POPULAR ANTAGONISM TO GOVERNMENT
Mankind, when left to themselves, are unfit for their own
government. (George Washington, 1786.)
There are subjects to which the capacities of the bulk of mankind
are unequal and on which they must and will be governed by those
with whom they happen to have acquaintance and confidence. (James
Madison, 1788.)
I fear, and there is no opinion more degrading to the dignity of
man, that these have truth on their side who say that man is
incapable of governing himself. (John Marshall, 1787.)
"Government, even in its best state," said Mr. Thomas Paine during the
Revolution, "is but a necessary evil."[893] Little as the people in
general had read books of any kind, there was one work which most had
absorbed either by perusal or by listening to the reading of it; and
those who had not, nevertheless, had learned of its contents with
applause.
Thomas Paine's "Common Sense," which Washington and Franklin truly said
did so much for the patriot cause,[894] had sown dragon's teeth which
the author possibly did not intend to conceal in his brilliant lines.
Scores of thousands interpreted the meaning and philosophy of this
immortal paper by the light of a few flashing sentences with which it
began. Long after the British flag disappeared from American soil, this
expatriated Englishman continued to be the voice of the people;[895] and
it is far within the truth to affirm that Thomas Paine prepared the
ground and sowed the seed for the harvest which Thomas Jefferson
gathered.
"Government, like dress, is the badge of lost innocence; the palaces of
kings are built on the ruins of the bowers of paradise." And again,
"Society is produced by our wants, and government by our
wickedness."[896] So ran the flaming maxims of the great iconoclast; and
these found combustible material.
Indeed, there was, even while the patriots were fighting for our
independence, a considerable part of the people who considered "all
government as dissolved, and themselves in a state of absolute liberty,
where they wish always to remain"; and they were strong enough in many
places "to prevent any courts being opened, and to render every attempt
to administer justice abortive."[897] Zealous bearers, these, of the
torches of anarchy which Paine's burning words had lighted. Was it not
the favored of the earth that government protected? What did the poor
and needy get from government except oppression and the privilege of
dying for the boon? Was not government a fortress built around property?
What need, therefore, had the lowly for its embattled walls?
Here was excellent ammunition for the demagogue. A person of little
ability and less character always could inflame a portion of the people
when they could be assembled. It was not necessary for him to have
property; indeed, that was a distinct disadvantage to the Jack Cades of
the period.[898] A lie traveled like a snake under the leaves and could
not be overtaken;[899] bad roads, scattered communities, long distances,
and resultant isolation leadened and delayed the feet of truth. Nothing
was too ridiculous for belief; nothing too absurd to be credited.
A Baptist preacher in North Carolina was a candidate for the State
Convention to pass upon the new National Constitution, which he bitterly
opposed. At a meeting of backwoodsmen in a log house used for a church,
he told them in a lurid speech that the proposed "Federal City" (now the
District of Columbia) would be the armed and fortified fortress of
despotism. "'This, my friends,' said the preacher, 'will be walled in or
fortified. Here an army of 50,000, or, perhaps 100,000 men, will be
finally embodied and will sally forth, and enslave the people who will
be gradually disarmed.'" A spectator, who attempted to dispute this
statement, narrowly escaped being mobbed by the crowd. Everything
possible was done to defeat this ecclesiastical politician; but the
people believed what he said and he was elected.[900]
So bizarre an invention as the following was widely circulated and
generally believed as late as 1800: John Adams, it was said, had
arranged, by intermarriage, to unite his family with the Royal House of
Great Britain, the bridegroom to be King of America. Washington, attired
in white clothing as a sign of conciliation, called on Adams and
objected; Adams rebuffed him. Washington returned, this time dressed in
black, to indicate the solemnity of his protest. Adams was obdurate.
Again the Father of his Country visited the stubborn seeker after
monarchical relationship, this time arrayed in full regimentals to show
his earnestness; Adams was deaf to his pleas. Thereupon the aged warrior
drew his sword, avowing that he would never sheathe it until Adams gave
up his treasonable purpose; Adams remained adamant and the two parted
determined enemies.[901]
Such are examples of the strange tales fed to the voracious credulity of
the multitude. The attacks on personal character, made by setting loose
against public men slanders which flew and took root like thistle seed,
were often too base and vile for repetition at the present day, even as
a matter of history; and so monstrous and palpably untruthful that it is
difficult to believe they ever could have been circulated much less
credited by the most gossip-loving.
Things, praiseworthy in themselves, were magnified into stupendous and
impending menaces. Revolutionary officers formed "The Society of the
Cincinnati" in order to keep in touch with one another, preserve the
memories of their battles and their campfires, and to support the
principles for which they had fought.[902] Yet this patriotic and
fraternal order was, shouted the patriots of peace, a plain attempt to
establish an hereditary nobility on which a new tyranny was to be
builded. Jefferson, in Paris, declared that "the day ... will certainly
come, when a single fibre of this institution will produce an
hereditary aristocracy which will change the form of our governments
[Articles of Confederation] from the best to the worst in the
world."[903]
Ædanus Burke,[904] one of the Justices of the Supreme Court of South
Carolina, wrote that the Society of the Cincinnati was "deeply planned";
it was "an hereditary peerage"; it was "planted in a fiery hot ambition,
and thirst for power"; "its branches will end in Tyranny ... the country
will be composed only of two ranks of men, the patricians, or nobles,
and the rabble."[905] In France, Mirabeau was so aroused by Burke's
pamphlet that the French orator wrote one of his own. Mirabeau called
the Cincinnati "that nobility of barbarians, the price of blood, the
off-spring of the sword, the fruit of conquest." "The distinction of
Celts and Ostrogoths," exclaimed the extravagant Frenchman, "are what
they claim for their inheritance."[906]
The "Independent Chronicle" of Boston was so excited that it called on
"legislators, Governors, and magistrates _and their_ ELECTORS" to
suppress the Cincinnati because it "is concerted to establish a
complete and perpetual _personal_ discrimination between" its members
"and the whole remaining body of the people who will be styled
Plebeians."[907]
John Marshall was a member of this absurdly traduced patriotic
fraternity. So were his father and fellow officers of our War for
Independence. Washington was its commander. Were the grotesque charges
against these men the laurels with which democracy crowned those who had
drawn the sword for freedom? Was this the justice of liberty? Was this
the intelligence of the masses? Such must have been the queries that
sprang up in the minds of men like Marshall. And, indeed, there was
sound reason for doubt and misgiving. For the nightmares of men like
Burke and Mirabeau were pleasant dreams compared with the horrid visions
that the people conjured.
[Illustration]
Nor did this popular tendency to credit the most extraordinary tale,
believe the most impossible and outrageous scandal, or accept the most
impracticable and misshapen theory, end only in wholesome hatred of rank
and distinction. Among large numbers there was the feeling that equality
should be made real by a general division of property. Three years after
peace had been established, Madison said he "strongly suspected" that
many of the people contemplated "an abolition of debts public & private,
and a new division of property."[908] And Jay thought that "a reluctance
to taxes, an impatience of government, a rage for property, and
little regard to the means of acquiring it, together with a desire for
equality in all things, seem to actuate the mass of those who are uneasy
in their circumstances."[909] The greed and covetousness of the people
is also noted by all travelers.[910]
Very considerable were the obligations "public and private" which
Madison wrote his father that he "strongly suspected" a part of the
country intended to repudiate. The public debt, foreign and domestic, of
the Confederation and the States, at the close of the Revolutionary War,
appeared to the people to be a staggering sum.[911] The private debt
aggregated a large amount.[912] The financial situation was chaos. Paper
money had played such havoc with specie that, in Virginia in 1786, as we
have seen, there was not enough gold and silver to pay current
taxes.[913] The country had had bitter experience with a fictitious
medium of exchange. In Virginia by 1781 the notes issued by Congress
"fell to 1000 for 1," records Jefferson, "and then expired, as it had
done in other States, without a single groan."[914]
Later on, foreigners bought five thousand dollars of this Continental
scrip for a single dollar of gold or silver.[915] In Philadelphia,
toward the end of the Revolution, the people paraded the streets wearing
this make-believe currency in their hats, with a dog tarred and covered
with paper dollars instead of feathers.[916] For land sold by Jefferson
before paper currency was issued he "did not receive the money till it
was not worth Oak leaves."[917]
Most of the States had uttered this fiat medium, which not only
depreciated and fluctuated within the State issuing it, but made trade
between citizens of neighboring States almost impossible. Livingston
found it a "loss to shop it in New York with [New] Jersey Money at the
unconscionable discount which your [New York] brokers and merchants
exact; and it is as damnifying to deal with our merchants here [New
Jersey] in that currency, since they proportionably advance the price of
their commodities."[918] Fithian in Virginia records that: "In the
evening I borrowed of _Ben Carter_ 15/--I have plenty of money with me
but it is in Bills of Philadelphia Currency and will not pass at all
here."[919]
Virginia had gone through her trial of financial fiction-for-fact,
ending in a law fixing the scale of depreciation at forty to one, and in
other unique and bizarre devices;[920] and finally took a determined
stand against paper currency.[921] Although Virginia had burned her
fingers, so great was the scarcity of money that there was a formidable
agitation to try inflation again.[922] Throughout the country there once
more was a "general rage for paper money."[923] Bad as this currency
was, it was counterfeited freely.[924] Such coin as existed was cut and
clipped until Washington feared that "a man must travel with a pair of
money scales in his pocket, or run the risk of receiving gold of one
fourth less by weight than it counts."[925]
If there was not money enough, let the Government make more--what was a
government for if not for that? And if government could not make good
money, what was the good of government? Courts were fine examples of
what government meant--they were always against the common people. Away
with them! So ran the arguments and appeals of the demagogues and they
found an answer in the breasts of the thoughtless, the ignorant, and the
uneasy. This answer was broader than the demand for paper money, wider
than the protest against particular laws and specific acts of
administration. This answer also was, declared General Knox, "that the
property of the United States ... ought to be the common property of
all. And he that attempts opposition to this creed is an enemy to equity
and justice, and ought to be swept from off the face of the earth." Knox
was convinced that the discontented were "determined to annihilate all
debts, public and private."[926]
Ideas and purposes such as these swayed the sixteen thousand men who, in
1787, followed Daniel Shays in the popular uprising in Massachusetts
against taxes, courts, and government itself.[927] "The restlessness
produced by the uneasy situation of individuals, connected with lax
notions concerning public and private faith, and erroneous[928]
opinions which confound liberty with an exemption from legal control,
produced ... unlicensed conventions, which, after voting on their
own constitutionality, and assuming the name of the people, arrayed
themselves against the legislature," was John Marshall's summary of the
forces that brought about the New England rebellion.
The "army" of lawlessness, led by Shays, took the field, says Marshall,
"against taxes, and against the administration of justice; and the
circulation of a depreciated currency was required, as a relief from
the pressure of public and private burdens, which had become, it was
alleged, too heavy to be borne. Against lawyers and courts the strongest
resentments were manifested; and to such a dangerous extent were these
dispositions indulged, that, in many instances, tumultuous assemblages
of people arrested the course of law, and restrained the judges from
proceeding in the execution of their duty."
"The ordinary recourse to the power of the country was found
insufficient protection," records Marshall, "and the appeals made to
reason were attended with no beneficial effect. The forbearance of the
government was attributed to timidity rather than moderation, and the
spirit of insurrection appeared to be organized into a regular system
for the suppression of courts."[929] Such was Marshall's analysis of the
Northern convulsion; and thus was strengthened in him that tendency of
thought started at Valley Forge, and quickened in the Virginia House of
Delegates.
"It rather appears to me," wrote David Humphries to Washington, in an
attempt to explain the root of the trouble, "that there is a licentious
spirit prevailing among many of the people; a levelling principle; and a
desire of change; with a wish to annihilate all debts, public and
private."[930] Unjust taxes were given as the cause of the general
dislike of government, yet those who composed the mobs erupting from
this crater of anarchy, now located in New England, paid few or no
taxes.
"High taxes are the ostensible cause of the commotions, but that they
are the real cause is as far remote from truth as light from darkness,"
asserts Knox. "The people who are the insurgents have never paid any, or
but very little taxes," testifies this stanch Revolutionary officer.
"But," continues Knox, "they see the weakness of the government. They
feel at once their own poverty, compared with the opulent, and their own
force, and they are determined to make use of the latter, in order to
remedy the former."[931]
This condition brought to a head a distrust of the good sense, justice,
and moderation of the people, which had been forming in the minds of
many of the best and ablest men of the time.[932] "The knaves and fools
of this world are forever in alliance," was the conclusion reached in
1786[933] by Jay, who thought that the people considered "liberty and
licentiousness" as the same thing.[934] The patient but bilious
Secretary of State felt that "the wise and the good never form the
majority of any large society, and it seldom happens that their measures
are uniformly adopted, or that they can always prevent being overborne
themselves by the strong and almost never-ceasing union of the wicked
and the weak."[935] The cautious Madison was equally doubtful of the
people: "There are subjects to which the capacities of the bulk of
mankind are unequal and on which they must and will be governed by those
with whom they happen to have acquaintance and confidence" was Madison's
judgment.[936]
Washington, black with depression, decided and bluntly said "that
mankind, when left to themselves, are unfit for their own government."
Lee had suggested that Washington use his "influence" to quiet the
disorders in New England; but, flung back Washington, "_Influence_ is no
_government_. Let us have one by which our lives, liberties, and
properties will be secured, or let us know the worst at once.... To be
more exposed in the eyes of the world, and more contemptible than we
already are, is hardly possible."[937]
"No morn ever dawned more favorably than ours did; and no day was ever
more clouded than the present.... We are fast verging to anarchy,"[938]
cried the great captain of our war for liberty. The wings of
Washington's wrath carried him far. "Good God!" cried he, "Who, besides
a Tory, could have foreseen, or a Briton predicted" the things that were
going on! "The disorders which have arisen in these States, the present
prospect of our affairs ... seems to me to be like the vision of a
dream. My mind can scarcely realize it as a thing in actual
existence.... There are combustibles in every State, which a spark might
set fire to."[939]
Marshall echoed his old commander's views. The dreams of his youth were
fading, his confidence in the people declining. He records for us his
altered sentiments: "These violent, I fear bloody, dissensions in a
state [Massachusetts] I had thought inferior in wisdom and virtue to no
one in the union, added to the strong tendency which the politics of
many eminent characters among ourselves have to promote private and
public dishonesty, cast a deep shade over the bright prospect which the
revolution in America and the establishment of our free governments had
opened to the votaries of liberty throughout the globe. I fear, and
there is no opinion more degrading to the dignity of man, that these
have truth on their side who say that man is incapable of governing
himself."[940] Thus wrote Marshall in 1787, when he was not yet
thirty-two years old.
But Jefferson in Paris was beholding a different picture that
strengthened the views which he and Marshall held in common when
America, in arms, challenged Great Britain. "The Spirit of resistance to
government is so valuable on certain occasions that I wish it to be
always kept alive. It will often be exercised when wrong, but better so
than not to be exercised at all. I like a little rebellion now & then.
It is like a storm in the atmosphere." So wrote Jefferson after the
Massachusetts insurrection had been quelled.[941]
The author of our Declaration of Independence was tasting the delights
of the charming French Capital at this time, but he also was witnessing
the shallowness and stupidity of the peculiarly weak royalty and
nobility; and although it was this same Royal Government that had aided
us with men and money in our struggle to throw off the yoke of England,
Jefferson's heart grew wrathful against it and hot for popular rule in
France. Yet in the same apostrophe to rebellion, Jefferson declares that
the French people were too shallow for self-rule. "This [French]
nation," writes Jefferson, "is incapable of any serious effort but under
the word of command."[942]
After having had months to think about it, this enraptured enthusiast of
popular upheaval spread his wings and was carried far into crimson
skies. "Can history produce an instance of rebellion so honourably
conducted?" exclaimed Jefferson, of the Massachusetts anarchical
outburst, nearly a year after it had ended; and continued thus:--
"God forbid! we should ever be 20 years without such a rebellion....
What country can preserve its liberties if their rulers are not warned
from time to time that their people preserve the spirit of resistance?
Let them take arms!... What signify a few lives lost in a century or
two? The tree of liberty must be refreshed from time to time with the
blood of patriots & tyrants. It is its natural manure."[943]
Thus did his contact with a decadent monarchy on the one hand and an
enchanting philosophy on the other hand, help to fit him for the
leadership of American radicalism. No better training for that mission
could have been afforded. French thought was already challenging all
forms of existing public control; it was a spirit Gamaliel which found
in Jefferson an eager Saul at its feet; and American opinion was
prepared for its doctrines. In the United States general dislike and
denunciation of the established governments had uncovered the feeling
against government itself which lay at the root of opposition to any
stronger one.
The existing American system was a very masterpiece of weakness. The
so-called Federal Government was like a horse with thirteen bridle
reins, each held in the hands of separate drivers who usually pulled the
confused and powerless beast in different directions. Congress could
make treaties with foreign nations; but each of the States could and
often did violate them at will. It could borrow money, but could not
levy taxes or impose duties to pay the debt. Congress could get money
only by making humble requests, called "requisitions," on the
"sovereign" Commonwealths. It had to depend upon the whims of the
various States for funds to discharge principal and interest of public
obligations; and these springs of revenue, when not entirely dry,
yielded so little that the Federal establishment was like to die of
financial thirst.[944]
The requisitions of Congress upon the various States for money to pay
the National obligations to foreign creditors were usually treated with
neglect and often with contempt by those jealous and pompous
"Sovereignties." "Requisitions are a perfect nullity where thirteen
sovereign, independent, disunited States are in the habit of discussing
and refusing compliance with them at their option. Requisitions are
actually little better than a jest and a by-word throughout the land. If
you tell the legislatures they have violated the treaty of peace, and
invaded the prerogatives of the confederacy, they will laugh in your
face."[945] Thus raged Washington. "Congress cannot command money" even
to redeem Americans held in slavery in Algiers,[946] testified the
powerless and despondent Secretary of State. Indeed, Congress amounted
to so little that the delegates from many States often refused to
attend.[947]
Though debts were great and financial confusion maddening, they
furnished no solid excuse for the failure of the States to enable
Congress to preserve American honor by the payment of our admitted
National debt. Jay reviewed the situation and showed that "the resources
of the country ... notwithstanding all appearances to the contrary, are
abundant.... Our country is fertile, abounding in useful productions,
and those productions in demand and bearing a good price."[948] The
general opinion appears to have been that the people did not want to
support the Government.
"The treasury is empty, though the country abounds in resources, and our
people are far more unwilling than unable to pay taxes," wrote Jay,
early in 1787.[949] Madison excused his support of the bill authorizing
tobacco to be taken for specie in payment of taxes, upon the ground that
it "could not be rejected without ... exciting some worse project of a
popular cast";[950] and "by a fear that some greater evil under the name
of relief to the people would be substituted."[951] Debt "made it
extremely inconvenient to most people to submit to a regular
government," was the conclusion Rutledge finally reached.[952]
But, whatever the cause, the States did not act. Washington thought it a
combination of the scheming of demagogues and the ignorance and
dishonesty of the people. "I think there is more wickedness than
ignorance mixed in our councils.... Ignorance and design are difficult
to combat.... To be so fallen! so lost!... Virtue, I fear has in a great
degree taken its departure from our land and the want of a disposition
to do justice is the source of the national embarrassments; for,
whatever guise or colorings are given to them, this I apprehend is the
origin of the evils we now feel."[953] Such was Washington's cry of
despair four years after he had wrested American liberty from Great
Britain.
Look where one will among the class of men of whom Washington was the
highest representative, one finds that they believed the fountain head
of the country's desperate conditions to be in the people themselves.
Jay put this opinion in a nutshell when he said, "The mass of men are
neither wise nor good."[954] Not that these leaders despaired that an
American People would finally be evolved who should realize the exalted
expectations of the patriot leaders of the Revolution; not that out of
the flux of popular heedlessness and dishonor, indifference and
disorder, idleness and avarice, the nobler qualities of human nature
would not, in the end, bring forth a nation and rule it for the
happiness and well-being of its people. But they thought that only a
strong government could fashion the clay and breathe into its nostrils
the breath of life. "Virtue, like the other resources of a country, can
only be drawn to a point and exerted by strong circumstances ably
managed, or a strong government ably administered," said Jay.[955]
The shield of all this turmoil and baseness was the State Governments.
"Their unreasonable jealousy of that body [Congress] and of one
another ... will, if there is not a change in the system, be our
downfall as a nation," exclaimed Washington only a few months after
peace had been established.[956] It was the States, he declared, which
made the Federal establishment "a half-starved, limping government, that
appears to be always moving upon crutches and tottering at every
step."[957]
It was the States which always were thwarting every plan for the general
welfare; the States which were forever impairing the National
obligations; the States which bound hand and foot the straw man of the
central power, clothed it in rags and made it a mere scarecrow of
government. And it was State pride, prejudice, and ignorance which gave
provincial demagogues their advantage and opportunity. The State
Governments were the "people's" Governments; to yield State
"sovereignty" was to yield the "people's" power over their own affairs,
shouted the man who wished to win local prominence, power, and office.
Those who did not want to pay taxes and who disliked much government of
any kind felt that they could make shift with mere State
establishments.[958] "A thirst for power, and the bantling, I had liked
to have said monster for sovereignty, which have taken such fast hold of
the States individually, will, when joined by the many whose personal
consequence in the control of State politics will in a manner be
annihilated, form a strong phalanx against"[959] the National
Constitution, prophesied the leader of the Revolution.
But it was not alone the powerlessness of the Federal Government to keep
the National faith, plighted by solemn treaties with foreign
Governments; or to uphold the National honor by paying debts made to win
American independence, that wrought that bloodless revolution[960] which
produced the Constitution. Nor was it the proud and far-seeing plans of
a few great minds whose heart's desire was to make the American People a
Nation.
Finance, commerce, and business assembled the historic Philadelphia
Convention; although it must be said that statesmanship guided its
turbulent councils. The senseless and selfish nagging at trade in which
the States indulged, after peace was declared, produced a brood of civil
abuses as noisome as the military dangers which State control of troops
had brought forth during the Revolution. Madison truly said that "most
of our political evils may be traced up to our commercial ones."[961]
The States passed tariff laws against one another as well as against
foreign nations; and, indeed, as far as commerce was concerned, each
State treated the others as foreign nations.[962] There were
retaliations, discriminations, and every manner of trade restrictions
and impediments which local ingenuity and selfishness could devise.
The idea of each State was to keep money from going outside its borders
into other States and to build up its own business and prosperity at the
expense of its neighbors.[963] States having no seaports were in a
particularly hard case. Madison picturesquely describes their unhappy
plight: "New Jersey placed between Phil^a & N. York, was likened to a
cask tapped at both ends; And N. Carolina, between Virg^a & S. Carolina
to a patient bleeding at both Arms."[964] Merchants and commercial
bodies were at their wits' end to carry on business and petitioned for a
general power over commerce.[965]
The commercial view, as stated by Madison, was that "the National
Government should be armed with positive and compleat authority in all
cases which require uniformity; such as the regulation of trade,
including the right of taxing both exports & imports, the fixing the
terms and forms of naturalization, &c., &c."
Madison then lays down this extreme Nationalist principle as the central
article of his political faith: "Over and above this positive power, a
negative in _all cases whatsoever_ on the legislative acts of the
States, as heretofore exercised by the Kingly prerogative, appears to me
to be absolutely necessary, and to be the least possible encroachment on
the State jurisdictions. Without this defensive power, every positive
power that can be given on paper will be evaded & defeated. The States
will continue to invade the National jurisdiction, to violate treaties
and the law of nations & to harass each other with rival and spiteful
measures dictated by mistaken views of interest."[966]
Too much emphasis cannot be put upon the fact that the mercantile and
financial interests were the weightiest of all the influences for the
Constitution; the debtors and agricultural interests the strongest
groups against it. It deserves repetition, for a proper understanding of
the craft and force practiced by both sides in the battle over
ratification, that those who owed debts were generally against the
Constitution and practically all to whom debts were due were for the
new Government. "I have little prospect of bringing Banks [a debtor] to
terms as the Law of this State now stands," wrote a Virginia agent of a
creditor, "but I hope when the New Federal constitution is adopted that
the Laws will be put upon a better footing.... Three fourths of the
people that oppose it [the Constitution] are those that are deeply in
debt & do not wish to pay."[967]
London merchants were very anxious for a new order of things. "I hope
ere long your Federal Government will be established, and that honest
Men will again have the Assendency in your Country, for without such a
change it must ever remain a poor place to live in," was the opinion of
a business man living in the British Capital.[968]
A few weeks after Virginia ratified the Constitution, Minton Collins
reported to his principal about a person named Banks, who, says Collins,
"begins to be a little alarmed from the adoption of the Federal
Constitution. I hope it will alarm every such R[asca]l. He had run his
rig long enough for he boasts of being worth from 150,000£ to 200,000
pounds; this is not bad for a man that six years ago could scarcely
raise a suit of clothes to his back."[969]
Marshall was becoming a prosperous lawyer and his best clients were from
the mercantile interests. His family relationships were coming to be
more and more with the property classes. He had no ambition for a
political career, which might have given to his thinking and conclusions
a "more popular cast," to use Madison's contemptuous phrase. Thus
Marshall's economic and political convictions resulting from experience
and reasoning were in harmony with his business connections and social
environment.
Undoubtedly he would have taken the same stand had none of these
circumstances developed; his constructive mind, his conservative
temperament, his stern sense of honor, his abhorrence of disorder and
loose government, his army experience, his legislative schooling, his
fidelity to and indeed adoration of Washington, would have surely placed
him on the side of the Constitution. Still, the professional and social
side of his life should not be ignored, if we are to consider fully all
the forces which then surrounded him, and which, with ever-growing
strength, worked out the ultimate Marshall.
Jefferson, in France, experienced only the foreign results of the sharp
and painful predicament which John Marshall was sadly witnessing in
America. While not busy with the scholars and society of the French
Capital, Jefferson had been engaged in the unhappy official task of
staving off our French creditors and quieting, as well as he could,
complaints of our trade regulations and other practices which made it
hard and hazardous for the French to do business with us.[970] He found
that "the nonpaiment of our debts and the want of energy in our
government ... discourage a connection with us";[971] and "want of
punctuality & a habitual protection of the debtor" prevented him from
getting a loan in France to aid the opening of the Potomac.[972] All
this caused even Jefferson to respond to the demand for unifying the
American Government as to foreign nations; but he would not go further.
"Make the States one as to every thing connected with foreign nations, &
several as to everything purely domestic," counseled Jefferson while the
Constitutional Convention was quarreling at Philadelphia.[973]
But he did not think badly of the weakness of the Articles of
Confederation which so aroused the disgust, anger, and despair of
Washington, Madison, Jay, and other men of their way of thinking, who
were on the ground. "With all the imperfections of our present
government [Articles of Confederation]," wrote Jefferson in Paris, in
1787, "it is without comparison the best existing or that ever did
exist";[974] and he declared to one of his French friends that "the
confederation is a wonderfully perfect instrument."[975] Jefferson found
but three serious defects in the Articles of Confederation: no general
rule for admitting States; the apportionment of the State's quota of
money upon a land instead of a population basis; and the imperfect power
over treaties, import duties, and commerce.[976]
He frankly said: "I am not a friend to a very energetic government"; and
he thought that "our governments will remain virtuous for many
centuries"--but added with seer-like vision: "as long as ... there shall
be vacant lands in America."[977] Jefferson wished the United States "to
practice neither commerce nor navigation, but to stand with respect to
Europe precisely on the footing of China."[978] Far from thinking that
the low state of our credit was a bad thing for us, he believed that its
destruction would work an actual benefit to America. "Good will arise
from the destruction of our credit," he asserted in a letter to Stuart
written from Paris in 1786. "I see nothing else which can restrain our
disposition to luxury, and the loss of those manners which alone can
preserve republican government."[979]
We have now seen the state of the country and the condition of the
people, their situation and habits, their manner of life and trend of
feeling. We have witnessed the change thus wrought in the leading men
during this period, so destructive of confidence in the wisdom or virtue
of majorities, at least on first impulse and without abundant time for
reflection and second thought. Thus we have measured, with some degree
of accuracy, the broad and well-marked space that separated the hostile
forces which were to meet in what was for the moment a decisive conflict
when Virginia's Constitutional Convention should assemble at Richmond.
In one camp the uninformed and credulous, those who owed debts and
abhorred government, with a sprinkling among them of eminent, educated,
and well-meaning men who were philosophic apostles of theoretical
liberty; and in the other camp men of property and lovers of order, the
trading and moneyed interests whose first thought was business; the
veterans of the Revolution who had learned on the battlefield the need
of a strong central Government; and, here and there, a prophetic and
constructive mind who sought to build a Nation. John Marshall was one of
the latter; and so he promptly took his place by the side of his old
general and leader in the camp of the builders.
At last the supreme hour is striking. The Virginians, about to assemble
in State Convention, will determine the fate of that unauthorized and
revolutionary plan for a National Government,[980] the National
Constitution. The movement for a second general Convention to have
another try at framing a Constitution has made distinct progress by the
time the Virginia representatives gather at the State Capital.[981]
There is widespread, positive, and growing resentment at the proposed
new form of government; and if Virginia, the largest and most populous
of the States, rejects it, the flames of opposition are certain to break
out in every part of the country. As Washington asserts, there is,
indeed, "combustible material" everywhere.
Thus it is that the room where Virginia's Convention is about to meet in
June, 1788, will become the "bloody angle" in the first great battle for
Nationalism. And Marshall will be there, a combatant as he had been at
Great Bridge and Brandywine. Not for John Marshall the pallid rôle of
the trimmer, but the red-blooded part of the man of conviction.
FOOTNOTES:
[893] _Writings_: Conway, i, 69 _et seq._
[894] "_Common Sense_ had a prodigious effect." (Franklin to Le
Veillard, April 15, 1787; _Writings_: Smyth, ix, 558.) "Its popularity
was unexampled.... The author was hailed as our angel sent from Heaven
to save all from the horrors of Slavery.... His pen was an appendage [to
the army] almost as necessary and formidable as its cannon."
(Cheetenham, 46-47, 55.) In America alone 125,000 copies of _Common
Sense_ were sold within three months after the pamphlet appeared.
(Belcher, i, 235.)
"Can nothing be done in our Assembly for poor Paine? Must the merits of
_Common Sense_ continue to glide down the stream of time unrewarded by
this country? His writings certainly have had a powerful effect upon the
public mind. Ought they not, then, to meet an adequate return?"
(Washington to Madison, June 12, 1784; _Writings_: Ford, x, 393; and see
Tyler, i, 458-62.) In the Virginia Legislature Marshall introduced a
bill for Paine's relief. (_Supra_, chap, VI.)
[895] Graydon, 358.
[896] _Common Sense_: Paine; _Writings_: Conway, i, 61. Paine's genius
for phrase is illustrated in the _Crisis_, which next appeared. "These
are the times that try men's souls"; "Tyranny like hell, is not easily
conquered"; "The summer soldier and the sunshine patriot," are examples
of Paine's brilliant gift.
[897] Moore's _Diary_, ii, 143-44. Although this was a British opinion,
yet it was entirely accurate.
[898] "They will _rise_ and for lack of argument, say, M^r. Speaker,
this measure will never do, the _People_ Sir, will never bear it....
These small Politicians, returned home, ... tell their Constituents such
& such measures are taking place altho' I did my utmost to prevent
it--The People must take care of themselves or they are undone. Stir up
a County Convention and by Trumpeting lies from Town to Town get one [a
convention] collected and Consisting of Persons of small Abilities--of
little or no property--embarrass'd in their Circumstances--and of no
great Integrity--and these Geniouses vainly conceiving they are
competent to regulate the affairs of State--make some hasty incoherent
Resolves, and these end in Sedition, Riot, & Rebellion." (Sewell to
Thatcher, Dec., 1787; _Hist. Mag._ (2d Series), vi, 257.)
[899] More than a decade after the slander was set afoot against Colonel
Levin Powell of Loudoun County, Virginia, one of the patriot soldiers of
the Revolution and an officer of Washington, that he favored
establishing a monarchy, one of his constituents wrote that "detraction
& defamation are generally resorted to promote views injurious to
you.... Can you believe it, but it is really true that the old & often
refuted story of your predilection for Monarchy is again revived."
(Thomas Sims to Colonel Levin Powell, Leesburg, Virginia, Feb. 5 and 20,
1801; _Branch Historical Papers_, i, 58, 61.)
[900] Watson, 262-64. This comic prophecy that the National Capital was
to be the fortified home of a standing army was seriously believed by
the people. Patrick Henry urged the same objection with all his dramatic
power in the Virginia Convention of 1788. So did the scholarly Mason.
(See _infra_, chaps. XI and XII.)
[901] Graydon, 392-93.
[902] _Memorials of the Society of the Cincinnati_, 1790, 3-24.
[903] Jefferson to Washington, Nov. 14, 1786; _Works_: Ford, v, 222-23;
and see Jefferson's denunciation of the Cincinnati in Jefferson to
Madison, Dec. 28, 1794; _ib._, viii, 156-57. But see Jefferson's fair
and moderate account of the Cincinnati before he had learned of its
unpopularity in America. (Jefferson to Meusnier, June 22, 1786; _ib._,
V, 50-56.)
[904] The same who broke the quorum in the Continental Congress.
(_Supra_, chap. IV.)
[905] Burke: _Considerations on the Society of the Order of Cincinnati_;
1784.
[906] Mirabeau: _Considerations on the Order of Cincinnati_; 1786.
Mirabeau here refers to the rule of the Cincinnati that the officer's
eldest son might become a member of the order, as in the Military Order
of the Loyal Legion of the present time.
[907] As quoted in Hudson: _Journalism in the United States_, 158.
[908] Madison to James Madison, Nov. 1, 1786; _Writings_: Hunt, ii, 278.
[909] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 212.
[910] See Weld, i, 114-15, as a fair example of foreign estimate of this
American characteristic at that period.
[911] See chap. II, vol. II, of this work.
[912] Private debts which Virginia planters alone owed British merchants
were "20 or 30 times the amount of all money in circulation in that
state." (Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 17-18;
and see Jefferson to McCaul, April 19, 1786; _ib._, 88.)
[913] "It cannot perhaps be affirmed that there is gold & silver en^o in
the Country to pay the next tax." (Madison to Monroe, June 4, 1786;
_Writings_: Hunt, ii, 245.)
[914] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 27.
[915] Jefferson to Meusnier, Jan. 24, 1786: _Works_: Ford, v, 27.
[916] Moore's _Diary_, ii, 425-26. The merchants of Philadelphia shut
their shops; and it was agreed that if Congress did not substitute
"solid money" for paper, "all further resistance to" Great Britain "must
be given up." (_Ib._)
[917] Jefferson to McCaul, April 19, 1786; _Works_: Ford, v, 90; also to
Wm. Jones, Jan. 5, 1787; _ib._, 247.--"Paiment was made me in this money
when it was but a shadow."
[918] Livingston to Jay, July 30, 1789; _Jay_: Johnston, iii, 373-74.
[919] Fithian, 91.
[920] Virginia's paper money experiment was the source of many lawsuits
in which Marshall was counsel. See, for example, Pickett _vs._ Claiborne
(Call, iv, 99-106); Taliaferro _vs._ Minor (Call, i, 456-62).
[921] The House of Delegates toward the end of 1786 voted 84 to 17
against the paper money resolution. (Madison to James Madison, Nov. 1,
1786; _Writings_: Hunt, ii, 277.)
[922] "The advocates for paper money are making the most of this handle.
I begin to fear exceedingly that no efforts will be sufficient to parry
this evil." (Madison to Monroe, June 4, 1786; _ib._, 245.)
[923] Madison to Jefferson, Aug. 12, 1786; _ib._, 259.
[924] "Enclosed are one hundred Dollars of new Emmission Money which
Col. Steward desires me to have exchanged for Specie. Pray, inform him
they are all counterfeit." (Gerry to King, April 7, 1785; King, i, 87.)
[925] Washington to Grayson, Aug. 22, 1785; _Writings_: Ford, X, 493-94.
[926] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote
to p. 407-08.
[927] Minot: _History of the Insurrections in Massachusetts in 1786_ (2d
ed.), 1810.
[928] Printed in the first edition (1807) "enormous"--a good example of
the haste of the first printing of Marshall's _Life of Washington_. (See
vol. III of this work.)
[929] Marshall, ii, 117.
[930] _Ib._, 118.
[931] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote
to 408.
[932] Shays's Rebellion was only a local outburst of a general
feeling throughout the United States. Marshall says, "those causes of
discontent ... existed in every part of the union." (Marshall, ii, 117.)
[933] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 213.
[934] Jay to Reed, Dec. 12, 1786; _ib._, 222.
[935] Jay to Price, Sept. 27, 1786; _ib._, 168.
[936] Madison to Randolph, Jan. 10, 1788; _Writings_: Hunt, v, 81.
[937] Washington to Lee, Oct. 31, 1786; _Writings_: Ford, xi, 76-77.
[938] Washington to Madison, Nov. 5, 1786; _ib._, 81.
[939] Washington to Knox, Dec. 26, 1786; _ib._, 103-04. And Washington
wrote to Lafayette that "There are seeds of discontent in every part of
the Union." (_Writings_: Sparks, ix, 263.)
[940] Marshall to James Wilkinson, Jan. 5, 1787; _Amer. Hist. Rev._,
xii, 347-48.
[941] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 265.
[942] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 263.
[943] Jefferson to Smith, Nov. 13, 1787; _ib._, 362.
[944] "The payments from the States under the calls of Congress have
in no year borne any proportion to the public wants. During the last
year ... the aggregate payments ... fell short of 400,000 doll^{rs}, a
sum neither equal to the interest due on the foreign debts, nor even to
the current expenses of the federal Government. The greatest part of
this sum too went from Virg^a, which will not supply a single shilling
the present year." (Madison to Jefferson, March 18, 1786; _Writings_:
Hunt, ii, 228.)
[945] Washington to Jay, Aug. 1, 1786; _Writings_: Ford, xi, 54-55.
[946] Jay (Secretary of State under the Confederation) to Jefferson,
Dec. 14, 1786; _Jay_: Johnston, iii, 223.
[947] "We are wasting our time & labour in vain efforts to do business"
(because of State delegates not attending), wrote Jefferson in 1784.
(Jefferson to Washington, March 15, 1784; _Works_: Ford, iv, 266.) And
at the very climax of our difficulties "a sufficient number of States to
do business have not been represented in Congress." (Jay to Wm.
Carmichael, Jan. 4, 1786; _Jay_: Johnston, iii, 225.) During half of
September and all of October, November, December, January, and February,
nine States "have not been represented in congress"; and this even after
the Constitution had been adopted. (Jay to Jefferson, March 9, 1789;
_Jay_: Johnston, iii, 365.)
[948] Jay to Jefferson, Dec. 14, 1786; _Jay_: Johnston, iii, 223-24. And
Melancton Smith declared that "the farmer cultivates his land and reaps
the fruit.... The merchant drives his commerce and none can deprive him
of the gain he honestly acquires.... The mechanic is exercised in his
art, and receives the reward of his labour." (1797-98; Ford: _P. on C._,
94.) Of the prosperity of Virginia, Grigsby says, "our agriculture was
most prosperous, and our harbors and rivers were filled with ships. The
shipping interest ... was really advancing most rapidly to a degree of
success never known in the colony." (Grigsby, i, footnote to p. 82; and
see his brilliant account of Virginia's prosperity at this time; _ib._,
9-19.) "The spirit of industry throughout the country was never greater.
The productions of the earth abound," wrote Jay to B. Vaughan, Sept. 2,
1784. (_Jay_: Johnston, iii, 132.)
[949] Jay to John Adams, Feb. 21, 1787; _Jay_: Johnston, iii, 235. Jay
thought that the bottom of the trouble was that "relaxation in
government and extravagance in individuals create much public and
private distress, and much public and private want of good faith."
(_Ib._, 224.)
[950] Madison to Jefferson, Dec. 4, 1786; _Writings_: Hunt, ii, 293.
"This indulgence to the people as it is called & considered was so
warmly wished for out of doors, and so strenuously pressed within that
it could not be rejected without danger of exciting some worse project
of a popular cast." (_Ib._)
[951] Madison to Washington, Dec. 24, 1786; _ib._, 301. "My acquiescence
in the measure was against every general principle which I have
embraced, and was extorted by a fear that some greater evil under the
name of relief to the people would be substituted." (_Ib._)
[952] Rutledge to Jay, May 2, 1789; _Jay_: Johnston, iii, 368.
[953] Washington to Jay, May 18, 1786; _Writings_: Ford, xi, 31-32.
[954] Jay to Washington, June 27, 1786; _Jay_: Johnston, iii, 204.
[955] _Ib._, 205.
[956] Washington to Harrison, Jan. 18, 1784; _Writings_: Ford, x, 345.
[957] _Ib._
[958] See Madison's masterful summary of the wickedness, weakness, and
folly of the State Governments in _Writings_: Hunt, ii, 361-69.
[959] Washington to Jay, March 10, 1787; _Writings_: Ford, xi, 125.
[960] See _supra_, chap. VI.
[961] Madison to Jefferson, March 18, 1786; _Writings_: Hunt, ii, 228.
"Another unhappy effect of a continuance of the present anarchy of our
commerces will be a continuance of the unfavorable balance on it, which
by draining us of our metals, furnishes pretexts for the pernicious
substitution of paper money, for indulgencies to debtors, for
postponements of taxes." (_Ib._)
[962] Virginia carefully defined her revenue boundaries as against
Pennsylvania and Maryland; and provided that any vessel failing to enter
and pay duties as provided by the Virginia tariff laws might be seized
by any person and prosecuted "one half to the use of the informer, and
the other half to the use of the commonwealth." (Va. Statutes at Large
(1785), chap. 14, 46.)
Virginia strengthened her tariff laws against importations by land. "If
any such importer or owner shall unload any such wagon or other carriage
containing any of the above goods, wares, or merchandise brought into
this state by land without first having entered the same as directed
above, every such wagon or other carriage, together with the horses
thereto belonging and all such goods wares and merchandise as shall be
brought therein, shall be forfeited and recovered by information in the
court of the county; two-thirds to the informer and one-third toward
lessening the levy of the county where such conviction shall be made."
(_Ib._)
Even Pennsylvania, already the principal workshop of the country, while
enacting an avowedly protective tariff on "Manufactures of Europe and
Other foreign parts," included "cider, malted barley or grain, fish,
salted or dried, cheese, butter, beef, pork, barley, peas, mustard,
manufactured tobacco" which came, mostly, from sister States. The
preamble declares that the duties are imposed to protect "the artisans
and mechanics of this state" without whose products "the war could not
have been carried on."
In addition to agricultural articles named above, the law includes
"playing cards, hair powder, wrought gold or silver utensils, polished
or cut stones, musical instruments, walking canes, testaments, psalters,
spelling books or primers, romances, novels and plays, and horn or
tortoise shell combs," none of which could be called absolutely
indispensable to the conduct of the war. The preamble gives the usual
arguments for protective tariffs. It is the first protective tariff law,
in the present-day sense, ever passed. (Pa. Statutes at Large (1785),
99.)
[963] Even at the present time the various States have not recovered
from this anti-National and uneconomic practice, as witness the tax laws
and other statutes in almost every State designed to prevent investments
by the citizens of that State in industries located in other States.
Worse, still, are the multitude of State laws providing variable control
over railways that are essentially National.
[964] _Writings_: Hunt, ii, 395.
[965] Marshall (1st ed.), v, 76-79.
[966] Madison to Washington, April 16, 1787; _Writings_: Hunt, ii,
345-46. This ultra-Nationalist opinion is an interesting contrast to
Madison's States' Rights views a few years later. (See _infra_, vol. II,
chaps. II, III, and IV.)
[967] Minton Collins at Richmond to Stephen Collins at Philadelphia, May
8, 1788; MS., Lib. Cong.
[968] Sam Smith in London to Stephen Collins in Philadelphia, July 21,
1788; _ib._
[969] Minton Collins to Stephen Collins, Aug. 9, 1788; _ib._
[970] "Vergennes complained, and with a good deal of stress, that they
did not find a sufficient dependence on arrangements taken with us. This
was the third time, too, he had done it.... He observed too, that the
administration of justice with us was tardy, insomuch that their
merchants, when they had money due to them within our States, considered
it as desperate; and that our commercial regulations, in general, were
disgusting to them." (Jefferson's Report; _Works_: Ford, iv, 487.)
[971] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74.
[972] Jefferson to Madison, Dec. 16, 1786; _ib._, v, 230.
[973] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318; also
332; and Jefferson to Wythe, Sept. 16, 1787; _ib._, 340.
[974] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318.
[975] Jefferson to Meusnier, Jan. 24, 1786; _ib._, 8.
[976] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 8.
[977] Jefferson to Madison, Dec. 20, 1787; _ib._, 373-74. Jefferson
concluded, prophetically, that when the people "get piled upon one
another, in large cities, as in Europe, they will become as corrupt as
Europe." (_Ib._)
[978] Jefferson to Hogendorp, Oct. 13, 1785; _ib._, iv, 469.
[979] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74.
[980] See _infra_, chap. IX.
[981] For a careful study of this important but neglected subject see
Professor Edward Payson Smith's paper in Jameson, 46-115.