CHAPTER XI

INDEPENDENCE IN CONGRESS

The Constitution is not designed to secure the rights of the

people of Europe or Asia or to direct proceedings against

criminals throughout the universe. (Marshall.)

The whole world is in arms and no rights are respected but those

that are maintained by force. (Marshall.)

Marshall is disposed to express great respect for the sovereign

people and to quote their expressions as evidence of truth.

(Theodore Sedgwick.)

"I have been much in Company with General Marshall since we arrived in

this City. He possesses great powers and has much dexterity in the

application of them. He is highly & deservedly respected by the friends

of Government [Federalists] from the South. In short, we can do nothing

without him. I believe his intentions are perfectly honorable, & yet I

do believe he would have been a more decided man had his education been

on the other side of the Delaware, and he the immediate representative

of that country."[993]

So wrote the Speaker of the House of Representatives after three weeks

of association with the Virginia member whom he had been carefully

studying. After another month of Federalist scrutiny, Cabot agreed with

Speaker Sedgwick as to Marshall's qualities.

"In Congress, you see Genl. M.[arshall] is a leader. He is I think a

virtuous & certainly an able man; but you see in him the faults of a

Virginian. He thinks too much of that State, & he expects the world

will be governed according to the Rules of Logic. I have seen such men

often become excellent legislators after experience has cured their

errors. I hope it will prove so with Genl. M.[arshall], who seems

calculated to act a great part."[994]

The first session of the Sixth Congress convened in Philadelphia on

December 2, 1799. Marshall was appointed a member of the joint committee

of the Senate and the House to wait upon the President and inform him

that Congress was in session.[995]

The next day Adams delivered his speech to the Senators and

Representatives. The subject which for the moment now inflamed the minds

of the members of the President's party was Adams's second French

mission. Marshall, of all men, had most reason to resent any new attempt

to try once more where he had failed, and to endeavor again to deal with

the men who had insulted America and spun about our representatives a

network of corrupt intrigue. But if Marshall felt any personal

humiliation, he put it beneath his feet and, as we have seen, approved

the Ellsworth mission. "The southern federalists have of course been

induced [by Marshall] to vindicate the mission, as a sincere, honest,

and politic measure," wrote Wolcott to Ames.[996]

Who should prepare the answer of the House to the President's speech?

Who best could perform the difficult task of framing a respectful reply

which would support the President and yet not offend the rebellious

Federalists in Congress? Marshall was selected for this delicate work.

"Mr. Marshall, from the committee appointed to draught an Address in

answer to the Speech of the President of the United States ... reported

same."[997] Although written in admirable temper, Marshall's address

failed to please; the result was pallid.

"Considering the state of the House, it was necessary and proper that

the answer to the speech should be prepared by Mr. Marshall," testifies

Wolcott. "He has had a hard task to perform, and you have seen how it

has been executed. The object was to unite all opinions, at least of the

federalists; it was of course necessary to appear to approve the

mission, and yet to express the approbation in such terms as when

critically analyzed would amount to no approbation at all. No one

individual was really satisfied; all were unwilling to encounter the

danger and heat which a debate would produce and the address passed with

silent dissent; the President doubtless understood the intention, and in

his response has expressed his sense of the dubious compliment in terms

inimitably obscure."[998] Levin Powell, a Federalist Representative from

Virginia, wrote to his brother: "There were members on both sides that

disliked that part of it [Marshall's address] where he spoke of the

Mission to France."[999]

The mingled depression, excitement, and resentment among Marshall's

colleagues must have been great indeed to have caused them thus to look

upon his first performance in the House; for the address, which, even

now, is good reading, is a strong and forthright utterance. While, with

polite agreement, gliding over the controverted question of the mission,

Marshall's speech is particularly virile when dealing with domestic

politics. In coupling Fries's Pennsylvania insurrection with the

Kentucky and Virginia Resolutions Marshall displayed as clever political

dexterity as even Jefferson himself.

The address enumerates the many things for which Americans ought to

thank "the benevolent Deity," and laments "that any portion of the

people ... should permit themselves, amid such numerous blessings, to

_be seduced_ by ... _designing men_ into an open resistance to the laws

of the United States.... Under a Constitution where the public burdens

can only be imposed by the people themselves, for their own benefit, and

to promote their own objects, a hope might well have been indulged that

the general interest would have been too well understood, and the

general welfare too highly prized, to have produced in any of our

citizens a disposition to hazard so much felicity, by the criminal

effort of a part, to oppose with lawless violence the will of the

whole."[1000]

While it augured well that the courts and militia coöperated with "the

military force of the nation" in "restoring order and submission to the

laws," still, this only showed the necessity of Adams's "recommendation"

that "the judiciary system" should be extended. As to the new French

mission, the address "approves the pacific and humane policy" which met,

by the appointment of new envoys, "the first indications on the part of

the French Republic" of willingness to negotiate; and "offers up fervent

prayers to the Supreme Ruler of the Universe for the success of their

embassy."

Marshall declares "the present period critical and momentous. The

important changes which are occurring, the new and great events which

are every hour preparing ... the spirit of war ... prevalent in almost

every nation ... demonstrate" the need of providing "means of

self-defense." To neglect this duty from "love of ease or other

considerations" would be "criminal and fatal carelessness." No one could

tell how the new mission would terminate: "It depends not on America

alone. The most pacific temper will not ensure peace." Preparation for

"national defense ... is an ... obvious duty. Experience the parent of

wisdom ... has established the truth ... that ... nothing short of the

power of repelling aggression will" save us from "war or national

degradation."[1001]

Gregg of Pennsylvania moved to strike out the italicized words in

Marshall's address to the President, but after a short debate the motion

was defeated without roll-call.[1002]

Wolcott gives us a clear analysis of the political situation and of

Marshall's place and power in it at this particular moment: "The federal

party is composed of the old members who were generally re-elected in

the northern, with new members from the southern states. New York has

sent an anti-federal majority; Pennsylvania has done the same;

opposition principles are gaining ground in New Jersey and Maryland, and

in the present Congress, the votes of these states will be fluctuating

and undecided."

Nothing shows more clearly the intimate gossip of the time than the

similarity of Wolcott's and Cabot's language in describing Marshall. "A

number of distinguished men," continues Wolcott, "appear from the

southward, who are not pledged by any act to support the system of the

last Congress; these men will pay great respect to the opinions of

General Marshall; he is doubtless a man of virtue and distinguished

talents, but he will think much of the State of Virginia, and is too

much disposed to govern the world according to rules of logic; he will

read and expound the constitution as if it were a penal statute, and

will sometimes be embarrassed with doubts of which his friends will not

perceive the importance."[1003]

Marshall headed the committee to inquire of the President when he would

receive the address of the House, and on December 10, "Mr. Speaker,

attended by the members present, proceeded to the President's house, to

present him their Address in answer to his Speech."[1004] A doleful

procession the hostile, despondent, and irritated Representatives made

as they trudged along Philadelphia's streets to greet the equally

hostile and exasperated Chief Magistrate.

Presidential politics was much more on the minds of the members of

Congress than was the legislation needed by the country. Most of the

measures and practically all the debates of this remarkable session were

shaped and colored by the approaching contest between the Federalists

and Republicans and, personally, between Jefferson and Adams. Without

bearing this fact in mind the proceedings of this session cannot be

correctly understood. A mere reading of the maze of resolutions,

motions, and debates printed in the "Annals" leaves one bewildered. The

principal topic of conversation was, of course, the impending

presidential election. Hamilton's faction of extreme Federalists had

been dissatisfied with Adams from the beginning. Marshall writes his

brother "in confidence" of the plots these busy politicians were

concocting.

"I can tell you in confidence," writes Marshall, "that the situation of

our affairs with respect to domestic quiet is much more critical than I

had conjectured. The eastern people are very much dissatisfied with the

President on account of the late [second] Mission to France. They are

strongly disposed to desert him & push some other candidate. King or

Ellsworth with one of the Pinckneys--most probably the General, are

thought of.

"If they are deter'd from doing this by the fear that the attempt might

elect Jefferson I think it not improbable that they will vote generally

for Adams & Pinckney so as to give the latter gentleman the best chance

if he gets the Southern vote to be President.

"Perhaps this ill humor may evaporate before the election comes on--but

at present it wears a very serious aspect. This circumstance is rendered

the more unpleasant by the state of our finances. The impost received

this year has been less productive than usual & it will be impossible to

continue the present armament without another loan. Had the impost

produced the sum to which it was calculated, a loan would have been

unavoidable.

"This difficulty ought to have been foreseen when it was determined to

execute the law for raising the army. It is now conceiv'd that we cannot

at the present stage of our negotiation with France change the defensive

position we have taken without much hazard.

"In addition to this many influential characters not only contend that

the army ought not now to be disbanded but that it ought to be continued

so long as the war in Europe shall last. I am apprehensive that our

people would receive with very ill temper a system which should keep up

an army of observation at the expense of the annual addition of five

millions to our debt. The effect of it wou'd most probably be that the

hands which hold the reins wou'd be entirely chang'd. You perceive the

perplexities attending our situation.

"In addition to this there are such different views with respect to the

future, such a rancorous malignity of temper among the democrats,[1005]

such [an ap]parent disposition--(if the Aurora be the index of the

[mind of] those who support it) to propel us to a war with B[ritain] &

to enfold us within the embrace of Fran[ce], [s]uch a detestation & fear

of France among others [that I] look forward with more apprehension than

I have ever done to the future political events of our country."[1006]

On December 18 a rumor of the death of Washington reached the Capital.

Marshall notified the House. His grief was so profound that even the dry

and unemotional words of the formal congressional reports express it.

"Mr. Marshall," says the "Annals" of Congress, "in a voice that bespoke

the anguish of his mind, and a countenance expressive of the deepest

regret, rose, and delivered himself as follows:--

"Mr. Speaker: Information has just been received, that our illustrious

fellow-citizen, the Commander-in-Chief of the American Army, and the

late President of the United States, is no more!

"Though this distressing intelligence is not certain, there is too much

reason to believe its truth. After receiving information of this

national calamity, so heavy and so afflicting, the House of

Representatives can be but ill fitted for public business. I move,

therefore, they adjourn."[1007]

The next day the news was confirmed, and Marshall thus addressed the

House:--

"Mr. Speaker: The melancholy event which was yesterday announced with

doubt, has been rendered but too certain.

"Our WASHINGTON is no more! The Hero, the Sage, and the Patriot of

America--the man on whom in times of danger every eye was turned and all

hopes were placed--lives now only in his own great actions, and in the

hearts of an affectionate and afflicted people.

"If, sir, it has even not been usual openly to testify respect for the

memory of those whom Heaven had selected as its instrument for

dispensing good to men, yet such has been the uncommon worth, and such

the extraordinary incidents, which have marked the life of him whose

loss we all deplore, that the American Nation,[1008] impelled by the

same feelings, would call with one voice for a public manifestation of

that sorrow which is so deep and so universal.

"More than any other individual, and as much as to one individual was

possible, has he contributed to found this our wide-spread empire,[1009]

and to give to the Western World its independence and its freedom.

"Having effected the great object for which he was placed at the head of

our armies, we have seen him converting the sword into the plough-share,

and voluntarily sinking the soldier in the citizen.

"When the debility of our federal system had become manifest, and the

bonds which connected the parts of this vast continent were dissolving,

we have seen him the Chief of those patriots who formed for us a

Constitution, which, by preserving the Union, will, I trust,

substantiate and perpetuate those blessings our Revolution had promised

to bestow.

"In obedience to the general voice of his country, calling on him to

preside over a great people, we have seen him once more quit the

retirement he loved, and in a season more stormy and tempestuous than

war itself, with calm and wise determination, pursue the true interests

of the Nation, and contribute, more than any other could contribute, to

the establishment of that system of policy which will, I trust, yet

preserve our peace, our honor and our independence.

"Having been twice unanimously chosen the Chief Magistrate of a free

people, we see him, at a time when his re-election with the universal

suffrage could not have been doubted, affording to the world a rare

instance of moderation, by withdrawing from his high station to the

peaceful walks of private life. However the public confidence may

change, and the public affections fluctuate with respect to others, yet

with respect to him they have in war and in peace, in public and in

private life, been as steady as his own firm mind, and as constant as

his own exalted virtues.

"Let us, then, Mr. Speaker, pay the last tribute of respect and

affection to our departed friend--let the Grand Council of the Nation

display those sentiments which the Nation feels. For this purpose I

hold in my hand some resolutions which I will take the liberty to offer

to the House."[1010]

The resolutions offered by Marshall declared that:--

"The House of Representatives of the United States, having received

intelligence of the death of their highly valued fellow-citizen, GEORGE

WASHINGTON, General of the Armies of the United States, and sharing the

universal grief this distressing event must produce, _unanimously

resolve_:--

"1. That this House will wait on the President of the United States, in

condolence of this national calamity.

"2. That the Speaker's chair be shrouded with black, and that the

members and officers of the House wear mourning during the session.

"3. That a joint committee of both Houses be appointed to report

measures suitable to the occasion, and expressive of the profound sorrow

with which Congress is penetrated on the loss of a citizen, first in

war, first in peace, and first in the hearts of his countrymen."[1011]

Thus it came about that the designation of Washington as "First in war,

first in peace, and first in the hearts of his countrymen" was

attributed to Marshall. But Marshall's colleague, Henry Lee, was the

author of these words. Marshall's refusal to allow history to give him

the credit for this famous description is characteristic. He might

easily have accepted that honor. Indeed, he found it difficult to make

the public believe that he did not originate this celebrated

phraseology. He presented the resolutions; they stand on the record in

Marshall's name; and, for a long time, the world insisted on ascribing

them to him.

In a last effort to make history place the laurels on General Lee, where

they belong, Marshall, three years before his death, wrote the exact

facts:--

"As the stage passed through Philadelphia," says Marshall, "some

passenger mentioned to a friend he saw in the street the death of

General Washington. The report flew to the hall of Congress, and I was

asked to move an adjournment. I did so.

"General Lee was not at the time in the House. On receiving the

intelligence which he did on the first arrival of the stage, he retired

to his room and prepared the resolutions which were adopted with the

intention of offering them himself.

"But the House of Representatives had voted on my motion, and it was

expected by all that I on the next day announce the lamentable event and

propose resolutions adapted to the occasion.

"General Lee immediately called on me and showed me his resolutions. He

said it had now become improper for him to offer them, and wished me to

take them. As I had not written anything myself and was pleased with his

resolutions which I entirely approved, I told him I would offer them the

next day when I should state to the House of Representatives the

confirmation of the melancholy intelligence received the preceding day.

I did so.

"You will see the fact stated in a note to the preface of the Life of

Washington on p. [441] v. [2] and again in a note to the 5th vol. p.

765. Whenever the subject has been mentioned in my presence," Marshall

adds in a postscript, "I have invariably stated that the resolution was

drawn by General Lee and have referred to these notes in the Life of

Washington."[1012]

During the first session Marshall was incessantly active, although his

work was done with such ease that he gave to his colleagues the

impression of indolence. Few questions came before the House on which he

did not take the floor; and none, apparently, about which he did not

freely speak his mind in private conversation. The interminable

roll-calls of the first session show that Marshall failed to vote only

six times.[1013] His name is prominent throughout the records of the

session. For example, the Republicans moved to amend the army laws so

that enlistments should not exempt non-commissioned officers and

privates from imprisonment for debt. Marshall spoke against the motion,

which was defeated.[1014] He was appointed chairman of a special

committee to bring in a bill for removing military forces from election

places and "preventing their interference in elections." Marshall drew

this measure, reported it to the House, where it passed, only to be

defeated in the Senate.[1015]

Early in the session Marshall was appointed chairman of the committee to

report upon the cession by Connecticut to the United States of that

priceless domain known as the Western Reserve. He presented the

committee report recommending the acceptance of the lands and introduced

the bill setting out the terms upon which they could be taken

over.[1016] After much debate, which Marshall led, Gallatin fighting by

his side, the bill was passed by a heavy majority.[1017]

Marshall's vote against abrogating the power of the Governor of the

Territory of the Mississippi to prorogue the Legislature;[1018] his vote

for the resolution that the impertinence of a couple of young officers

to John Randolph at the theater did not call "for the interposition of

this House," on the ground of a breach of its privileges;[1019] his vote

against that part of the Marine Corps Bill which provided that any

officer, on the testimony of two witnesses, should be cashiered and

incapacitated forever from military service for refusing to help arrest

any member of the service who, while on shore, offended against the

person or property of any citizen,[1020] are fair examples of the level

good sense with which Marshall invariably voted.

On the Marine Corps Bill a debate arose so suddenly and sharply that the

reporter could not record it. Marshall's part in this encounter reveals

his military bent of mind, the influence of his army experience, and his

readiness in controversy, no less than his unemotional sanity and his

disdain of popular favor if it could be secured only by sacrificing

sound judgment. Marshall strenuously objected to subjecting the Marine

Corps officers to trial by jury in the civil courts; he insisted that

courts-martial were the only tribunals that could properly pass on their

offenses. Thereupon, young John Randolph of Roanoke, whose pose at this

particular time was extravagant hostility to everything military,

promptly attacked him. The incident is thus described by one who

witnessed the encounter "which was incidentally and unexpectedly started

and as suddenly and warmly debated":--

"Your representative, Mr. Marshall, was the principal advocate for

_letting the power remain with courts martial and for withholding it

from the courts of law_. In the course of the debate there was some

warmth and personality between him and Mr. Randolph, in consequence of

the latter charging the former with adopting opinions, and using

arguments, which went to sap the mode of trial by jury.

"Mr. Marshall, with leave, rose a third time, and exerted himself to

repel and invalidate the deductions of Mr. Randolph, who also obtained

permission, and defended the inference he had drawn, by stating that Mr.

Marshall, in the affair of Robbins,[1021] had strenuously argued against

the jurisdiction of the American courts, and had contended that it was

altogether an _Executive_ business; that in the present instance he

strongly contended that the business ought not to be left with the civil

tribunals, but that it ought to be transferred to military tribunals,

and thus the trial by jury would be lessened and frittered away, and

insensibly sapped, at one time by transferring the power to the

Executive, and at another to the military departments; and in other

ways, as occasions might present themselves. The debate happened so

unexpectedly that the shorthand man did not take it down, although its

manner, its matter, and its tendency, made it more deserving of

preservation, than most that have taken place during the session."[1022]

Marshall's leadership in the fight of the Virginia Revolutionary

officers for land grants from the National Government, strongly resisted

by Gallatin and other Republican leaders, illustrates his unfailing

support of his old comrades. Notwithstanding the Republican opposition,

he was victorious by a vote of more than two to one.[1023]

But Marshall voted to rebuke a petition of "free men of color" to revive

the slave-trade laws, the fugitive from justice laws, and to take "such

measures as shall in due course" free the slaves.[1024] The debate over

this resolution is important, not only as explaining the vote of

Marshall, who came from Virginia and was himself a slaveholder, as were

Washington and Jefferson, but also as showing the mind of the country on

slavery at that particular time.

Marshall's colleague, General Lee, said that the petition "contained

sentiments ... highly improper ... to encourage."[1025] John Rutledge of

South Carolina exclaimed: "They now tell the House these people are in

slavery--I thank God they are! if they were not, dreadful would be the

consequences.... Some of the states would never have adopted the Federal

form of government if it had not been secured to them that Congress

never would legislate on the subject of slavery."[1026]

Harrison Gray Otis of Massachusetts was much disgusted by the

resolution, whose signers "were incapable of writing their names or of

reading the petitions"; he "thought those who did not possess that

species of property [slaves] had better leave the regulation of it to

those who were cursed with it." John Brown of Rhode Island "considered

[slaves] as much personal property as a farm or a ship.... We want

money; we want a navy; we ought therefore to use the means to obtain

it.... Why should we see Great Britain getting all the slave trade to

themselves; why may not our country be enriched by that lucrative

traffic?"[1027] Gabriel Christie of Maryland hoped the petition would

"go under the table instead of upon it."[1028] Mr. Jones of Georgia

thought that the slaves "have been immensely benefited by coming amongst

us."[1029]

Finally, after two days of debate, in which the cause of freedom for the

blacks was almost unsupported, Samuel Goode of Virginia moved: "That the

parts of the said petition which invite Congress to legislate upon

subjects from which the General Government is precluded by the

Constitution have a tendency to create disquiet and jealousy, and ought

therefore to receive the pointed disapprobation of this House."[1030] On

this motion, every member but one, including John Marshall, voted aye.

George Thacher, a Congregationalist preacher from Massachusetts, alone

voted nay.[1031] Such, in general, and in spite of numerous humanitarian

efforts against slavery, was American sentiment on that subject at the

dawn of the nineteenth century.[1032]

Five subjects of critical and historic importance came before the

session: the Federalists' Disputed Elections Bill; the Republican attack

on the provisional army raised for the probable emergency of war with

France; the Republican attack on the Executive power in the Jonathan

Robins case; the Republican onslaught upon the Alien and Sedition Laws;

and the National Bankruptcy Bill. In each of these Marshall took a

leading and determining part.

Early in the session (January 23) the Republicans brought up the vexed

question of the Sedition Law. A resolution to repeal the obnoxious

section of this measure was presented on January 29, and after a hot

debate was adopted by the close vote of 50 to 48. Marshall voted for the

repeal and against his own party.[1033] Had he voted with his party, the

Republican attack would have failed. But no pressure of party regularity

could influence Marshall against his convictions, no crack of the party

whip could frighten him.

Considering the white heat of partisan feeling at the time, and

especially on the subject of the Alien and Sedition Laws; considering,

too, the fact that these offensive acts were Administration measures;

and taking into account the prominence as a Federalist leader which

Marshall had now achieved, his vote against the reprobated section of

the Sedition Law was a supreme act of independence of political ties and

party discipline. He had been and still was the only Federalist to

disapprove, openly, the Alien and Sedition Laws.[1034] "To make a little

saving for our friend Marshall's address," Chief Justice Ellsworth

sarcastically suggested that, in case of the repeal of the Sedition Law,

"the preamble ... should read thus: 'Whereas the increasing danger and

depravity of the present time require that the law against seditious

practices _should be restored to its full rigor_, therefore,'

etc."[1035]

From the point of view of its probable effect on Marshall's political

fortunes, his vote appeared to spell his destruction, for it practically

left him outside of either party. He abhorred the doctrine of State

Sovereignty which Jefferson now was making the rallying-point of the

Republican Party; he believed, quite as fervently as had Washington

himself, that the principle of Nationality alone could save the

Republic. So Marshall could have no hopes of any possible future

political advancement through the Republican Party.

On the other hand, his vote against his own party on its principal

measure killed Marshall's future as a Federalist in the opinion of all

the politicians of his time, both Federal and Republican.[1036] And we

may be certain that Marshall saw this even more clearly than did the

politicians, just as he saw most things more clearly than most men.

But if Marshall's vote on the Sedition Law was an act of

insubordination, his action on the Disputed Elections Bill was nothing

short of party treason. This next to the last great blunder of the

Federalists was in reality a high-handed attempt to control the coming

presidential election, regardless of the votes of the people. It was

aimed particularly at the anticipated Republican presidential majority

in Pennsylvania which had just elected a Republican Governor over the

Federalist candidate.

On January 3, Senator Ross of Pennsylvania, the defeated Federalist

candidate for Governor of that State, offered a resolution that a

committee should be appointed to consider a law "for deciding disputed

elections of President and Vice-President ... and ... the legality or

illegality of the votes given for those officers in the different

states." In a brief but pointed debate, the Republicans insisted that

such a law would be unconstitutional.

The Federalist position was that, since the Constitution left open the

manner of passing upon votes, Congress had the power to regulate that

subject and ought to provide some method to meet anticipated

emergencies. Suppose, said Senator Ross, that "persons should claim to

be Electors who had never been _properly_ appointed [elected], should

their vote be received? Suppose they should vote for a person to be

President who had not the age required by the Constitution or who had

not been long enough a citizen of the United States or for two persons

who were both citizens of the same State?... What situation would the

country be in if such a case was to happen?"[1037]

So lively was the interest and high the excitement that Marshall did not

go to Richmond when his fifth child was born on February 13, 1800.[1038]

He spoke in the House February 12, and was appointed on an important

committee February 13.[1039]

On February 14, the bill was reported to the Senate. Five days later the

Republican organ, the "Aurora," made shift to get a copy of the

measure,[1040] and printed it in full with a bold but justifiable attack

upon it and the method of its origin.[1041] On March 28, the bill passed

the Senate by a strict party vote.[1042] It provided that a "Grand

Committee," consisting of six Senators and six Representatives elected

by ballot and the Chief Justice of the Supreme Court, should take charge

of the certificates of electoral votes immediately after they had been

opened and read in the presence of Congress.

This Grand Committee was to be given power to send for papers and

persons and, in secret session, to consider and _determine_ all

questions concerning the election. Had bribery been employed, had force

been used, had threats or intimidation, persuasion or cajolery polluted

the voters?--the Grand Committee was to decide these questions; it was

to declare what electoral votes should be counted; it was to throw out

electoral votes which it thought to be tainted or improper; and the

report of this Grand Committee was to be final and conclusive. In

short, it was to settle absolutely the Presidency; from its decree

there was to be no appeal.[1043]

On March 31, this bill reached the House. While no action was taken on

it for more than two weeks, it was almost the sole topic of conversation

among the members. In these cloak-room talks, Marshall, to the intense

disgust and anger of the Federalist leaders, was outspoken against this

attempt to seize the Presidency under the forms of a National law.

Two weeks later Marshall expressed his opinion on the floor. He thought

that "some salutary mode" to guard against election frauds and to settle

disputed presidential contests should be adopted; but he did not think

that the Senate should appoint the chairman of the Grand Committee, and

he objected especially to the finality of its authority.[1044] He moved

that these portions of the bill be stricken out and offered a

substitute.[1045]

Opposed as he was to the measure as it came from the Senate, he

nevertheless was against its indefinite postponement and so voted.[1046]

His objections were to the autocratic and definitive power of the Grand

Committee; with this cut from the measure, he was in favor of a joint

committee of the House and Senate to examine into alleged election

frauds and illegalities. The Senate bill was referred to a special

committee of the House,[1047] which reported a measure in accordance

with Marshall's views.[1048] After much debate and several roll-calls,

the bill, as modified by Marshall, passed the House.[1049]

Marshall's reconstruction of the Senate's Disputed Elections Bill killed

that measure. It no longer served the purpose of the Federalist

presidential conspiracy. By a strict party vote, the Senate disagreed

with the House amendments;[1050] and on the day before adjournment, the

bill was finally disposed of by postponement.[1051]

Thus did Marshall destroy the careful plans for his party's further

control of the National Government, and increase the probability of the

defeat of his friend, John Adams, and of the election of his enemy,

Thomas Jefferson. Had not Marshall interfered, it seems certain that the

Disputed Elections Bill would have become a law. If it had been enacted,

Jefferson's election would have been impossible. Once again, as we shall

see, Marshall is to save the political life of his great and remorseless

antagonist.

Yet Jefferson had no words of praise for Marshall. He merely remarks

that "the bill ... has undergone much revolution. Marshall made a

dexterous manoeuver; he declares against the constitutionality of the

Senate's bill, and proposes that the right of decision of their grand

committee should be controllable by the _concurrent_ vote of the two

houses of congress; but to stand good if not rejected by a concurrent

vote. You will readily estimate the amount of this sort of

controul."[1052]

[Illustration: _Statue of John Marshall By Randolph Rogers_]

The party leaders labored hard and long with Marshall while the Disputed

Elections Bill was before the House. Speaker Sedgwick thus describes the

Federalist plot and the paralyzing effect of Marshall's private

conversations with his fellow members: "Looking forward to the ensuing

election," writes the disgusted Speaker, "it was deemed indispensable to

prescribe a mode for canvassing the votes, provided there should be a

dispute. There being no law in the state [Pennsylvania], the governor

had declined, and the jacobins [Republicans] propagated the report ...

that he would return their votes. A bill was brought into the Senate &

passed, wisely & effectually providing against the evil, by the

constitution of a committee with ultimate powers of decision.

"Mr. Marshall in the first place called in question the constitutional

powers of the legislature to delegate such authority to a Committee. On

this question I had a long conversation with him, & he finally confessed

himself (for there is not a more candid man on earth) to be convinced.

"He then resorted to another ground of opposition. He said the people

having authorized the members to decide, personally, all disputes

relative to those elections, altho' the power was not indelegable, yet

he thought, in its nature, it was too delicate to be delegated, until

experience had demonstrated that great inconveniences would attend its

exercise by the Legislature; altho' he had no doubt such would be the

result of the attempt.

"This objection is so attenuated and unsubstantial as to be hardly

perceivable by a mind so merely practical as mine. He finally was

convinced that it was so and abandoned it.

"In the mean time, however, he had dwelt so much, in conversation, on

these subjects that he had dissipated our majority, and it never could

again be compacted. The consequence was that the bill was lost."[1053]

Marshall's most notable performance while in Congress was his effort in

the celebrated Jonathan Robins case--"a speech," declares that capable

and cautious critic, Henry Adams, "that still stands without a parallel

in our Congressional debates."[1054] In 1797 the crew of the British

ship Hermione mutinied, murdered their officers, took the ship to a

Spanish port, and sold it. One of the murderers was Thomas Nash, a

British subject. Two years later, Nash turned up at Charleston, South

Carolina, as the member of a crew of an American schooner.

On the request of the British Consul, Nash was seized and held in jail

under the twenty-seventh article of the Jay Treaty. Nash swore that he

was not a British subject, but an American citizen, Jonathan Robins,

born in Danbury, Connecticut, and impressed by a British man-of-war. On

overwhelming evidence, uncontradicted except by Nash, that the accused

man was a British subject and a murderer, President Adams requested

Judge Bee, of the United States District Court of South Carolina, to

deliver Nash to the British Consul pursuant to the article of the treaty

requiring the delivery.[1055]

Here was, indeed, a campaign issue. The land rang with Republican

denunciation of the President. What servile truckling to Great Britain!

Nay, more, what a crime against the Constitution! Think of it! An

innocent American citizen delivered over to British cruelty. Where now

were our free institutions? When President Adams thus surrendered the

Connecticut "Yankee," Robins, he not only prostituted patriotism, showed

himself a tool of British tyranny, but also usurped the functions of the

courts and struck a fatal blow at the Constitution. So shouted

Republican orators and with immense popular effect.

The fires kindled by the Alien and Sedition Laws did not heat to greater

fervency the public imagination. Here was a case personal and concrete,

flaming with color, full of human appeal. Jefferson took quick party

advantage of the incident. "I think," wrote he, "no circumstance since

the establishment of our government has affected the popular mind more.

I learn that in Pennsylvania it had a great effect. I have no doubt the

piece you inclosed will run through all the republican papers, & carry

the question home to every man's mind."[1056]

"It is enough to call a man an _Irishman_, to make it _no murder_ to

pervert the law of nations and to degrade national honor and

character.... Look at what has been done in the case of _Jonathan

Robbins_," [_sic_] exclaimed the "Aurora." "A British lieutenant who

never saw him until he was prisoner at Charleston swears his name is

Thomas Nash." So "The man is hanged!"[1057]

For the purposes of the coming presidential campaign, therefore, the

Robins affair was made the principal subject of Republican congressional

attack on the Administration. On February 4, the House requested the

President to transmit all the papers in the case. He complied

immediately.[1058] The official documents proved beyond a doubt that the

executed sailor had not been an American citizen, but a subject of the

British King and that he had committed murder while on board a British

vessel on the high seas.

The selectmen of Danbury, Connecticut, certified that no such person as

Jonathan Robins nor any family of the name of Robins ever had lived in

that town. So did the town clerk. On the contrary, a British naval

officer, who knew Nash well, identified him.[1059]

Bayard, for the Federalists, took the aggressive and offered a

resolution to the effect that the President's conduct in the Robins case

"was conformable to the duty of the Government and to ... the 27th

article of the Treaty ... with Great Britain."[1060]

Forced to abandon their public charge that the Administration had

surrendered an innocent American citizen to British cruelty,[1061] the

Republicans based their formal assault in Congress upon the ground that

the President had disobeyed the laws, disregarded the Constitution, and

taken upon himself the discharge of duties and functions which belonged

exclusively to the courts. They contended that, even if Nash were

guilty, even if he were not an American citizen, he should,

nevertheless, have been tried by a jury and sentenced by a court.

On February 20, Livingston of New York offered the Republican

resolutions to this effect. Not only was the President's conduct in this

serious business a "dangerous interference of the Executive with

judicial decisions," declared the resolution, but the action of the

court in granting the President's request was "a sacrifice of the

Constitutional independence of the judicial power and exposes the

administration thereof to suspicion and reproach."[1062]

The House decided to consider the Livingston resolutions rather than

those offered by Bayard, the Federalists to a man supporting this method

of meeting the Republicans on the ground which the latter, themselves,

had chosen. Thus the question of constitutional power in the execution

of treaties came squarely before the House, and the great debate was

on.[1063] For two weeks this notable discussion continued. The first day

was frittered away on questions of order.

The next day the Republicans sought for delay[1064]--there were not

sufficient facts before the House, they said, to justify that body in

passing upon so grave a question. The third day the Republicans proposed

that the House should request the President to secure and transmit the

proceedings before the South Carolina Federal Court on the ground that

the House could not determine the matter until it had the court

proceedings.[1065]

Marshall's patience was exhausted. He thought this procrastinating

maneuver a Republican trick to keep the whole matter open until after

the coming presidential campaign,[1066] and he spoke his mind sharply to

the House.

"Let gentlemen recollect the nature of the case," exclaimed Marshall;

"the President of the United States is charged by this House with having

violated the Constitution and laws of his country, by having committed

an act of dangerous interference with a judicial decision--he is so

charged by a member of this House. Gentlemen were well aware how much

the public safety and happiness depended on a well or a misplaced

confidence in the Executive.

"Was it reasonable or right," he asked, "to receive this charge--to

receive in part the evidence in support of it--to receive so much

evidence as almost every gentleman declared himself satisfied with, and

to leave the charge unexamined, hanging over the head of the President

of the United States ... how long it was impossible to say, but

certainly long enough to work a very bad effect? To him it seemed of

all things the most unreasonable and unjust; and the mischief resulting

therefrom must be very great indeed."

The House ought to consider the evidence it already had; if, on such

examination, it appeared that more was needed, the matter could then be

postponed. And, in any event, why ask the President to send for the

court proceedings? The House had as much power to procure the papers as

the President had. "Was he [the President] to be a _menial_ to the House

in a business wherein himself was seriously charged?"[1067]

Marshall was aroused. To his brother he thus denounces the tactics of

the Republicans: "Every stratagem seems to be used to give to this

business an undue impression. On the motion to send for the evidence

from the records of South Carolina altho' it was stated & prov'd that

this would amount to an abandonment of the enquiry during the present

session & to an abandonment under circumstances which would impress the

public mind with the opinion that we really believed Mr. Livingston's

resolutions maintainable; & that the record could furnish no

satisfaction since it could not contain the parol testimony offered to

the Judge & further that it could not be material to the President but

only to the reputation of the Judge what the amount of the testimony

was, yet the debate took a turn as if we were precipitating a decision

without enquiry & without evidence."[1068]

This Republican resolution was defeated. So was another by Gallatin

asking for the papers in the case of William Brigstock, which the

Republicans claimed was similar to that of Jonathan Robins. Finally the

main question came on. For two hours Gallatin made an ingenious argument

in support of the Livingston resolutions.[1069]

The next day, March 7, Marshall took the floor and made the decisive

speech which put a period to this partisan controversy. He had carefully

revised his argument,[1070] and it is to this prevision, so unlike

Marshall's usual methods, that we owe the perfection of the reporter's

excellent transcript of his performance. This great address not only

ended the Republican attack upon the Administration, but settled

American law as to Executive power in carrying out extradition treaties.

Marshall's argument was a mingling of impressive oratory and judicial

finality. It had in it the fire of the debater and the calmness of the

judge.

It is the highest of Marshall's efforts as a public speaker. For many

decades it continued to be published in books containing the

masterpieces of American oratory as one of the best examples of the

art.[1071] It is a landmark in Marshall's career and a monument in the

development of the law of the land. They go far who assert that

Marshall's address is a greater performance than any of the speeches of

Webster, Clay, Sumner, or other American orators of the first class; and

yet so perfect is this speech that the commendation is not extreme.

The success of a democratic government, said Marshall, depended not only

on its right administration, but also on the public's right

understanding of its measures; public opinion must be "rescued from

those numerous prejudices which ... surround it." Bayard and others had

so ably defended the Administration's course that he would only

"reëstablish" and "confirm" what they had so well said.

Marshall read the section of the Jay Treaty under which the President

acted: This provided, said he, that a murderer of either nation, fleeing

for "asylum" to the other, when charged with the crime, and his delivery

demanded on such proof as would justify his seizure under local laws if

the murder had been committed in that jurisdiction, must be surrendered

to the aggrieved nation. Thus Great Britain had required Thomas Nash at

the hands of the American Government. He had committed murder on a

British ship and escaped to America.

Was this criminal deed done in British jurisdiction? Yes; for "the

jurisdiction of a nation extends to the whole of its territory, and to

its own citizens in every part of the world.... The nature of civil

union" involves the "principle" that "the laws of a nation are

rightfully obligatory on its own citizens in every situation where those

laws are really extended to them."

This "is particularly recognized with respect to the fleets of a nation

on the high seas." By "the opinion of the world ... a fleet at sea is

within the jurisdiction of the nation to which it belongs," and crimes

there committed are punishable by that nation's laws. This is not

contradicted by the right of search for contraband, as Gallatin had

contended, for "in the sea itself no nation has any jurisdiction," and a

belligerent has a right to prevent aid being carried to its enemy. But,

as to its crew, every ship carried the law of its flag.

Marshall denied that the United States had jurisdiction, concurrent or

otherwise, over the place of the murder; "on the contrary, no nation has

any jurisdiction at sea but over its own citizens or vessels or offenses

against itself." Such "jurisdiction ... is personal, reaching its own

citizens only"; therefore American authority "cannot extend to a murder

committed by a British sailor on board a British frigate navigating the

high seas." There is no such thing as "common [international]

jurisdiction" at sea, said Marshall; and he exhaustively illustrated

this principle by hypothetical cases of contract, dueling, theft, etc.,

upon the ocean. "A common jurisdiction ... at sea ... would involve the

power of punishing the offenses ... stated." Piracy was the one

exception, because "against all and every nation ... and therefore

punishable by all alike." For "a pirate ... is an enemy of the human

race."

Any nation, however, may by statute declare an act to be piratical which

is not so by the law of nations; and such an act is punishable only by

that particular state and not by other governments. But an act

universally recognized as criminal, such as robbery, murder, and the

like, "is an offense against the community of nations."

The Republican contention was that murder and robbery (seizure of ships)

constituted piracy "by the law of nations," and that, therefore, Nash

should have been indicted and tried by American authority as a pirate;

whereas he had been delivered to Great Britain as a criminal against

that nation.

But, said Marshall, a single act does not necessarily indicate piratical

intent unless it "manifests general hostility against the world"; if it

shows an "intention to rob generally, then it is piracy." If, however,

"it be merely mutiny and murder in a vessel with the intention of

delivering it up to the enemy, it" is "an offense against a single

nation and not piracy." It was only for such murder and "not piracy"

that "Nash was delivered." And, indisputably, this was covered by the

treaty. Even if Nash had been tried and acquitted for piracy, there

still would have remained the crime of murder over which American courts

had no jurisdiction, because it was not a crime punishable by

international law, but only by the law of the nation in whose

jurisdiction the crime was committed, and to which the criminal

belonged.

American law and American courts could not deal with such a condition,

insisted Marshall, but British law and courts could and the treaty bound

America to deliver the criminal into British hands. "It was an act to

which the American Nation was bound by a most solemn compact." For an

American court to have convicted Nash and American authorities to have

executed him "would have been murder"; while for them to have "acquitted

and discharged him would have been a breach of faith and a violation of

national duty."

It was plain, then, said he, that Nash should have been delivered to the

British officers. By whom? The Republicans insisted that this authority

was in the courts. Marshall demonstrated that the President alone could

exercise such power. It was, he said, "a case for Executive and not for

judicial decision." The Republican resolutions declared that the

judicial power extends to _all_ questions arising under the

Constitution, treaties, and laws of the United States; but the

Constitution itself provided that the judicial power extends only to all

cases "_in law and equity_" arising under the Constitution, laws, and

treaties of the United States.

"The difference was material and apparent," said Marshall. "A case in

law or equity was a term well understood and of limited signification.

It was a controversy between parties which had taken a shape for

judicial decision. If the judicial power extended to every question

under the Constitution, it would involve almost every subject proper for

Legislative discussion and decision; if to every question under the laws

and treaties of the United States, it would involve almost every subject

on which the Executive could act. The division of power ... could exist

no longer, and the other departments would be swallowed up in the

Judiciary."

The Constitution did not confer on the Judiciary "any political power

whatever." The judicial power covered only cases where there are

"parties to come into court, who can be reached by its process and bound

by its power; whose rights admit of ultimate decision by a tribunal to

which they are bound to submit." Such a case, said Marshall, "may arise

under a treaty where the rights of individuals acquired or secured by a

treaty are to be asserted or defended in court"; and he gave examples.

"But the judicial power cannot extend to political compacts; as the

establishment of the boundary line between American and British

Dominions ... or the case of the delivery of a murderer under the

twenty-seventh article of our present Treaty with Britain....

"The clause of the Constitution which declares that 'the trial of all

crimes ... shall be by jury'" did not apply to the decision of a case

like that of Robins. "Certainly this clause ... cannot be thought

obligatory on ... the whole world. It is not designed to secure the

rights of the people of Europe or Asia or to direct and control

proceedings against criminals throughout the universe. It can, then, be

designed only to guide the proceedings of our own courts" in cases "to

which the jurisdiction of the nation may rightfully extend." And the

courts could not "try the crime for which Thomas Nash was delivered up

to justice." The sole question was "whether he should be delivered up to

a foreign tribunal which was alone capable of trying and punishing him."

A provision for the trial of crimes in the courts of the United States

is clearly "not a provision for the surrender to a foreign Government of

an offender against that Government."

If the murder by Nash were a crime, it is one "not provided for by the

Constitution"; if it were not a crime, "yet it is the precise case in

which his surrender was stipulated by treaty" which the President,

alone, must execute. That in the Executive decision "judicial questions"

must also be determined, argued nothing; for this often must be the

case, as, for instance, in so simple and ordinary matter as issuing

patents for public lands, or in settling whether vessels have been

captured within three miles of our coasts, or in declaring the legality

of prizes taken by privateers or the restoration of such vessels--all

such questions, of which these are familiar examples, are, said

Marshall, "questions of political law proper to be decided by the

Executive and not by the courts."

This was the Nash case. Suppose that a murder were "committed within the

United States and the murderer should seek an asylum in Great Britain!"

The treaty covered such a case; but no man would say "that the British

courts should decide" it. It is, in its nature, a National demand made

upon the Nation. The parties are two nations. They cannot come into

court to litigate their claims, nor can a court decide on them. "Of

consequence," declares Marshall, "the demand is not a case for judicial

cognizance."

"The President is the sole organ of the nation in its external

relations"; therefore "the demand of a foreign nation can only be made

on him. He possesses the whole Executive power. He holds and directs the

force of the nation. Of consequence, any act to be performed by the

force of the nation is to be performed through him. He is charged to

execute the laws. A treaty is ... a law. He must, then, execute a

treaty, where he, and he alone, possesses the means of executing it."

This, in rough outline, is Marshall's historic speech which helped to

direct a new nation, groping blindly and with infinite clamoring, to a

straight and safe pathway. Pickering immediately reported to Hamilton:

"Mr. Marshall delivered a very luminous argument on the case, placing

the 27th article of the treaty in a clear point of view and giving

constructions on the questions arising out of it perfectly satisfactory,

but, as it would seem, wholly unthought of when the meaning of the

article was heretofore considered. His argument will, I hope, be fully

and correctly published; it illustrates an important national

question."[1072]

The Republicans were discomfited; but they were not without the power to

sting. Though Marshall had silenced them in Congress, the Republican

press kept up the attack. "_Mr. Marshall_ made an ingenious and

_specious_ defence of the administration, in relation to executive

interference in the case of _Robbins_," [_sic_] says the "Aurora," "but

he was compelled to admit, what certainly implicates both the President

and Judge Bee.... He admitted that an American seaman was justifiable,

in rescuing himself from impressment, to put to death those who kept

him in durance.... Robbins [_sic_] claimed to be an American citizen,

and asserted upon his oath, that he had been impressed and yet his claim

was not examined into by the Judge, neither did the President _advise_

and _request_ that this should be a subject of enquiry. The enquiry into

his citizenship was made _after_ his surrender and execution, and the

evidence exhibited has a very suspicious aspect.... Town clerks may be

found to certify to anything that Timothy Pickering shall desire."[1073]

Nevertheless, even the "Aurora" could not resist an indirect tribute to

Marshall, though paying it by way of a sneer at Samuel W. Dana of

Connecticut, who ineffectually followed him.

"In the debate on _Mr. Livingston's_ resolutions, on Friday last," says

the "Aurora," "Mr. Marshall made, in the minds of some people, a very

satisfactory defense of the conduct of the _President_ and _Judge Bee_

in the case of _Jonathan Robbins_ [_sic_]. Mr. Dana, however, thought

the subject exhausted, and very _modestly_ (who does not know his

_modesty_) resolved with his inward man to shed a few more rays of light

on the subject; a federal judge, much admired for his wit and humour,

happened to be present, when Mr. Dana began his flourishes.

"The judge thought the seal of conviction had been put upon the case by

Mr. Marshall, and discovered symptoms of uneasiness when our little

Connecticut Cicero displayed himself to catch Mr. Speaker's vacant

eye--'Sir,' said the wit to a byestander, 'what can induce that man to

rise, he is nothing but a shakebag, and can only shake out the ideas

that have been put into the members' heads by Mr. Marshall.'"[1074]

Marshall's argument was conclusive. It is one of the few speeches ever

delivered in Congress that actually changed votes from one party to the

other in a straight-out party fight. Justice Story says that Marshall's

speech "is one of the most consummate juridical arguments which was ever

pronounced in the halls of legislation; ... equally remarkable for the

lucid order of its topics, the profoundness of its logic, the extent of

its research,[1075] and the force of its illustrations. It may be said

of that speech ... that it was '_Réponse sans réplique_,' an answer so

irresistible that it admitted of no reply. It silenced opposition and

settled then and forever the points of international law on which the

controversy hinged.... An unequivocal demonstration of public opinion

followed. The denunciations of the Executive, which had hitherto been

harsh and clamorous everywhere throughout the land, sunk away at once

into cold and cautious whispers only of disapprobation.

"Whoever reads that speech, even at this distance of time, when the

topics have lost much of their interest, will be struck with the

prodigious powers of analysis and reasoning which it displays, and

which are enhanced by the consideration that the whole subject was then

confessedly new in many of its aspects."[1076]

The Republican leaders found their own members declaring themselves

convinced by Marshall's demonstration and announcing their intentions of

voting with the Administration. Gallatin, Livingston, and Randolph had

hard work to hold their followers in line. Even the strongest efforts of

these resourceful men would not rally all of their shattered forces.

Many Republican members ignored the pleadings of their leaders and

supported Marshall's position.

This is not to be wondered at, for Marshall had convinced even Gallatin

himself. This gifted native of Switzerland was the Republican leader of

the House. Unusually well-educated, perfectly upright, thorough in his

industry, and careful in his thinking, Gallatin is the most admirable of

all the characters attracted to the Republican ranks. He had made the

most effective argument on the anti-Administration side in the debate

over the Livingston resolutions, and had been chosen to answer

Marshall's speech. He took a place near Marshall and began making notes

for his reply; but soon he put his pencil and paper aside and became

absorbed in Marshall's reasoning. After a while he arose, went to the

space back of the seats, and paced up and down while Marshall proceeded.

When the Virginian closed, Gallatin did not come forward to answer him

as his fellow partisans had expected. His Republican colleagues crowded

around the brilliant little Pennsylvania Swiss and pleaded with him to

answer Marshall's speech without delay. But Gallatin would not do it.

"Answer it yourself," exclaimed the Republican leader in his quaint

foreign accent; "for my part, I think it unan_swer_able," laying the

accent on the _swer_.[1077]

Nicholas of Virginia then tried to reply, but made no impression; Dana

spoke to no better purpose, and the House ended the discussion by a vote

which was admitted to be a distinctively personal triumph for Marshall.

The Republican resolutions were defeated by 61 to 35, in a House where

the parties were nearly equal in numbers.[1078]

For once even Jefferson could not withhold his applause for Marshall's

ability. "Livingston, Nicholas & Gallatin distinguished themselves on

one side & J. Marshall greatly on the other," he writes in his curt

account of the debate and its result.[1079] And this grudging tribute of

the Republican chieftain is higher praise of Marshall's efforts than the

flood of eulogy which poured in upon him; Jefferson's virulence toward

an enemy, and especially toward Marshall, was such that he could not

see, except on rare occasions, and this was one, any merit whatever in

an opponent, much less express it.

Marshall's defense of the army law was scarcely less powerful than his

speech in the Robins case; and it reveals much more clearly Marshall's

distinctively military temper of mind.

Congress had scarcely organized when the question came up of the

reduction of the army. On this there was extended debate. Nicholas of

Virginia offered a resolution to repeal the act for the provisional army

of which Washington had been the Commander-in-Chief. The expense of this

military establishment greatly alarmed Nicholas, who presented an array

of figures on which his anxieties fed.[1080] It was nonsense, he held,

to keep this army law on the statute books for its effect on the

negotiations with France.

Marshall promptly answered. "If it was true," said he, "that America,

commencing her negotiation with her present military force would appear

in the armor which she could only wear for a day, the situation of our

country was lamentable indeed. If our debility was really such ... our

situation was truly desperate." There was "no cheaper mode of

self-defense"; to abandon it "amounted to a declaration that we were

unable to defend ourselves." It was not necessary to repeal the law

entirely or to put it, "not modified," in full effect. Marshall

suggested a middle ground by which "the law might be modified so as to

diminish the estimated expense, without dismissing the troops already in

actual service."[1081]

Answering the favorite argument made by the opponents of the army, that

no power can invade America, he asked: "What assurance have gentlemen

that invasion is impracticable?" Who knows the real conditions in

Europe?--the "effect of the late decisive victories of France?... It was

by no means certain" that these had not resulted in the release of

forces which she "may send across the Atlantic."

Why be precipitate? asked Marshall; by the opening of the next campaign

in Europe we should have more information. Let us look the situation in

the face: "We are, in fact, at war with France, though it is not

declared in form"; commerce is suspended; naval battles are being

fought; property is "captured and confiscated"; prisoners are taken and

incarcerated. America is of "vast importance to France"; indeed, "the

monopoly of our commerce in time of peace" is invaluable to both France

and England "for the formation of a naval power."

The Republicans, he said, had "urged not only that the army is useless,"

but that we could not afford the expense of maintaining it. "Suppose

this had been the language of '75!" exclaimed Marshall. "Suppose a

gentleman had risen on the floor of Congress, to compare our revenues

with our expenses--what would have been the result of the calculation?"

It would have shown that we could not afford to strike for our

independence! Yet we did strike and successfully. "If vast exertions

were then made to acquire independence, will not the same exertions be

now made to maintain it?"

The question was, "whether self-government and national liberty be worth

the money which must be expended to preserve them?"[1082] He exposed

the sophistry of an expensive economy. It should never be forgotten that

true economy did not content itself with inquiring into the mere saving

of the present moment; it should take an enlarged view of the subject,

and determine, on correct calculations, whether the consequence of a

present saving might not be a much more considerable future expenditure.

Marshall admitted that the reduction of the army would certainly

diminish the expense of the present year, but contended that the present

saving would bear no proportion to the immense waste of blood, as well

as treasure, which it might occasion.[1083] "And consider," he

exclaimed, "the effect the army already had produced on the mind and

conduct of France. While America was humbly supplicating for peace, and

that her complaints might be heard, France spurned her contemptuously

and refused to enter on a discussion of differences, unless that

discussion was preceded by a substantial surrender of the essential

attributes of independence."

"America was at length goaded into resistance," asserted Marshall, "and

resolved on the system of defense, of which the army now sought to be

disbanded forms a part." What was the result? "Immediately the tone of

France was changed, and she consented to treat us as an independent

nation. Her depredations indeed did not cease; she continued still to

bring war upon us; but although peace was not granted, the door to peace

was opened."

If "a French army should be crossing the Atlantic to invade our

territory," would anybody insist on disbanding our army? "Was it wise,

then, to do so while such a probability existed?" In a few months we

should know; and, if danger should disappear, "the army expires by the

law which gave it being." Meantime the expense would be trifling.[1084]

In a private letter Marshall states, with even more balance, his views

of the conflicting questions of the expense involved in, and the

necessity for, military equipment. He regrets that a loan is "absolutely

unavoidable"; but "attention must be paid to our defenses":--

"The whole world is in arms and no rights are respected but those that

[are] maintained by force. In such a state of things we dare not be

totally unmindful of ourselves or totally neglectful of that military

position to which, in spite of the prudence and pacific disposition of

our government, we may be driven for the preservation of our liberty and

national independence.

"Altho' we ought never to make a loan if it be avoidable, yet when

forc'd to it much real consolation is to be deriv'd from the future

resources of America. These resources, if we do not throw them away [by]

dissolving the union, are invaluable. It is not to be doubted that in

twenty years from this time the United States would be less burthen'd by

a revenue of twenty millions than now by a revenue of ten. It is the

plain & certain consequence of our increasing population & our

increasing wealth....

"The system of defence which has rendered this measure necessary was

not [only] essential to our character as an independent nation, but it

has actually sav'd more money to the body of the people than has been

expended & has very probably prevented either open war or such national

degradation as would make us the objects of general contempt and injury.

"A bill to stop recruiting in the twelve additional regiments has been

brought in and will pass without opposition. An attempt was made

absolutely to disband them, but [it] was negativ'd. It has been so

plainly prov'd to us that french aggression has been greatly increased,

& that their contemptuous refusal even to treat with us as an

independent nation has been entirely occasioned by a belief that we

could not resist them; & it is so clear that their present willingness

to treat is occasioned by perceiving our determination to defend

ourselves, that it was thought unwise to change materially our system at

the commencement of negotiation.

"In addition to this it had much weight, that we should know in a few

months the facts of our negotiation & should then be able to judge

whether the situation & temper of France rendered an invasion

pro[bable]. Then would be the time to decide on diminishing [or]

augmenting our military forces. A French 64 has it is said arrived in

the west indies & three frigates expected."[1085]

Although the debate dragged on and the army was attacked and defended

with brilliant ability, Marshall's argument remained the Gibraltar of

the Administration, upon which all the assaults of the Republicans were

centered unavailingly. For his army speech was never answered. Only once

more during this debate did Marshall rise and then but briefly, to bring

his common sense to bear upon the familiar contention that, if the

country is in danger, its citizens will rise spontaneously to defend it.

He said that it would be absurd to call men to arms, as had been done,

and then "dismiss them before the service was performed ... merely

because their zeal could be depended on" hereafter. He "hoped the

national spirit would never yield to that false policy."[1086]

The fourth important subject in which Marshall was a decisive influence

was the National Bankruptcy Law, passed at this session of Congress. He

was the second member of the committee that drafted this

legislation.[1087] For an entire month the committee worked on the bill

and reported it on January 6, 1800.[1088] After much debate, which is

not given in the official reports, the bill passed the House on February

21 and the Senate March 28.[1089]

While the "Annals" do not show it, we know from the testimony of the

Speaker of the House that Marshall was the vital force that shaped this

first National Bankruptcy Act. He was insistent that the law should not

be too extensive in its provisions for the curing of bankruptcy, and it

was he who secured the trial by jury as to the fact of bankruptcy.

"It [the Bankruptcy Law] is far from being such an one as I wished,"

writes Sedgwick. "The _acts_ in curing bankruptcy are too restricted,

and the trial of the question Bankrupt or not, by jury, will be found

inconvenient, embarrassing & dilatory. The mischief was occasioned by

Virginia Theory. It was the whim of General Marshall; with him a _sine

qua non_ of assent to the measure, & without him the bill must have been

lost, for it passed the House by my casting vote."

"Besides the bankrupt bill, we have passed [only] one more of great

importance," writes the Speaker of the House in a review of the work of

the session.[1090] Much of the Speaker's summary is devoted to Marshall.

Sedgwick was greatly disappointed with the laws passed, with the

exception of the Bankruptcy Bill "and one other."[1091] "All the rest we

have made here are, as to any permanently beneficial effects, hardly

worth the parchment on which they are written. The reason of this

feebleness is a real feebleness of character in the house." Sedgwick

lays most of this at Marshall's door, and in doing so, draws a vivid

picture of Marshall the man, as well as of Marshall the legislator:--

"Marshall was looked up to as the man whose great and commanding genius

was to enlighten & direct the national councils. This was the general

sentiment, while some, and those of no inconsiderable importance,

calculating on his foolish declaration, relative to the alien & sedition

laws, thought him temporizing while others deemed him feeble.

"None had in my opinion justly appreciated his character. As his

character has stamped itself on the measures of the present session, I

am desirous of letting you know how I view it.

"He is a man of a very affectionate disposition, of great simplicity of

manners and honest & honorable in all his conduct.

"He is attached to pleasures, with convivial habits strongly fixed.

"He is indolent, therefore; and indisposed to take part in the common

business of the house.

"He has a strong attachment to popularity but indisposed to sacrifice to

it his integrity; hence it is that he is disposed on all popular

subjects to feel the public pulse and hence results indecision and _an

expression_ of doubt.

"Doubts suggested by him create in more feeble minds those which are

irremovable. He is disposed ... to express great respect for the

sovereign people, and to quote their opinions as an evidence of truth.

"The latter is of all things the most destructive of personal

independence & of that weight of character which a great man ought to

possess.

"This gentleman, when aroused, has strong reasoning powers; they are

almost unequalled. But before they are excited, he has frequently,

nearly, destroyed any impression from them."[1092]

Such was Marshall's work during his six months' service in Congress, the

impression he made, and the estimate of him by his party friends. His

"convivial habits, strongly fixed," his great good nature, his personal

lovableness, were noted by his associates in the National House of

Representatives quite as much as they had been observed and commented on

by his fellow members in the Virginia Legislature and by his friends and

neighbors in Richmond.

The public qualities which his work in Congress again revealed in

brilliant light were his extraordinary independence of thought and

action, his utter fearlessness, and his commanding mental power. But his

personal character and daily manners applied a soothing ointment to any

irritation which his official attitude and conduct on public questions

created in the feelings of his associates.

So came the day of adjournment of Congress; and with it the next step

which Fate had arranged for John Marshall.

FOOTNOTES:

[993] Sedgwick to King, Dec. 29, 1799; King, iii, 163.

[994] Cabot to King, Jan. 20, 1800; _ib._, 184.

[995] _Annals_, 6th Cong., 1st Sess., 187.

[996] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

[997] _Annals_, 6th Cong. 1st Sess., 194. The speech as reported passed

with little debate.

[998] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. And see McMaster,

ii, 452.

[999] Levin Powell to Major Burr Powell, Dec. 11, 1799; _Branch

Historical Papers_, ii, 232.

[1000] _Annals_, 6th Cong., 1st Sess., 194.

[1001] _Annals_, 6th Cong., 1st Sess., 194-97.

[1002] _Ib._, 194.

[1003] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

[1004] _Annals_, 6th Cong., 1st Sess., 198.

[1005] The Federalists called the Republicans "Democrats," "Jacobins,"

etc., as terms of contempt. The Republicans bitterly resented the

appellation. The word "Democrat" was not adopted as the formal name of a

political party until the nomination for the Presidency of Andrew

Jackson, who had been Jefferson's determined enemy.

[1006] Marshall to James M. Marshall, Philadelphia, Dec. 16, 1799; MS.

[1007] _Annals_, 6th Cong., 1st Sess., 203.

[1008] Marshall appears to have been the first to use the expression

"the American Nation."

[1009] The word "empire" as describing the United States was employed by

all public men of the time. Washington and Jefferson frequently spoke of

"our empire."

[1010] _Annals_, 6th Cong., 1st. Sess., 203-04.

[1011] _Ib._, 204.

[1012] Marshall to Charles W. Hannan, of Baltimore, Md., March 29, 1832;

MS., N.Y. Pub. Lib.; also Marshall, ii, 441.

[1013] These were: On the bill to enable the President to borrow money

for the public (_Annals_, 6th Cong., 1st Sess., 632); a bill for the

relief of Rhode Island College (_ib._, 643); a salt duty bill (_ib._,

667); a motion to postpone the bill concerning the payment of admirals

(_ib._, 678); a bill on the slave trade (_ib._, 699-700); a bill for the

additional taxation of sugar (_ib._, 705).

[1014] _Ib._, 521-22.

[1015] _Annals_, 6th Cong., 1st Sess., _House_, 522-23, 527, 626;

_Senate_, 151.

[1016] _Ib._, 633-34.

[1017] _Ib._, 662. See _ib._, Appendix II, 495, 496. Thus Marshall was

the author of the law under which the great "Western Reserve" was

secured to the United States. The bill was strenuously resisted on the

ground that Connecticut had no right or title to this extensive and

valuable territory.

[1018] _Ib._, 532. On this vote the _Aurora_ said: "When we hear such

characters as General Lee calling it _innovation_ and _speculation_ to

withhold from the Executive magistrate the dangerous and unrepublican

power of _proroguing_ and dissolving a legislature at his pleasure, what

must be the course of our reflections? When we see men like General

Marshall voting for such a principle in a Government of a portion of the

American people is there no cause for alarm?" (_Aurora_, March 20,

1800.)

[1019] _Annals_, 6th Cong., 1st Sess., 504-06.

[1020] _Annals_, 6th Cong., 1st Sess., 623-24.

[1021] See _infra_, 458 _et seq._

[1022] "Copy of a letter from a gentleman in Philadelphia, to his friend

in Richmond, dated 13th March, 1800," printed in _Virginia Gazette and

Petersburg Intelligencer_, April 1, 1800.

[1023] _Annals_, 6th Cong., 1st Sess., 668-69.

[1024] _Ib._, 229.

[1025] _Ib._, 231.

[1026] _Ib._, 230-32.

[1027] _Annals_, 6th Cong., 1st Sess., 233.

[1028] _Ib._, 234.

[1029] _Ib._, 235.

[1030] _Ib._, 240.

[1031] _Ib._, 245.

[1032] Concerning a similar effort in 1790, Washington wrote: "The

memorial of the Quakers (and a very _malapropos_ one it was) has at

length been put to sleep, and will scarcely awake before the year 1808."

(Washington to Stuart, March 28, 1790; _Writings_: Ford, xi, 474.)

[1033] _Annals_, 6th Cong., 1st Sess., Resolution and debate, ii,

404-19.

[1034] Bassett, 260.

[1035] Ellsworth to Pickering, Dec. 12, 1798; Flanders, ii, 193.

[1036] Adams: _Gallatin_, 211. And see Federalist attacks on Marshall's

answers to "Freeholder," _supra_.

[1037] _Annals_, 6th Cong., 1st Sess., 29.

[1038] James Keith Marshall.

[1039] _Annals_, 6th Cong., 1st Sess., 520, 522.

[1040] At this period the Senate still sat behind closed doors and its

proceedings were secret.

[1041] _Annals_, 6th Cong., 1st Sess., 105. This led to one of the most

notably dramatic conflicts between the Senate and the press which has

occurred during our history. For the prosecution of William Duane,

editor of the _Aurora_, see _ib._, 105, 113-19, 123-24. It was made a

campaign issue, the Republicans charging that it was a Federalist plot

against the freedom of the press. (See _Aurora_, March 13 and 17, 1800.)

[1042] _Ib._, 146.

[1043] For a review of this astonishing bill, see McMaster, ii, 462-63,

and Schouler, i, 475.

[1044] _Annals_, 6th Cong., 1st Sess., 670.

[1045] Marshall's substitute does not appear in the _Annals_.

[1046] _Annals_, 6th Cong., 1st Sess., 674.

[1047] _Ib._, 678.

[1048] _Annals_, 6th Cong., 1st Sess., 691-92.

[1049] _Ib._, 687-710.

[1050] _Ib._, 179.

[1051] _Ib._, 182.

[1052] Jefferson to Livingston, April 30, 1800; _Works_: Ford, ix, 132.

[1053] Sedgwick to King, May 11, 1800; King, iii, 237-38.

[1054] Adams: _Gallatin_, 232.

[1055] United States _vs._ Nash _alias_ Robins, Bee's _Reports_, 266.

[1056] Jefferson to Charles Pinckney, Oct. 29, 1799; _Works_: Ford, ix,

87.

[1057] _Aurora_, Feb. 12, 1800.

[1058] _Annals_, 6th Cong., 1st Sess., 511.

[1059] _Ib._, 515-18. Nash himself confessed before his execution that

he was a British subject as claimed by the British authorities and as

shown by the books of the ship Hermione.

[1060] _Ib._, 526.

[1061] The Republicans, however, still continued to urge this falsehood

before the people and it was generally believed to be true.

[1062] _Annals_, 6th Congress, 1st Sess., 532-33.

[1063] _Ib._, 541-47.

[1064] _Ib._, 548.

[1065] _Annals_, 6th Cong., 1st Sess., 558.

[1066] This, in fact, was the case.

[1067] _Annals_, 6th Cong., 1st Sess., 565.

[1068] Marshall to James M. Marshall, Feb. 28, 1800; MS.

[1069] _Annals_, 6th Cong., 1st Sess., 595-96.

[1070] Pickering to James Winchester, March 17, 1800; Pickering MSS.,

Mass. Hist. Soc. Also Binney, in Dillon, iii, 312.

[1071] See Moore: _American Eloquence_, ii, 20-23. The speech also

appears in full in _Annals_, 6th Cong., 1st Sess., 596-619; in Benton:

_Abridgment of the Debates of Congress_; in Bee's _Reports_, 266; and in

the Appendix to Wharton: _State Trials_, 443.

[1072] Pickering to Hamilton, March 10, 1800; Pickering MSS., Mass.

Hist. Soc.

[1073] _Aurora_, March 10, 1800.

[1074] _Aurora_, March 14, 1800.

[1075] Marshall's speech on the Robins case shows some study, but not so

much as the florid encomium of Story indicates. The speeches of Bayard,

Gallatin, Nicholas, and others display evidence of much more research

than that of Marshall, who briefly refers to only two authorities.

[1076] Story, in Dillon, iii, 357-58.

[1077] Grigsby, i, 177; Adams: _Gallatin_, 232.

[1078] _Annals_, 6th Cong., 1st Sess., 619.

[1079] Jefferson to Madison, March 8, 1800; _Works_: Ford, ix, 121. In

sending the speeches on both sides to his brother, Levin Powell, a

Virginia Federalist Representative, says: "When you get to Marshall's it

will be worth a perusal." (Levin Powell to Major Burr Powell, March 26,

1800; _Branch Historical Papers_, ii, 241.)

[1080] _Annals_, 6th Cong., 1st Sess., 247-50.

[1081] _Ib._, 252.

[1082] _Annals_, 6th Cong., 1st Sess., 253-54.

[1083] _Ib._

[1084] _Annals_, 6th Cong., 1st Sess., 254, 255.

[1085] Marshall to Dabney, Jan. 20, 1800; MS. Colonel Charles Dabney of

Virginia was commander of "Dabney's Legion" in the Revolution. He was an

ardent Federalist and a close personal and political friend of Marshall.

[1086] _Annals_, 6th Cong., 1st Sess., 395-96.

[1087] _Ib._, 191.

[1088] _Ib._, 247.

[1089] _Ib._, 126; see law as passed, 1452-71.

[1090] Sedgwick to King, May 11, 1800; King, iii, 236.

[1091] The act requiring the Secretary of the Treasury to lay before

Congress at each session a report of financial conditions with his

recommendations. (_Annals_, 6th Cong., 1st Sess., Appendix, 1523.) The

Speaker thought this law important because it "will give splendor to the

officer [Secretary of the Treasury] and respectability to the Executive

Department of the Govt." (Sedgwick to King, _supra_.) Yet the session

passed several very important laws, among them the act accepting the

cession of the Western Reserve (_Annals_, 6th Cong., 1st Sess.,

Appendix, 1495-98) and the act prohibiting American citizens "or other

persons residing within the United States" to engage in the slave trade

between foreign countries (_ib._, 1511-14.)

[1092] Sedgwick to King, May 11, 1800; King, iii, 237.