A VIRGINIA NATIONALIST
Lace Congress up straitly within the enumerated powers.
(Jefferson.)
Construe the constitution liberally in advancement of the common
good. (Hamilton.)
To organize government, to retrieve the national character, to
establish a system of revenue, to create public credit, were among
the duties imposed upon them. (Marshall.)
I trust in that Providence which has saved us in six troubles,
yea, in seven, to rescue us again. (Washington.)
The Constitution's narrow escape from defeat in the State Conventions
did not end the struggle against the National principle that pervaded
it.[95] The Anti-Nationalists put forth all their strength to send to
the State Legislatures and to the National House and Senate as many
antagonists of the National idea as possible.[96] "Exertions will be
made to engage two thirds of the legislatures in the task of regularly
undermining the government" was Madison's "hint" to Hamilton.[97]
Madison cautioned Washington to the same effect, suggesting that a still
more ominous part of the plan was "to get a Congress appointed in the
first instance that will commit suicide on their own Authority."[98]
Not yet had the timorous Madison personally felt the burly hand of the
sovereign people so soon to fall upon him. Not yet had he undergone that
familiar reversal of principles wrought in those politicians who keep an
ear to the ground. But that change was swiftly approaching. Even then
the _vox populi_ was filling the political heavens with a clamor not to
be denied by the ambitious. The sentiment of the people required only an
organizer to become formidable and finally omnipotent.
Such an artisan of public opinion was soon to appear. Indeed, the master
political potter was even then about to start for America where the clay
for an Anti-Nationalist Party was almost kneaded for the moulder's
hands. Jefferson was preparing to leave France; and not many months
later the great politician landed on his native soil and among his
fellow citizens, who, however, welcomed him none too ardently.[99]
No one knew just where Jefferson stood on the fundamental question of
the hour when, with his two daughters, he arrived in Virginia in 1789.
The brilliant Virginian had uttered both Nationalist and
Anti-Nationalist sentiments. "I am not of the party of the Federalists,"
he protested, "but I am much farther from that of the Antifederalists."
Indeed, declared Jefferson, "If I could not go to heaven but with a
party, I would not go there at all."[100]
His first opinions of the Constitution were, as we have seen,
unfavorable. But after he had learned that the new Government was to be
a fact, Jefferson wrote Washington: "I have seen with infinite pleasure
our new constitution accepted." Careful study had taught him, he said,
"that circumstances may arise, and probably will arise, wherein all the
resources of taxation will be necessary for the safety of the state." He
saw probability of war which "requires every resource of taxation &
credit." He thought that "the power of making war often prevents
it."[101]
Thus Jefferson could be quoted on both sides and claimed by neither or
by both. But, because of his absence in France and of the reports he had
received from the then extreme Nationalist, Madison, he had not yet
apprehended the people's animosity to National rule. Upon his arrival in
Virginia, however, he discovered that "Antifederalism is not yet dead
in this country."[102] That much, indeed, was clear at first sight. The
Legislature of Virginia, which met three months after her Convention had
ratified the Constitution, was determined to undo that work, as Madison
had foreseen.[103]
That body was militantly against the new Government as it stood. "The
conflict between the powers of the general and state governments was
coeval with those governments," declares Marshall. "The old line of
division was still as strongly marked as ever." The enemies of National
power thought that "liberty could be endangered only by encroachments
upon the states; and that it was the great duty of patriotism to
restrain the powers of the general government within the narrowest
possible limits." On the other hand, the Nationalists, says Marshall,
"sincerely believed that the real danger which threatened the republic
was to be looked for in the undue ascendency of the states."[104]
[Illustration: _John Marshall From a painting by E. F. Petticolas_]
Patrick Henry was supreme in the House of Delegates. Washington was
vastly concerned at the prospect. He feared that the enemies of
Nationalism would control the State Legislature and that it would
respond to New York's appeal for a new Federal Constitutional
Convention. He was "particularly alarmed" that the General Assembly
would elect Senators "entirely anti-Federal."[105] His apprehension was
justified. Hardly a week passed after the House convened until it passed
resolutions, drawn by Henry,[106] to answer Clinton's letter, to ask
Congress to call a new Federal Convention, and to coöperate with other
States in that business.
In vain did the Nationalist members strive to soften this resolution. An
amendment which went so far as to request Congress to recommend to the
several States "the ratification of a bill of rights" and of the twenty
amendments proposed by the Virginia Convention, was defeated by a
majority of 46 out of a total vote of 124.[107] Swiftly and without
mercy the triumphant opposition struck its next blow. Washington had
urged Madison to stand for the Senate,[108] and the Nationalists exerted
themselves to elect him. Madison wrote cleverly in his own behalf.[109]
But he had no hope of success because it was "certain that a clear
majority of the assembly are enemies to the Gov^t."[110] Madison was
still the ultra-Nationalist, who, five years earlier, had wanted the
National Government to have an absolute veto on _every_ State law.[111]
Henry delivered "a tremendous philippic" against Madison as soon as his
name was placed before the General Assembly.[112] Madison was badly
beaten, and Richard Henry Lee and William Grayson were chosen as the
first Senators from Virginia under the new National Government.[113] The
defeated champion of the Constitution attributed Henry's attack and his
own misfortune to his Nationalist principles: Henry's "enmity was
levelled ... ag^{st} the _whole system_; and the destruction of the
whole system, I take to be the secret wish of his heart."[114]
In such fashion did Madison receive his first chastisement for his
Nationalist views and labors. He required no further discipline of a
kind so rough and humiliating; and he sought and secured election to the
National House of Representatives,[115] with opinions much subdued and
his whole being made pliant for the wizard who so soon was to invoke his
spell over that master mind.
Though Marshall was not in the Virginia Legislature at that session, it
is certain that he worked with its members for Madison's election as
Senator. But even Marshall's persuasiveness was unavailing. "Nothing,"
wrote Randolph to Madison, "is left undone which can tend to the
subversion of the new government."[116]
Hard upon its defeat of Madison the Legislature adopted an ominous
address to Congress. "The sooner ... the [National] government is
possessed of the confidence of the people ... _the longer its
duration_"--such was the language and spirit of Virginia's message to
the lawmakers of the Nation, even before they had assembled.[117] The
desperate Nationalists sought to break the force of this blow. They
proposed a substitute which even suggested that the widely demanded new
Federal Convention should be called by Congress if that body thought
best. But all to no purpose. Their solemn[118] amendment was beaten by a
majority of 22 out of a total vote of 122.[119]
Thus again was displayed that hostility to Nationalism which was to
focus upon the newborn National Government every burning ray of
discontent from the flames that sprang up all over the country during
the constructive but riotous years that followed. Were the people taxed
to pay obligations incurred in our War for Independence?--the National
Government was to blame. Was an excise laid on whiskey, "the common
drink of the nation"[120]--it was the National Government which thus
wrung tribute from the universal thirst. Were those who owed debts
compelled, at last, to pay them?--it was the National Government which
armed the creditor with power to recover his own.
Why did we not aid French Republicans against the hordes of "despotism"?
Because the National Government, with its accursed Neutrality, would not
let us! And who but the National Government would dare make a treaty
with British Monarchy, sacrificing American rights? Speculation and
corruption, parade and ostentation,--everything that could, reasonably
or unreasonably, be complained of,--were, avowed the Anti-Nationalists,
the wretched but legitimate offspring of Nationalism. The remedy, of
course, was to weaken the power of the Nation and strengthen that of the
States. Such was the course pursued by the foes of Nationalism, that we
shall trace during the first three administrations of the Government of
the United States.
Thus, the events that took place between 1790 and 1800, supplemented and
heated by the French Revolution, developed to their full stature those
antagonistic theories of which John Marshall and Thomas Jefferson were
to become the chief expounders. Those events also finished the
preparation of these two men for the commanding stations they were to
occupy. The radical politician and States' Rights leader on the one
hand, and the conservative politician and Nationalist jurist on the
other hand, were finally settled in their opinions during these
developing years, at the end of which one of them was to occupy the
highest executive office and the other the highest judicial office in
the Government.
It was under such circumstances that the National Government, with
Washington at its head, began its uncertain career. If the Legislature
of Virginia had gone so far before the infant National establishment was
under way, how far might not succeeding Legislatures go? No one knew.
But it was plain to all that every act of the new Administration, even
with Washington at the helm, would be watched with keen and jealous
eyes; and that each Nationalist turn of the wheel would meet with prompt
and stern resistance in the General Assembly of the greatest of American
Commonwealths. Mutiny was already aboard.
John Marshall, therefore, determined again to seek election to the House
of Delegates.
Immediately upon the organization of the National Government, Washington
appointed Marshall to be United States Attorney for the District of
Virginia. The young lawyer's friends had suggested his name to the
President, intimating that he wished the place.[121] Marshall, high in
the esteem of every one, had been consulted as to appointments on the
National bench,[122] and Washington gladly named him for District
Attorney. But when notified of his appointment, Marshall declined the
honor.
A seat in the Virginia Legislature, was, however, quite another matter.
Although his work as a legislator would interfere with his profession
much more than would his duties as United States Attorney, he could be
of practical service to the National Government in the General Assembly
of the State where, it was plain, the first battle for Nationalism must
be fought.
The Virginia Nationalists, much alarmed, urged him to make the race. The
most popular man in Richmond, he was the only Nationalist who could be
elected by that constituency; and, if chosen, would be the ablest
supporter of the Administration in the Legislature. Although the people
of Henrico County were more strongly against a powerful National
Government than they had been when they sent Marshall to the
Constitutional Convention the previous year, they nevertheless elected
him; and in 1789 Marshall once more took his seat as a member of
Virginia's law-making and law-marring body.
He was at once given his old place on the two principal standing
committees;[123] and on special committees to bring in various
bills,[124] among them one concerning descents, a difficult subject and
of particular concern to Virginians at that time.[125] As a member of
the Committee of Privileges and Elections, he passed on a hotly
contested election case.[126] He was made a member of the important
special committee to report upon the whole body of laws in force in
Virginia, and helped to draw the committee's report, which is
comprehensive and able.[127] The following year he was appointed a
member of the committee to revise the tangled laws of the
Commonwealth.[128]
The irrepressible subject of paying taxes in something else than money
soon came up. Marshall voted against a proposition to pay the taxes in
hemp and tobacco, which was defeated by a majority of 37 out of a total
vote of 139; and he voted for the resolution "that the taxes of the
present year ought to be paid in specie only or in warrants equivalent
thereto," which carried.[129] He was added to the committee on a notable
divorce case.[130]
Marshall was, of course, appointed on the special committee to bring in
a bill giving statehood to the District of Kentucky.[131] Thus he had to
do with the creation of the second State to be admitted after the
Constitution was adopted. A bill was passed authorizing a lottery to
raise money to establish an academy in Marshall's home county,
Fauquier.[132] He voted with the majority against the perennial Baptist
petition to democratize religion;[133] and for the bill to sell lands
for taxes.[134]
Marshall was appointed on the committee to bring in bills for proceeding
against absent debtors;[135] on another to amend the penal code;[136]
and he was made chairman of the special committee to examine the James
River Company,[137] of which he was a stockholder. Such are examples of
his routine activities in the Legislature of 1789.
The Legislature instructed the Virginia Senators in Congress "to use
their utmost endeavors to procure the admission of the citizens of the
United States to hear the debates of their House, whenever they are
sitting in their legislative capacity."[138]
An address glowing with love, confidence, and veneration was sent to
Washington.[139] Then Jefferson came to Richmond; and the Legislature
appointed a committee to greet him with polite but coldly formal
congratulations.[140] No one then foresaw that a few short years would
turn the reverence and affection for Washington into disrespect and
hostility, and the indifference toward Jefferson into fiery enthusiasm.
The first skirmish in the engagement between the friends and foes of a
stronger National Government soon came on. On November 30, 1789, the
House ratified the first twelve amendments to the Constitution,[141]
which the new Congress had submitted to the States; but three days later
it was proposed that the Legislature urge Congress to reconsider the
amendments recommended by Virginia which Congress had not adopted.[142]
An attempt to make this resolution stronger was defeated by the deciding
vote of the Speaker, Marshall voting against it.[143]
The Anti-Nationalist State Senate refused to concur in the House's
ratification of the amendments proposed by Congress;[144] and Marshall
was one of the committee to hold a conference with the Senate committee
on the subject.
After Congress had passed the laws necessary to set the National
Government in motion, Madison had reluctantly offered his summary of the
volume of amendments to the Constitution recommended by the States "in
order," as he said, "to quiet that anxiety which prevails in the public
mind."[145] The debate is illuminating. The amendments, as agreed to,
fell far short of the radical and extensive alterations which the States
had asked and were understood to be palliatives to popular
discontent.[146]
Randolph in Richmond wrote that the amendments were "much approved by
the _strong_ federalists ... being considered as an anodyne to the
discontented. Some others ... expect to hear, ... that a real
amelioration of the Constitution was not so much intended, as a
soporific draught to the restless. I believe, indeed," declared
Randolph, "that nothing--nay, not even the abolishment of direct
taxation--would satisfy those who are most clamorous."[147]
The amendments were used by many, who changed from advocates to
opponents of broad National powers, as a pretext for reversed views and
conduct; but such as were actually adopted were not a sufficient
justification for their action.[148]
The great question, however, with which the First Congress had to deal,
was the vexed and vital problem of finance. It was the heart of the
whole constitutional movement.[149] Without a solution of it the
National Government was, at best, a doubtful experiment. The public debt
was a chaos of variegated obligations, including the foreign and
domestic debts contracted by the Confederation, the debts of the various
States, the heavy accumulation of interest on all.[150] Public and
private credit, which had risen when the Constitution finally became an
accomplished fact, was now declining with capital's frail timidity of
the uncertain.
In his "First Report on the Public Credit," Hamilton showed the way out
of this maddening jungle. Pay the foreign debt, said Hamilton, assume as
a National obligation the debts of the States and fund them, together
with those of the Confederation. All had been contracted for a common
purpose in a common cause; all were "the price of liberty." Let the
owners of certificates, both State and Continental, be paid in full
with arrears of interest, without discrimination between original
holders and those who had purchased from them. And let this be done
by exchanging for the old certificates those of the new National
Government bearing interest and transferable. These latter then would
pass as specie;[151] the country would be supplied with a great volume
of sound money, so badly needed,[152] and the debt be in the process
of extinguishment.[153]
Hamilton's entire financial system was assailed with fury both in
Congress and among the people. The funding plan, said its opponents, was
a stock-jobbing scheme, the bank a speculator's contrivance, the
National Assumption of State debts a dishonest trick. The whole was a
plot designed to array the moneyed interests in support of the National
Government.[154] Assumption of State debts was a device to increase the
National power and influence and to lessen still more the strength and
importance of the States.[155] The speculators, who had bought the
depreciated certificates of the needy, would be enriched from the
substance of the whole people.
Without avail had Hamilton answered every objection in advance; the
careful explanations in Congress of his financial measures went for
naught; the materials for popular agitation against the National
Government were too precious to be neglected by its foes.[156] "The
first regular and systematic opposition to the principles on which the
affairs of the union were administered," writes Marshall, "originated in
the measures which were founded on it [the "First Report on the Public
Credit"]."[157]
The Assumption of State debts was the strategic point of attack,
especially for the Virginia politicians; and upon Assumption, therefore,
they wisely concentrated their forces. Nor were they without plausible
ground of opposition; for Virginia, having given as much to the common
cause as any State and more than most of her sisters, and having
suffered greatly, had by the sale of her public lands paid off more of
her debt than had any of the rest of them.
It seemed, therefore, unjust to Virginians to put their State on a
parity with those Commonwealths who had been less prompt. On the other
hand, the certificates of debt, State and Continental, had accumulated
in the North and East;[158] and these sections were determined that the
debt should be assumed by the Nation.[159] So the debate in Congress was
heated and prolonged, the decision doubtful. On various amendments,
sometimes one side and sometimes the other prevailed, often by a single
vote.[160]
At the same time the question of the permanent location of the National
Capital arose.[161] On these two subjects Congress was deadlocked. Both
were disposed of finally by the famous deal between Jefferson and
Hamilton, by which the latter agreed to get enough votes to establish
the Capital on the Potomac and the former enough votes to pass the
Assumption Bill.
Washington had made Jefferson his Secretary of State purely on merit.
For similar reasons of efficiency Hamilton had been appointed Secretary
of the Treasury, after Robert Morris, Washington's first choice, had
declined that office.
At Jefferson's dinner table, the two Secretaries discussed the
predicament and made the bargain. Thereupon, Jefferson, with all the
zeal of his ardent temperament, threw himself into the contest to pass
Hamilton's financial measure; and not only secured the necessary votes
to make Assumption a law, but wrote letters broadcast in support of it.
"Congress has been long embarrassed," he advised Monroe, "by two of the
most irritating questions that ever can be raised, ... the funding the
public debt and ... the fixing on a more central residence.... Unless
they can be reconciled by some plan of compromise, there will be no
funding bill agreed to, our credit ... will burst and vanish and the
states separate to take care every one of itself." Jefferson outlines
the bargain for fixing the Capital and assuming the debts, and
concludes: "If this plan of compromise does not take place, I fear one
infinitely worse."[162] To John Harvie he writes: "With respect to
Virginia the measure is ... divested of ... injustice."[163]
Jefferson delivered three Southern votes to pass the bill for Assumption
of the State debts, and Hamilton got enough Northern votes to locate the
National Capital permanently where it now stands.[164] Thus this vital
part of Hamilton's comprehensive financial plan was squeezed through
Congress by only two votes.[165] But Virginia was not appeased and
remained the center of the opposition.[166]
Business at once improved. "The sudden increase of monied capital,"
writes Marshall, "invigorated commerce, and gave a new stimulus to
agriculture."[167] But the "immense wealth which individuals acquired"
by the instantaneous rise in the value of the certificates of debt
caused popular jealousy and discontent. The debt was looked upon, not as
the funding of obligations incurred in our War for Independence, but as
a scheme newly hatched to strengthen the National Government by "the
creation of a monied interest ... subservient to its will."[168]
The Virginia Legislature, of which Marshall was now the foremost
Nationalist member, convened soon after Assumption had become a National
law. A smashing resolution, drawn by Henry,[169] was proposed, asserting
that Assumption "is repugnant to the constitution of the United States,
as it goes to the exercise of a power not expressly granted to the
general government."[170] Marshall was active among and, indeed, led
those who resisted to the uttermost the attack upon this thoroughly
National measure of the National Government.
Knowing that they were outnumbered in the Legislature and that the
people were against Assumption, Marshall and his fellow Nationalists in
the House of Delegates employed the expedient of compromise. They
proposed to amend Henry's resolution by stating that Assumption would
place on Virginia a "heavy debt ... which never can be extinguished" so
long as the debt of any other State remained unpaid; that it was
"inconsistent with justice"; that it would "alienate the affections of
good citizens of this Commonwealth from the government of the United
States ... and finally tend to produce measures extremely unfavorable to
the interests of the Union."[171]
Savage enough for any one, it would seem, was this amendment of the
Nationalists in the Virginia Legislature; but its fangs were not
sufficiently poisonous to suit the opposition. It lacked, particularly,
the supreme virtue of asserting the law's unconstitutionality. So the
Virginia Anti-Nationalists rejected it by a majority of 41 votes out of
a total of 135.
Marshall and his determined band of Nationalists labored hard to
retrieve this crushing defeat. On Henry's original resolution, they
slightly increased their strength, but were again beaten by a majority
of 23 out of 127 voting.[172]
Finally, the triumphant opposition reported a protest and remonstrance
to Congress. This brilliant Anti-Nationalist State paper--the Magna
Charta of States' Rights--sounded the first formal call to arms for the
doctrine that all powers not expressly given in the Constitution were
reserved to the States. It also impeached the Assumption Act as an
effort "to erect and concentrate and perpetuate a large monied interest
in opposition to the landed interests," which would prostrate
"agriculture at the feet of commerce" or result in a "change in the
present form of Federal Government, fatal to the existence of American
liberty."[173]
But the unconstitutionality of Assumption was the main objection. The
memorial declared that "during the whole discussion of the federal
constitution by the convention of Virginia, your memorialists were
taught to believe 'that every power not expressly granted was
retained' ... and upon this positive condition" the Constitution had
been adopted. But where could anything be found in the Constitution
"authorizing Congress to express terms or to assume the debts of the
states?" Nowhere! Therefore, Congress had no such power.
"As the guardians, then, of the rights and interests of their
constituents; as sentinels placed by them over the ministers of the
Federal Government, to shield it from their encroachments," the
Anti-Nationalists in the Virginia Legislature sounded the alarm.[174] It
was of this jealous temper of the States that Ames so accurately wrote a
year later: "The [National] government is too far off to gain the
affections of the people.... Instead of feeling as a Nation, a State is
our country. We look with indifference, often with hatred, fear, and
aversion, to the other states."[175]
Marshall and his fellow Nationalists strove earnestly to extract from
the memorial as much venom as possible, but were able to get only three
or four lines left out;[176] and the report was adopted practically as
originally drafted.[177] Thus Marshall was in the first skirmish, after
the National Government had been established, of that constitutional
engagement in which, ultimately, Nationalism was to be challenged on the
field of battle. Sumter and Appomattox were just below the horizon.
The remainder of Hamilton's financial plan was speedily placed upon the
statute books of the Republic, though not without determined resistance
which, more and more, took on a grim and ugly aspect both in Congress
and throughout the country.
When Henry's resolution, on which the Virginia remonstrance was based,
reached Hamilton, he instantly saw its logical result. It was, he
thought, the major premise of the syllogism of National disintegration.
"This," exclaimed Hamilton, of the Virginia resolution, "is the first
symptom of a spirit which must either be killed or it will kill the
Constitution of the United States."[178]
The Anti-Nationalist memorial of the Legislature of Virginia accurately
expressed the sentiment of the State. John Taylor of Caroline two years
later, in pamphlets of marked ability, attacked the Administration's
entire financial system and its management. While he exhaustively
analyzed its economic features, yet he traced all its supposed evils to
the Nationalist idea. The purpose and result of Hamilton's whole plan
and of the manner of its execution was, declared Taylor, to "Swallow
up ... the once sovereign ... states.... Hence all assumptions
and ... the enormous loans." Thus "the state governments will become
only speculative commonwealths to be read for amusement, like
Harrington's _Oceana_ or Moore's _Utopia_."[179]
The fight apparently over, Marshall declined to become a candidate for
the Legislature in the following year. The Administration's financial
plan was now enacted into law and the vital part of the National
machinery thus set up and in motion. The country was responding with a
degree of prosperity hitherto unknown, and, for the time, all seemed
secure.[180] So Marshall did not again consent to serve in the House of
Delegates until 1795. But the years between these periods of his public
life brought forth events which were determinative of the Nation's
future. Upon the questions growing out of them, John Marshall was one of
the ever-decreasing Virginia minority which stanchly upheld the policies
of the National Government.
Virginia's declaration of the unconstitutionality of the Assumption Act
had now thundered in Jefferson's ears. He himself was instrumental in
the enactment of this law and its unconstitutionality never occurred to
him[181] until Virginia spoke. But, faithful to the people's voice,[182]
Jefferson was already publicly opposing, through the timid but
resourceful Madison[183] and the fearless and aggressive[184] Giles, the
Nationalist statesmanship of Hamilton.[185]
Thus it came about that when Washington asked his Cabinet's opinion upon
the bill to incorporate the Bank of the United States, Jefferson
promptly expressed with all his power the constitutional theory of the
Virginia Legislature. The opposition had reached the point when, if no
other objection could be found to any measure of the National
Government, its "unconstitutionality" was urged against it. "We hear,
incessantly, from the old foes of the Constitution 'this is
unconstitutional and that is,' and, indeed, what is not? I scarce know a
point which has not produced this cry, not excepting a motion for
adjourning."[186] Jefferson now proceeded "to produce this cry" against
the Bank Bill.
Hamilton's plan, said Jefferson, violated the Constitution. "To take a
single step beyond the boundaries thus specially drawn around the powers
of Congress [the Twelfth Amendment][187] is to take possession of a
boundless field of power, no longer susceptible of any definition." Even
if the bank were "convenient" to carry out any power specifically
granted in the Constitution, yet it was not "_necessary_," argued
Jefferson; all powers expressly given could be exercised without the
bank. It was only indispensable powers that the Constitution permitted
to be implied from those definitely bestowed on Congress--"convenience
is not necessity."[188]
Hamilton answered with his argument for the doctrine of implied
powers.[189] Banks, said he, are products of civilized life--all
enlightened commercial nations have them. He showed the benefits and
utility of banks; answered all the objections to these financial
agencies; and then examined the disputed constitutionality of the bill
for the incorporation of the Bank of the United States.
All the powers of the National Government were not set down in words in
the Constitution and could not be. For instance, there are the
"resulting powers," as over conquered territory. Nobody could deny the
existence of such powers--yet they were not granted by the language of
the fundamental law. As to Jefferson's argument based on the word
"necessary," his contention meant, said Hamilton, that "no means are to
be considered _necessary_ without which the power would be
_nugatory_"--which was absurd. Jefferson's reasoning would require that
an implied power should be "_absolutely_ or _indispensably_ necessary."
But this was not the ordinary meaning of the word and it was by this
usual and customary understanding of terms that the Constitution must be
interpreted. If Jefferson was right, Congress could act only in "a case
of extreme necessity." Such a construction of the Constitution would
prevent the National Government even from erecting lighthouses, piers,
and other conveniences of commerce which _could_ be carried on without
them. These illustrations revealed the paralysis of government concealed
in Jefferson's philosophy.
The true test of implied powers, Hamilton showed, was the "natural
relation [of means] to the ... lawful ends of the government."
Collection of taxes, foreign and interstate trade, were, admittedly,
such ends. The National power to "_regulate_" these is "_sovereign_";
and therefore "to employ all the means which will relate to their
regulation to the best and greatest advantage" is permissible.
"This _general principle_ is _inherent_ in the very _definition_ of
government," declared he, "and _essential_ to every step of the progress
to be made by that of the United States, namely: That every power vested
in a government is in its nature _sovereign_ and included by _force_ of
the _term_, a right to employ all the _means_ requisite and fairly
applicable to the attainment of the _ends_ of such power, and which are
not precluded by restrictions and exceptions specified in the
Constitution or not immoral, or not contrary to the _essential_ ends of
political society....
"The powers of the Federal Government, as to _its objects_ are
sovereign"; the National Constitution, National laws, and treaties are
expressly declared to be "the supreme law of the land." And he added,
sarcastically: "The power which can create _the supreme law of the land_
in _any case_ is doubtless _sovereign_ as to such case." But, said
Hamilton, "it is unquestionably incident to _sovereign power_ to erect
corporations, and consequently to _that_ of the United States, in
_relation_ to the _objects_ intrusted to the management of the
government."
And, finally: "The powers contained in a constitution of government ...
ought to be construed liberally in advancement of the public good....
The means by which natural exigencies are to be provided for, national
inconveniences obviated, national prosperity promoted are of such
infinite variety, extent, and complexity, that there must of necessity
be great latitude of discretion in the selection and application of
those means."[190]
So were stated the opposing principles of liberal and narrow
interpretation of the Constitution, about which were gathering those
political parties that, says Marshall, "in their long and dubious
conflict ... have shaken the United States to their centre."[191] The
latter of these parties, under the name "Republican," was then being
shaped into a compact organization. Its strength was increasing. The
object of Republican attack was the National Government; that of
Republican praise and affection was the sovereignty of the States.
"The hatred of the Jacobites towards the house of Hanover was never more
deadly than that ... borne by many of the partisans of State power
towards the government of the United States," testifies Ames.[192] In
the Republican view the basis of the two parties was faith as against
disbelief in the ability of the people to govern themselves; the former
favored the moneyed interests, the latter appealed to the masses.[193]
Such was the popular doctrine preached by the opponents of the National
Government; but all economic objections centered in a common assault on
Nationalism.
Thus a clear dividing line was drawn separating the people into two
great political divisions; and political parties, in the present-day
sense of definite organizations upon fundamental and popularly
recognized principles, began to emerge. Henceforth the terms
"Federalist" and "Republican" mean opposing party groups, the one
standing for the National and the other for the provincial idea. The
various issues that arose were referred to the one or the other of these
hostile conceptions of government.
In this rise of political parties the philosophy of the Constitution was
negatived; for our fundamental law, unlike those of other modern
democracies, was built on the non-party theory and did not contemplate
party government. Its architects did not foresee parties. Indeed, for
several years after the Constitution was adopted, the term "party" was
used as an expression of reproach. The correspondence of the period
teems with illustrations of this important fact.
For a considerable time most of the leading men of the period looked
with dread upon the growing idea of political parties; and the favorite
rebuke to opponents was to accuse them of being a "party" or a
"faction," those designations being used interchangeably. The "Farewell
Address" is a solemn warning against political parties[194] almost as
much as against foreign alliances.
FOOTNOTES:
[95] Marshall, ii, 150-51. "The agitation had been too great to be
suddenly calmed; and for the active opponents of the system
[Constitution] to become suddenly its friends, or even indifferent to
its fate, would have been a victory of reason over passion." (_Ib._; and
see Beard: _Econ. O. J. D._, 85, 101, 102-07.)
[96] "The effort was made to fill the legislature with the declared
enemies of the government, and thus to commit it, in its infancy, to the
custody of its foes." (Marshall, ii, 151.)
[97] Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong.
Madison adds this cryptic sentence: "This hint may not be unworthy of
your attention."
[98] Madison to Washington, June 27, 1788; _Writings_: Hunt, v, 234.
Madison here refers to the project of calling a new Federal Convention
for the purpose of amending the Constitution or making a new one.
Randolph was still more apprehensive. "Something is surely meditated
against the new Constitution more animated, forcible, and violent than a
simple application for calling a Convention." (Randolph to Madison, Oct.
23, 1788; Conway, 118.)
[99] When Jefferson left Virginia for France, his political fortunes
were broken. (Eckenrode: _R. V._, chap. viii; and Dodd, 63-64; and
Ambler, 35-36.) The mission to France at the close of the American
Revolution, while "an honor," was avoided rather than sought by those
who were keen for career. (Dodd, 36-39.)
Seldom has any man achieved such a recovery as that of Jefferson in the
period now under review. Perhaps Talleyrand's rehabilitation most nearly
approaches Jefferson's achievement. From the depths of disfavor this
genius of party management climbed to the heights of popularity and
fame.
[100] Jefferson to Hopkinson, March 13, 1789; _Works_: Ford, v, 456.
[101] Jefferson to Washington, Paris, Dec. 4, 1788; _Works_: Ford, v,
437-38. Compare with Jefferson's statements when the fight was on
against ratifying the Constitution. (See vol. I, chap. VIII; also
Jefferson to Humphreys, Paris, March 18, 1789; _Works_: Ford, v, 470.)
[102] Jefferson to Short, Dec. 14, 1789; _Works_: Ford, vi, 24.
[103] The Legislature which met on the heels of the Virginia
Constitutional Convention hastened to adjourn in order that its members
might attend to their harvesting. (Monroe to Jefferson, July 12, 1788;
Monroe's _Writings_: Hamilton, i, 188.) But at its autumn session, it
made up for lost time in its practical display of antagonism to the
Nationalist movement.
[104] Marshall, ii, 205-26. Throughout this chapter the terms
"Nationalist" and "Anti-Nationalist" are used instead of the customary
terms "Federalist" and "Anti-Federalist," the latter not clearly
expressing the fundamental difference between the contending political
forces at that particular time.
[105] Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.
[106] _Ib._, 416-18.
[107] Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also
see the vivid description of the debate under these resolutions in
Henry, ii, 418-23.
[108] Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.
[109] Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788;
_Writings_: Hunt, v, 269-79.
[110] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 296.
[111] See vol. I of this work.
[112] Henry, ii, 427; see also Scott, 172.
[113] Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and Henry,
ii, 427-28.
[114] Madison to Randolph, Nov. 2, 1788; _Writings_: Hunt, v, 295.
[115] Monroe became a candidate against Madison and it was "thought that
he [would] ... carry his election." (Mason to John Mason, Dec. 18, 1788;
Rowland, ii, 304.) But so ardent were Madison's assurances of his
modified Nationalist views that he was elected. His majority, however,
was only three hundred. (Monroe to Jefferson, Feb. 15, 1789; Monroe's
_Writings_: Hamilton, i, 199.)
[116] Randolph to Madison, Nov. 10, 1788; Conway, 121.
[117] Journal, H.D. (Nov. 14, 1788), 42-44. Also see _Annals_, 1st
Cong., 1st Sess., 259.
[118] The Nationalist substitute is pathetic in its apprehensive tone.
It closes with a prayer "that Almighty God in his goodness and wisdom
will direct your councils to such measures as will establish our lasting
peace and welfare and secure to our latest posterity the blessings of
freedom; and that he will always have you in his holy keeping."
(Journal, H.D. (Nov. 14, 1788), 43.)
[119] _Ib._, 44.
[120] Pennsylvania Resolutions: Gallatin's _Writings_: Adams, i, 3. This
was unjust to New England, where rum was "the common drink of the
nation" and played an interesting part in our tariff laws and New
England trade.
[121] Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong.
[122] Randolph to Madison, July 19, 1789; Conway, 127.
[123] Journal, H.D. (Oct. 20, 1789), 4.
[124] _Ib._, 7-16.
[125] _Ib._, 16. Marshall probably drew the bill that finally passed. He
carried it from the House to the Senate. (_Ib._, 136.)
[126] _Ib._ (Oct. 28, 1790), 19-22. Whether or not a voter owned land
was weighed in delicate scales. Even "treating" was examined.
[127] Journal, H.D. (Oct. 28, 1790), 24-29.
[128] _Ib._, 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For
extent of this revision see Conway, 130.
[129] Journal, H.D. (1789), 57-58.
[130] _Ib._, 78. See report of the committee in this interesting case.
(_Ib._, 103.) The bill was passed. (_Ib._, 141.) At that time divorces
in Virginia could be had only by an act of the Legislature. Contrast the
above case, where the divorce was granted for cruelty, abandonment,
waste of property, etc., with that of the Mattauer case (_ib._ (1793),
112, 126), where the divorce was refused for admitted infidelity on the
part of the wife who bore a child by the brother of her husband while
the latter was abroad.
[131] _Ib._ (1789), 96. Kentucky was then a part of Virginia and
legislation by the latter State was necessary. It is more than probable
that Marshall drew this important statute, which passed. (_Ib._, 115,
131, 141.)
[132] Journal, H.D. (1789), 112. At this period, lotteries were the
common and favorite methods of raising money for schools, and other
public institutions and enterprises. Even the maintenance of cemeteries
was provided for in this way. The Journals of the House of Delegates are
full of resolutions and Hening's Statutes contain many acts concerning
these enterprises. (See, for example, Journal, H.D. (1787), 16-20;
(1797), 39.)
[133] An uncommonly able state paper was laid before the House of
Delegates at this session. It was an arraignment of the Virginia
Constitution of 1776, and mercilessly exposed, without the use of
direct terms, the dangerous political machine which that Constitution
made inevitable; it suggested "that as harmony with the Federal
Government ... is to be desired our own Constitution ought to be
compared with that of the United States and retrenched where it is
repugnant"; and it finally recommended that the people instruct their
representatives in the Legislature to take the steps for reform. The
author of this admirable petition is unknown. (Journal, H.D. (1789),
113.)
From this previous vote for a new Constitution, it is probable that
Marshall warmly supported this resolution. But the friends of the old
and vicious system instantly proposed an amendment "that the foregoing
statement contains principles repugnant to Republican Government and
dangerous to the freedom of this country, and, therefore, ought not to
meet with the approbation of this House or be recommended to the
consideration of the people"; and so strong were they that the whole
subject was dropped by postponement, without further contest. (Journal,
H.D. (1789), 108-09.)
[134] _Ib._ (Nov. 17, 1789), 20.
[135] _Ib._ (Nov. 13, 1789), 12.
[136] _Ib._ (Nov. 16, 1789), 14.
[137] _Ib._ (Nov. 27, 1789), 49. The James River Company was formed in
1784. Washington was its first president. (Randolph to Washington, Aug.
8, 1784; Conway, 58.) Marshall's Account Book shows many payments on
stock in this company.
[138] Journal, H.D. (1789), 117, 135. For many years after the
Constitution was adopted the United States Senate sat behind closed
doors. The Virginia Legislature continued to demand public debate in the
National Senate until that reform was accomplished. (See Journal, H.D.
(Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.)
In 1789 the Nationalists were much stronger in the Legislatures of the
other States than they had been in the preceding year. Only three States
had answered Virginia's belated letter proposing a new Federal
Convention to amend the Constitution. Disgusted and despondent, Henry
quitted his seat in the House of Delegates in the latter part of
November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.)
[139] Journal, H.D. (1789), 17, 19, 98.
[140] _Ib._, 107-12.
[141] _Ib._, 90-91.
[142] Journal, H.D. (1789), 96.
[143] _Ib._, 102.
[144] _Ib._, 119. The objections were that the liberty of the press,
trial by jury, freedom of speech, the right of the people to assemble,
consult, and "to instruct their representatives," were not guaranteed;
and in general, that the amendments submitted "fall short of affording
security to personal rights." (Senate Journal, December 12, 1789; MS.,
Va. St. Lib.)
[145] _Annals_, 1st Cong., 1st Sess., 444; and see entire debate. The
amendments were offered as a measure of prudence to mollify the
disaffected. (Rives, iii, 38-39.)
[146] The House agreed to seventeen amendments. But the Senate reduced
these to twelve, which were submitted to the States. The first of these
provided for an increase of the representation in the House; the second
provided that no law "varying" the salaries of Senators or
Representatives "shall take effect until an election of Representatives
shall have intervened." (_Annals_, 1st Cong., 1st Sess., Appendix to ii,
2033.) The States ratified only the last ten. (For good condensed
treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth
Amendment, as ratified, was the twelfth as submitted and is sometimes
referred to by the latter number in the documents and correspondence of
1790-91, as in Jefferson's "Opinion on the Constitutionality of the Bank
of the United States." (See _infra_.) New York, Virginia, Maryland,
South Carolina, North Carolina, and Rhode Island accepted the twelve
amendments as proposed. The other States rejected one or both of the
first two amendments.
[147] Randolph to Madison, June 30, 1789; Conway, 126.
[148] See Beard: _Econ. O. J. D._, 76.
[149] _Ib._, 86.
[150] _Ib._, 132-33.
[151] Marshall, ii, 192.
[152] Money was exceedingly scarce. Even Washington had to borrow to
travel to New York for his inauguration, and Patrick Henry could not
attend the Federal Constitutional Convention for want of cash. (Conway,
132.)
[153] "First Report on the Public Credit"; _Works_: Lodge, ii, 227 _et
seq._ The above analysis, while not technically precise, is sufficiently
accurate to give a rough idea of Hamilton's plan. (See Marshall's
analysis; Marshall, ii, 178-80.)
[154] This, indeed, was a portion of Hamilton's plan and he succeeded in
it as he did in other parts of his broad purpose to combine as much
strength as possible in support of the National Government. "The
northern states and the commercial and monied people are zealously
attached to ... the new government." (Wolcott to his father, Feb. 12,
1791; Gibbs, i, 62.)
[155] This was emphatically true. From the National point of view it was
the best feature of Hamilton's plan.
[156] In his old age, John Adams, Hamilton's most venomous and
unforgiving enemy, while unsparing in his personal abuse, paid high
tribute to the wisdom and necessity of Hamilton's financial
statesmanship. "I know not," writes Adams, "how Hamilton could have done
otherwise." (Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 75.)
"The sudden rise of public securities, after the establishment of the
funding system was no misfortune to the Public but an advantage. The
necessity of that system arose from the inconsistency of the People in
contracting debts and then refusing to pay them." (Same to same, Jan.
25, 1806; _ib._, 93.)
Fisher Ames thus states the different interests of the sections: "The
funding system, they [Southern members of Congress] say, is in favor of
the moneyed interest--oppressive to the land; that is, favorable to us
[Northern people], hard on them. They pay tribute, they say, and the
middle and eastern people ... receive it. And here is the burden of the
song, almost all the little [certificates of State or Continental debts]
that they had and which cost them twenty shillings, for supplies or
services, has been bought up, at a low rate, and now they pay more tax
towards the interest than they received for the paper. This _tribute_,
they say, is aggravating." (Ames to Minot, Nov. 30, 1791; _Works_: Ames,
i, 104.)
[157] Marshall, ii, 181. The attack on Hamilton's financial plan and
especially on Assumption was the beginning of the definite organization
of the Republican Party. (Washington's _Diary_: Lossing, 166.)
[158] Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii,
22.
[159] At one time, when it appeared that Assumption was defeated,
Sedgwick of Massachusetts intimated that his section might secede.
(_Annals_, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii,
90 _et seq._)
[160] Marshall's statement of the debate is the best and fairest brief
account of this historic conflict. (See Marshall, ii, 181-90. See entire
debate in _Annals_, 1st Cong., i, ii, under caption "Public Debt.")
[161] "This despicable grog-shop contest, whether the taverns of New
York or Philadelphia shall get the custom of Congress, keeps us in
discord and covers us all with disgrace." (Ames to Dwight, June 11,
1790; _Works_: Ames, i, 80.)
[162] Jefferson to Monroe, June 20, 1790; _Works_: Ford, vi, 78-80; and
see _ib._, 76; to Gilmer, June 27, _ib._, 83; to Rutledge, July 4,
_ib._, 87-88; to Harvie, July 25, _ib._, 108.
[163] _Ib._; and see also Jefferson to Eppes, July 25, _ib._, 106; to
Randolph, March 28, _ib._, 37; to same, April 18, _ib._, 47; to Lee,
April 26, _ib._, 53; to Mason, June 13, _ib._, 75; to Randolph, June 20,
_ib._, 76-77; to Monroe, June 20, _ib._, 79; to Dumas, June 23, _ib._,
82; to Rutledge, July 4, _ib._, 87-88; to Dumas, July 13, _ib._, 96.
Compare these letters with Jefferson's statement, February, 1793; _ib._,
vii, 224-26; and with the "Anas," _ib._, i, 171-78. Jefferson then
declared that "I was really a stranger to the whole subject." (_Ib._,
176.)
[164] Jefferson's statement; _Works_: Ford, vii, 224-26, and i, 175-77.
[165] Gibbs, i, 32; and see Marshall, ii, 190-91.
[166] Henry, ii, 453. But Marshall says that more votes would have
changed had that been necessary to consummate the bargain. (See
Marshall, ii, footnote to 191.)
[167] _Ib._, 192.
[168] Marshall, ii, 191-92.
[169] Henry, ii, 453-55.
[170] Journal, H.D. (1790), 35.
[171] Journal, H.D. (1790), 35.
[172] _Ib._
[173] _Ib._, 80-81.
[174] Journal, H.D. (1790), 80-81; and see _Am. St. Prs., Finance_, i,
90-91. The economic distinction is here clearly drawn. Jefferson, who
later made this a chief part of his attack, had not yet raised the
point.
[175] Ames to Minot, Feb. 16, 1792; _Works_: Ames, i, 113.
[176] This was the sentence which declared that Hamilton's reasoning
would result in "fictitious wealth through a paper medium," referring to
his plan for making the transferable certificates of the National debt
serve as currency.
[177] Journal, H.D. (1790), 141.
[178] Hamilton to Jay, Nov. 13, 1790; _Works_: Lodge, ix, 473-74.
Virginia was becoming very hostile to the new Government. First, there
was a report that Congress was about to emancipate the slaves. Then came
the news of the Assumption of the State debts, with the presence in
Virginia of speculators from other States buying up State securities;
and this added gall to the bitter cup which Virginians felt the National
Government was forcing them to drink. Finally the tidings that the
Senate had defeated the motion for public sessions inflamed the public
mind still more. (Stuart to Washington, June 2, 1790; _Writings_: Ford,
xi, footnote to 482.)
Even close friends of Washington deeply deplored a "spirit so subversive
of the true principles of the constitution.... If Mr. Henry has
sufficient boldness to aim the blow at its [Constitution's] existence,
which he has threatened, I think he can never meet with a more favorable
opportunity if the assumption should take place." (_Ib._)
Washington replied that Stuart's letter pained him. "The public mind in
Virginia ... seems to be more irritable, sour, and discontented than ...
it is in any other State in the Union except Massachusetts." (Washington
to Stuart, June 15, 1790; _ib._, 481-82.)
Marshall's father most inaccurately reported to Washington that Kentucky
favored the measures of the Administration; and the President, thanking
him for the welcome news, asked the elder Marshall for "any information
of a public or private nature ... from your district." (Washington to
Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.)
Kentucky was at that time in strong opposition and this continued to
grow.
[179] Taylor's "An Enquiry, etc.," as quoted in Beard: _Econ. O. J. D._,
209. (_Ib._, chap. vii.) Taylor's pamphlet was revised by Pendleton and
then sent to Madison before publication. (Monroe to Madison, May 18,
1793; Monroe's _Writings_: Hamilton, i, 254.) Taylor wanted "banks ...
demolished" and bankers "excluded from public councils." (Beard: _Econ.
O. J. D._, 209.)
[180] Marshall, ii, 192.
[181] In Jefferson's letters, already cited, not the faintest suggestion
appears that he thought the law unconstitutional. Not until Patrick
Henry's resolution, and the address of the Virginia Legislature to
Congress based thereon, made the point that Assumption was in violation
of this instrument, because the power to pass such a law was not
expressly given in the Constitution, did Jefferson take his stand
against implied powers.
[182] "Whether ... right or wrong, abstractedly, more attention should
be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791;
_Works_: Ford, vi, 186.)
[183] Monroe had advised Madison of the hostility of Virginia to
Assumption and incidentally asked for an office for his own
brother-in-law. (Monroe to Madison, July 2, 1790; Monroe's _Writings_:
Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790; _ib._,
209.)
[184] Anderson, 21.
[185] Jefferson himself, a year after he helped pass the Assumption Act,
had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter
answered in a formal statement to the President. These two documents are
the ablest summaries of the opposing sides of this great controversy.
(See Jefferson to President, May 23, 1792; _Works_: Ford, vi, 487-95;
and Hamilton to Washington, Aug. 18, 1792; _Works_: Lodge, ii, 426-72.)
[186] Ames to Minot, March 8, 1792; _Works_: Ames, i, 114.
[187] Tenth Amendment, as ratified.
[188] "Opinion on the Constitutionality of a National Bank of the United
States"; _Works_: Ford, vi, 198; and see Madison's argument against the
constitutionality of the Bank Act in _Annals_, 1st Cong., Feb. 2, 1791,
pp. 1944-52; Feb. 8, 2008-12; also, _Writings_: Hunt, vi, 19-42. This
argument best shows Madison's sudden and radical change from an extreme
Nationalist to an advocate of the most restricted National powers.
[189] Hamilton's "Opinion as to the Constitutionality of the Bank of the
United States"; _Works_: Lodge, iii, 445-93. Adams took the same view.
(See Adams to Rush, Dec. 27, 1810; _Old Family Letters_, 272.)
[190] "Opinion as to the Constitutionality of the Bank of the United
States"; _Works_: Lodge, iii, 445-93. Washington was sorely perplexed by
the controversy and was on the point of vetoing the Bank Bill. (See
Rives, iii, 170-71.)
[191] Marshall, ii, 206-07.
[192] Ames to Dwight, Jan. 23, 1792; _Works_: Ames, i, 110-11.
[193] "A Candid State of Parties"--_National Gazette_, Sept. 26, 1792.
[194] "I was no party man myself and the first wish of my heart was, if
parties did exist, to reconcile them." (Washington to Jefferson, July 6,
1796; _Writings_: Ford, xiii, 230.)