)

MARSHALL'S ANSWERS TO FREEHOLDER'S QUESTIONS

RICHMOND, Sept. 20, '98.

DEAR SIR:--

I have just received your letter of yesterday, [_sic_] and shall with
equal candor and satisfaction, answer all your queries. Every citizen
has a right to know the political sentiments of the man who is proposed
as his representative; and mine have never been of a nature to shun
examination. To those who think another gentleman more capable of
serving the district than myself, it would be useless to explain my
opinions because whatever my opinions may be, they will, and ought, to
vote for that other; but I cannot help wishing that those who think
differently, would know my real principles, and not attribute to me
those I never possessed; and with which active calumny has been pleased
to asperse me.

_Answ._ 1. In heart and sentiment, as well as by birth and interest, I
am an American, attached to the genuine principles of the constitution,
as sanctioned by the will of the people, for their general liberty,
prosperity and happiness. I consider that constitution as the rock of
our political salvation, which has preserved us from misery, division
and civil wars; and which will yet preserve us if we value it rightly
and support it firmly.

_2._ I do not think the interest and prosperity of America, at all
dependent on the alliance with any foreign nation; nor does the man
exist who would regret more than myself the formation of such an
alliance. In truth, America has, in my opinion, no motive for forming
such connection, and very powerful motives for avoiding them. Europe is
eternally engaged in wars in which we have no interest; and with which
the fondest policy forbids us to intermeddle.

We ought to avoid any compact which may endanger our being involved in
them. My sentiments on this subject are detailed at large in the
beginning of the memorial addressed by the late envoys from the United
States to the minister of foreign affairs of the French Republic, where
the neutrality of the United States is justified, and the reasons for
that neutrality stated.

_3rd._ I am not in favor of an alliance offensive and defensive with
Great Britain nor for closer connection with that nation than already
exists. No man in existence is more decidedly opposed to such an
alliance, or more fully convinced of the evils that would result from
it. I never have, in thought, word, or deed, given the smallest reason
to suspect I wished it; nor do I believe any man acquainted with me does
suspect it. Those who originate and countenance such an idea, may (if
they know me) design to impose on others, but they do not impose on
themselves.

The whole of my politics respecting foreign nations are reducible to
this single position. We ought to have commercial intercourse with all,
but political ties with none. Let us buy cheap and sell as dear as
possible. Let commerce go wherever individual, and consequently national
interest, will carry it; but let us never connect ourselves politically
with any nation whatever.

I have not a right to say, nor can I say positively, what are the
opinions of those who administer the Government of the United States;
but I believe firmly that neither the President, nor any one of those
with whom he advises, would consent to form a close and permanent
political connection with any nation upon earth.

Should France continue to wage an unprovoked war against us, while she
is also at war with Britain, it would be madness and folly not to
endeavor to make such temporary arrangements as would give us the aid of
the British fleets to prevent our being invaded; but I would not, even
to obtain so obvious a good, make such a sacrifice as I think we should
make, by forming a permanent political connection with that, or any
other nation on earth.

_4th._ The measures of the administration and government of the United
States with respect to France have in my opinion been uniformly directed
by a sincere and unequivocal desire to observe, faithfully, the treaties
existing between the two nations and to preserve the neutrality and
independence of our country.--Had it been possible to maintain peace
with France without sacrificing those great objects, I am convinced that
our government would have maintained it.

Unfortunately it has been impossible. I do not believe that any
different line of conduct on our part, unless we would have relinquished
the rights of self government, and have become the colonies of France,
could have preserved peace with that nation.--But be assured that the
primary object of France is and for a long time past has been, dominion
over others. This is a truth only to be disbelieved by those who shut
their eyes on the history and conduct of that nation.

The grand instruments by which they effect this end, to which all their
measures tend, are immense armies on their part, and divisions, which a
variety of circumstances have enabled them to create, among those whom
they wish to subdue. Whenever France has exhibited a disposition to be
just toward the United States, an accurate attention to facts now in
possession of the public, will prove that this disposition was manifest
in the hope of involving us in her wars, as a dependent and subordinate
nation.

_5th._ I am not an advocate for the alien and sedition bills; had I been
in Congress when they passed, I should, unless my judgment could have
been changed, certainly have opposed them. Yet, I do not think them
fraught with all those mischiefs which many gentlemen ascribe to them. I
should have opposed them because I think them useless; and because they
are calculated to create unnecessary discontents and jealousies at a
time when our very existence, as a nation, may depend on our union--

I believe that these laws, had they been opposed on these principles by
a man, not suspected of intending to destroy the government, or being
hostile to it, would never have been enacted. With respect to their
repeal, the effort will be made before I can become a member of
Congress.

If it succeeds there will be an end of the business--if it fails, I
shall on the question of renewing the effort, should I be chosen to
represent the district, obey the voice of my constituents. My own
private opinion is, that it will be unwise to renew it for this reason:
the laws will expire of themselves, if I recollect rightly the time for
which they are enacted, during the term of the ensuing Congress. I shall
indisputably oppose their revival; and I believe that opposition will be
more successful, if men's minds are not too much irritated by the
struggle about a repeal of laws which will, at the time, be expiring of
themselves.

J. MARSHALL.

(From _Times and Virginia Advertiser_, Alexandria, Va., Oct. 11,
1798.)

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* * * * *

Transcriber's Notes:

1. Passages in italics are surrounded by _underscores_.

2. Obvious errors in spelling and punctuation have been corrected.

3. Footnotes have been renumbered and moved from the page end to the
end of their respective chapters.

4. Images have been moved from the middle of a paragraph to the closest
paragraph break.

5. Certain words use an oe ligature in the original.

6. Carat character (^) followed by a single letter or a set of letters
in curly brackets is indicative of subscript in the original book.

*** End of this LibraryBlog Digital Book "The Life of John Marshall (Volume 2 of 4)" ***

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