The Life of John Marshall (Volume 2 of 4)

unging manners have made

Marshall's honor, prudence, and j

untry is no longer possessed of the power to multiply evils on the Unit

the Virginia Federalists. His lucid common sense, his level poise, his steady courage, his rock-like reliability-these qualit

esteem and confidence that the President

king if you will accept the appointment? The salary annexed thereto, and the prospects of lucrative practice in this city [Philadelphia]-the presen

airing to this place. If, on the contrary, it should be the negative (which would give me concern) it might be as

salary of the Attorney-General at that period,[353] and the duties of which permitted little time for private practice which

ing a few minutes past you

tho for one infinitely more eligible, permit me Sir to express my sincere acknowledgments for the of

government of the United States to permit it to b

f Internal Revenue for the District of Virginia,[358] a letter, "the whole" of which "is perfectly confidential, written, perhaps, with more candor than prudence," concerni

Capital. Carrington's answer is typical of his reports to the President: "The inquiry [concerning the selection of an Attorney-General] which you have been plea

Mar

ting by Rem

."[362] Innes was absent at Williamsburg; and although the matter was urgent, Marshall and Carrington did not write Inne

is opinion. Marshall thought that Washington's letter should be forwarded to Henry because "his nonacceptance, from domestic considerations, may be calculate

"we are fully persuaded that a more deadly blow could not be given to the Faction [Republican party] in Virginia, & perhaps elsewhere, than that Gentleman's acceptance of the" Attorney-Generalship. "So much have the opposers

elf [Washington] are such as we [Marshall and Carrington] calculated on ... which assure us of his discoun

and upon his popularity. Not at all did he fear or hesitate to take that stand. And high courage was required to resist the almost universal denunciation of the treaty in Virginia. Nor was this confined to the masses of the people; it was expres

onarch who was trying "to stifle the liberty of France" and "to starve thirty millions of men" by "intercepting the correspondence and plundering the commerce of neutral nations," especially that of the United State

ity and speaking the language of truth ... basely apostatizing from republican principles, stooped to offer the incense of flattery to a tyrant, the scourge of his country, the foe of mankind.... Yes!" exclaimed the radical orator, "we hesitated to offend a proud King,

e ... often preponderated in the house of representatives and which proclaims itself in servile addresses to our supreme executive, in dangerous appointments, in

olate France, to restore the altars of barbarous superstition and to extinguish the celestial light which has burst upon the human mind. O my countrymen, when you are capable of such monstrous baseness, even

to contend. Notwithstanding his blazing language, Thompson analyzed the treaty with ability. In common with opponents of the treaty everywhere, he laid

rs of this estate;[370] and the Jay Treaty confirmed all transfers of British property and authorized British subjects to grant, sell, or devise lands held in America in the same manner as if they were citizens of the United States.

was certain that the General Assembly would take drastic and hostile action against the treaty; and, perhaps, against Washington himself, in case the Republicans secure

years before. He was Marshall's intimate friend and a stanch supporter of Washington's Administration. But it appears that in the present crisis his pop

n demanded that a poll be opened for Mr. Marshall."[375] Marshall, of course, indignantly refused; he had promised to support his friend, he avowed, and

No sooner had he departed than a poll was opened for him in spite of his objections;[376] he was elected;

e thought that "the spirit of dissatisfaction is considerably abated abroad" (throughout Virginia and away from Richmond), because recent attempts to hold county and district meetings "for the avowed purpose of condemning the A

session it has seldom happened otherwise than that the spirit of party has been communicated so as to infect a majority. In the present instance I verily believe a question put on this day [the first day of the session] for making the Treaty a subject of considerat

perly qualified person to appoint to the unfilled vacancy in the office of Attorney-General; and Carrington tells Washington that "Genl? Marshall and myself have had a private consultation" on that subject and had decided to recommend Judge Bl

ge. The Republicans offered a resolution approving the vote of Virginia Senators against the Jay Treaty. For three days the debate raged. Marshall le

he expenditure of money-all of these subjects were expressly placed under the control of Congress and one of them[383] (the raising and expending of public money) must originate in the House; yet that popular branch of the Government had been ignored. The treaty provided for a quasi-judicial commission to settle the question of the British debts; yet "all the powe

whatever in the execution of which any action of any kind on the part of the House of Representatives was necessary, could be made without the c

red his argument a conclusive demonstration. Carrington wrote Washington that "on the point of constitutionality many conversions were acknowledged."[3

commander in Monticello, "it was once apprehended would make a great number of converts by an argument which cannot be considered in any other light than an uncandid artifice. To prevent

ng upon it before ratification. "He compared the relation of the Executive and the Legislative department to that between the states and the Congress under the old confederation. The old Congress might have given up the right of laying disc

"[389] Marshall's position was that a "treaty is as completely a valid and obligatory contract when negotiated by the President and ratified by him, with the assent and advice of the Senate, as if sanctioned by the House of

he argued, and in the end, could do what it liked; why then unnecessarily affront and humiliate Washington by applauding the Virginia Senators for their vote against the treaty? This turn of Marsh

ty; that discussion of a treaty in a State Legislature, "except as to its constitutionality," 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

be unpopular, that argument was lost"; and that, notwithstanding many members were convinced by Marshall's constitutional argument, "obligations of expediency" held them in line ag

is was the situation at the close of the day's debate. Realizing it, as the night wore on, Washington's friends determined to relieve the President of this implied rebuke by the Legislature of his own State. The Repub

sesses the undiminished confidence of his country." The resolution came near passing. 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

d hard to defeat this obnoxious amendment; but the Republicans overwhelmed them by a majori

eat abilities, wisdom, and integrity, merits and possesses the undiminished confidence of this House." But even this, which omitted all reference to the t

f Washington's Administration in the Legislature, he

itherto, 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

n 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,

ough strongly opposing his views and suggesting the influence of supposed business connections, Madison had supreme confidence in Marshall's integrit

ed instead: "The General Assembly 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

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";[

o attempt to secure amendments to the Constitution providing that: "Treaties containing stipulations upon the subject of powers vested in Congress shall be approved by the House of Representativ

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 sec

d 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 A

gnatures to "some seditious petitions [against the Jay Treaty] which was sent in vast numbers from Philadelphia" and which "were at first

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 Constitution] shall become the Supreme law of the land until i

ry.... The people do not approve of the violent and petulant measures of the Assembly, 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 mass of the people being less violent than was asserted" would be disc

i-color Republic toward the American Government-all forged a new and desperate menace. It was, indeed, Scylla or Charybdis, as Washington had foreseen, and bluntly stated,

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 p

ady on the way, asking Marshall

ispensably necessary to recall our minister at Paris & to send one in his place, wh

ade 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

he had already refused the United States district attorneyship and a place

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

njectured while its probable necessity has been regretted by those who love more than all othe

nt circumstances should deprive our Country of the services, which, I am confident, your going to France would have ren

town."[415] In answer, Marshall indulged in a flash of humor, even at Washington'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.

ter, in this communication to his Government, portrays a frightful state of corrupt public thinking in America; ascribes this to the measures of Washington's Administration; avows that a revolution is immi

eace [in America]! Thus the consciences of the pretended patriots of America have already their pr

Minister destroyed Randolph politically. Wash

ilton; 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."[4

itions 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 trea

ommercial 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

treaty, "doubted much whether the great body of the yeomanry have formed any opinions on the subject."[427] The Federalist meetin

orous demagogues, while the great mass 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 ta

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 Washington, "on great o

ment 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 fav

the majority for the resolution "flattering," and the assemblage itself made up of the "same citizens" who formerly had "denounced" the treaty.[431] But there was present at the

ts 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' in

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 in

the idea of instruction, and betook himself to a petition, 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 haza

promptly taken such measures as appeared to us fitted to the occasion. We could not venture an expression of the public mind under the violent prejudices with which it has been impressed, so long as a hope remained, tha

consumed the day, a decided majority declared in favor of a resolution that the wellfare and honor of the nation required us to give full effect to the treat

ritain." The same newspaper that printed this resolution, in another account of the meeting "which was held at the instance of some friends of the British Treaty," says that "in opposition to that resolution a vast number of the meeting" subscribed to counter-declarations which "are now circulated through

ian's customary "crisis" and strives to make the people see it: "There never was a crisis at which the activity of the Friends of Government was more urgently called for-some of us here have endeavored to make this impression in different

n excluding those who might not be considered as authorized to vote," yet, Marshall advises King, "they [Republicans] will not fail to charge us with having collected a number of names belonging to foreigners and to persons having no property in the place. The charge is as far untrue," asserts Marshall, "as has perhaps ever happened on any occa

us that the remainder of the country was assured that the Administration was not without support among the people of Virginia. Unsuspe

monstrances ... would have produced a division (fifty-one to forty-eight) in favor of the appropriation."[440] So great was the joy of the

r to Washington who could be most easily elected. The Hamiltonian Federalists were already distrustful of Adams for the presidency, and, even then, were warily searching for some other candidate. Why not Patrick Henry? Great changes had occurred in the old patriot's mind and manner of thinking. He was now

, "I cou'd not by letter ask from him a decision on the proposition I was requested to make him without giving him at the same time a full statement of the whole conversation & of the persons with whom that conversation was held." Marshall

nswer. However, writes Marshall, "Mr. H.[enry] will be in Richmond on the 22d of May. I can then sound him myself & if I find him (as I suspect I shall) totally unwilling to engage in the contest, I can stop where prudence may direct. I trust it will not then be too late to bring forward to public

charge," Marshall advises King. "Genl? Lee and myself have each conversed with him on it, tho' without informing him particularly of the persons who authorized the communication. He is

the many for the enrichment of the few. Nay, more! Washington was a thief, even a murderer, charged the Republicans. His personal habits were low and base, said these champions of purity.[445] Washington had

won liberty and independence for the very men who were now befouling Washington's name, earnestly defended the President. Although his law practice and private bu

cellent fellow citizen"; who "has so wisely and prosperously administrated the national concerns."[447] But how should the address be worded? The Republicans controlled the committee to which the resolution was referred. Two days later that body rep

or a warmer expression. On December 10, they introduced a substitute declaring that, if Washington had not declined, the people would have re?lected him; that his whole life had been "strongly marked by wisdom, valor, and patriotism"; that "posterity to the most remote generations and the friends of true and genuin

e busiest and most persistent of Washington's friends, and of course voted for the substitute,[449] which, almost certainly, he drew. Cold as was the original address which the Federalists had failed to amend,

sing the high confidence of the House in the virtue, patriotism, and wisdom of the President of the United States. A motion was made to strike out the word wisdom. In the debate the whole course of the Administration was reviewed, and

patriotism in both." Futile effort! The Republicans would not yield. By a majority of nine votes[452] they flatly declined to declare that Washington had been wise in council, brave in battle, or patriotic in either; and the original address, which, by these repe

the Republican Party toward the old hero as he retired from the Presidency. On Monday, March 5, 1797, the day after

eyes have seen thy salvation,' was the pious ejaculation of a

for the man [Washington] who is the source of all the misfortunes of our country, is this day reduced to a

eedom and happiness of the people ought to beat high with exultation, that the name of Washingt

the people; for public measures must now stand upon their own mer

at a single individual should have cankered the principles of republicanism in an enlightened people, just emerged from the gulph

e staring us in the face, this day ought t

hought? Was this the fruit of such sacrifice for the people's welfare as no other man in America and few in any land throughout all history had ever made-this rebuke of Washington-Washington, who had been the soul as well as the sword of the Revolution; Washington, who alone ha

in-chief most abusively treated-nor are his long and great services remembered.... If he, whose character as our leader during the whole

he not become the v

ould or even could go to the length I have been witness to; nor did I believe, until lately, that it was within the bounds of probability-hardly within those of possibility-that ... every act of my administration would be tortur

of the Revolution to the end of Washington's Administration. Thus does circumstance mould opinion and career far more than abstract thinking; and emotion quite as much as reason shape systems of government. The personal feud be

TNO

continued in that office until driven out of public life by the famous Fauchet di

hall, Aug. 26, 1795; Was

nals, 1st Cong., 1st

t of his struggles to subsist as Att

ax purchase. Se

gton, Aug. 31, 1795; Was

e infra,

And see Washington's Diary: Lossing, 166. Carri

rginia Militia. He was called "General" from that ti

ington, Oct. 9, 1795; Wr

Washington, Oct. 2,

2]

Washington, Oct. 8,

t. 13, 1795;

on as taking the side of Government, even though he may retain his old prejudices against the Constitution. He has indubitably an abhorrence of Anarchy.... We know too that he is improving his fortune fast, which must additionally a

ondence shows that everything was done on Marshall's judgment and that Marshall him

s. His extravagant rhetoric rather than his solid argument is quoted in the text as better illustrating the p

A treaty which children cannot read without discovering that it tends to disunite us from our present ally, and uni

can Remembr

e infra,

, March 11, 1796;

4th Cong., 1st

Fairfax estate, Marshall had a personal interest in the Jay Treaty, th

was viva voce. Se

tleman was one of the pert

obable, no evidence has appeared which throws doubt upon it. At an

ointing power. For instance, Carrington told Washington in 1791 that, after traveling all over Virginia as United States Marshal and Collector of Internal Revenue, he was sure the peopl

t a dinner in Lexington, Virginia, to Senator Brown, who had voted against the treaty: "The French Republic-May every power or party who would attempt to

Washington, Nov. 10,

v. 13, 1795;

ee whole days." (Randolph to Jefferson, Nov.

Washington, Nov. 20,

Sess., 423-1291; also see Petersburg Res

s, Aug. 1, 1795, at Pet

Washington, Nov. 20,

n, Nov. 22, 1795; Works: F

n, Nov. 22, 1795; Works: F

8]

treaty-making power in numbers 36, 37, 38,

ton, April 25, 1796; Wo

erson, Nov. 22, 1795;

H.D. (Nov. 20

, H.D. (Nov.

Washington, Nov. 20,

etected in time the vote of the House, as to its effect upon the P. would have been entirely done away.... A resolution so worded as to acquit the P. of all evil intention, but at

, H.D. (Nov.

7]

, H.D. (Nov.

son, Nov. 26, 1795; Wor

andall,

nal, H.D.

nal, H.D.

] Ib

] Ib

] Ib

Ib.,

Washington, Dec. 6,

H.D. (Dec. 12

Washington, Feb. 24,

Dodd

on, July 7, 1796; Wri

shall, July 8, 1796; Wa

o Washington, Ju

uly 15, 1796; Washington's Priv

to Marshall, Oc

gton, Oct. 12, 1796; Was

or as French Minister

ing State Pape

esting Stat

lph see Conway, chap. xxiii; bu

and Rufus King of New York. (Washington to Hamilton, Oct. 29, 1795; Writings: Ford, xiii, 129-30.) King decline

ilton, Oct. 29, 1795; W

Annals, 4th Cong.,

Washington, May 9, 1

to his father, Feb. 1

ng, June 20, 1795; W

x, Sept. 20, 1795; Writ

dent, April 22, 1796; Writing

o Carrington, May

Ib.,

, in Dillon

ewell that the Fairfax purchasers and British merchants wer

Campbell. (See

mond, April 25, 1796; Conway, 3

ton, April 25, 1796; Wo

uthor u

Manchester Advertis

e President, April 27,

King, April 25, 17

s Pinckney, May 22, 1796;

arshall, May 1, 1796; Morris's Pr

, in Dillon

make overtures to Patrick Henry for the Presidency. (King, ii, footnote to 46.) But no correspondence between H

King, May 24, 17

he unparalleled abuse of Washington, s

n to Pickering, March 3, 1797; Writings: Ford,

(1796), 46-47; MS. A

(1796), 153; MS. A

9]

t Commonwealth as a "State" in contra-distinction to the country. Although the Journal shows that this important motion was passed, the

the lapse of twenty years. In the first contest the House of Delegates voted overwhelmingly against including the word "wisdom" in the resolutions; and on the Senate amendment res

rnal, H.

us attack upon the President, said: "The consecrated ermine of Presidential chastity seems too foul for time itself to bleach." (See Cobbett, i, 411; and ib., 444, where the Aurora is represented as ha

ry, ii, 569-70. Henry was now an enemy of Jeffe

ii, 390-91.) Even in Congress Washington did not escape. In the debate over the last address of the National Legislature to the President, Giles of Virginia declared that Washington had been "neither wise nor firm." He did not think "so much of the President." He "wished him to retire .

e explained to his relative, Temple Franklin, in England, he "could not [otherwise] maintain his family," and "he had determined to adopt a bold experiment and to come out openly against th