LEADING THE VIRGINIA FEDERALISTS
I think nothing better could be done than to make him [Marshall] a judge. (Jefferson to Madison, June 29, 1792.)
To doubt the holiness of the French cause was the certain road to odium and proscription. (Alexander Graydon.)
The trouble and perplexities have worn away my mind. (Washington.)
In Richmond, Marshall was growing ever stronger in his belief in Nationalism. Hamilton's immortal plea for a vital interpretation of the fundamental law of the Nation and his demonstration of the constitutionality of extensive implied powers was a clear, compact statement of what Marshall himself had been thinking. The time was coming when he would announce it in language still more lucid, expressive of a reasoning even more convincing. Upon Hamilton's constitutional doctrine John Marshall was to place the seal of finality.[195]
But Marshall did not delay until that great hour to declare his Nationalist opinions. Not only did he fight for them in the House of Delegates; but in his club at Farmicola's Tavern, on the street corners, riding the circuit, he argued for the constitutionality and wisdom of those measures of Washington's Administration which strengthened and broadened the powers of the National Government.[196]
Although he spoke his mind, in and out of season, for a cause increasingly unpopular, Marshall, as yet, lost little favor with the people. At a time when political controversy severed friendship and interrupted social relations,[197] his personality still held sway over his associates regardless of their political convictions. Even Mason, the ultra-radical foe of broad National powers, wrote, at this heated juncture, that Marshall "is an intimate friend of mine."[198]
His winning frankness, easy manner, and warm-heartedness saved him from that dislike which his bold views otherwise would have created. "Independent principles, talents, and integrity are denounced [in Virginia] as badges of aristocracy; but if you add to these good manners and a decent appearance, his political death is decreed without the benefit of a hearing," testifies Francis Corbin.[199]
"Independent principles, talents, and integrity" Marshall possessed in fullest measure, as all admitted; but his manners were far from those which men like the modish Corbin called "good," and his appearance would not have passed muster under the critical eye of that fastidious and disgruntled young Federalist. We shall soon hear Jefferson denouncing Marshall's deportment as the artifice of a cunning and hypocritical craft. As yet, however, Jefferson saw in Marshall only an extremely popular young man who was fast becoming the most effective supporter in Virginia of the National Government.
In the year of the Bank Act, Jefferson and Madison went on their eventful "vacation," swinging up the Hudson and through New England. During this journey Jefferson drew around Madison "the magic circle" of his compelling charm and won entirely to the extreme Republican cause[200] the invaluable aid of that superb intellect. In agreement as to common warfare upon the Nationalist measures of the Administration,[201] the two undoubtedly talked over the Virginia Federalists.[202]
Marshall's repeated successes at the polls with a constituency hostile to the young lawyer's views particularly impressed them. Might not Marshall become a candidate for Congress? If elected, here would be a skillful, dauntless, and captivating supporter of all Nationalist measures in the House of Representatives. What should be done to avert this misfortune?
Jefferson's dexterous intellect devised the idea of getting rid of Marshall, politically, by depositing him on the innocuous heights of the State bench. Better, far better, to make Marshall a Virginia judge than to permit him to become a Virginia Representative in Congress. So, upon his return, Jefferson wrote to Madison:—
"I learn that he [Hamilton] has expressed the strongest desire that Marshall should come into Congress from Richmond, declaring that there is no man in Virginia whom he wishes so much to see there; and I am told that Marshall has expressed half a mind to come. Hence I conclude that Hamilton has plyed him well with flattery & sollicitation and I think nothing better could be done than to make him a judge."[203]
Hamilton's "plying" Marshall with "flattery & solicitation" occurred only in Jefferson's teeming, but abnormally suspicious, mind. Marshall was in Virginia all this time, as his Account Book proves, while Hamilton was in New York, and no letters seem to have passed between them.[204] But Jefferson's information that his fellow Secretary wished the Nationalist Richmond attorney in Congress was probably correct. Accounts of Marshall's striking ability and of his fearless zeal in support of the Administration's measures had undoubtedly reached Hamilton, perhaps through Washington himself; and so sturdy and capable a Federalist in Congress from Virginia would have been of great strategic value.
But Jefferson might have spared his pains to dispose of Marshall by cloistering him on the State bench. Nothing could have induced the busy lawyer to go to Congress at this period. It would have been fatal to his law practice[205] which he had built up until it was the largest in Richmond and upon the returns from which his increasing family depended for support. Six years later, Washington himself labored with Marshall for four days before he could persuade him to stand for the National House, and Marshall then yielded to his adored leader only as a matter of duty, at one of the Nation's most critical hours, when war was on the horizon.[206]
The break-up of Washington's Cabinet was now approaching. Jefferson was keeping pace with the Anti-Nationalist sentiment of the masses—drilling his followers into a sternly ordered political force. "The discipline of the [Republican] party," wrote Ames, "is as severe as the Prussian."[207] Jefferson and Madison had secured an organ in the "National Gazette,"[208] edited by Freneau, whom Jefferson employed as translator in the State Department. Through this paper Jefferson attacked Hamilton without mercy. The spirited Secretary of the Treasury keenly resented the opposition of his Cabinet associate which was at once covert and open.
In vain the President pathetically begged Jefferson for harmony and peace.[209] Jefferson responded with a bitter attack on Hamilton. "I was duped," said he, "by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me."[210] To somewhat, but not much, better purpose did Washington ask Hamilton for "mutual forbearances."[211] Hamilton replied with spirit, yet pledged his honor that he would "not, directly or indirectly, say or do a thing that shall endanger a feud."[212]
The immense speculation, which had unavoidably grown out of the Assumption and Funding Acts, inflamed popular resentment against the whole financial statesmanship of the Federalists.[213] More material, this, for the hands of the artificer who was fashioning the Republican Party into a capacious vessel into which the people might pour all their discontent, all their fears, all their woes and all their hopes. And Jefferson, with practical skill, used for that purpose whatever material he could find.
Still more potter's earth was brought to Jefferson. The National Courts were at work. Creditors were securing judgments for debts long due them. In Virginia the debtors of British merchants, who for many years had been rendered immune from payment, were brought to the bar of this "alien" tribunal. Popular feeling ran high. A resolution was introduced into the House of Delegates requesting the Virginia Senators and Representatives in Congress to "adopt such measures as will tend, not only to suspend all executions and the proceedings thereon, but prevent any future judgments to be given by the Federal Courts in favor of British creditors until" Great Britain surrendered the posts and runaway negroes.[214] Thus was the practical overthrow of the National Judiciary proposed.[215]
Nor was this all. A State had been haled before a National Court.[216] The Republicans saw in this the monster "consolidation." The Virginia Legislature passed a resolution instructing her Senators and Representatives to "unite their utmost and earliest exertions" to secure a constitutional amendment preventing a State from being sued "in any court of the United States."[217] The hostility to the National Bank took the form of a resolution against a director or stockholder of the Bank of the United States being a Senator or Representative in Congress.[218] But apparently this trod upon the toes of too many ambitious Virginians, for the word "stockholders" was stricken out.[219]
The slander that the Treasury Department had misused the public funds had been thoroughly answered;[220] but the Legislature of Virginia by a majority of 111 out of a total vote of 124, applauded her Senators and Representatives who had urged the inquiry.[221] Such was the developing temper of Republicanism as revealed by the emotionless pages of the public records; but these furnish scarcely a hint of the violence of public opinion.
Jefferson was now becoming tigerish in his assaults on the measures of the Administration. Many members of Congress had been holders of certificates which Assumption and Funding had made valuable. Most but not all of them had voted for every feature of Hamilton's financial plan.[222] Three or four were directors of the Bank, but no dishonesty existed.[223] Heavy speculation went on in Philadelphia.[224] This, said Republicans, was the fruit which Hamilton's Nationalist financial scheme gathered from the people's industry to feed to "monocrats."
"Here [Philadelphia]," wrote Jefferson, "the unmonied farmer ... his cattle & corps [sic] are no more thought of than if they did not feed us. Script & stock are food & raiment here.... The credit & fate of the nation seem to hang on the desperate throws & plunges of gambling scoundrels."[225] But Jefferson comforted himself with the prophecy that "this nefarious business" would finally "tumble its authors headlong from their heights."[226]
The National law taxing whiskey particularly aroused the wrath of the multitude. Here it was at last!—a direct tax laid upon the universal drink of the people, as the razor-edged Pennsylvania resolutions declared.[227] Here it was, just as the patriotic foes of the abominable National Constitution had predicted when fighting the ratification of that "oppressive" instrument. Here was the exciseman at every man's door, just as Henry and Mason and Grayson had foretold—and few were the doors in the back counties of the States behind which the owner's private still was not simmering.[228] And why was this tribute exacted? To provide funds required by the corrupt Assumption and Funding laws, asserted the agitators.
Again it was the National Government that was to blame; in laying the whiskey tax it had invaded the rights of the States, hotly declared the Republicans. "All that powerful party," Marshall bears witness, "which attached itself to the local [State] rather than to the general [National] government ... considered ... a tax by Congress on any domestic manufacture as the intrusion of a foreign power into their particular concerns which excited serious apprehensions for state importance and for liberty."[229] The tariff did not affect most people, especially those in the back country, because they used few or no imported articles; but the whiskey tax did reach them, directly and personally.[230]
Should such a despotic law be obeyed? Never! It was oppressive! It was wicked! Above all, it was "unconstitutional"! But what to do! The agencies of the detested and detestable National Government were at work! To arms, then! That was the only thing left to outraged freemen about to be ravaged of their liberty![231] Thus came the physical defiance of the law in Pennsylvania; Washington's third proclamation[232] demanding obedience to the National statutes after his earnest pleas[233] to the disaffected to observe the laws; the march of the troops accompanied by Hamilton[234] against the insurgents; the forcible suppression of this first armed assault on the laws of the United States in which men had been killed, houses burned, mails pillaged—all in the name of the Constitution,[235] which the Republicans now claimed as their peculiar property.[236]
Foremost in the fight for the whiskey insurgents were the democratic societies, which, as has been seen, were the offspring of the French Jacobin Clubs. Washington finally became certain that these organizations had inspired this uprising against National law and authority. While the Whiskey Rebellion was economic in its origin, yet it was sustained by the spirit which the French Revolution had kindled in the popular heart. Indeed, when the troops sent to put down the insurrection reached Harrisburg, they found the French flag flying over the courthouse.[237]
Marshall's old comrade in the Revolution, close personal friend, and business partner,[238] Henry Lee, was now Governor of Virginia. He stood militantly with Washington and it was due to Lee's efforts that the Virginia militia responded to help suppress the Whiskey Rebellion. He was made Commander-in-Chief of all the forces that actually took the field.[239] To Lee, therefore, Washington wrote with unrestrained pen.
"I consider," said the President, "this insurrection as the first formidable fruit of the Democratic Societies ... instituted by ... artful and designing members [of Congress] ... to sow the seeds of jealousy and distrust among the people of the government.... I see, under a display of popular and fascinating guises, the most diabolical attempts to destroy ... the government."[240] He declared: "That they have been the fomenters of the western disturbances admits of no doubt."[241]
Never was that emphatic man more decided than now; he was sure, he said, that, unless lawlessness were overcome, republican government was at an end, "and nothing but anarchy and confusion is to be expected hereafter."[242] If "the daring and factious spirit" is not crushed, "adieu to all government in this country, except mob and club government."[243]
Such were Washington's positive and settled opinions, and they were adopted and maintained by Marshall, his faithful supporter.
And not only by argument and speech did Marshall uphold the measures of Washington's Administration. In 1793 he had been commissioned as Brigadier-General of Militia, and when the President's requisition came for Virginia troops to enforce the National revenue law against those who were violently resisting the execution of it, he was placed in command of one of the detachments to be raised for that purpose.[244] Although it is not established that his brigade was ordered to Pennsylvania, the probabilities are that it was and that Marshall, in command of it, was on the scene of the first armed opposition to the National Government. And it is certain that Marshall was busy and effective in the work of raising and properly equipping the troops for duty. He suggested practical plans for expediting the muster and for economizing the expenditure of the public money, and his judgment was highly valued.[245]
All the ability, experience, and zeal at the disposal of the State were necessary, for the whiskey tax was only less disliked in Virginia than in Pennsylvania, and a portion of the Commonwealth was inclined to assist rather than to suppress the insurrection.[246] Whether or not he was one of the military force that, on the ground, overawed the whiskey insurgents, it is positively established that Marshall was ready, in person, to help put down with arms all forcible opposition to the National laws and authority.
Jefferson, now the recognized commander-in-chief of the new party, was, however, heartily with the popular outbreak. He had approved Washington's first proclamations against the whiskey producers;[247] but, nevertheless, as the anger of the people grew, it found Jefferson responsive. "The excise law is an infernal one," he cried; the rebellion against it, nothing more than "riotous" at the worst.[248]
And Jefferson wielded his verbal cat-o'-nine-tails on Washington's order to put the rebellion down by armed forces.[249] It was all "for the favorite purpose of strengthening government and increasing public debt."[250] Washington thought the Whiskey Rebellion treasonable; and Jefferson admitted that "there was ... a meeting to consult about a separation" from the Union; but talking was not acting.[251] Thus the very point was raised which Marshall enforced in the Burr trial twelve years later, when Jefferson took exactly opposite grounds. But to take the popular view now made for Republican solidarity and strength. Criticism is ever more profitable politics than building.
All this had different effects on different public men. The Republican Party was ever growing stronger, and under Jefferson's skillful guidance, was fast becoming a seasoned political army. The sentiment of the multitude against the National Government continued to rise. But instead of weakening John Marshall's Nationalist principles, this turbulent opposition strengthened and hardened them. So did other and larger events of that period which tumultuously crowded fast upon one another's heels. As we have seen, the horrors of the Reign of Terror in Paris did not chill the frenzied enthusiasm of the masses of Americans for France. "By a strange kind of reasoning," wrote Oliver Wolcott to his brother, "some suppose the liberties of America depend on the right of cutting throats in France."[252]
In the spring of 1793 France declared war against England. The popular heart in America was hot for France, the popular voice loud against England. The idea that the United States was an independent nation standing aloof from foreign quarrels did not enter the minds of the people. But it was Washington's one great conception. It was not to make the American people the tool of any foreign government that he had drawn his sword for their independence. It was to found a separate nation with dignity and rights equal to those of any other nation; a nation friendly to all, and allied with none[253]—this was the supreme purpose for which he had fought, toiled, and suffered. And Washington believed that only on this broad highway could the American people travel to ultimate happiness and power.[254] He determined upon a policy of absolute impartiality.
On the same day that the Minister of the new French Republic landed on American shores, Washington proclaimed Neutrality.[255] This action, which to-day all admit to have been wise and far-seeing statesmanship, then caused an outburst of popular resentment against Neutrality and the Administration that had dared to take this impartial stand. For the first time Washington was openly abused by Americans.[256]
"A great majority of the American people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy [Great Britain] and republican France," declares Marshall. The people, he writes, thought Great Britain was waging war "with the sole purpose of imposing a monarchical government on the French people. The few who did not embrace these opinions, and they were certainly very few, were held up as objects of public detestation; and were calumniated as the tools of Britain and the satellites of despotism."[257]
The National Government was ungrateful, cried the popular voice; it was aiding the tyrants of Europe against a people struggling for freedom; it was cowardly, infamous, base. "Could any friend of his kind be neutral?" was the question on the popular tongue; of course not! unless, indeed, the miscreant who dared to be exclusively American was a monarchist at heart. "To doubt the holiness of their [the French] cause was the certain road to odium and proscription," testifies an observer.[258] The Republican press, following Paine's theory, attacked "all governments, including that of the United States, as naturally hostile to the liberty of the people," asserts Marshall.[259] Few were the friends of Neutrality outside of the trading and shipping interests.[260]
Jefferson, although still in Washington's Cabinet, spoke of "the pusillanimity of the proclamation"[261] and of "the sneaking neutrality" it set up.[262] "In every effort made by the executive to maintain the neutrality of the United States," writes Marshall, "that great party [Republican] which denominated itself 'The People' could perceive only a settled hostility to France and to liberty."[263]
And, of course, Washington's proclamation of Neutrality was "unconstitutional," shouted the Republican politicians. Hamilton quickly answered. The power to deal with foreign affairs was, he said, lodged somewhere in the National Government. Where, then? Plainly not in the Legislative or Judicial branches, but in the Executive Department, which is "the organ of intercourse between the nation and foreign nations" and "the interpreter of ... treaties in those cases in which the judiciary is not competent—that is between government and government.... The executive power of the United States is completely lodged in the President," with only those exceptions made by the Constitution, as that of declaring war. But if it is the right of Congress to declare war, "it is the duty of the Executive to preserve peace till the declaration is made."[264]
Washington's refusal to take sides in the European war was still more fuel for the Republican furnace. The bill to maintain Neutrality escaped defeat in Congress by a dangerously narrow margin: on amendments and motions in the Senate it was rescued time and again only by the deciding vote of the Vice-President.[265] In the House, resolutions were introduced which, in the perspective of history, were stupid. Public speakers searched for expressions strong enough for the popular taste; the newspapers blazed with denunciation. "The artillery of the press," declares Marshall, "was played with unceasing fury on" the supporters of Neutrality; "and the democratic societies brought their whole force into operation. Language will scarcely afford terms of greater outrage, than were employed against those who sought to stem the torrent of public opinion and to moderate the rage of the moment."[266]
At the most effective hour, politically, Jefferson resigned[267] from the Cabinet, as he had declared, two years before, he intended to do.[268] He had prepared well for popular leadership. His stinging criticism of the Nationalist financial measures, his warm championship of France, his bitter hostility to Great Britain, and most of all, his advocacy of the popular view of the Constitution, secured him the favor of the people. Had he remained Secretary of State, he would have found himself in a hazardous political situation. But now, freed from restraint, he could openly lead the Republican forces which so eagerly awaited his formal command.[269]
As in the struggle for the Constitution, so now Neutrality was saved by the combined efforts of the mercantile and financial interests who dreaded the effect of the war on business and credit;[270] and by the disinterested support of those who wished the United States to become a nation, distinct from, unconnected with, and unsubservient to any other government.
Among these latter was John Marshall, although he also held the view of the commercial classes from which most of his best clients came; and his personal loyalty to Washington strengthened his opinions. Hot as Virginia was against the Administration, Marshall was equally hot in its favor. Although he was the most prudent of men, and in Virginia silence was the part of discretion for those who approved Washington's course, Marshall would not be still. He made speeches in support of Washington's stand, wrote pamphlets, and appealed in every possible way to the solid reason and genuine Americanism of his neighbors. He had, of course, read Hamilton's great defense of Neutrality; and he asserted that sound National policy required Neutrality and that it was the duty of the President to proclaim and enforce it. Over and over again, by tongue and pen, he demonstrated the constitutional right of the Executive to institute and maintain the Nation's attitude of aloofness from foreign belligerents.[271]
Marshall rallied the friends of the Administration, not only in Richmond, but elsewhere in Virginia. "The [Administration] party in Richmond was soon set in motion," Monroe reported to Jefferson; "from what I have understood here [I] have reason to believe they mean to produce the most extensive effect they are capable of. Mr Marshall has written G. Jones[272] on the subject and the first appearances threatened the most furious attack on the French Minister [Genêt]."[273]
At last Marshall's personal popularity could no longer save him from open and public attack. The enraged Republicans assailed him in pamphlets; he was criticized in the newspapers; his character was impugned.[274] He was branded with what, in Virginia, was at that time the ultimate reproach: Marshall, said the Republicans, was the friend and follower of Alexander Hamilton, the monarchist, the financial manipulator, the father of Assumption, the inventor of the rotten Funding system, the designer of the stock-jobbing Bank of the United States, and, worst of all, the champion of a powerful Nationalism and the implacable foe of the sovereignty of the States.
Spiritedly Marshall made reply. He was, indeed, a disciple of Washington's great Secretary of the Treasury, he said, and proud of it; and he gloried in his fealty to Washington, for which also he had been blamed. In short, Marshall was aggressively for the Administration and all its measures. These were right, he said, and wise and necessary. Above all, since that was the chief ground of attack, all of them, from Assumption to Neutrality, were plainly constitutional. At a public meeting at Richmond, Marshall offered resolutions which he had drawn up in support of the Administration's foreign policy, spoke in their favor, and carried the meeting for them by a heavy majority.[275]
Marshall's bold course cost him the proffer of an honor. Our strained relations with the Spaniards required an alert, able, and cool-headed representative to go to New Orleans. Jefferson[276] confided to Madison the task of finding such a man in Virginia. "My imagination has hunted thro' this whole state," Madison advised the Secretary of State in reply, "without being able to find a single character fitted for the mission to N. O. Young Marshall seems to possess some of the qualifications, but there would be objections of several sorts to him."[277] Three months later Madison revealed one of these "several objections" to Marshall; but the principal one was his sturdy, fighting Nationalism. This "objection" was so intense that anybody who was even a close friend of Marshall was suspected and proscribed by the Republicans. The Jacobin Clubs of Paris were scarcely more intolerant than their disciples in America.
So irritated, indeed, were the Republican leaders by Marshall's political efforts in support of Neutrality and other policies of the Administration, that they began to hint at improper motives. With his brother, brother-in-law, and General Henry Lee (then Governor of Virginia) Marshall had purchased the Fairfax estate.[278] This was evidence, said the Republicans, that he was the tool of the wicked financial interests. Madison hastened to inform Jefferson.
"The circumstances which derogate from full confidence in W[ilson] N[icholas]," cautioned Madison, "are ... his connection & intimacy with Marshall, of whose disinterestedness as well as understanding he has the highest opinion. It is said that Marshall, who is at the head of the great purchase from Fairfax, has lately obtained pecuniary aids from the bank [of the United States] or people connected with it. I think it certain that he must have felt, in the moment of purchase, an absolute confidence in the monied interests which will explain him to everyone that reflects in the active character he is assuming."[279]
In such fashion do the exigencies of politics generate suspicion and false witness. Marshall received no money from the Bank for the Fairfax purchase and it tied him to "the monied interests" in no way except through business sympathy. He relied for help on his brother's father-in-law, Robert Morris, who expected to raise the funds for the Fairfax purchase from loans negotiated in Europe on the security of Morris's immense real-estate holdings in America.[280] But even the once poised, charitable, and unsuspicious Madison had now acquired that state of mind which beholds in any business transaction, no matter how innocent, something furtive and sinister. His letter proves, however, that the fearless Richmond lawyer was making himself effectively felt as a practical power for Washington's Administration, to the serious discomfort of the Republican chieftains.
While Marshall was beloved by most of those who knew him and was astonishingly popular with the masses, jealousy of his ability and success had made remorseless enemies for him. It appears, indeed, that a peculiarly malicious envy had pursued him almost from the time he had gone to William and Mary College. His sister-in-law, with hot resentment, emphasizes this feature of Marshall's career. "Notwithstanding his amiable and correct conduct," writes Mrs. Carrington, "there were those who would catch at the most trifling circumstance to throw a shade over his fair fame." He had little education, said his detractors; "his talents were greatly overrated"; his habits were bad. "Tho' no man living ever had more ardent friends, yet there does not exist one who had at one time more slanderous enemies."[281]
These now assailed Marshall with all their pent-up hatred. They stopped at no charge, hesitated at no insinuation. For instance, his conviviality was magnified into reports of excesses and the tale was carried to the President. "It was cruelly insinuated to G[eorge] W[ashington]," writes Marshall's sister-in-law, "by an after great S[olo?]n that to Mr. M[arsha]lls fondness for play was added an increasing fondness for liquor." Mrs. Carrington loyally defends Marshall, testifying, from her personal knowledge, that "this S——n knew better than most others how Mr. M——ll always played for amusement and never, never for gain, and that he was, of all men, the most temperate."[282]
Considering the custom of the time[283] and the habits of the foremost men of that period,[284] Marshall's sister-in-law is entirely accurate. Certainly this political slander did not impress Washington, for his confidence in Marshall grew steadily; and, as we shall presently see, he continued to tender Marshall high honors and confide to him political tasks requiring delicate judgment.
Such petty falsehoods did not disturb Marshall's composure. But he warmly resented the assault made upon him because of his friendship for Hamilton; and his anger was hot against what he felt was the sheer dishonesty of the attacks on the measures of the National Government. "I wish very much to see you," writes Marshall to Archibald Stuart at this time: "I want to observe [illegible] how much honest men you and I are [illegible] half our acquaintance. Seriously there appears to me every day to be more folly, envy, malice, and damn rascality in the world than there was the day before and I do verily begin to think that plain downright honesty and unintriguing integrity will be kicked out of doors."[285]
A picturesque incident gave to the Virginia opponents of Washington's Administration more substantial cause to hate Marshall than his pamphlets, speeches, and resolutions had afforded. At Smithfield, not far from Norfolk, the ship Unicorn was fitting out as a French privateer. The people of Isle of Wight County were almost unanimous in their sympathy with the project, and only seven or eight men could be procured to assist the United States Marshal in seizing and holding the vessel.[286] Twenty-five soldiers and three officers were sent from Norfolk in a revenue cutter;[287] but the Governor, considering this force insufficient to outface resistance and take the ship, dispatched Marshall, with a considerable body of militia, to Smithfield.
Evidently the affair was believed to be serious; "the Particular Orders ... to Brigadier General Marshall" placed under his command forces of cavalry, infantry, and artillery from Richmond and another body of troops from Petersburg. The Governor assures Marshall that "the executive know that in your hands the dignity and rights of the Commonwealth will ever be safe and they are also sure that prudence, affection to our deluded fellow citizens, and marked obedience to law in the means you will be compelled to adopt, will equally characterize every step of your procedure." He is directed to "collect every information respecting this daring violation of order," and particularly "the conduct of the Lieutenant Colonel Commandant of Isle of Wight," who had disregarded his instructions.[288]
Clad in the uniform of a brigadier-general of the Virginia Militia,[289] Marshall set out for Smithfield riding at the head of the cavalry, the light infantry and artillery following by boat.[290] He found all thought of resistance abandoned upon his arrival. A "peaceable search" of Captain Sinclair's house revealed thirteen cannon with ball, grape-shot, and powder. Three more pieces of ordnance were stationed on the shore. Before General Marshall and his cavalry arrived, the United States Marshal had been insulted, and threatened with violence. Men had been heard loading muskets in Sinclair's house, and fifteen of these weapons, fully charged, were discovered. The house so "completely commanded the Deck of the" Unicorn "that ... one hundred men placed in the vessel could not have protected her ten minutes from fifteen placed in the house."[291]
The State and Federal officers had previously been able to get little aid of any kind, but "since the arrival of distant militia," reports Marshall, "those of the County are as prompt as could be wished in rendering any service required of them," and he suggests that the commandant of the county, rather than the men, was responsible for the failure to act earlier. He at once sent messengers to the infantry and artillery detachment which had not yet arrived, with orders that they return to Richmond and Petersburg.[292]
Marshall "had ... frequent conversations with individuals of the Isle of Wight" and found them much distressed at the necessity for calling distant militia "to protect from violence the laws of our common country.... The commanding officers [of the county] ... seem not to have become sufficiently impressed with the importance of maintaining the Sovereignty of the law" says Marshall, but with unwarranted optimism he believes "that a more proper mode of thinking is beginning to prevail."[293]
Thus was the Smithfield defiance of Neutrality and the National laws quelled by strong measures, taken before it had gathered dangerous headway. "I am very much indebted to Brig.-Gen'l Marshall and Major Taylor[294] for their exertions in the execution of my orders," writes Governor Lee to the Secretary of War.[295]
But the efforts of the National Government and the action of Governor Lee in Virginia to enforce obedience to National laws and observance of Neutrality, while they succeeded locally in their immediate purpose, did not modify the public temper toward the Administration. Neutrality, in particular, grew in disfavor among the people. When the congressional elections of 1794 came on, all complaints against the National Government were vivified by that burning question. As if, said the Republicans, there could be such a status as neutrality between "right and wrong," between "liberty" and "tyranny."[296]
Thus, in the campaign, the Republicans made the French cause their own. Everything that Washington's Administration had accomplished was wrong, said the Republicans, but Neutrality was the work of the Evil One. The same National power which had dared to issue this "edict" against American support of French "liberty" had foisted on the people Assumption, National Courts, and taxes on whiskey. This identical Nationalist crew had, said the Republicans, by Funding and National Banks, fostered, nay, created, stock-jobbing and speculation by which the few "monocrats" were made rich, while the many remained poor. Thus every Republican candidate for Congress became a knight of the flaming sword, warring upon all evil, but especially and for the moment against the dragon of Neutrality that the National Government had uncaged to help the monarchs of Europe destroy free government in France.[297] Chiefly on that question the Republicans won the National House of Representatives.
But if Neutrality lit the flames of public wrath, Washington's next act in foreign affairs was powder and oil cast upon fires already fiercely burning. Great Britain, by her war measures against France, did not spare America. She seized hundreds of American vessels trading with her enemy and even with neutrals; in order to starve France[298] she lifted cargoes from American bottoms; to man her warships she forcibly took sailors from American ships, "often leaving scarcely hands enough to navigate the vessel into port";[299] she conducted herself as if she were not only mistress of the seas, but their sole proprietor. And the British depredations were committed in a manner harsh, brutal, and insulting.
Even Marshall was aroused and wrote to his friend Stuart: "We fear, not without reason, a war. The man does not live who wishes for peace more than I do; but the outrages committed upon us are beyond human bearing. Farewell—pray Heaven we may weather the storm."[300] If the self-contained and cautious Marshall felt a just resentment of British outrage, we may, by that measure, accurately judge of the inflamed and dangerous condition of the general sentiment.
Thus it came about that the deeply rooted hatred of the people for their former master[301] was heated to the point of reckless defiance. This was the same Monarchy, they truly said, that still kept the military and trading posts on American soil which, more than a decade before, it had, by the Treaty of Peace, solemnly promised to surrender.[302] The Government that was committing these savage outrages was the same faithless Power, declared the general voice, that had pledged compensation for the slaves its armies had carried away, but not one shilling of which had been paid.
If ever a country had good cause for war, Great Britain then furnished it to America; and, had we been prepared, it is impossible to believe that we should not have taken up arms to defend our ravaged interests and vindicate our insulted honor. In Congress various methods of justifiable retaliation were urged with intense earnestness, marred by loud and extravagant declamation.[303] "The noise of debate was more deafening than a mill.... We sleep upon our arms," wrote a member of the National House.[304] But these bellicose measures were rejected because any one of them would have meant immediate hostilities.
For we were not prepared. War was the one thing America could not then afford. Our Government was still tottering on the unstable legs of infancy. Orderly society was only beginning and the spirit of unrest and upheaval was strong and active. In case of war, wrote Ames, expressing the conservative fears, "I dread anarchy more than great guns."[305] Our resources had been bled white by the Revolution and the desolating years that followed. We had no real army, no adequate arsenals,[306] no efficient ships of war; and the French Republic, surrounded by hostile bayonets and guns and battling for very existence, could not send us armies, fleets, munitions, and money as the French Monarchy had done.
Spain was on our south eager for more territory on the Mississippi, the mouth of which she controlled; and ready to attack us in case we came to blows with Great Britain. The latter Power was on our north, the expelled Loyalists in Canada burning with that natural resentment[307] which has never cooled; British soldiers held strategic posts within our territory; hordes of Indians, controlled and their leaders paid by Great Britain,[308] and hostile to the United States, were upon our borders anxious to avenge themselves for the defeats we had inflicted on them and their kinsmen in the savage wars incited by their British employers.[309] Worst of all, British warships covered the oceans and patrolled every mile of our shores just beyond American waters. Our coast defenses, few, poor, and feeble in their best estate, had been utterly neglected for more than ten years and every American port was at the mercy of British guns.[310]
Evidence was not wanting that Great Britain courted war.[311] She had been cold and unresponsive to every approach for a better understanding with us. She had not even sent a Minister to our Government until eight years after the Treaty of Peace had been signed.[312] She not only held our posts, but established a new one fifty miles south of Detroit; and her entire conduct indicated, and Washington believed, that she meant to draw a new boundary line which would give her exclusive possession of the Great Lakes.[313] She had the monopoly of the fur trade[314] and plainly meant to keep it.
Lord Dorchester, supreme representative of the British Crown in Canada, had made an ominous speech to the Indians predicting hostilities against the United States within a year and declaring that a new boundary line would then be drawn "by the warriors."[315] Rumors flew and gained volume and color in their flight. Even the poised and steady Marshall was disturbed.
"We have some letters from Philadelphia that wear a very ugly aspect," he writes Archibald Stuart. "It is said that Simcoe, the Governor of Upper Canada, has entered the territory of the United States at the head of about 500 men and has possessed himself of Presque Isle." But Marshall cannot restrain his humor, notwithstanding the gravity of the report: "As this is in Pennsylvania," he observes, "I hope the democratic society of Philadelphia will at once demolish him and if they should fail I still trust that some of our upper brothers [Virginia Republicans] will at one stride place themselves by him and prostrate his post. But seriously," continues Marshall, "if this be true we must bid adieu to all hope of peace and prepare for serious war. My only hope is that it is a mere speculating story."[316]
Powerless to obtain our rights by force or to prevent their violation by being prepared to assert them with arms, Washington had no recourse but to diplomacy. At all hazards and at any cost, war must be avoided for the time being. It was one of Great Britain's critical mistakes that she consented to treat instead of forcing a conflict with us; for had she taken the latter course it is not improbable that, at the end of the war, the southern boundary of British dominion in America would have been the Ohio River, and it is not impossible that New York and New England would have fallen into her hands. At the very least, there can be little doubt that the Great Lakes and the St. Lawrence would have become exclusively British waters.[317]
Amid a confusion of counsels, Washington determined to try for a treaty of amity, commerce, and navigation with Great Britain, a decision, the outcome of which was to bring Marshall even more conspicuously into politics than he ever had been before. Indeed, the result of the President's policy, and Marshall's activity in support of it, was to become one of the important stepping-stones in the latter's career.
Chief Justice Jay was selected for the infinitely delicate task of negotiation. Even the news of such a plan was received with stinging criticism. What! Kiss the hand that smote us! It was "a degrading insult to the American people; a pusillanimous surrender of their honor; and an insidious injury to France."[318] And our envoy to carry out this shameful programme!—was it not that same Jay who once tried to barter away the Mississippi?[319]
It was bad enough to turn our backs on France; but to treat with the British Government was infamous. So spoke the voice of the people. The democratic societies were especially virulent; "Let us unite with France and stand or fall together"[320] was their heroic sentiment. But abhorrence of the mission did not blind the Republicans to the advantages of political craft. While the negotiations were in progress they said that, after all, everything would be gained that America desired, knowing that they could say afterward, as they did and with just cause, that everything had been lost.[321]
At last Jay secured from Great Britain the famous treaty that bears his name. It is perhaps the most humiliating compact into which America ever entered. He was expected to secure the restriction of contraband—it was enlarged; payment for the slaves—it was refused; recognition of the principle that "free ships make free goods"—it was denied; equality with France as to belligerent rights—it was not granted; opening of the West Indian trade—it was conceded upon hard and unjust conditions; payment for British spoliation of American commerce—it was promised at some future time, but even then only on the award of a commission; immediate surrender of the posts—their evacuation was agreed to, but not until a year and a half after the treaty was signed.
On the other hand, the British secured from us free navigation and trading rights on the Mississippi—never contemplated; agreement that the United States would pay all debts due from American citizens to British creditors—a claim never admitted hitherto; prohibition of any future sequestration of British debts; freedom of all American ports to British vessels, with a pledge to lay no further restrictions on British commerce—never before proposed; liberty of Indians and British subjects to pass our frontiers, trade on our soil, retain lands occupied without becoming American citizens, but privileged to become such at pleasure—an odious provision, which, formerly, had never occurred to anybody.
Thus, by the Treaty of 1794, we yielded everything and gained little not already ours. But we secured peace; we were saved from war. That supreme end was worth the sacrifice and that, alone, justified it. It more than demonstrated the wisdom of the Jay Treaty.
While the Senate was considering the bitter terms which Great Britain, with unsheathed sword, had forced upon us, Senator Stephen T. Mason of Virginia, in violation of the Senate rules, gave a copy of the treaty to the press.[322] Instantly the whole land shook with a tornado of passionate protest.[323] From one end of the country to the other, public meetings were held. Boston led off.[324] Washington was smothered with violent petitions that poured in upon him from every quarter praying, demanding, that he withhold his assent.[325] As in the struggle for the Constitution and in the violent attacks on Neutrality, so now the strongest advocates of the Jay Treaty were the commercial interests. "The common opinion among men of business of all descriptions is," declares Hamilton, "that a disagreement would greatly shock and stagnate pecuniary plans and operations in general."[326]
The printing presses belched pamphlets and lampoons, scurrilous, inflammatory, even indecent. An example of these was a Boston screed. This classic of vituperation, connecting the treaty with the financial measures of Washington's Administration, represented the Federalist leaders as servants of the Devil; Independence, after the death of his first wife, Virtue, married a foul creature, Vice, and finally himself expired in convulsions, leaving Speculation, Bribery, and Corruption as the base offspring of his second marriage.[327]
Everywhere Jay was burned in effigy. Hamilton was stoned in New York when he tried to speak to the mob; and with the blood pouring down his face went, with the few who were willing to listen to him, to the safety of a hall.[328] Even Washington's granite resolution was shaken. Only once in our history have the American people so scourged a great public servant.[329] He was no statesman, raged the Republicans; everybody knew that he had been a failure as a soldier, they said; and now, having trampled on the Constitution and betrayed America, let him be impeached, screamed the infuriated opposition.[330] Seldom has any measure of our Government awakened such convulsions of popular feeling as did the Jay Treaty, which, surrendering our righteous and immediate demands, yet saved our future. Marshall, watching it all, prepared to defend the popularly abhorred compact; and thus he was to become its leading defender in the South.
When, finally, Washington reluctantly approved its ratification by the Senate,[331] many of his friends deserted him.[332] "The trouble and perplexities ... have worn away my mind," wrote the abused and distracted President.[333] Mercer County, Kentucky, denounced Senator Humphrey Marshall for voting for ratification and demanded a constitutional amendment empowering State Legislatures to recall Senators at will.[334] The Legislature of Virginia actually passed a resolution for an amendment of the National Constitution to make the House of Representatives a part of the treaty-making power.[335] The Lexington, Kentucky, resolutions branded the treaty as "shameful to the American name."[336] It was reported that at a dinner in Virginia this toast was drunk: "A speedy death to General Washington."[337] Orators exhausted invective; poets wrote in the ink of gall.[338]
Jefferson, in harmony, of course, with the public temper, was against the treaty. "So general a burst of dissatisfaction," he declared, "never before appeared against any transaction.... The whole body of the people ... have taken a greater interest in this transaction than they were ever known to do in any other."[339] The Republican chieftain carefully observed the effect of the popular commotion on his own and the opposite party. "It has in my opinion completely demolished the monarchical party here[340] [Virginia]." Jefferson thought the treaty itself so bad that it nearly turned him against all treaties. "I am not satisfied," said he, "we should not be better without treaties with any nation. But I am satisfied we should be better without such as this."[341]
The deadliest charge against the treaty was the now familiar one of "unconstitutionality." Many urged that the President had no power to begin negotiations without the assent of the Senate;[342] and all opponents agreed that it flagrantly violated the Constitution in several respects, especially in regulating trade, to do which was the exclusive province of Congress.[343] Once more, avowed the Jeffersonians, it was the National Government which had brought upon America this disgrace. "Not one in a thousand would have resisted Great Britain ... in the beginning of the Revolution" if the vile conduct of Washington had been foreseen; and it was plain, at this late day, that "either the Federal or State governments must fall"—so wrote Republican pamphleteers, so spoke Republican orators.[344]
Again Hamilton brought into action the artillery of his astounding intellect. In a series of public letters under the signature of "Camillus," he vindicated every feature of the treaty, evading nothing, conceding nothing. These papers were his last great constructive work. In numbers three, six, thirty-seven, and thirty-eight of "Camillus," he expounded the Constitution on the treaty-making power; demonstrated the exclusive right of the President to negotiate, and, with the Senate, to conclude, treaties; and proved, not only that the House should not be consulted, but that it is bound by the Constitution itself to pass all laws necessary to carry treaties into effect.[345]
Fearless, indeed, and void of political ambition were those who dared to face the tempest. "The cry against the Treaty is like that against a mad-dog," wrote Washington from Mount Vernon.[346] Particularly was this true of Virginia, where it raged ungovernably.[347] A meeting of Richmond citizens "have outdone all that has gone before them" in the resolutions passed,[348] bitterly complained Washington. Virginians, testified Jefferson, "were never more unanimous. 4. or 5. individuals of Richmond, distinguished however, by their talents as by their devotion to all the sacred acts of the government, & the town of Alexandria constitute the whole support of that instrument [Jay Treaty] here."[349] These four or five devoted ones, said Jefferson, were "Marshall, Carrington, Harvey, Bushrod Washington, Doctor Stewart."[350] But, as we are now to see, Marshall made up in boldness and ability what the Virginia friends of the Administration lacked in numbers.