The Life of John Marshall
Chapter 115 : Considerable retrograde steps in this respect have already been taken, and I expect th

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 s.h.i.+ps. "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 att.i.tude, 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 pa.s.sages. The Republican politicians shook with laughter; the Republican ma.s.ses 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 "Was.h.i.+ngton 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 a.s.sailed 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 Ma.s.sachusetts 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 Was.h.i.+ngton, 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]

[Ill.u.s.tration: _Statue of John Marshall_ _By W. W. Story, at the Capitol, Was.h.i.+ngton, 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 Was.h.i.+ngton, 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 statesmans.h.i.+p[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 Const.i.tution, 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 Was.h.i.+ngton "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 a.s.sail 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 compa.s.s 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 const.i.tute 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 wis.h.i.+ng Burr to be elected, or at least that a deadlock should be produced. He did not dream that the Chief Justices.h.i.+p was to be offered to him; his law practice, neglected for three years, had pa.s.sed 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 a.s.sisting the Federalists in their plan to elect Burr, he did not oppose it. The "Was.h.i.+ngton 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 pa.s.sed 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 Const.i.tution, 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 const.i.tutional.

But if, disregarding the popular will and also violating the Const.i.tution, 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 "Was.h.i.+ngton 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 a.s.serted that "we thought best to declare openly and firmly, one & all, that the day such an act pa.s.sed, 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 Const.i.tution entirely and call "a convention to reorganize and amend the government."[1275]

The drums of civil war were beating. Between Was.h.i.+ngton 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 a.s.sa.s.sinated. The Governor of Pennsylvania prepared to lead the militia into Was.h.i.+ngton by the 3d of March.[1277]

To this militant att.i.tude 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 a.s.surances which Jefferson gave Federalists as to offices and the princ.i.p.al Federalist policies--Neutrality, the Finances, and the Navy[1282]--only all of these circ.u.mstances 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 Was.h.i.+ngton, as a dominant and governing force in the development of the American Nation, went down forever in a welter of pa.s.sion, 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 judges.h.i.+ps 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 r.e.t.a.r.ded, 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]