The Life of John Marshall
Chapter 102 : "Calumny" could be redressed in the State courts; but "usurpation can o

"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 Const.i.tution. "The will of the majority produced, ratified, and conducts" this const.i.tutional 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 Const.i.tution 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 Was.h.i.+ngton, after considering everything, had proclaimed American Neutrality. Yet Genet 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 Was.h.i.+ngton, 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 ... reechoed 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 Was.h.i.+ngton, 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 const.i.tution." 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 const.i.tutional 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 const.i.tutionality 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 cooperation 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 const.i.tutional 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 const.i.tutional 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 doc.u.ment. 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 authors.h.i.+p 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 quant.i.ties of words ... that you turn absolutely tired"; it abounded in "barren tautology"; some sentences were nothing more than mere "a.s.semblages 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 const.i.tutionality.... 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 mult.i.tude. 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 pet.i.tions 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 Was.h.i.+ngton acknowledging the receipt of Judge Addison's charge: "No argument,"

wrote Marshall, "can moderate the leaders of the opposition.... However I may regret the pa.s.sage 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 pa.s.sed, 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 Was.h.i.+ngton 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 a.r.s.enals 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 Const.i.tution 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 const.i.tuents";[920] he a.s.sured 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 a.s.saults 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]

[Ill.u.s.tration: 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 a.s.sure 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 cla.s.s. 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 compet.i.tor 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 astonis.h.i.+ng, 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 [Was.h.i.+ngton]."[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 pa.s.sed 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 Was.h.i.+ngton, who had no more political ac.u.men 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.

n.o.body 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 a.s.sembled 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 compet.i.tor.

"Three cheers for Clopton!" roared the crowd of Republican enthusiasts.