The Life of John Marshall
Chapter 66 : [190] "Opinion as to the Const.i.tutionality of the Bank of the United States"

[190] "Opinion as to the Const.i.tutionality of the Bank of the United States"; _Works_: Lodge, iii, 445-93. Was.h.i.+ngton 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." (Was.h.i.+ngton 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. (Was.h.i.+ngton.)

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 const.i.tutionality 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 const.i.tutional 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 const.i.tutionality and wisdom of those measures of Was.h.i.+ngton'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 friends.h.i.+p and interrupted social relations,[197] his personality still held sway over his a.s.sociates 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 pa.s.sed 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 const.i.tuency 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 pa.s.sed 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 Was.h.i.+ngton himself; and so st.u.r.dy 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, Was.h.i.+ngton 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 Was.h.i.+ngton's Cabinet was now approaching. Jefferson was keeping pace with the Anti-Nationalist sentiment of the ma.s.ses--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 a.s.sociate 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 Was.h.i.+ngton 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 a.s.sumption and Funding Acts, inflamed popular resentment against the whole financial statesmans.h.i.+p of the Federalists.[213] More material, this, for the hands of the artificer who was fas.h.i.+oning 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 pa.s.sed a resolution instructing her Senators and Representatives to "unite their utmost and earliest exertions" to secure a const.i.tutional 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 a.s.saults on the measures of the Administration. Many members of Congress had been holders of certificates which a.s.sumption 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 mult.i.tude. 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 Const.i.tution 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 a.s.sumption and Funding laws, a.s.serted 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 "unconst.i.tutional"! 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; Was.h.i.+ngton'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 a.s.sault on the laws of the United States in which men had been killed, houses burned, mails pillaged--all in the name of the Const.i.tution,[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. Was.h.i.+ngton 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 Was.h.i.+ngton 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, Was.h.i.+ngton wrote with unrestrained pen.

"I consider," said the President, "this insurrection as the first _formidable_ fruit of the Democratic Societies ... inst.i.tuted 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 Was.h.i.+ngton'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 Was.h.i.+ngton'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 a.s.sist 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 Was.h.i.+ngton'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 Was.h.i.+ngton'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] Was.h.i.+ngton 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 mult.i.tude 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 ma.s.ses 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 Was.h.i.+ngton'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 Was.h.i.+ngton 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.