The Life of John Marshall (Volume 2 of 4)

tly within the enumera

iberally in advancement of

r, to establish a system of revenue, to create public cre

saved us in six troubles, yea, in sev

onalists put forth all their strength to send to the State Legislatures and to the National House and Senate as many antagonists of the National idea as possible

rous Madison personally felt the burly hand of the sovereign people so soon to fall upon him. Not yet had he undergone that familiar reversal of principles wrought in those politicians who keep an ear to the ground. But that change

he clay for an Anti-Nationalist Party was almost kneaded for the moulder's hands. Jefferson was preparing to leave France; and not many mo

iant Virginian had uttered both Nationalist and Anti-Nationalist sentiments. "I am not of the party of the Federalists," he protested, "but I am much

infinite pleasure our new constitution accepted." Careful study had taught him, he said, "that circumstances may arise, and probably will arise, wherein all the resources of taxation will

he had not yet apprehended the people's animosity to National rule. Upon his arrival in Virginia, however, he discovered that "Antifederalism is not yet dead in this country."[102] That much, ind

Mar

ting by E.

strongly marked as ever." The enemies of National power thought that "liberty could be endangered only by encroachments upon the states; and that it was the great duty of patriotism to restrain the powers of the general governmen

York's appeal for a new Federal Constitutional Convention. He was "particularly alarmed" that the General Assembly would elect Senators "entirely anti-Federal."[105] His apprehension was justified. Hardly a week

a majority of 46 out of a total vote of 124.[107] Swiftly and without mercy the triumphant opposition struck its next blow. Washington had urged Madison to stand for the Senate,[108] and the Nationalists exerted themselves to elect him. Madison wrote cleverly in his own behalf.

Grayson were chosen as the first Senators from Virginia under the new National Government.[113] The defeated champion of the Constitution attributed Henry's attack and his own misf

ine of a kind so rough and humiliating; and he sought and secured election to the National House of Representatives,[115] with

s members for Madison's election as Senator. But even Marshall's persuasiveness was unavailing. "Nothing,

guage and spirit of Virginia's message to the lawmakers of the Nation, even before they had assembled.[117] The desperate Nationalists sought to break the force of this blow. They proposed a substitute which even suggest

riotous years that followed. Were the people taxed to pay obligations incurred in our War for Independence?-the National Government was to blame. Was an excise laid on whiskey, "the common drink of the nation"[120]-it was

ificing American rights? Speculation and corruption, parade and ostentation,-everything that could, reasonably or unreasonably, be complained of,-were, avowed the Anti-Nationalists, the wretched but legitimate offspring of Nationalism. The re

f expounders. Those events also finished the preparation of these two men for the commanding stations they were to occupy. The radical politician and States' Rights leader on the one hand, and the conservative politician and National

ment was under way, how far might not succeeding Legislatures go? No one knew. But it was plain to all that every act of the new Administration, even with Washington at the helm, would be watched with k

termined again to seek elect

wyer's friends had suggested his name to the President, intimating that he wished the place.[121] Marshall, high in the esteem of every one, had been consulted as

with his profession much more than would his duties as United States Attorney, he could be of practical service to the Nat

be the ablest supporter of the Administration in the Legislature. Although the people of Henrico County were more strongly against a powerful National Government than they had been when they sen

Virginians at that time.[125] As a member of the Committee of Privileges and Elections, he passed on a hotly contested election case.[126] He was made a member of the important special committee to report upon the whole body

nd tobacco, which was defeated by a majority of 37 out of a total vote of 139; and he voted for the resolution "that the taxes of the present year o

of the second State to be admitted after the Constitution was adopted. A bill was passed authorizing a lottery to raise money to establish an academy in Marshall's ho

to amend the penal code;[136] and he was made chairman of the special committee to examine the James River Comp

deavors to procure the admission of the citizens of the United States to hear the de

appointed a committee to greet him with polite but coldly formal congratulations.[140] No one then foresaw that a few short years would t

to the Constitution,[141] which the new Congress had submitted to the States; but three days later it was proposed that the Legislature urge Congress to reconsider the amendments reco

tion of the amendments proposed by Congress;[144] and Marshall was one of t

Constitution recommended by the States "in order," as he said, "to quiet that anxiety which prevails in the public mind."[145] The debate is illuminating. The amendme

Some others ... expect to hear, ... that a real amelioration of the Constitution was not so much intended, as a soporific draught to the restless. I

oad National powers, as a pretext for reversed views and conduct; but such as w

Government was, at best, a doubtful experiment. The public debt was a chaos of variegated obligations, including the foreign and domestic debts contracted by the Confederation, the debts of the various States, th

purpose in a common cause; all were "the price of liberty." Let the owners of certificates, both State and Continental, be paid in full with arrears of interest, without discrimination between original holders and those who had purchased from them. And let this be done by exchanging

mption of State debts a dishonest trick. The whole was a plot designed to array the moneyed interests in support of the National Government.[154] Assumption of State debts was a device to increase the National power a

lar agitation against the National Government were too precious to be neglected by its foes.[156] "The first regular and systematic opposition to the principles on wh

ncentrated their forces. Nor were they without plausible ground of opposition; for Virginia, having given as much to the common cause as any State and m

, State and Continental, had accumulated in the North and East;[158] and these sections were determined that the debt should be assumed by the Nation.[159] So the debat

s was deadlocked. Both were disposed of finally by the famous deal between Jefferson and Hamilton, by which the latter ag

ilar reasons of efficiency Hamilton had been appointed Secretary of the Treas

on, with all the zeal of his ardent temperament, threw himself into the contest to pass Hamilton's financial measur

conciled by some plan of compromise, there will be no funding bill agreed to, our credit ... will burst and vanish and the states separate to take care every one of itself." Jefferson outlines the bargain for fixing the Capital

to locate the National Capital permanently where it now stands.[164] Thus this vital part of Hamilton's comprehensive financial plan

individuals acquired" by the instantaneous rise in the value of the certificates of debt caused popular jealousy and discontent. The debt was looked upon, not as the funding of oblig

nry,[169] was proposed, asserting that Assumption "is repugnant to the constitution of the United States, as it goes to the exercise of a power not expressly granted to the gene

end Henry's resolution by stating that Assumption would place on Virginia a "heavy debt ... which never can be extinguished" so long as the debt of any other State remained unpaid; that it was "inconsistent with justice

ngs were not sufficiently poisonous to suit the opposition. It lacked, particularly, the supreme virtue of asserting the

s crushing defeat. On Henry's original resolution, they slightly increased th

ctrine that all powers not expressly given in the Constitution were reserved to the States. It also impeached the Assumption Act as an effort "to erect and concentrate and perpetuate a large monied interest in o

nia, your memorialists were taught to believe 'that every power not expressly granted was retained' ... and upon this positive condition" the Constitution had been adopted. But

Anti-Nationalists in the Virginia Legislature sounded the alarm.[174] It was of this jealous temper of the States that Ames so accurately wrote a year later: "The [National] government is too fa

;[176] and the report was adopted practically as originally drafted.[177] Thus Marshall was in the first skirmish, after the National Government had been establishe

books of the Republic, though not without determined resistance which, more and

was, he thought, the major premise of the syllogism of National disintegration. "This," exclaimed Hamilton, of the Virginia resol

ts management. While he exhaustively analyzed its economic features, yet he traced all its supposed evils to the Nationalist idea. The purpose and result of Hamilton's whole plan and of the manner of its execution was, declared Taylor, to "Sw

The country was responding with a degree of prosperity hitherto unknown, and, for the time, all seemed secure.[180] So Marshall did not again consent to serve in the House of Delegates until 1795. But the years between these periods of his pub

of this law and its unconstitutionality never occurred to him[181] until Virginia spoke. But, faithful to the people's voice,[182] Jefferson was already p

he opposition had reached the point when, if no other objection could be found to any measure of the National Government, its "unconstitutionality" was urged against it. "We hear, incessantly, from the old foes of the Constitution '

dless field of power, no longer susceptible of any definition." Even if the bank were "convenient" to carry out any power specifically granted in the Constitution, yet it was not "necessary," argued Jefferson; all po

nlightened commercial nations have them. He showed the benefits and utility of banks; answered all the objections to these financ

the existence of such powers-yet they were not granted by the language of the fundamental law. As to Jefferson's argument based on the word "necessary," his contention meant, said Hamilton, that "no mea

ght, Congress could act only in "a case of extreme necessity." Such a construction of the Constitution would prevent the National Government even from erecting lighthouses, p

ollection of taxes, foreign and interstate trade, were, admittedly, such ends. The National power to "regulate" these is "sovereign

every power vested in a government is in its nature sovereign and included by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the

land." And he added, sarcastically: "The power which can create the supreme law of the land in any case is doubtless sovereign as to such case." But, said Hamilton, "it is unquest

means by which natural exigencies are to be provided for, national inconveniences obviated, national prosperity promoted are of such infinite va

long and dubious conflict ... have shaken the United States to their centre."[191] The latter of these parties, under the name "Republican," was then being shaped into a compact

es Ames.[192] In the Republican view the basis of the two parties was faith as against disbelief in the ability of the people to govern themselves; the former favored the moneyed interests, the

s upon fundamental and popularly recognized principles, began to emerge. Henceforth the terms "Federalist" and "Republican" mean opposing party groups, the one standin

built on the non-party theory and did not contemplate party government. Its architects did not foresee parties. Indeed, for several years after the Constit

d the favorite rebuke to opponents was to accuse them of being a "party" or a "faction," those designations being used interch

TNO

pponents of the system [Constitution] to become suddenly its friends, or even indifferent to its fate, w

clared enemies of the government, and thus to commit it, in i

SS., Lib. Cong. Madison adds this cryptic sentence:

Madison here refers to the project of calling a new Federal Convent

e new Constitution more animated, forcible, and violent than a simple applicati

ap. viii; and Dodd, 63-64; and Ambler, 35-36.) The mission to France at the close of the American Revol

. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the

kinson, March 13, 1789

Jefferson's statements when the fight was on against ratifying the Constitution. (See vol

hort, Dec. 14, 1789;

its members might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; Monroe's Writings: Hamilton, i, 188.

re used instead of the customary terms "Federalist" and "Anti-Federalist," the latter not clearly ex

ison, Oct. 19, 1788; qu

Ib., 4

sby, ii, 319; also see the vivid description of the

ison, Oct. 19, 1788; qu

17, 1788; to Pendleton, Oct. 20,

olph, Nov. 2, 1788; W

vol. i of

i, 427; see al

1788), 32; see also Conway,

olph, Nov. 2, 1788; W

on, Dec. 18, 1788; Rowland, ii, 304.) But so ardent were Madison's assurances of his modified Nationalist views that he was ele

Madison, Nov. 10,

1788), 42-44. Also see Annal

s and wisdom will direct your councils to such measures as will establish our lasting peace and welfare and secure to our latest

] Ib

as unjust to New England, where rum was "the common drink of the nation"

Marshall, Nov. 23, 1

Madison, July 19,

, H.D. (Oct.

Ib.,

bill that finally passed. He carried it

r not a voter owned land was weighed in del

H.D. (Oct. 28

2d Sess. (Dec. 8), 121-22. For exte

al, H.D. (1

n act of the Legislature. Contrast the above case, where the divorce was granted for cruelty, abandonment, waste of property, etc., with that of the Mattauer case (ib. (1

ion by the latter State was necessary. It is more than probable that Ma

institutions and enterprises. Even the maintenance of cemeteries was provided for in this way. The Journals of the House of Delegates are full

political machine which that Constitution made inevitable; it suggested "that as harmony with the Federal Government ... is to be desired our own Constitution ought to be compared with that of the United States and retrenched

at the foregoing statement contains principles repugnant to Republican Government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this H

(Nov. 17,

(Nov. 13,

(Nov. 16,

shington was its first president. (Randolph to Washington, Aug. 8, 1784; Conw

enate sat behind closed doors. The Virginia Legislature continued to demand public debate in the National S

States had answered Virginia's belated letter proposing a new Federal Convention to amend the Constitution. Disgusted and despondent, H

, H.D. (1789)

Ib., 1

Ib.,

nal, H.D.

Ib.,

ple to assemble, consult, and "to instruct their representatives," were not guaranteed; and in general, that the amendmen

debate. The amendments were offered as a measure of pr

Representatives shall have intervened." (Annals, 1st Cong., 1st Sess., Appendix to ii, 2033.) The States ratified only the last ten. (For good condensed treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth Amendment, as ratified, was the twelfth as submitted and is sometimes referred to by the latter number in the

Madison, June 30,

ard: Econ. O

] Ib

Ib., 1

rshall,

avel to New York for his inauguration, and Patrick Henry could not atte

ove analysis, while not technically precise, is sufficiently accurate to give a

to combine as much strength as possible in support of the National Government. "The northern states and the commercial a

om the National point of view it was

now not," writes Adams, "how Hamilton could have done otherwise." (Adams to Rush, Aug. 23, 1805; Old Family Letters, 75.) "The sudden rise of public securities, after the establishment of the funding system was

n them. They pay tribute, they say, and the middle and eastern people ... receive it. And here is the burden of the song, almost all the little [certificates of State or Continental debts] that they had and which cost them twenty shillin

d especially on Assumption was the beginning of the definite organi

25, 1790; King, i, 392;

ick of Massachusetts intimated that his section might secede. (Annals,

f account of this historic conflict. (See Marshall, ii, 181-90. See e

Philadelphia shall get the custom of Congress, keeps us in discord and cove

78-80; and see ib., 76; to Gilmer, June 27, ib., 83; to R

o Randolph, June 20, ib., 76-77; to Monroe, June 20, ib., 79; to Dumas, June 23, ib., 82; to Rutledge, July 4, ib., 87-88; to Dumas, July 13, ib., 96. Compare these letters with J

ment; Works: Ford, vii,

32; and see Mars

s would have changed had that been necessary to consum

Ib.,

shall, ii

nry, ii,

nal, H.D.

nal, H.D.

2]

Ib.,

0-91. The economic distinction is here clearly drawn. Jefferson, who l

t, Feb. 16, 1792;

sult in "fictitious wealth through a paper medium," referring to his plan for

nal, H.D.

of the Assumption of the State debts, with the presence in Virginia of speculators from other States buying up State securities; and this added gall to the bitter cup which Virginians felt the National Government wa

ion.... If Mr. Henry has sufficient boldness to aim the blow at its [Constitution's] existence, which he has thr

seems to be more irritable, sour, and discontented than ... it is in any other State

him for the welcome news, asked the elder Marshall for "any information of a public or private nature ... from your district." (Washington to T

ed by Pendleton and then sent to Madison before publication. (Monroe to Madison, May 18, 1793; Monroe's Writings: Hamilto

rshall,

ry's resolution, and the address of the Virginia Legislature to Congress based thereon, made the point that Assumption was in violation of this

attention should be paid to the general opinion." (J

ally asked for an office for his own brother-in-law. (Monroe to Madison, July 2, 1790; M

Anders

ter answered in a formal statement to the President. These two documents are the ablest summaries of the opposing sides of this great controve

t, March 8, 1792;

Amendment,

the constitutionality of the Bank Act in Annals, 1st Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also, Writings: Hunt, vi, 19-42. Th

f the United States"; Works: Lodge, iii, 445-93. Adams took the sam

; Works: Lodge, iii, 445-93. Washington was sorely perplexed by the controve

shall, ii

, Jan. 23, 1792; Wor

of Parties"-National G

eart was, if parties did exist, to reconcile them." (Washin