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This is not to be wondered at, for Marshall had convinced even Gallatin himself. This gifted native of Switzerland was the Republican leader of the House. Unusually well-educated, perfectly upright, thorough in his industry, and careful in his thinking, Gallatin is the most admirable of all the characters attracted to the Republican ranks. He had made the most effective argument on the anti-Administration side in the debate over the Livingston resolutions, and had been chosen to answer Marshall's speech. He took a place near Marshall and began making notes for his reply; but soon he put his pencil and paper aside and became absorbed in Marshall's reasoning. After a while he arose, went to the space back of the seats, and paced up and down while Marshall proceeded.
When the Virginian closed, Gallatin did not come forward to answer him as his fellow partisans had expected. His Republican colleagues crowded around the brilliant little Pennsylvania Swiss and pleaded with him to answer Marshall's speech without delay. But Gallatin would not do it. "Answer it yourself," exclaimed the Republican leader in his quaint foreign accent; "for my part, I think it unanswerable," laying the accent on the swer.1075
Nicholas of Virginia then tried to reply, but made no impression; Dana spoke to no better purpose, and the House ended the discussion by a vote which was admitted to be a distinctively personal triumph for Marshall. The Republican resolutions were defeated by 61 to 35, in a House where the parties were nearly equal in numbers.1076
For once even Jefferson could not withhold his applause for Marshall's ability. "Livingston, Nicholas & Gallatin distinguished themselves on one side & J. Marshall greatly on the other," he writes in his curt account of the debate and its result.1077 And this grudging tribute of the Republican chieftain is higher praise of Marshall's efforts than the flood of eulogy which poured in upon him; Jefferson's virulence toward an enemy, and especially toward Marshall, was such that he could not see, except on rare occasions, and this was one, any merit whatever in an opponent, much less express it.
Marshall's defense of the army law was scarcely less powerful than his speech in the Robins case; and it reveals much more clearly Marshall's distinctively military temper of mind.
Congress had scarcely organized when the question came up of the reduction of the army. On this there was extended debate. Nicholas of Virginia offered a resolution to repeal the act for the provisional army of which Washington had been the Commander-in-Chief. The expense of this military establishment greatly alarmed Nicholas, who presented an array of figures on which his anxieties fed.1078 It was nonsense, he held, to keep this army law on the statute books for its effect on the negotiations with France.
Marshall promptly answered. "If it was true," said he, "that America, commencing her negotiation with her present military force would appear in the armor which she could only wear for a day, the situation of our country was lamentable indeed. If our debility was really such … our situation was truly desperate." There was "no cheaper mode of self-defense"; to abandon it "amounted to a declaration that we were unable to defend ourselves." It was not necessary to repeal the law entirely or to put it, "not modified," in full effect. Marshall suggested a middle ground by which "the law might be modified so as to diminish the estimated expense, without dismissing the troops already in actual service."1079
Answering the favorite argument made by the opponents of the army, that no power can invade America, he asked: "What assurance have gentlemen that invasion is impracticable?" Who knows the real conditions in Europe? – the "effect of the late decisive victories of France?.. It was by no means certain" that these had not resulted in the release of forces which she "may send across the Atlantic."
Why be precipitate? asked Marshall; by the opening of the next campaign in Europe we should have more information. Let us look the situation in the face: "We are, in fact, at war with France, though it is not declared in form"; commerce is suspended; naval battles are being fought; property is "captured and confiscated"; prisoners are taken and incarcerated. America is of "vast importance to France"; indeed, "the monopoly of our commerce in time of peace" is invaluable to both France and England "for the formation of a naval power."
The Republicans, he said, had "urged not only that the army is useless," but that we could not afford the expense of maintaining it. "Suppose this had been the language of '75!" exclaimed Marshall. "Suppose a gentleman had risen on the floor of Congress, to compare our revenues with our expenses – what would have been the result of the calculation?" It would have shown that we could not afford to strike for our independence! Yet we did strike and successfully. "If vast exertions were then made to acquire independence, will not the same exertions be now made to maintain it?"
The question was, "whether self-government and national liberty be worth the money which must be expended to preserve them?"1080 He exposed the sophistry of an expensive economy. It should never be forgotten that true economy did not content itself with inquiring into the mere saving of the present moment; it should take an enlarged view of the subject, and determine, on correct calculations, whether the consequence of a present saving might not be a much more considerable future expenditure.
Marshall admitted that the reduction of the army would certainly diminish the expense of the present year, but contended that the present saving would bear no proportion to the immense waste of blood, as well as treasure, which it might occasion.1081 "And consider," he exclaimed, "the effect the army already had produced on the mind and conduct of France. While America was humbly supplicating for peace, and that her complaints might be heard, France spurned her contemptuously and refused to enter on a discussion of differences, unless that discussion was preceded by a substantial surrender of the essential attributes of independence."
"America was at length goaded into resistance," asserted Marshall, "and resolved on the system of defense, of which the army now sought to be disbanded forms a part." What was the result? "Immediately the tone of France was changed, and she consented to treat us as an independent nation. Her depredations indeed did not cease; she continued still to bring war upon us; but although peace was not granted, the door to peace was opened."
If "a French army should be crossing the Atlantic to invade our territory," would anybody insist on disbanding our army? "Was it wise, then, to do so while such a probability existed?" In a few months we should know; and, if danger should disappear, "the army expires by the law which gave it being." Meantime the expense would be trifling.1082
In a private letter Marshall states, with even more balance, his views of the conflicting questions of the expense involved in, and the necessity for, military equipment. He regrets that a loan is "absolutely unavoidable"; but "attention must be paid to our defenses": —
"The whole world is in arms and no rights are respected but those that [are] maintained by force. In such a state of things we dare not be totally unmindful of ourselves or totally neglectful of that military position to which, in spite of the prudence and pacific disposition of our government, we may be driven for the preservation of our liberty and national independence.
"Altho' we ought never to make a loan if it be avoidable, yet when forc'd to it much real consolation is to be deriv'd from the future resources of America. These resources, if we do not throw them away [by] dissolving the union, are invaluable. It is not to be doubted that in twenty years from this time the United States would be less burthen'd by a revenue of twenty millions than now by a revenue of ten. It is the plain & certain consequence of our increasing population & our increasing wealth…
"The system of defence which has rendered this measure necessary was not [only] essential to our character as an independent nation, but it has actually sav'd more money to the body of the people than has been expended & has very probably prevented either open war or such national degradation as would make us the objects of general contempt and injury.
"A bill to stop recruiting in the twelve additional regiments has been brought in and will pass without opposition. An attempt was made absolutely to disband them, but [it] was negativ'd. It has been so plainly prov'd to us that french aggression has been greatly increased, & that their contemptuous refusal even to treat with us as an independent nation has been entirely occasioned by a belief that we could not resist them; & it is so clear that their present willingness to treat is occasioned by perceiving our determination to defend ourselves, that it was thought unwise to change materially our system at the commencement of negotiation.
"In addition to this it had much weight, that we should know in a few months the facts of our negotiation & should then be able to judge whether the situation & temper of France rendered an invasion pro[bable]. Then would be the time to decide on diminishing [or] augmenting our military forces. A French 64 has it is said arrived in the west indies & three frigates expected."1083
Although the debate dragged on and the army was attacked and defended with brilliant ability, Marshall's argument remained the Gibraltar of the Administration, upon which all the assaults of the Republicans were centered unavailingly. For his army speech was never answered. Only once more during this debate did Marshall rise and then but briefly, to bring his common sense to bear upon the familiar contention that, if the country is in danger, its citizens will rise spontaneously to defend it. He said that it would be absurd to call men to arms, as had been done, and then "dismiss them before the service was performed … merely because their zeal could be depended on" hereafter. He "hoped the national spirit would never yield to that false policy."1084
The fourth important subject in which Marshall was a decisive influence was the National Bankruptcy Law, passed at this session of Congress. He was the second member of the committee that drafted this legislation.1085 For an entire month the committee worked on the bill and reported it on January 6, 1800.1086 After much debate, which is not given in the official reports, the bill passed the House on February 21 and the Senate March 28.1087
While the "Annals" do not show it, we know from the testimony of the Speaker of the House that Marshall was the vital force that shaped this first National Bankruptcy Act. He was insistent that the law should not be too extensive in its provisions for the curing of bankruptcy, and it was he who secured the trial by jury as to the fact of bankruptcy.
"It [the Bankruptcy Law] is far from being such an one as I wished," writes Sedgwick. "The acts in curing bankruptcy are too restricted, and the trial of the question Bankrupt or not, by jury, will be found inconvenient, embarrassing & dilatory. The mischief was occasioned by Virginia Theory. It was the whim of General Marshall; with him a sine qua non of assent to the measure, & without him the bill must have been lost, for it passed the House by my casting vote."
"Besides the bankrupt bill, we have passed [only] one more of great importance," writes the Speaker of the House in a review of the work of the session.1088 Much of the Speaker's summary is devoted to Marshall. Sedgwick was greatly disappointed with the laws passed, with the exception of the Bankruptcy Bill "and one other."1089 "All the rest we have made here are, as to any permanently beneficial effects, hardly worth the parchment on which they are written. The reason of this feebleness is a real feebleness of character in the house." Sedgwick lays most of this at Marshall's door, and in doing so, draws a vivid picture of Marshall the man, as well as of Marshall the legislator: —
"Marshall was looked up to as the man whose great and commanding genius was to enlighten & direct the national councils. This was the general sentiment, while some, and those of no inconsiderable importance, calculating on his foolish declaration, relative to the alien & sedition laws, thought him temporizing while others deemed him feeble.
"None had in my opinion justly appreciated his character. As his character has stamped itself on the measures of the present session, I am desirous of letting you know how I view it.
"He is a man of a very affectionate disposition, of great simplicity of manners and honest & honorable in all his conduct.
"He is attached to pleasures, with convivial habits strongly fixed.
"He is indolent, therefore; and indisposed to take part in the common business of the house.
"He has a strong attachment to popularity but indisposed to sacrifice to it his integrity; hence it is that he is disposed on all popular subjects to feel the public pulse and hence results indecision and an expression of doubt.
"Doubts suggested by him create in more feeble minds those which are irremovable. He is disposed … to express great respect for the sovereign people, and to quote their opinions as an evidence of truth.
"The latter is of all things the most destructive of personal independence & of that weight of character which a great man ought to possess.
"This gentleman, when aroused, has strong reasoning powers; they are almost unequalled. But before they are excited, he has frequently, nearly, destroyed any impression from them."1090
Such was Marshall's work during his six months' service in Congress, the impression he made, and the estimate of him by his party friends. His "convivial habits, strongly fixed," his great good nature, his personal lovableness, were noted by his associates in the National House of Representatives quite as much as they had been observed and commented on by his fellow members in the Virginia Legislature and by his friends and neighbors in Richmond.
The public qualities which his work in Congress again revealed in brilliant light were his extraordinary independence of thought and action, his utter fearlessness, and his commanding mental power. But his personal character and daily manners applied a soothing ointment to any irritation which his official attitude and conduct on public questions created in the feelings of his associates.
So came the day of adjournment of Congress; and with it the next step which Fate had arranged for John Marshall.
CHAPTER XII
CHIEF JUSTICE OF THE UNITED STATES
I consider General Marshall as more than a secretary – as a state conservator. (Oliver Wolcott.)
To Mr. Jefferson I have felt insuperable objections. The morals of the author of the letter to Mazzei cannot be pure. (Marshall.)
You have given an opinion in exact conformity with the wishes of your party. Come forward and defend it. (George Hay to Marshall.)
"The P. requests Mr. McHenry's company for one minute," wrote President Adams to his Secretary of War on the morning of May 5, 1800.1091 The unsuspicious McHenry at once responded. The President mentioned an unimportant departmental matter; and then, suddenly flying into a rage, abused his astounded Cabinet adviser in "outrageous"1092 fashion and finally demanded his resignation.1093 The meek McHenry resigned. To the place thus made vacant, the harried President, without even consulting him, immediately appointed Marshall, who "as immediately declined."1094 Then Adams tendered the office to Dexter, who accepted.
And resign, too, demanded Adams of his Secretary of State.1095 The doughty Pickering refused1096– "I did not incline to accept this insidious favor,"1097 he reported to Hamilton. Adams dismissed him.1098 Again the President turned to Marshall, who, deeply troubled, considered the offer. The Federalist Cabinet was broken to pieces, and a presidential election was at hand which would settle the fate of the first great political party in American history.
The campaign had already started. The political outlook was dark enough before the President's outburst; this shattering of his Cabinet was a wicked tongue of lightning from the threatening clouds which, after the flash, made them blacker still.1099
Few Presidents have ever faced a more difficult party condition than did John Adams when, by a humiliating majority of only three votes, he was elected in 1796. He succeeded Washington; the ruling Federalist politicians looked to Hamilton as their party chieftain; even Adams's Cabinet, inherited from Washington, was personally unfriendly to the President and considered the imperious New York statesman as their supreme and real commander. "I had all the officers and half the crew always ready to throw me overboard," accurately declared Adams some years later.1100
Adams's temperament was the opposite of Washington's, to which the Federalist leaders had so long been accustomed that the change exasperated them.1101 From the very beginning they bound his hands. The new President had cherished the purpose of calling to his aid the ablest of the Republicans, but found himself helpless. "When I first took the Chair," bitterly records Adams, "I was extremely desirous of availing myself of Mr. Madison's abilities, … and experience. But the violent Party Spirit of Hamilton's Friends, jealous of every man who possessed qualifications to eclipse him, prevented it. I could not do it without quarreling outright with my Ministers whom Washington's appointment had made my Masters."1102
On the other hand, the high Federalist politicians, most of whom were Hamilton's adherents, felt that Adams entertained for their leader exactly the same sentiments which the President ascribed to them. "The jealousy which the P.[resident] has felt of H.[amilton] he now indulges toward P.[inckney], W.[olcott] & to'd very many of their friends who are suspected of having too much influence in the Community, & of not knowing how to appreciate his [Adams's] merits… The Consequence is that his ears are shut to his best real friends & open to Flatterers, to Time servers & even to some Jacobins."1103
Adams, the scholar and statesman, but never the politician, was the last man to harmonize these differences. And Hamilton proved to be as inept as Adams.
After the President had dispatched the second mission to France, Hamilton's followers, including Adams's Cabinet, began intriguing in a furtive and vicious fashion to replace him with some other Federalist at the ensuing election. While, therefore, the President, as a personal matter, was more than justified in dismissing McHenry and Pickering (and Wolcott also1104), he chose a fatal moment for the blow; as a matter of political strategy he should have struck sooner or not at all.
At this late hour the great party task and duty of the President was, by any and every honorable means, to unite all Federalist factions for the impending battle with the eager, powerful, and disciplined Republicans. Frank and full conference, tolerance, and conciliation, were the methods now required. These might not have succeeded, but at least they would not have irritated still more the ragged edges of party dissension. Not only did the exasperated President take the opposite course, but his manner and conduct were acid instead of ointment to the raw and angry wounds.1105
This, then, was the state of the Federalist Party, the frame of mind of the President, and the distracted condition of the Cabinet, when Marshall was asked to become Secretary of State in the late spring of 1800. He was minded to refuse this high station as he had that of Secretary of War. "I incline to think Mr. Marshall will decline this office also," wrote McHenry to his brother.1106 If he accepted, he would be loyal to the President – his nature made anything else impossible. But he was the personal friend of all the Federalist leaders, who, in spite of his disapproval of the Alien and Sedition Laws and of his dissent from his party's plans in Congress, in spite, even, of his support of the President's detested second mission to France,1107 nevertheless trusted and liked him.
The President's selection of Marshall had been anticipated by the Republicans. "General Marshall … has been nominated to hold the station of Secretary of War," said the "Aurora," in an article heavy with abuse of Pickering. "This … however, is said to be but preparatory to General Marshall's appointment to succeed Mr. Pickering who is expected to resign."1108
Strangely enough the news of his elevation to the head of the Cabinet called forth only gentle criticism from the Republican press. "From what is said of Mr. Marshall," the "Aurora" thought that he was "as little likely to conciliate" France as Pickering. He "is well known to have been the disingenuous writer of all the X. Y. Z. Dispatches," which the Federalists had "confessed to be one of the best and most successful political tricks that was ever played off… General Marshall's fineering and var[ni]shing capacity" was "well known," said the "Aurora." "General Marshall consequently has been nominated and appointed… In genuine federal principles, General Marshall is as inflexible as Mr. Pickering; but in the negotiation with France, the General may not have imbibed so strong prejudices – and, having been one of the Envoys to that Republic, he may be supposed to be more conversant with some of the points in dispute, than Col. Pickering, and consequently to be preferred.
"We find him very well spoken of in the reformed Gazettes of France," continues the "Aurora," "which being now under guardianship1109 may be considered as speaking the language of the government – 'Le Bien Informé,' after mentioning the motion Gen. M. made in announcing to Congress the death of Gen. Washington, adds – 'This is the gentleman who some time since came as Envoy from the United States; and who so virtuously and so spiritedly refused to fill the pockets of some of our gentry with Dutch inscriptions, and millions of livres.'"1110
For nearly two weeks Marshall pondered over the President's offer. The prospect was not inviting. It was unlikely that he could hold the place longer than three quarters of a year, for Federalist defeat in the presidential election was more than probable; and it seemed certain that the head of the Cabinet would gather political cypress instead of laurel in this brief and troubled period. Marshall consulted his friends among the Federalist leaders; and, finally, accepted the proffered portfolio. Thereupon the "Aurora," quoting Pickering's statement that the office of Secretary of State "was never better filled than by General Marshall," hopes that "Gen. Marshall will take care of his accounts," which that Republican paper had falsely charged that Pickering had manipulated corruptly.1111
Expressing the Republican temper the "Aurora" thus analyzes the new Federalist Cabinet: "The Secretary of the Treasury [Oliver Wolcott]" was "scarcely qualified to hold the second desk in a Mercantile Counting-House"; the Attorney-General [Charles Lee] was "without talents"; the Secretary of the Navy [Benjamin Stoddert] was "a small Georgetown politician … cunning, gossiping, … of no … character or … principles"; the Secretary of War [Samuel Dexter] was no more fit for the place than "his mother"; and Marshall, Secretary of State, was "more distinguished as a rhetorician and a sophist than as a lawyer and a statesman– sufficiently pliant to succeed in a corrupt court, too insincere to command respect, or confidence in a republic." However, said the "Aurora," Adams was "able to teach Mr. Marshall 'l'art diplomatique.'"1112
Some of the Federalist leaders were not yet convinced, it appears, of Marshall's party orthodoxy. Pinckney reassures them. Writing from Virginia, he informs McHenry that "Marshall with reluctance accepts, but you may rely on his federalism, & be certain that he will not unite with Jefferson & the Jacobins."1113 Two months later even the Guy Fawkes of the Adams Cabinet declares himself more than satisfied: "If the gentlemen now in office [Marshall and Dexter] had declined," declares Wolcott, "rage, vexation & despair would probably have occasioned the most extravagant conduct1114 [on the part of the President]." After Marshall had been at the head of the Cabinet for four months, Cabot writes that "Mr. Wolcott thinks Mr. Marshall accepted the secretaryship from good motives, and with a view of preserving union, and that he and Dexter, by accepting, have rendered the nation great service; for, if they had refused, we should have had —Heaven alone knows whom! He thinks, however, as all must, that under the present chief they will be disappointed in their hopes, and that if Jefferson is President they will probably resign."1115
In view of "the temper of his [Adams's] mind," which, asserts the unfaithful Wolcott, was "revolutionary, violent, and vindictive, … their [Marshall's and Dexter's] acceptance of their offices is the best evidence of their patriotism… I consider Gen. Marshall and Mr. Dexter as more than secretaries – as state conservators – the value of whose services ought to be estimated, not only by the good they do, but by the mischief they have prevented. If I am not mistaken, however, Gen. Marshall will find himself out of his proper element."1116
No sooner was Marshall in the Secretary's chair than the President hastened to his Massachusetts home and his afflicted wife. Adams's part in directing the Government was done by correspondence.1117 Marshall took up his duties with his characteristically serious, yet nonchalant, patience.
The National Capital had now been removed to Washington; and here, during the long, hot summer of 1800, Marshall remained amidst the steaming swamps and forests where the "Federal City" was yet to be built.1118 Not till October did he leave his post, and then but briefly and on urgent private business.1119
The work of the State Department during this period was not onerous. Marshall's chief occupation at the Capital, it would appear, was to act as the practical head of the Government; and even his political enemies admitted that he did this well. Jefferson's most partial biographer says that "under the firm and steady lead [of Marshall and Dexter] … the Government soon acquired an order, system, and character which it never had before possessed."1120 Still, enough routine business came to his desk to give the new Secretary of State something to do in his own department.
Office-seeking, which had so annoyed Washington, still vexed Adams, although but few of these hornets' nests remained for him to deal with. "Your knowledge of persons, characters, and circumstances," wrote the President to Marshall concerning the applications for the office of United States Marshal for Maryland, "are so much better than mine, and my confidence in your judgment and impartiality so entire, that I pray you … give the commission to him whom you may prefer."1121 Adams favored the son of Judge Chase; but, on the advice of Stoddert of Maryland, who was Secretary of the Navy, Marshall decided against him: "Mr. Chase is a young man who has not yet acquired the public confidence and to appoint him in preference to others who are generally known and esteem'd, might be deem'd a mere act of favor to his Father. Mr. Stoddert supposes it ineligible to accumulate, without superior pretensions, offices in the same family."
Marshall generally trimmed his sails, however, to the winds of presidential preference. He undoubtedly influenced the Cabinet, in harmony with the President's wish, to concur in the pardon of Isaac Williams, convicted, under the Jay Treaty, of waging war on the high seas against Great Britain. Williams, though sailing under a French commission, was a pirate, and accumulated much wealth from his indiscriminate buccaneering.1122 But the President wrote Marshall that because of "the man's generosity to American prisoners," and "his present poverty and great distress," he desired to pardon Williams.1123
Marshall informed the President that "repeated complaints are made to this department of the depredations committed by the Spaniards on the American commerce."1124 The French outrages were continuing; indeed, our naval war with France had been going on for months and Spain was aiding the French. An American vessel, the Rebecca Henry, had been captured by a French privateer. Two Yankee sailors killed the French prize master in recapturing the vessel, which was taken again by another French sea rover and conveyed into a Spanish port. The daring Americans were imprisoned and threatened with death. Marshall thought "proper to remonstrate and to threaten retaliation if the prisoners should be executed."1125
The French ship Sandwich was captured by Captain Talbot, an American officer, in a Spanish port which Spain had agreed to transfer to France. Marshall considered this a violation of our treaty with Spain. "I have therefore directed the Sandwich to be given up to the minister of his Catholic Majesty,"1126 he advised the President. The Spanish Minister thanked Marshall for his "justice" and "punctuality."1127
But Talbot would not yield his prize; the United States Marshal declined to act. Marshall took "measures1128 which will," he reported to the President, "I presume occasion the delivery of this vessel, unless … the government has no right to interpose, so far as captors are interested." Talbot's attitude perplexed Marshall; for, wrote he, "if the Executive of the United States cannot restore a vessel captured by a national ship, in violation of the law of nations, … cause for war may be given by those who, of all others, are, perhaps, most apt to give it, and that department of the government, under whose orders they are plac'd will be unable to correct the mischief."1129
The attack of the Republican newspaper was entirely political, every charge and innuendo being wholly false. Adams's dismissal of his Secretary of State was not because of these charges, but on account of the Secretary's personal and political disloyalty. Adams also declared, afterwards, that Pickering lacked ability to handle the grave questions then pending and likely to arise. (Cunningham Letters, nos. xii, xiii, and xiv.) But that was merely a pretense.
Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams the support of young Chase's powerful father. (McHenry to John McHenry, Aug. 24, 1800; Gibbs, ii, 408.)
