CANDIDATE FOR CONGRESS
Of the three envoys, the conduct of General Marshall alone has been entirely satisfactory. (Adams.)
In heart and sentiment, as well as by birth and interest, I am an American. We should make no political connection with any nation on earth. (Marshall to constituents.)
Tell Marshall I love him because he felt and acted as a Republican and an American. (Patrick Henry.)
In the congressional campaign of 1798-99, the Federalists of the Richmond District were without a strong candidate. The one they had put up lacked that personal popularity which then counted for as much in political contests as the issues involved. Upon Marshall's return from France and his enthusiastic reception, ending with the Richmond demonstration, the Federalist managers pressed Marshall to take the place of the candidate then running, who, indeed, was anxious to withdraw in his favor. But the returned envoy refused, urged the Federalist then standing to continue his candidacy, and pledged that he would do all in his power to secure his election.
Finally Washington asked Marshall to come to see him. "I received an invitation from General Washington," writes Marshall in his account of this important event, "to accompany his nephew ... on a visit to Mount Vernon."[856]
When Bushrod Washington wrote that Marshall accepted the invitation, the General was extremely gratified. "I learnt with much pleasure ... of General Marshall's intention to make me a visit," he writes his nephew. "I wish it of all things; and it is from the ardent desire I have to see him that I have not delayed a moment to express it.... The crisis is most important.... The temper of the people in this state ... is so violent and outrageous that I wish to converse with General Marshall and yourself on the elections which must soon come."[857] Washington says that when his visitors arrive the matter of the fictitious Langhorne letter will also be taken up "and we will let General Marshall into the whole business and advise with him thereon."[858]
To Mount Vernon, therefore, Marshall and his companion journeyed on horseback. For convenience in traveling, they had put their clothing in the same pair of saddle-bags. They arrived in a heavy rain and were "drenched to the skin." Unlocking the saddle-bags, the first article they took out was a black bottle of whiskey. With great hilarity each charged this to be the property of the other. Then came a thick twist of tobacco, some corn bread, and finally the worn apparel of wagoners; at some tavern on the way their saddle-bags had become exchanged for those of drivers. The rough clothes were grotesque misfits; and when, clad in these, his guests presented themselves, Washington, roaring with laughter, expressed his sympathy for the wagoners when they, in turn, discovered the exchange they had made with the lawyers.[859] In such fashion began the conference that ended in John Marshall's candidacy for Congress in the vital campaign of 1798-99.
This was the first time, so far as is known, that Marshall had visited Washington at his Potomac home. No other guest except Washington's nephew seems to have been present at this conference, so decisive of Marshall's future. The time was September, 1798, and the conversations were held on the broad piazza,[860] looking out upon the river, with the new Capitol almost within sight. There, for "four or five days," his old commander used all his influence to induce Marshall to become the Federalist candidate.
"General Washington urged the importance of the crisis," writes Marshall in describing the circumstance; "every man," insisted Washington, "who could contribute to the success of sound opinions was required by the most sacred duty to offer his services to the public." Marshall doubted his "ability to do any good. I told him that I had made large pecuniary engagements which required close attention to my profession and which would distress me should the emoluments derived from it be abandoned."
Marshall told of his promise to the Federalist candidate who was then making his campaign for election. Washington declared that this candidate still would withdraw in Marshall's favor; but Marshall remained unshaken. Finally Washington gave his own conduct as an example. Marshall thus describes the final appeal which his old leader made to him: "He had withdrawn from office with a declaration of his determination never again, under any circumstances, to enter public life. No man could be more sincere in making that declaration, nor could any man feel stronger motives for adhering to it. No man could make a stronger sacrifice than he did in breaking a resolution, thus publicly made, and which he had believed to be unalterable. Yet I saw him," continues Marshall, "in opposition to his public declaration, in opposition to his private feelings, consenting, under a sense of duty, to surrender the sweets of retirement, and again to enter the most arduous and perilous station which an individual could fill. My resolution yielded to this representation."[861]
There is a tradition that, at one point in the conference, Marshall, becoming offended by Washington's insistence, which, runs the story, took the form of a peremptory and angrily expressed command, determined to leave so early in the morning that his host would have no opportunity to press the matter further; but, Washington noting Marshall's irritation and anticipating his purpose, was on the piazza when his departing guest appeared at dawn, and there made the final appeal which won Marshall's reluctant consent.
Marshall felt that he was making a heavy personal sacrifice; it meant to him the possible loss of the Fairfax estate. As we have seen, he had just declined appointment to the Supreme Bench[862] for this very reason, and this place later was given to Bushrod Washington, largely on Marshall's advice.[863] Adams had been reluctant to give Marshall up as one of the Associate Justices of the Supreme Court; "General Marshall or Bushrod Washington will succeed Judge Wilson," wrote the President to his Secretary of State[864] nearly three months after the first tender of the place to Marshall in Philadelphia. Later on the President again returned to Marshall.
"I still think that General Marshall ought to be preferred," he wrote. "Of the three envoys, the conduct of Marshall alone has been entirely satisfactory, and ought to be marked by the most decided approbation of the public. He has raised the American people in their own esteem, and, if the influence of truth and justice, reason and argument is not lost in Europe, he has raised the consideration of the United States in that quarter of the world.... If Mr. Marshall should decline, I should next think of Mr. [Bushrod] Washington."[865]
Washington's appeal to Marshall's patriotism and sense of duty, however, outbalanced the weighty financial reasons which decided him against becoming an Associate Justice of the Supreme Court. Thus, against his desire, he found himself once more in the hurly-burly of partisan politics. But this time the fight which he was forced to lead was to be desperate, indeed.
The moment Marshall announced his candidacy he became the center of Republican attack in Virginia. The virulence of the campaign against him was so great that it has become a tradition; and while scarcely any of the personal assaults, which appeared in print, are extant, they are known to have been ruthless, and utterly unrestrained both as to the charges made and the language used in making them.
In his scurrilous review of Adams's Administration, which Adams properly denounced as "a Mass of Lyes from the first page to the last,"[866] John Wood repeats the substance of some of the attacks which, undoubtedly, were launched against Marshall in this bitter political conflict. "John Marshall," says Wood, "was an improper character in several respects; his principles of aristocracy were well known. Talleyrand, when in America, knew that this man was regarded as a royalist and not as a republican, and that he was abhorred by most honest characters."[867]
The abuse must have been very harsh and unjust; for Marshall, who seldom gave way to resentment, complained to Pickering with uncharacteristic temper. "The whole malignancy of Anti-federalism," he writes, "not only in the district, where it unfortunately is but too abundant, but throughout the State, has become uncommonly active and considers itself as peculiarly interested in the reëlection of the old member [Clopton].
"The Jacobin presses, which abound with us and only circulate within the State, teem with publications of which the object is to poison still further the public opinion and which are level'd particularly at me. Anything written by me on the subject of French affairs wou'd be ascrib'd to me, whether it appear'd with or without my signature and wou'd whet and sharpen up the sting of every abusive scribbler who had vanity enough to think himself a writer because he cou'd bestow personal abuse and cou'd say things as malignant as they are ill founded."[868]
The publication of the American envoys' dispatches from France, which had put new life into the Federalist Party, had also armed that decaying organization with enough strength to enact the most imprudent measures that its infatuated leaders ever devised. During June and July, 1798, they had succeeded in driving through Congress the famous Alien and Sedition Laws.[869]
The Alien Act authorized the President to order out of the country all aliens whom he thought "dangerous" or "suspected" of any "treasonable or secret machination against the government" on pain of imprisonment not to exceed three years and of being forever afterwards incapacitated from becoming citizens of the United States. But if the alien could prove to the satisfaction of the President that he was not dangerous, a presidential "license" might be granted, permitting the alien to remain in the United States as long as the President saw fit and in such place as he might designate. If any expelled alien returned without permission he was to be imprisoned as long as the President thought "the public safety may require."
The Sedition Act provided penalties for the crime of unlawful combination and conspiracy against the Government;[870] a fine not exceeding two thousand dollars and imprisonment not exceeding two years for any person who should write, print, publish, or speak anything "false, scandalous and malicious" against the Government, either House of Congress, or the President "with intent to defame" the Government, Congress, or the President, or "to bring them or either of them into contempt or disrepute; or to excite against them or either or any of them the hatred of the good people of the United States, or to stir up sedition within the United States."
When Jefferson first heard of this proposed stupid legislation, he did not object to it, even in his intimate letters to his lieutenant Madison.[871] Later, however, he became the most ferocious of its assailants. Hamilton, on the other hand, saw the danger in the Sedition Bill the moment a copy reached him: "There are provisions in this bill ... highly exceptionable," he wrote. "I hope sincerely the thing may not be hurried through. Let us not establish a tyranny. Energy is a very different thing from violence."[872] When Madison got the first inkling of the Alien Bill, he wrote to Jefferson that it "is a monster that must forever disgrace its parents."[873]
As soon as the country learned what the Alien and Sedition Laws contained, the reaction against the Federalist Party began. In vain did the Federalists plead to the people, as they had urged in the debate in Congress, that these laws were justified by events; in vain did they point out the presence in America of large numbers of foreigners who were active and bitter against the American Government; in vain did they read to citizens the abuse published in newspapers against the Administration and cite the fact that the editors of these libelous sheets were aliens.[874]
The popular heart and instinct were against these crowning blunders of Federalism. Although the patriotic wave started by Marshall's return and the X. Y. Z. disclosures was still running strong, a more powerful counter-current was rising. "Liberty of the press," "freedom of speech," "trial by jury" at once became the watchwords and war-cries of Republicanism. On the hustings, in the newspapers, at the taverns, the Alien and Sedition Laws were denounced as unconstitutional—they were null and void—no man, much less any State, should obey or respect them.
The Alien Law, said its opponents, merged the Judicial and the Executive Departments, which the Constitution guaranteed should be separate and distinct; the Sedition Act denied freedom of speech, with which the Constitution expressly forbade Congress to interfere; both struck at the very heart of liberty—so went the Republican argument and appeal.[875]
In addition to their solid objections, the Republicans made delirious prophecies. The Alien and Sedition Laws were, they asserted, the beginning of monarchy, the foundation of absolutism. The fervid Jefferson indulged, to his heart's content, in these grotesque predictions: "The alien & sedition laws are working hard," declared the great Republican. Indeed, he thought them only "an experiment on the American mind to see how far it will bear an avowed violation of the constitution. If this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the Senate for life.... That these things are in contemplation, I have no doubt; nor can I be confident of their failure, after the dupery of which our countrymen have shewn themselves susceptible."[876]
Washington was almost as extravagant on the other side. When an opponent of the Alien and Sedition Acts asked him for his opinion of them, he advised his questioner to read the opposing arguments "and consider to what lengths a certain description of men in our country have already driven and seem resolved further to drive matters" and then decide whether these laws are not necessary, against those "who acknowledge no allegiance to this country, and in many instances are sent among us ... for the express purpose of poisoning the minds of our people,—and to sow dissensions among them, in order to alienate their affections from the government of their choice, thereby endeavoring to dissolve the Union."[877]
Washington thought that the ferocious Republican attack on the Alien and Sedition Laws was but a cunning maneuver of politicians, and this, indeed, for the moment at least, seems to have been the case. "The Alien and Sedition Laws are now the desiderata of the Opposition.... But any thing else would have done,—and something there will always be, for them to torture; and to disturb the public mind with their unfounded and ill favored forebodings" was his pessimistic judgment.[878]
He sent "to General Marshall Judge Addison's charge to the grand juries of the county courts of the Fifth Circuit of the State of Pennsylvania.... This charge is on the liberty of speech and of the press and is a justification of the sedition and alien laws. But," wrote Washington, "I do not believe that ... it ... or ... any other writing will produce the least change in the conduct of the leaders of the opposition to the measures of the general government. They have points to carry from which no reasoning, no consistency of conduct, no absurdity can divert them. If, however, such writings should produce conviction in the mind of those who have hitherto placed faith in their assertions, it will be a fortunate event for this country."[879]
Marshall had spoken in the same vein soon after his arrival at Richmond. "The people ... are pretty right as it respects France," he reports to the Secretary of State. The Republican criticisms of the X. Y. Z. mission "make so little impression that I believe France will be given up and the attack upon the government will be supported by the alien and sedition laws. I am extremely sorry to observe that here they are more successful and that these two laws, especially the sedition bill, are viewed by a great many well meaning men, as unwarranted by the constitution.
"I am entirely persuaded that with many the hate of Government of our country is implacable and that if these bills did not exist the same clamor would be made by them on some other account, but," truthfully and judicially writes Marshall, "there are also many who are guided by very different motives, and who tho' less noisy in their complaints are seriously uneasy on this subject."[880]
The Republicans pressed Marshall particularly hard on the Alien and Sedition Laws, but he found a way to answer. Within a few days after he had become the Federalist candidate, an anonymous writer, signing himself "Freeholder," published in the Richmond newspapers an open letter to Marshall asking him whether he was for the Constitution; whether the welfare of America depended on a foreign alliance; whether a closer connection with Great Britain was desirable; whether the Administration's conduct toward France was wise; and, above all, whether Marshall was "an advocate of the alien and sedition bills or in the event of your election will you use your influence to obtain a repeal of these laws?"
In printing Marshall's answers to "Freeholder," the "Times and Virginia Advertiser" of Alexandria remarked: "Mr. John Marshall has offered as a candidate for a representative in the next Congress. He has already begun his electioneering campaign. The following are answers to some queries proposed to him. Whether the queries were propounded with a view of discovering his real sentiments, or whether they were published by one of his friends to serve electioneering purposes, is immaterial:—The principles Mr. Marshall professes to possess are such as influence the conduct of every real American."[881]
A week later Marshall published his answers. "Every citizen," says he, "has a right to know the political sentiments of a candidate"; and besides, the candidate wishes everybody to know his "real principles" and not "attribute" to him "those with which active calumny has ... aspersed" him. In this spirit Marshall answers that "in heart and sentiment, as well as by birth and interest," he is "an American; attached to the ... Constitution ... which will preserve us if we support it firmly."
He is, he asserts, against any alliance, "offensive or defensive," with Great Britain or "any closer connection with that nation than already exists.... No man in existence is more decidedly opposed to such an alliance or more fully convinced of the evils that would result from it." Marshall declares that he is for American neutrality in foreign wars; and cites his memorial to Talleyrand as stating his views on this subject.
"The whole of my politics respecting foreign nations, are reducible to this single position: ... Commercial intercourse with all, but political ties with none ... buy as cheap and sell as dear as possible ... never connect ourselves politically with any nation whatever."
He disclaims the right to speak for the Administration, but believes it to have the same principles. If France, while at war with Great Britain, should also make war on America, "it would be madness and folly" not to secure the "aid of the British fleets to prevent our being invaded"; but, not even for that, would he "make such a sacrifice as ... we should make by forming a permanent political connection with ... any nation on earth."
Marshall says that he believes the Administration's policy as regards France to have been correct, and necessary to the maintenance "of the neutrality and independence of our country." Peace with France was not possible "without sacrificing those great objects," for "the primary object of France is ... dominion over others." The French accomplish this purpose by "immense armies on their part and divisions among ... those whom they wish to subdue."
Marshall declares that he is "not an advocate of the Alien and Sedition Bills," and, had he been in Congress, "certainly would have opposed them," although he does not "think them fraught with all those mischiefs ascribed to them." But he thinks them "useless ... calculated to create unnecessary discontents and jealousies"; and that, too, "at a time when our very existence as a nation may depend on our union."
He believes that those detested laws "would never have been enacted" if they had been opposed on these principles by a man not suspected of intending to destroy the government or being hostile to it." The effort to repeal them "will be made before he can become a member of Congress"; if it fails and is renewed after he takes his seat, he "will obey the voice of his constituents." He thinks, however, it will be unwise to revive the Alien and Sedition Acts which are, by their own terms, about to expire; and Marshall pledges that he will "indisputably oppose their revival."[882]
Upon Marshall as their favorite candidate for Congress, the eyes of the Federalist leaders in other States were focused. They were particularly anxious and uncertain as to his stand on the Alien and Sedition Laws; for he seems to have privately expressed, while in Philadelphia on his return from France, a mild disapproval of the wisdom and political expediency of this absurd legislation. His answers to "Freeholder" were therefore published everywhere. When the New England Federalists read them in the "Columbian Centinel" of Saturday, October 20, most of them were as hot against Marshall as were the rabid Virginia Republicans.
Ames whetted his rhetoric to razor edge and slashed without mercy. He describes Republican dismay when Marshall's dispatches were published: "The wretches [Republicans] looked round, like Milton's devils when first recovering from the stunning force of their fall from Heaven, to see what new ground they could take." They chose, says Ames, "the alien and sedition bills, and the land tax" with which to arouse discontent and revive their party. So "the implacable foes of the Constitution—foes before it was made, while it was making, and since—became full of tender fears lest it should be violated by the alien and sedition laws."
The Federalists, complained Ames, "are forever hazarding the cause by heedless and rash concessions. John Marshall, with all his honors in blossom and bearing fruit, answers some newspaper queries unfavorably to these laws.... No correct man,—no incorrect man, even,—whose affections and feelings are wedded to the government, would give his name to the base opposers of the law.... This he has done. Excuses may palliate,—future zeal in the cause may partially atone,—but his character is done for.... Like a man who in battle receives an ounce ball in his body—it may heal, it lies too deep to be extracted.... There let it lie. False Federalists, or such as act wrong from false fears, should be dealt hardly by, if I were Jupiter Tonans.... The moderates [like Marshall] are the meanest of cowards, the falsest of hypocrites."[883] Theodore Sedgwick declared that Marshall's "mysterious & unpardonable" conduct had aided "french villainy" and that he had "degraded himself by a mean & paltry electioneering trick."[884]
At first, the Republicans praised Marshall's stand; and this made the New England Federalists frantic. Cabot, alone, defended Marshall in the press, although not over his own name and only as a matter of party tactics. He procured some one to write to the "Columbian Centinel" under the name of "A Yankee Freeholder." This contributor tried to explain away Marshall's offense.
"General Marshall is a citizen too eminent for his talents, his virtues and his public services, to merit so severe a punishment as to [receive the] applause of disorganizers [Republicans]." He should be saved from the "admiration of the seditious"—that much was due to Marshall's "spirit, firmness and eloquence" in the contest with "the Despots of France." As "drowning men would catch at straws" so "the eagle-eyed and disheartened sons of faction" had "with forlorn and desperate ... avidity ... seized on" Marshall's answers to "Freeholder."
And no wonder; for "even good men have stood appalled, at observing a man whom they so highly venerate soliciting votes at the expense of principles which they deem sacred and inviolable." "Yankee Freeholder" therefore proposes "to vindicate General Marshall."
Marshall was the only Richmond Federalist who could be elected; he "patriotically" had consented to run only because of "the situation and danger of his country at this moment." Therefore "it was absolutely necessary to take all the ordinary steps" to succeed. This "may appear extraordinary ... to those who are only acquainted with the delicacy of New England elections where personal solicitation is the Death-warrant to success"; but it was "not only pardonable but necessary ... in the Southern States."
"Yankee Freeholder" reminded his readers that "Calumny had assailed General Marshall, in common with other men of merit." Virginia newspapers had "slandered him"; politicians had called him "Aristocrat, Tory, and British Agent. All this abuse ... would infallibly have rendered him popular in New-England"—but not so in "Virginia," where there were "too many ignorant, ill-informed and inflamed minds."
Therefore, "it became necessary that General Marshall should explicitly exhibit his political creed." After all, his answers to "Freeholder" were not so bad—he did not assail the constitutionality of the Alien and Sedition Laws. "If Gen. Marshall thought them unconstitutional or dangerous to liberty, would he" be content merely to say they were unnecessary? "Would a man of General Marshall's force of reasoning, simply denominate laws useless," if he thought them unconstitutional? "No—the idea is too absurd to be indulged.... Time and General Marshall's conduct will hereafter prove that I am not mistaken in my opinion of his sentiments."[885]
Cabot's strategy had little effect on New England, which appeared to dislike Virginia with a curious intolerance. The Essex County politician, nevertheless, stood by his guns; and six months later thus reassures King: "I am ready to join you as well as Ames in reprobating the publication of Marshall's sentiments on the Sedition & Alien Acts, but I still adhere to my first opinion that Marshall ought not to be attacked in the Newspapers, nor too severely condemned anywhere, because Marshall has not yet learned his whole lesson, but has a mind & disposition which can hardly fail to make him presently an accomplished (political) Scholar & a very useful man.
"Some allowance too should be made," contends Cabot, "for the influence of the Atmosphere of Virginia which doubtless makes every one who breathes it visionary &, upon the subject of Free Govt., incredibly credulous; but it is certain that Marshall at Phila. would become a most powerful auxiliary to the cause of order & good Govt., & therefore we ought not to diminish his fame which wou'd ultimately be a loss to ourselves."[886]
The experienced practical politician, Sedgwick, correctly judged that "Freeholder's" questions to Marshall and Marshall's answers were an "electioneering trick." But Pickering stoutly defended Marshall upon this charge. "I have not met with one good federalist, who does not regret his answers to the Freeholder; but I am sorry that it should be imagined to be an 'electioneering trick.'... General Marshall is incapable of doing a dishonorable act." Only Marshall's patriotism had induced him to accept the French mission, said the Secretary of State.[887] Nothing but "the urging of friends ... overcame his reluctance to come to Congress.... A man of untainted honor," had informed Pickering that "Marshall is a Sterling fellow."[888]
The Federalists' complaints of him continued to be so strong and widespread, however, that they even reached our legations in Europe: "I too have lamented that John Marshall, after such a mission particularly, should lend himself thus against a law which the French Jacobinism in the United States had forced government to adopt. M[arshall] before, was not, that we ever heard of, one of us."[889]
Toward the end of October Marshall gives his private opinion of the Virginia Republicans and their real motives, and foretells the Virginia Resolutions. "The real french party of this country again begins to show itself," he writes. "There are very many indeed in this part of Virginia who speak of our own government as an enemy infinitely more formidable and infinitely more to be guarded against than the French Directory. Immense efforts are made to induce the legislature of the state which will meet in Dec'r to take some violent measure which may be attended with serious consequences. I am not sure that these efforts will entirely fail. It requires to be in this part of Virginia to know the degree of irritation which has been excited and the probable extent of the views of those who excite it."[890]
The most decent of the attacks on Marshall were contained in a series of open letters first published in the "Aurora"[891] and signed "Curtius."
"You have long been regarded," writes Curtius, "as the leader of that party in this State" which has tried "by audacious efforts to erect a monarchy or aristocracy upon the ruins of our free constitution. The energy of your mind and the violence of your zeal have exalted you to this bad eminence." If you had "employed your talents in defense of the people ... your history would have been read in a nation's eyes."
"The publication of your dispatches and the happy exercise of diplomatic skill has produced a momentary delusion and infatuation in which an opposition to the administration is confounded with hostility to the government and treason to the country.... The execrations and yells against French cruelty and French ambition, are incessantly kept up by the hirelings of Great Britain and the enemies of liberty."
But, he cries, "the vengeance of an oppressed and insulted people is almost as terrible as the wrath of Heaven"; and, like a true partisan, Curtius predicts that this is about to fall on Marshall. Why, he asks, is Marshall so vague on the constitutionality of the Alien and Sedition Laws?[892] "Notwithstanding the magnitude ... of your talents, you are ridiculously awkward in the arts of dissimulation and hypocrisy.... It is painful to attack ... a man whose talents are splendid and whose private character is amiable"; but "sacred duties ... to the cause of truth and liberty require it." Alas for Marshall! "You have lost forever," Curtius assures him, "the affection of a nation and the applause of a world. In vain will you pursue the thorny and rugged path that leads to fame."[893]
But while "monarchist," "aristocrat," "British agent," "enemy of free speech," "destroyer of trial by jury" were among the more moderate epithets that filled the air from Republican lips; and "anarchist," "Frenchman," "traitor," "foe of law and order," "hater of government" were the milder of the counter-blasts from the Federalists, all this was too general, scattered, and ineffective to suit the leader of the Republican Party. Jefferson saw that the growing popular rage against the Alien and Sedition Laws must be gathered into one or two concentrated thunderbolts and thus hurled at the heads of the already quaking Federalists.
How to do it was the question to which Jefferson searched for an answer. It came from the bravest, most consistent, most unselfish, as well as one of the very ablest of Republicans, John Taylor "of Caroline," Virginia. In a letter to Jefferson concerning the Alien and Sedition Laws, this eminent and disinterested radical suggested that "the right of the State governments to expound the constitution might possibly be made the basis of a movement towards its amendment. If this is insufficient the people in state conventions are incontrovertibly the contracting parties and, possessing the infringing rights, may proceed by orderly steps to attain the object."[894]
So was planted in Jefferson's mind the philosophy of secession. In that fertile and receptive soil it grew with magic rapidity and bore fatal fruit. Within two months after he received Taylor's letter, Jefferson wrote the historic resolutions which produced a situation that, a few years afterward, called forth Marshall's first great constitutional opinion, and, not many decades later, gave the battle-cry that rallied heroic thousands to armed resistance to the National Government.[895] On October 5, 1798, Nicholas writes Jefferson that he has delivered to "Mr. John Breckenridge a copy of the resolutions that you sent me."[896] They were passed by the Legislature of Kentucky on November 14, 1798; and the tremendous conflict between Nationality and States' Rights, which for so long had been preparing, at last was formally begun.[897] Jefferson's "Kentucky Resolutions" declared that parts of the Alien and Sedition Laws were "altogether void and of no effect."[898] Thus a State asserted the "right" of any or all States to annul and overthrow a National law.
As soon as Kentucky had acted, Jefferson thus writes Madison: "I enclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain so as to hold that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent."[899]
Madison accordingly drew the resolutions adopted by the Legislature of Virginia, December 21, 1798. While declaring the Alien and Sedition Laws unconstitutional, the Virginia Resolutions merely appealed to the other States to "co-operate with this state in maintaining unimpaired the authority, rights, and liberties reserved to the states respectively or to the people."[900]
The Legislature promptly adopted them and would gladly have approved far stronger ones. "The leaders ... were determined upon the overthrow of the General Government; and if no other measure would effect it, that they would risk it upon the chance of war.... Some of them talked of 'seceding from the Union,'"[901] Iredell writes his wife: "The General Assembly of Virginia are pursuing steps which directly lead to a civil war; but there is a respectable minority struggling in defense of the General Government, and the Government itself is fully prepared for anything they can do, resolved, if necessary, to meet force with force."[902] Marshall declared that he "never saw such intemperance as existed in the V[irginia] Assembly."[903]
Following their defiant adoption of Madison's resolutions, the Republican majority of the Legislature issued a campaign pamphlet, also written by Madison,[904] under the form of an address to the people. The "guardians of State Sovereignty would be perfidious if they did not warn" the people "of encroachments which ... may" result in "usurped power"; the State Governments would be "precipitated into impotency and contempt" in case they yielded to such National laws as the Alien and Sedition Acts; if like "infractions of the Federal Compact" were repeated "until the people arose ... in the majesty of their strength," it was certain that "the way for a revolution would be prepared."
The Federalist pleas "to disregard usurpation until foreign danger shall have passed" was "an artifice which may be forever used," because those who wished National power extended "can ever create national embarrassments to soothe the people to sleep whilst that power is swelling, silently, secretly and fatally."
Such was the Sedition Act which "commits the sacrilege of arresting reason; ... punishes without trial; ... bestows on the President despotic powers ... which was never expected by the early friends of the Constitution." But now "Federal authority is deduced by implication" by which "the states will be stript of every right reserved." Such "tremendous pretensions ... inflict a death wound on the Sovereignty of the States." Thus wrote the same Madison who had declared that nothing short of a veto by the National Government on "any and every act of the states" would suffice. There was, said Madison's campaign document, no "specified power" in the National Government "embracing a right against freedom of the press"—that was a "constitutional" prerogative of the States.
"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 Constitution. "The will of the majority produced, ratified, and conducts" this constitutional 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 Constitution 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 Washington, after considering everything, had proclaimed American Neutrality. Yet Genêt 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 Washington, 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 ... reëchoed 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 Washington, 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 constitution." 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 constitutional 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 constitutionality 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 coöperation 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 constitutional 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 constitutional 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 document. 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 authorship 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 quantities of words ... that you turn absolutely tired"; it abounded in "barren tautology"; some sentences were nothing more than mere "assemblages 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 constitutionality.... 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 multitude. 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 petitions 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 Washington acknowledging the receipt of Judge Addison's charge: "No argument," wrote Marshall, "can moderate the leaders of the opposition.... However I may regret the passage 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 passed, 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 Washington 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 arsenals 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 Constitution 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 constituents";[920] he assured 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 assaults 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]
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 assure 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 class. 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 competitor 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 astonishing, 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 [Washington]."[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 passed 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 Washington, who had no more political acumen 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.
Nobody 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 assembled 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 competitor.
"Three cheers for Clopton!" roared the crowd of Republican enthusiasts.
Both Republican and Federalist leaders had seen to it that nothing was left undone which might bring victory to their respective candidates. The two political parties had been carefully "drilled to move together in a body." Each party had a business committee which attended to every practical detail of the election. Not a voter was overlooked. "Sick men were taken in their beds to the polls; the halt, the lame, and the blind were hunted up and every mode of conveyance was mustered into service." Time and again the vote was a tie. No sooner did one freeholder announce his preference for Marshall than another gave his suffrage to Clopton.
"A barrel of whisky with the head knocked in," free for everybody, stood beneath a tree; and "the majority took it straight," runs a narrative of a witness of the scene. So hot became the contest that fist-fights were frequent. During the afternoon, knock-down and drag-out affrays became so general that the county justices had hard work to quell the raging partisans. Throughout the day the shouting and huzzaing rose in volume as the whiskey sank in the barrel. At times the uproar was "perfectly deafening; men were shaking fists at each other, rolling up their sleeves, cursing and swearing.... Some became wild with agitation." When a tie was broken by a new voter shouting that he was for Marshall or for Clopton, insults were hurled at his devoted head.
"You, sir, ought to have your mouth smashed," cried an enraged Republican when Thomas Rutherford voted for Marshall; and smashing of mouths, blacking of eyes, and breaking of heads there were in plenty. "The crowd rolled to and fro like a surging wave."[931] Never before and seldom, if ever, since, in the history of Virginia, was any election so fiercely contested. When this "democratic" struggle was over, it was found that Marshall had been elected by the slender majority of 108.[932]
Washington was overjoyed at the Federalist success. He had ridden ten miles to vote for General Lee, who was elected;[933] but he took a special delight in Marshall's victory. He hastened to write his political protégé: "With infinite pleasure I received the news of your Election. For the honor of the District I wish the majority had been greater; but let us be content, and hope, as the tide is turning, the current will soon run strong in your favor."[934]
Toward the end of the campaign, for the purpose of throwing into the contest Washington's personal influence, Marshall's enthusiastic friends had published the fact of Marshall's refusal to accept the various offices which had been tendered him by Washington. They had drawn a long bow, though very slightly, and stated positively that Marshall could have been Secretary of State.[935] Marshall hastened to apologize:—
"Few of the unpleasant occurrences" of the campaign "have given me more real chagrin than this. To make a parade of proffered offices is a vanity which I trust I do not possess; but to boast of one never in my power would argue a littleness of mind at which I ought to blush." Marshall tells Washington that the person who published the report "never received it directly or indirectly from me." If he had known "that such a publication was designed" he "would certainly have suppressed it." It was inspired "unquestionably ... by a wish to serve me," says Marshall, "and by resentment at the various malignant calumnies which have been so profusely bestowed on me."[936]
Washington quickly reassured Marshall: "I am sorry to find that the publication you allude to should have given you a moment's disquietude. I can assure you it made no impression on my mind, of the tendency apprehended by you."[937]
As soon as all the election returns were in, Marshall reported to Washington that the defeat of two of the Federalist candidates for Congress was unexpected and "has reduced us to eight in the legislature of the Union"; that the Republicans maintained their "majority in the house of Delegates," which "means an antifederal senator and governor," and that "the baneful influence of a legislature hostile perhaps to the Union—or if not so—to all its measures will be kept up."[938]
Marshall's campaign attracted the attention of the whole country, and the news of his success deeply interested both Federalists and Republicans. Pickering, after writing King of the Federalist success in New York City, declared that "the other domestic intelligence, still more important, is, that Genl. Marshall is elected a member of Congress for his district."[939]
Speaker Sedgwick also informed King of Marshall's election. "General Marshall you know is a member of the House of Representatives. His talents, his character and the situation he has been in, will combine to give him an influence, which will be further aided by the scene which he immediately represents. He may and probably will give a tone to the federal politics South of the Susquehannah. I well know the respect he entertains for you and for your opinions."[940]
But the Federalist leaders were none too sure of their Virginia congressional recruit. He was entirely too independent to suit the party organization. His campaign statement on the Alien and Sedition Laws angered and troubled them when it was made; and, now that Marshall was elected, his opinion on this, to the Federalists, vital subject, his admitted power of mind and character, and his weighty influence over the Southern wing of the Federalists caused serious apprehension among the party's Northern leaders. Sedgwick advises King to write Marshall on the subject of party regularity.
"I have brought this subject to your mind, that you may decide on the propriety of a communication of your sentiments to him, which you may do in season to be useful. Should he, which, indeed, I do not expect, conform his political conduct generally, to what seems indicated by his public declaration relative to the alien & sedition acts, it would have been better that his insignificant predecessor should have been reëlected. There never has been an instance where the commencement of a political career was so important as is that of General Marshall."[941]
Apprehension and uncertainty as to Marshall's course in the House was in the minds of even the Federalist leaders who were out of the country. The American Minister at The Hague was as much troubled about Marshall as were the Federalist politicians at home: "If M[arshall]'s silly declaration on the inexpediency of the Sedition law does not entangle him he may be very useful."[942] But Murray was uneasy: "Marshall, I fear, comes in on middle ground, and when a man plays the amiable in a body like that [House of Representatives] he cannot be counted [on], but he will vote generally right. I was amiable the first session! It cannot last."[943]
Jefferson, of course, was much depressed by the Federalist congressional victories, which he felt "are extremely to be regretted." He was especially irritated by Marshall's election: It "marks a taint in that part of the State which I had not expected." He was venomous toward Henry for having helped Marshall: "His [Henry's] apostacy, must be unaccountable to those who do not know all the recesses of his heart."[944]
A week later, however, Jefferson decided that the Federalist success did not mean a permanent Republican reverse. Spoils and corruption, he concluded, were the real cause of the Federalist gain. "The Virginia congressional elections have astonished every one," he informs Tench Coxe. "This result has proceeded from accidental combinations of circumstances, & not from an unfavorable change of sentiment.... We are not incorruptible; on the contrary, corruption is making sensible tho' silent progress. Offices are as acceptable here as elsewhere, & whenever a man has cast a longing on them, a rottenness begins in his conduct."[945]
Jefferson, with settled and burning hatred, now puts his branding-iron on Henry: "As to the effect of his name among the people, I have found it crumble like a dried leaf the moment they become satisfied of his apostacy."[946]
During the weeks which immediately followed his election, Marshall was busy reporting to Washington on the best men to be appointed as officers in the provisional army; and his letters to the Commander-in-Chief show a wide and careful acquaintance with Virginians of military training, and a delicate judgment of their qualities.[947]
By now the hated Sedition Law was justifying the political hydrophobia which it had excited among the Republicans.[948] All over the country men were being indicted and convicted for wholly justifiable political criticisms,—some of them trivial and even amusing,—as well as for false and slanderous attacks on public officers. President Adams himself had begun to urge these prosecutions. He was particularly bitter against the "Aurora," the Republican organ, which, according to Adams, contained an "uninterrupted stream of slander on the American government."[949] He thought that the editor ought to be expelled from the country.[950]
All this was more fuel to the Republican furnace. Wicked and outrageous as were some of these prosecutions, they were not so extravagant as the horrors which Republican politicians declared that the Sedition Laws would bring to every fireside.
During the summer after his election Marshall visited his father in Kentucky. Thomas Marshall was ill, and his son's toilsome journey was solely for the purpose of comforting him; but Jefferson could see in it nothing but a political mission. He writes to Wilson Cary Nicholas to prepare an answer to the States that had opposed the Kentucky and Virginia Resolutions; but, says Jefferson, "As to the preparing anything [myself] I must decline it, to avoid suspicions (which were pretty strong in some quarters on the last occasion) [the Kentucky Resolutions].... The visit of the apostle Marshall[951] to Kentucky, excite anxiety. However, we doubt not that his poisons will be effectually counter-worked."[952]
Jefferson's suspicions were groundless. Marshall did not even sound public opinion on the subject. On his return to Richmond he writes the Secretary of State, who was the most active politician of Adams's Cabinet, and to whom Marshall freely opened his mind on politics, that "a visit to an aged & rever'd Father" prevented an earlier answer to a letter from Pickering; and, although Marshall has much to say, not one word is written of the Kentucky and Virginia Resolutions. He is obsessed with the French question and of the advantage the French "party in America" may secure by the impression that France was not really hostile. "This will enable her [France's] party in America to attack from very advantageous ground the government of the United States."[953]
Now came the public circumstance that made the schism in the Federalist Party an open and remorseless feud. The President's militant declaration, that he would "never send another minister to France without assurances that he will [would] be received, respected, and honored as the representative of a great, free, powerful, and independent people,"[954] was perfectly attuned to the warlike spirit of the hour. The country rang with approval. The Federalist politicians were exultant.
Thereupon the resourceful Talleyrand wrote the Secretary of the French Legation at The Hague to intimate to Murray, the American Minister, that the French Directory would now receive a minister from the United States.[955] Murray hastened the news to Adams.[956] It was a frail assurance, indirect, irregular, unacknowledged to the world; and from men who had insulted us and who would not hesitate to repudiate Murray's statement if their purposes so required. Yet the President grasped by the forelock this possibility for peace, and, against the emphatic protest of his Cabinet, suddenly sent a second commission to try again for that adjustment which Marshall and his associates had failed to secure. It was the wisest and most unpopular act of Adams's troubled Administration.
The leading Federalist politicians were enraged. Indeed, "the whole [Federalist] party were prodigiously alarmed."[957] They thought it a national humiliation. What! said they, kiss the hand that had slapped our face! "The new embassy ... disgusts most men here," reported Ames from New England.[958] Cabot confirmed Ames's doleful message—"Surprise, indignation, grief, & disgust followed each other in swift succession in the breasts of the true friends of our country," he advised King.[959]
The Federalist leaders really wanted war with France, most of them as a matter of patriotism; some, undoubtedly, because war would insure party success in the approaching presidential election. Upon his return Marshall had prophesied formal declaration of hostilities from the Republic of France, when news of the dispatches reached Europe; and the war Federalists were sorely disappointed at the failure of his prediction. "Genl. Marshall unfortunately held the decided opinion that France would declare war when the Dispatches should appear; and T. Sewell with other good men were so strongly impressed with the advantage of such a declaration by them that they could not be persuaded to relinquish the belief in it—I was astonished that they should have attributed to the French such miserable policy." So wrote the able and balanced Cabot.[960] That France refused to adopt "such miserable policy" as Marshall had expected was sufficiently exasperating to the war Federalists; but to meet that country three fourths of the way on the road to peace was intolerable.
"The end [peace] being a bad one all means are unwise and indefensible" was the ultra-Federalist belief.[961] Adams's second mission was, they said, party surrender to the Republicans; it was "a policy that threatens ... to revive the Jacobin faction in our bosom."[962] Federalist members of Congress threatened to resign. "I have sacrificed as much as most men ... to support this Govt. and root out Democracy, & French principles, but ... I feel it to be lost and worse ... I can & will resign if all must be given up to France," cried the enraged Tracy.[963]
These "enemies of government" had said all along that things could be arranged with France; that the X. Y. Z. disclosures were merely a Federalist plot; and that the army was a wicked and needless expense. What answer could the Federalists make to these Republican charges now? Adams's new French mission, the Federalist chieftains declared, was "a measure to make dangers, and to nullify resources; to make the navy without object; the army an object of popular terror."[964]
And the presidential election was coming on! To hold the situation just as it was might mean Federalist victory. Suppose events did develop a formal declaration of war with France? That would make Federalist success more certain. The country would not turn out a party in charge of the Government when cannon were roaring. Even more important, an open and avowed conflict with the "bloody Republic" would, reasoned the Federalist leaders, check the miasmic growth of French revolutionary ideas among the people.
In short, a declaration of war with France would do everything which the Federalists wished and hoped for. "Peace [with France] ... is not desired as it should not be"[965] was their opinion of the statesmanship demanded by the times. And now Adams, without one word to the men who reluctantly had made him President,[966] had not only prevented a rupture which would have accomplished every Federalist purpose, but had delivered his party into the hands of the "Jacobins." He had robbed the Federalists of their supreme campaign "issue." "Peace with France, they think an evil and holding out the hope of it another, as it tends to chill the public fervor";[967] and the "public fervor" surely needed no further reduction of temperature, for Federalist health.
If Adams did not wish for a formal declaration of war, at least he might have let things alone. But now! "Government will be weakened by the friends it loses and betrayed by those it will gain. It will lose ... the friendship of the sense, and worth, and property of the United States, and get in exchange the prejudice, vice, and bankruptcy of the nation,"[968] wrote Ames to Pickering. "In Resistance alone there is safety,"[969] was Cabot's opinion. "The Jacobin influence is rising, and has been ever since the mission to France was determined on; ... if a Treaty be made with France their [Republican] ascendancy will be sure";[970] and, after that, the deluge.
The Federalist leaders felt that, even without a declaration of hostilities by Congress, they might make shift to win the approaching election. For on the sea we already were waging war on France, while formally at peace with her. Our newborn navy was taking French privateers, defeating French men-of-war, and retaliating with pike, cutlass, and broadside for the piratical French outrages upon American commerce.[971] As things stood, it was certain that this would continue until after the election, and with each glorious victory of a Truxton or a Hull, National pride and popular enthusiasm would mount higher and grow stronger. So the Federalist politicians thought that "the only negotiation compatible with our honor or our safety is that begun by Truxton in the capture of the L'Insurgente."[972]
Priceless campaign ammunition was this for the Federalist political guns. Early in the year the bilious but keen-eyed watchman on the ramparts of New England Federalism had noted the appearance of "a little patriotism, and the capture of the Insurgente cherishes it."[973] And now Adams's second mission might spoil everything. "The Jacobins will rise in consequence of this blunder,"[974] was the doleful prophecy. Indeed, it was already in fulfillment even with the utterance: "Already the Jacobins raise their disgraced heads from the mire of contempt!"[975] The "country gentlemen" were the hands as the business interests were the brain and heart of the Federalist Party; "the President destroyed their influence, and ... left them prostrate before their vindictive adversaries."[976]
The Republicans were overjoyed. Adams had reversed himself, eaten his own words, confessed the hypocrisy of the "infamous X. Y. Z. plot." "This renders their [Federalists'] efforts for war desperate, & silences all further denials of the sincerity of the French government," gleefully wrote Jefferson.[977]
Marshall alone of the commanding Federalists, approved Adams's action. "I presume it will afford you satisfaction to know that a measure which excited so much agitation here, has met the approbation of so good a judge as Mr. Marshall," Lee reported to the President.[978] Marshall's support cheered the harried Chief Executive. "Esteeming very highly the opinion and character of your friend General Marshall, I thank you for inclosing his letter," responded Adams.[979]
The President had done still worse. Auctioneer John Fries, a militia captain, had headed an armed mob in resistance to the National officers who were levying the National direct tax on the houses and lands of the farmers of eastern Pennsylvania. He had been finally taken prisoner, tried, and convicted of sedition and treason, and sentenced to death. Against the unanimous written advice of his Cabinet, formally tendered,[980] the President pardoned the "traitor" and "his fellow criminals."[981] And this clemency was granted at the plea of McKean, the arch-"Jacobin" of Pennsylvania,[982] without even consulting the judges of the courts in which they were twice tried and convicted.[983]
What was this, asked the Federalist leaders in dazed and angry amazement! Paralyze the arm of the law! Unloose the fingers of outraged authority from the guilty throat which Justice had clutched! What was to become of "law and order" when the Nation's head thus sanctioned resistance to both?[984] In his charge to the Federal Grand Jury, April 11, 1799, Justice Iredell declared that if "traitors" are not punished "anarchy will ride triumphant and all lovers of order, decency, truth & justice will be trampled under foot."[985]
How, now, could the Federalists repel Republican assaults on this direct tax? How, now, could they reply to the Republican attacks upon the army to support which the tax was provided! In pardoning Fries, Adams had admitted everything which the hated Jefferson had said against both tax and army.[986] If Adams was right in pardoning Fries, then Washington was wrong in suppressing the Whiskey Rebellion. The whole Federalist system was abandoned.[987] The very roots of the Federalist philosophy of government and administration were torn from their none too firm hold upon the scanty soil which Federalist statesmen had laboriously gathered for their nourishment. And why had Adams done this? Because, said the Federalist politicians, it was popular in Pennsylvania;[988] that was the President's motive—the same that moved him to send the new mission to France.[989]
Bending under heavy burdens of state, harassed by the politicians, Adams was enduring a private pain sharper than his public cares. His wife, the incomparable Abigail, was in Massachusetts and seriously ill. The President had left her to meet his Cabinet and dispatch the second mission to France. That done, he hastened back to the bedside of his sick wife. But the politicians made no allowances. Adams's absence "from the seat of government ... is a source of much disgust," chronicles the ardent Troup. "It ... has the air of an abdication."[990] A month later he records that the President "still continues at Braintree,[991] and the government, like Pope's wounded snake, drags its slow length along."[992]
Such was the condition of the country and the state of political parties when Marshall took his seat in Congress. For the Federalists, the House was a very "cave of the winds," with confusion, uncertainty, suspicion, anger, and all the disintegrating passions blowing this way and that. But the Republicans were a compact, disciplined, determined body full of spirit and purpose.