The Life of John Marshall
Chapter 73 : But as a matter of practical tactics to get votes, Marshall appears to have put this in

But as a matter of practical tactics to get votes, Marshall appears to have put this in the form of an a.s.sertion--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 Was.h.i.+ngton 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 const.i.tutionality," 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 Was.h.i.+ngton 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 const.i.tutional argument, "obligations of expediency" held them in line against the Administration. The sanguine Carrington a.s.sured 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, Was.h.i.+ngton'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 Was.h.i.+ngton'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 Was.h.i.+ngton's "motives" in approving the treaty met "the entire approbation of this House"; and that Was.h.i.+ngton, "for his great abilities, _wisdom_ and integrity merits and possesses the undiminished confidence of his country." The resolution came near pa.s.sing. 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 [Was.h.i.+ngton'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, Was.h.i.+ngton'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 Was.h.i.+ngton'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 Was.h.i.+ngton'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 a.s.sembly 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 a.s.sociates 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 Was.h.i.+ngton, even indirectly, the matter went to the State Senate. There for a week Was.h.i.+ngton's friends fought hard and made a slight gain. The Senate struck out the House resolution and inserted instead: "The General a.s.sembly 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 princ.i.p.al 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 pa.s.sed, 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 Const.i.tution 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 inst.i.tuted 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 const.i.tutional changes then pa.s.sed 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 Was.h.i.+ngton 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 pet.i.tions [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 Const.i.tution] 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 Was.h.i.+ngton by encouraging reports. "The public mind in Virginia was never more tranquil than at present. The fever of the late session of our a.s.sembly, had not been communicated to the Country....

The people do not approve of the violent and petulant measures of the a.s.sembly, 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 ma.s.s of the people being less violent than was a.s.serted" 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 pet.i.tion 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 rea.s.suring 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 Was.h.i.+ngton 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 Was.h.i.+ngton's letter was already on the way, asking Marshall to undertake this delicate task:--

"In confidence I inform you," wrote Was.h.i.+ngton 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 circ.u.mstances renders details unnecessary."[412]

Marshall at once declined this now high distinction and weighty service, as he had already refused the United States district attorneys.h.i.+p and a place in Was.h.i.+ngton'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]

Was.h.i.+ngton, although antic.i.p.ating Marshall's refusal of the French mission, promptly answered: "I ... regret that present circ.u.mstances should deprive our Country of the services, which, I am confident, your going to France would have rendered it"; and Was.h.i.+ngton 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 Was.h.i.+ngton'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 circ.u.mstances 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 Was.h.i.+ngton'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; a.s.serts 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. Was.h.i.+ngton 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 Was.h.i.+ngton 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 pet.i.tions 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 pet.i.tion Congress to grant the necessary money.

In Virginia, as elsewhere, the merchants were the princ.i.p.al force in arranging these meetings.[424] As we have seen, the business and financial interests had from the first been the stanchest supporters of Was.h.i.+ngton'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.

Was.h.i.+ngton, 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 Was.h.i.+ngton'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 ma.s.s 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 pet.i.tion 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 Pet.i.tions throughout Virginia."[428]

Was.h.i.+ngton 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 Was.h.i.+ngton, "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 Was.h.i.+ngton.

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 a.s.semblage 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 princ.i.p.al combatants [word illegible] as you know without being told. Marshall's argument was inconsistent, and s.h.i.+fting; 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 pet.i.tion; 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 pet.i.tion, 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]