The Constitution being adopted, Mr. Marshall was prevailed on by his countrymen, to serve again in the Legislature till 1792; although the claims of a growing family and a slender fortune had made him wish, and resolve, to quit public life, and devote himself exclusively to his profession. He was wanted there by the friends of the new system, to defend its administration against the incessant attacks made upon it by a powerful and hostile party. This party consisted of those who had resisted the change, because they thought the proposed government too strong. Now that it was adopted, they naturally sought, by construing the grants of power to it with literal strictness, to prevent, as far possible, the dangers to Liberty with which they deemed it pregnant. Their opponents, on the other hand, having long regarded weakness in the centre as the great subject of just apprehension, constantly aimed, by an enlarged and liberal (or, as it has since been called a latitudinous) interpretation of those grants of power, to render them in the highest degree counteractive of the centrifugal tendency, which they so much dreaded. This controversy probably raged most hotly in Virginia. It is hard to forbear a smile at the characteristic fact, that "almost every important measure of President Washington's administration was discussed in her Legislature with great freedom, and no small degree of warmth and acrimony."10 We applaud and honor the stand which Virginia has always taken, as a centinel on the watch-tower of popular liberty and state-sovereignty, to guard against federal usurpation. It is a duty, allotted to the State Legislatures by the enlightened advocates of the Constitution who wrote "The Federalist:" a duty which it were well if her sister states had performed with something like Virginia's fidelity and zeal. But she has indiscreetly suffered this one subject too much to monopolize her attention: and we are amongst those who think this a main reason, why, with a surface and resources the most propitious of all the states to internal improvement, she lags so far behind the rest in works of that kind; and why, with a people pre-eminently instinct with the spirit of liberty, and enjoying unwonted leisure for acquiring knowledge, she has five times as many ignorant sons and daughters, as New York or Massachusetts. She ought to have looked well to her foreign relations, without losing sight of her domestic interests. We hail, with joy, the change which is now taking place in this respect. We trust that she and her statesmen, hereafter, when all attention is claimed for any one point in the vast field of their duties, will adopt the spirit of the reply which Mr. Pope (not Homer) puts into Hector's mouth, when he was advised to fix himself as a guard at one particular gate of Troy:
| ———"That post shall be my care; Nor that alone, but all the works of war." |
10 Judge Story.
From 1792 to 1795, Mr. Marshall devoted himself exclusively and successfully to his profession. Washington's Reports, shew him to have enjoyed an extensive practice in the Court of Appeals of Virginia. During this time, also, he did not withdraw himself from politics so entirely, but that he took a prominent part at public meetings, in support of Gen. Washington's Proclamation of Neutrality. He advocated this measure, orally and in writing: and Resolutions approving it, drawn up by him, were adopted by a meeting of the people of Richmond. In 1795, when Jay's Treaty was the absorbing theme of bitter controversy, Mr. Marshall was again elected to the House of Delegates, "not only without his approbation, but against his known wishes." Virginia, as usual, was the Flanders of the war. Her popular meetings, and her Legislature, rung with angry discussions. Even the name of Washington could not screen the treaty from reprobation. It was denounced at a meeting in Richmond, at which Chancellor Wythe presided, as insulting, injurious, dangerous, and unconstitutional: but the same citizens, at a subsequent meeting, were prevailed upon by a masterly speech of Mr. Marshall, to adopt resolutions of a contrary tenor, "by a handsome majority."11 Lest his popularity might suffer, he was urged by his friends not to engage in any Legislative debates upon the obnoxious Treaty. He answered, that he would make no movement to excite such a debate; but if others did so, he would assert his opinions at every hazard. The opposition party soon introduced condemnatory resolutions. Among other arguments against the treaty, it was alleged, that the executive could not, constitutionally, make a commercial treaty; since it would infringe the power given to Congress, to regulate commerce: and this was relied upon as a favorite and an unanswerable position. "The speech of Mr. Marshall on this occasion," says Judge Story, "has always been represented as one of the noblest efforts of his genius. His vast powers of reasoning were displayed with the most gratifying success. He demonstrated, not only from the words of the Constitution and the universal practice of nations,12 that a commercial treaty was within the scope of the constitutional powers of the executive; but that this opinion had been maintained and sanctioned by Mr. Jefferson, by the Virginia delegation in Congress, and by the leading members of the Convention on both sides. The argument was decisive. The constitutional ground was abandoned; and the resolutions of the assembly were confined to a simple disapprobation of the treaty in point of expediency.... The fame of this admirable argument spread through the union. Even with his political enemies, it enhanced the estimate of his character; and it brought him at once to the notice of some of the most eminent statesmen, who then graced the councils of the nation."
11 Judge Story.
12 We confess a little surprise, at seeing, here, any deduction of authority to the American Executive "from the practice of other nations." If we mistake not, a certain famous Protest of a certain President, was censured mainly for deducing power to its author from that source.—Reviewer.
Being called to Philadelphia in 1796, as counsel in an important case before the Supreme Court of the United States, he became personally acquainted with many distinguished members of Congress. He expressed himself delighted with Messrs. Cabot, Ames, Sedgwick, and Dexter of Massachusetts, Wadsworth of Connecticut, and King of New York. To these, his great speech on the treaty could not fail to recommend him: and (as he says in a letter) "a Virginian, who supported, with any sort of reputation, the measures of the government, was such a rara avis, that I was received by them all with a degree of kindness, which I had not anticipated. I was particularly intimate with Mr. Ames; and could scarcely gain credit with him, when I assured him, that the appropriations [for the treaty] would be seriously opposed in Congress." They were opposed; and passed only after a stormy debate of several weeks: and passed even then, with a declaration of a right, in Congress, to withhold them if it pleased. President Washington about this time offered him the post of Attorney General of the United States; which he declined, as interfering with his lucrative practice. But he continued in the Virginia Legislature. There, federal politics occupied the usual share of attention. A resolution being moved, expressing confidence in the virtue, patriotism, and wisdom of Washington, a member proposed to strike out the word wisdom. "In the debate," says the Chief Justice himself, "the whole course of the Administration was reviewed, and the whole talent of each party brought into action. Will it be believed, that the word was retained by a very small majority? A very small majority of the Virginia Legislature, acknowledged the wisdom of General Washington!"
The appointment of Minister to France, as successor to Mr. Monroe, was offered him by the President, and declined. The French Government, however, refusing to receive General Pinckney, who was appointed in his stead, Messrs. Marshall, Pinckney, and Gerry, were sent by President Adams as envoys extraordinary to that country. The Directory refused to negotiate. But though the direct object of the embassy was thus foiled, much was effected in showing France to be in the wrong, by the official papers which the envoys addressed to her minister of foreign relations—the since famous Talleyrand: "Models of skilful reasoning, clear illustration, accurate detail, and urbane and dignified moderation."13 "They have always been attributed to Mr. Marshall. They bear internal marks of it. We have since become familiar with his simple and masculine style,—his direct, connected, and demonstrative reasoning—the infrequency of his resort to illustrations, and the pertinency and truth of the few which he uses—the absence of all violent assertion—the impersonal form of his positions, and especially with the candor, as much the character of the man as of his writings, with which he allows to the opposing argument its fair strength, without attempting to elude it, or escape from it, by a subtlety. Every line that he has written, bears the stamp of sincerity; and if his arguments fail to produce conviction, they never raise a doubt, nor the shadow of a doubt, that they proceed from it.
13 Judge Story.
"The impression made, by the despatches of the American ministers was immediate and extensive. Mr. Marshall arrived in New York on the 17th of June, 1798. His entrance into this city on the 19th, had the eclat of a triumph. The military corps escorted him from Frankford to the city, where the citizens crowded his lodgings to testify their veneration and gratitude. Public addresses were made to him, breathing sentiments of the liveliest affection and respect. A public dinner was given to him by members of both houses of Congress 'as an evidence of affection for his person, and of their grateful approbation of the patriotic firmness with which he sustained the dignity of his country during his important mission;' and the country at large responded with one voice to the sentiment pronounced at this celebration, 'Millions for defence, but not a cent for tribute.'"14