The Life of John Marshall
Chapter 108 : "3. That a joint committee of both Houses be appointed to report measures suitabl

"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 Was.h.i.+ngton 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 pa.s.sed through Philadelphia," says Marshall, "some pa.s.senger mentioned to a friend he saw in the street the death of General Was.h.i.+ngton. 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 Was.h.i.+ngton 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 Was.h.i.+ngton."[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 pa.s.sed, 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 pa.s.sed 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 cas.h.i.+ered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on sh.o.r.e, 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 pa.s.s 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 princ.i.p.al 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 leaders.h.i.+p in the fight of the Virginia Revolutionary officers for land grants from the National Government, strongly resisted by Gallatin and other Republican leaders, ill.u.s.trates 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 pet.i.tion 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 Was.h.i.+ngton 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 pet.i.tion "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 G.o.d 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 Ma.s.sachusetts was much disgusted by the resolution, whose signers "were incapable of writing their names or of reading the pet.i.tions"; 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 s.h.i.+p.... 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 pet.i.tion 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 pet.i.tion which invite Congress to legislate upon subjects from which the General Government is precluded by the Const.i.tution 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 Ma.s.sachusetts, 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 Was.h.i.+ngton 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 princ.i.p.al 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 antic.i.p.ated 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 unconst.i.tutional.

The Federalist position was that, since the Const.i.tution left open the manner of pa.s.sing upon votes, Congress had the power to regulate that subject and ought to provide some method to meet antic.i.p.ated 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 Const.i.tution 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 s.h.i.+ft 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 pa.s.sed 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 subst.i.tute.[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, pa.s.sed 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 const.i.tutionality 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]

[Ill.u.s.tration: _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 canva.s.sing 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 & pa.s.sed, wisely & effectually providing against the evil, by the const.i.tution of a committee with ultimate powers of decision.

"Mr. Marshall in the first place called in question the const.i.tutional 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 s.h.i.+p Hermione mutinied, murdered their officers, took the s.h.i.+p 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 Const.i.tution! Think of it! An innocent American citizen delivered over to British cruelty. Where now were our free inst.i.tutions? When President Adams thus surrendered the Connecticut "Yankee," Robins, he not only prost.i.tuted patriotism, showed himself a tool of British tyranny, but also usurped the functions of the courts and struck a fatal blow at the Const.i.tution. So shouted Republican orators and with immense popular effect.