CHIEF JUSTICE OF THE UNITED STATES
I consider General Marshall as more than a secretary--as a state
conservator. (Oliver Wolcott.)
To Mr. Jefferson I have felt insuperable objections. The morals of
the author of the letter to Mazzei cannot be pure. (Marshall.)
You have given an opinion in exact conformity with the wishes of
your party. Come forward and defend it. (George Hay to Marshall.)
"The P. requests Mr. McHenry's company for one minute," wrote President
Adams to his Secretary of War on the morning of May 5, 1800.[1093] The
unsuspicious McHenry at once responded. The President mentioned an
unimportant departmental matter; and then, suddenly flying into a rage,
abused his astounded Cabinet adviser in "outrageous"[1094] fashion and
finally demanded his resignation.[1095] The meek McHenry resigned. To
the place thus made vacant, the harried President, without even
consulting him, immediately appointed Marshall, who "as immediately
declined."[1096] Then Adams tendered the office to Dexter, who accepted.
And resign, too, demanded Adams of his Secretary of State.[1097] The
doughty Pickering refused[1098]--"I did not incline to accept this
insidious favor,"[1099] he reported to Hamilton. Adams dismissed
him.[1100] Again the President turned to Marshall, who, deeply troubled,
considered the offer. The Federalist Cabinet was broken to pieces, and a
presidential election was at hand which would settle the fate of the
first great political party in American history.
The campaign had already started. The political outlook was dark enough
before the President's outburst; this shattering of his Cabinet was a
wicked tongue of lightning from the threatening clouds which, after the
flash, made them blacker still.[1101]
Few Presidents have ever faced a more difficult party condition than did
John Adams when, by a humiliating majority of only three votes, he was
elected in 1796. He succeeded Washington; the ruling Federalist
politicians looked to Hamilton as their party chieftain; even Adams's
Cabinet, inherited from Washington, was personally unfriendly to the
President and considered the imperious New York statesman as their
supreme and real commander. "I had all the officers and half the crew
always ready to throw me overboard," accurately declared Adams some
years later.[1102]
Adams's temperament was the opposite of Washington's, to which the
Federalist leaders had so long been accustomed that the change
exasperated them.[1103] From the very beginning they bound his hands.
The new President had cherished the purpose of calling to his aid the
ablest of the Republicans, but found himself helpless. "When I first
took the Chair," bitterly records Adams, "I was extremely desirous of
availing myself of Mr. Madison's abilities, ... and experience. But the
violent Party Spirit of Hamilton's Friends, jealous of every man who
possessed qualifications to eclipse him, prevented it. I could not do it
without quarreling outright with my Ministers whom Washington's
appointment had made my Masters."[1104]
On the other hand, the high Federalist politicians, most of whom were
Hamilton's adherents, felt that Adams entertained for their leader
exactly the same sentiments which the President ascribed to them. "The
jealousy which the P.[resident] has felt of H.[amilton] he now indulges
toward P.[inckney], W.[olcott] & to'd _very many of their friends_ who
are suspected of having too much influence in the Community, & of not
knowing how to appreciate his [Adams's] merits.... The Consequence is
that his ears are shut to his best real friends & open to Flatterers, to
Time servers & even to some Jacobins."[1105]
Adams, the scholar and statesman, but never the politician, was the last
man to harmonize these differences. And Hamilton proved to be as inept
as Adams.
After the President had dispatched the second mission to France,
Hamilton's followers, including Adams's Cabinet, began intriguing in a
furtive and vicious fashion to replace him with some other Federalist at
the ensuing election. While, therefore, the President, as a personal
matter, was more than justified in dismissing McHenry and Pickering (and
Wolcott also[1106]), he chose a fatal moment for the blow; as a matter
of political strategy he should have struck sooner or not at all.
At this late hour the great party task and duty of the President was, by
any and every honorable means, to unite all Federalist factions for the
impending battle with the eager, powerful, and disciplined Republicans.
Frank and full conference, tolerance, and conciliation, were the methods
now required. These might not have succeeded, but at least they would
not have irritated still more the ragged edges of party dissension. Not
only did the exasperated President take the opposite course, but his
manner and conduct were acid instead of ointment to the raw and angry
wounds.[1107]
This, then, was the state of the Federalist Party, the frame of mind of
the President, and the distracted condition of the Cabinet, when
Marshall was asked to become Secretary of State in the late spring of
1800. He was minded to refuse this high station as he had that of
Secretary of War. "I incline to think Mr. Marshall will decline this
office also," wrote McHenry to his brother.[1108] If he accepted, he
would be loyal to the President--his nature made anything else
impossible. But he was the personal friend of all the Federalist
leaders, who, in spite of his disapproval of the Alien and Sedition Laws
and of his dissent from his party's plans in Congress, in spite, even,
of his support of the President's detested second mission to
France,[1109] nevertheless trusted and liked him.
The President's selection of Marshall had been anticipated by the
Republicans. "General Marshall ... has been nominated to hold the
station of Secretary of War," said the "Aurora," in an article heavy
with abuse of Pickering. "This ... however, is said to be but
preparatory to General Marshall's appointment to succeed Mr. Pickering
who is expected to resign."[1110]
Strangely enough the news of his elevation to the head of the Cabinet
called forth only gentle criticism from the Republican press. "From what
is said of Mr. Marshall," the "Aurora" thought that he was "as little
likely to conciliate" France as Pickering. He "is well known to have
been the disingenuous writer of all the X. Y. Z. Dispatches," which the
Federalists had "confessed to be one of the best and most successful
political _tricks_ that was ever _played off_.... General Marshall's
fineering and var[ni]shing capacity" was "well known," said the
"Aurora." "General Marshall consequently has been nominated and
appointed.... In genuine federal principles, General Marshall is as
inflexible as Mr. Pickering; but in the negotiation with France, the
General may not have imbibed so strong prejudices--and, having been one
of the Envoys to that Republic, he may be supposed to be more conversant
with some of the points in dispute, than Col. Pickering, and
consequently to be preferred.
"We find him very well spoken of in the _reformed Gazettes of France_,"
continues the "Aurora," "which being now under guardianship[1111] may
be considered as speaking the language of the government--'_Le Bien
Informé_,' after mentioning the motion Gen. M. made in announcing to
Congress the death of Gen. Washington, adds--'This is the gentleman
who some time since came as Envoy from the _United States_; and who so
virtuously and so spiritedly refused to fill the pockets of some of
_our gentry_ with Dutch inscriptions, and millions of livres.'"[1112]
For nearly two weeks Marshall pondered over the President's offer. The
prospect was not inviting. It was unlikely that he could hold the place
longer than three quarters of a year, for Federalist defeat in the
presidential election was more than probable; and it seemed certain that
the head of the Cabinet would gather political cypress instead of laurel
in this brief and troubled period. Marshall consulted his friends among
the Federalist leaders; and, finally, accepted the proffered portfolio.
Thereupon the "Aurora," quoting Pickering's statement that the office of
Secretary of State "was never better filled than by General Marshall,"
hopes that "Gen. Marshall will take care of his _accounts_," which that
Republican paper had falsely charged that Pickering had manipulated
corruptly.[1113]
Expressing the Republican temper the "Aurora" thus analyzes the new
Federalist Cabinet: "The Secretary of the Treasury [Oliver Wolcott]" was
"scarcely qualified to hold the second desk in a Mercantile
Counting-House"; the Attorney-General [Charles Lee] was "without
talents"; the Secretary of the Navy [Benjamin Stoddert] was "a small
Georgetown politician ... cunning, gossiping, ... of no ... character
or ... principles"; the Secretary of War [Samuel Dexter] was no more fit
for the place than "his MOTHER"; and Marshall, Secretary of State, was
"more distinguished as a _rhetorician_ and a _sophist_ than as a
_lawyer_ and a _statesman_--sufficiently pliant to succeed in a corrupt
court, too insincere to command respect, or confidence in a republic."
However, said the "Aurora," Adams was "able to teach Mr. Marshall 'l'art
diplomatique.'"[1114]
Some of the Federalist leaders were not yet convinced, it appears, of
Marshall's party orthodoxy. Pinckney reassures them. Writing from
Virginia, he informs McHenry that "Marshall with reluctance accepts, but
you may rely on his federalism, & be certain that he will not unite with
Jefferson & the Jacobins."[1115] Two months later even the Guy Fawkes of
the Adams Cabinet declares himself more than satisfied: "If the
gentlemen now in office [Marshall and Dexter] had declined," declares
Wolcott, "rage, vexation & despair would probably have occasioned the
most extravagant conduct[1116] [on the part of the President]." After
Marshall had been at the head of the Cabinet for four months, Cabot
writes that "Mr. Wolcott thinks Mr. Marshall accepted the secretaryship
from good motives, and with a view of preserving union, and that he and
Dexter, by _accepting_, have rendered the nation great service; for, if
they had refused, we should have had--_Heaven alone knows whom!_ He
thinks, however, as all must, that under the present chief they will be
disappointed in their hopes, and that if Jefferson is President they
will probably resign."[1117]
In view of "the temper of his [Adams's] mind," which, asserts the
unfaithful Wolcott, was "revolutionary, violent, and vindictive, ...
their [Marshall's and Dexter's] acceptance of their offices is the best
evidence of their patriotism.... I consider Gen. Marshall and Mr. Dexter
as more than secretaries--as state conservators--the value of whose
services ought to be estimated, not only by the good they do, but by the
mischief they have prevented. If I am not mistaken, however, Gen.
Marshall will find himself out of his proper element."[1118]
No sooner was Marshall in the Secretary's chair than the President
hastened to his Massachusetts home and his afflicted wife. Adams's part
in directing the Government was done by correspondence.[1119] Marshall
took up his duties with his characteristically serious, yet nonchalant,
patience.
The National Capital had now been removed to Washington; and here,
during the long, hot summer of 1800, Marshall remained amidst the
steaming swamps and forests where the "Federal City" was yet to be
built.[1120] Not till October did he leave his post, and then but
briefly and on urgent private business.[1121]
The work of the State Department during this period was not onerous.
Marshall's chief occupation at the Capital, it would appear, was to act
as the practical head of the Government; and even his political enemies
admitted that he did this well. Jefferson's most partial biographer says
that "under the firm and steady lead [of Marshall and Dexter] ... the
Government soon acquired an order, system, and character which it never
had before possessed."[1122] Still, enough routine business came to his
desk to give the new Secretary of State something to do in his own
department.
Office-seeking, which had so annoyed Washington, still vexed Adams,
although but few of these hornets' nests remained for him to deal with.
"Your knowledge of persons, characters, and circumstances," wrote the
President to Marshall concerning the applications for the office of
United States Marshal for Maryland, "are so much better than mine, and
my confidence in your judgment and impartiality so entire, that I pray
you ... give the commission to him whom you may prefer."[1123] Adams
favored the son of Judge Chase; but, on the advice of Stoddert of
Maryland, who was Secretary of the Navy, Marshall decided against him:
"Mr. Chase is a young man who has not yet acquired the public confidence
and to appoint him in preference to others who are generally known and
esteem'd, might be deem'd a mere act of favor to his Father. Mr.
Stoddert supposes it ineligible to accumulate, without superior
pretensions, offices in the same family."
Marshall generally trimmed his sails, however, to the winds of
presidential preference. He undoubtedly influenced the Cabinet, in
harmony with the President's wish, to concur in the pardon of Isaac
Williams, convicted, under the Jay Treaty, of waging war on the high
seas against Great Britain. Williams, though sailing under a French
commission, was a pirate, and accumulated much wealth from his
indiscriminate buccaneering.[1125] But the President wrote Marshall that
because of "the man's generosity to American prisoners," and "his
present poverty and great distress," he desired to pardon
Williams.[1126]
Marshall informed the President that "repeated complaints are made to
this department of the depredations committed by the Spaniards on the
American commerce."[1127] The French outrages were continuing; indeed,
our naval war with France had been going on for months and Spain was
aiding the French. An American vessel, the Rebecca Henry, had been
captured by a French privateer. Two Yankee sailors killed the French
prize master in recapturing the vessel, which was taken again by another
French sea rover and conveyed into a Spanish port. The daring Americans
were imprisoned and threatened with death. Marshall thought "proper to
remonstrate and to threaten retaliation if the prisoners should be
executed."[1128]
The French ship Sandwich was captured by Captain Talbot, an American
officer, in a Spanish port which Spain had agreed to transfer to France.
Marshall considered this a violation of our treaty with Spain. "I have
therefore directed the Sandwich to be given up to the minister of his
Catholic Majesty,"[1129] he advised the President. The Spanish Minister
thanked Marshall for his "justice" and "punctuality."[1130]
But Talbot would not yield his prize; the United States Marshal
declined to act. Marshall took "measures[1131] which will," he reported
to the President, "I presume occasion the delivery of this vessel,
unless ... the government has no right to interpose, so far as captors
are interested." Talbot's attitude perplexed Marshall; for, wrote he,
"if the Executive of the United States cannot restore a vessel captured
by a national ship, in violation of the law of nations, ... cause for
war may be given by those who, of all others, are, perhaps, most apt to
give it, and that department of the government, under whose orders they
are plac'd will be unable to correct the mischief."[1132]
That picturesque adventurer, Bowles, whose plots and activities among
the Indians had been a thorn to the National Government since the early
part of Washington's Administration,[1133] again became annoying. He was
stirring up the Indians against the Spanish possessions in Florida and
repeated his claim of having the support of Great Britain. The Spaniards
eagerly seized on this as another pretext for annoying the American
Government. Measures were taken to break Bowles's influence with the
Indians and to suppress the adventurer's party.[1134]
But, although the President was of the opinion that "the military
forces ... should join [the Spaniards] in an expedition against
Bowles,"[1135] Marshall did not think "that the Spaniards require any
military aid; nor," continues he, "do I suppose they would be willing to
receive it.... American troops in either of the Floridas wou'd excite
very much their jealousy, especially when no specific requisition for
them has been made, and when their own force is entirely competent to
the object."[1136]
Liston, the British Minister, assured Marshall that the British
Government had no connection with Bowles.[1137] But, irritated by gossip
and newspaper stories, he offensively demanded that Marshall "meet these
insidious calumnies by a flat and formal contradiction."[1138] Without
waiting for the President's approval, Marshall quickly retorted:[1139]
the "suspicions ... were not entirely unsupported by appearances."
Newspaper "charges and surmises ... are always causes of infinite
regret" to the Government "and wou'd be prevented if the means of
prevention existed." But, said Marshall, the British Government itself
was not blameless in that respect; "without going far back you may find
examples in your own of the impunity with which a foreign friendly
nation [America] may be grossly libel'd." As to the people's hostility
to Great Britain, he tartly reminded the British Minister that "in
examining the practice of your officers employ'd in the business of
impressment, and of your courts of Vice Admiralty, you will perceive at
least some of the causes, by which this temper may have been
produc'd."[1140]
Sweden and Denmark proposed to maintain, jointly with the United States,
a naval force in the Mediterranean to protect their mutual commerce from
the Barbary Powers. Marshall declined because of our treaties with those
piratical Governments; and also because, "until ... actual hostilities
shall cease between" France and America, "to station American frigates
in the Mediterranean would be a hazard, to which our infant Navy ought
not perhaps to be exposed."[1141]
Incidents amusing, pathetic, and absurd arose, such as announcements of
the birth of princes, to which the Secretary of State must prepare
answers;[1142] the stranding of foreign sailors on our shores, whose
plight we must relieve;[1143] the purchase of jewels for the Bey of
Tunis, who was clamoring for the glittering bribes.[1144]
In such fashion went on the daily routine work of his department while
Marshall was at the head of the Cabinet.
The only grave matters requiring Marshall's attention were the
perplexing tangle of the British debts and the associated questions of
British impressment of American seamen and interference with American
commerce.
Under the sixth article of the Jay Treaty a joint commission of five
members had been appointed to determine the debts due British subjects.
Two of the Commissioners were British, two Americans, and the fifth
chosen by lot. Chance made this deciding member British also. This
Commission, sitting at Philadelphia, failed to agree. The treaty
provided, as we have seen, that the United States should pay such
British debts existing at the outbreak of the Revolutionary War as the
creditors were not able to collect because of the sequestration laws and
other "legal impediments," or because, during the operation of these
statutes, the debtor had become insolvent.
Having a majority of the Commission, the British members made rules
which threw the doors wide open.[1145] "They go the length to make the
United States at once the debtor for all the _outstanding_ debts of
British subjects contracted before the peace of 1783.... The amount of
the claims presented exceeds nineteen millions of dollars."[1146] And
this was done by the British representatives with overbearing personal
insolence. Aside from the injustice of the British contention, this
bullying of the American members[1147] made the work of the Commission
all but impossible.
A righteous popular indignation arose. "The construction put upon the
Treaty by the British Commissioners ... will never be submitted to by
this country.... The [British] demand ... excites much ill blood."[1148]
The American Commissioners refused to attend further sittings of the
Board. Thereupon, the British Government withdrew its members of the
associate Commission sitting in London, under the seventh article of the
treaty, to pass upon claims of American citizens for property destroyed
by the British.
The situation was acute. It was made still sharper by the appointment of
our second mission to France. For, just as France had regarded Jay's
mission and treaty as offensive, so now Great Britain looked upon the
Ellsworth mission as unfriendly. As a way out of the difficulty, the
American Government insisted upon articles explanatory of the sixth
article of the Jay Treaty which would define exactly what claims the
Commission should consider.[1149] The British Government refused and
suggested a new commission.[1150]
This was the condition that faced Marshall when he became Secretary of
State. War with Great Britain was in the air from other causes and the
rupture of the two Commissions made the atmosphere thicker. On June 24,
1800, Marshall wrote the President that we ought "still to press an
amicable explanation of the sixth article of our treaty"; perhaps during
the summer or autumn the British Cabinet might feel "more favorable to
an accommodation." But he "cannot help fearing that ... the British
Ministry" intends "to put such a construction on the law of nations ...
as to throw into their hands some equivalent to the probable claims of
British creditors on the United States."[1151]
Lord Grenville then suggested to Rufus King, our Minister at London,
that the United States pay a gross sum to Great Britain in settlement of
the whole controversy.[1152] Marshall wondered whether this simple way
out of the tangle could "afford just cause of discontent to
France?"[1153] Adams thought not. "We surely have a right to pay our
honest debts in the manner least inconvenient to ourselves and no
foreign power has anything to do with it," said the President. Adams,
however, foresaw many other difficulties;[1154] but Marshall concluded
that, on the whole, a gross payment was the best solution in case the
British Government could not be induced to agree to explanatory
articles.[1155]
Thereupon Marshall wrote his memorable instructions to our Minister to
Great Britain. In this, as in his letters to Talleyrand two years
earlier, and in the notable one on British impressment, contraband, and
freedom of the seas,[1156] he shows himself an American in a manner
unusual at that period. Not the least partiality does he display for any
foreign country; he treats them with exact equality and demands from all
that they shall deal with the American Government as a _Nation_,
independent of and unconnected with any of them.[1157]
The United States, writes Marshall, "can never submit to" the
resolutions adopted by the British Commissioners, which put "new and
injurious burthens" upon the United States "unwarranted by compact," and
to which, if they had been stated in the treaty, "this Government never
could and never would have assented." Unless the two Governments can
"forget the past," arbitration cannot be successful; it is idle to
discuss who committed the first fault, he says, when two nations are
trying to adjust their differences.
The American Commissioners, declares Marshall, withdrew from the Board
because the hostile majority established rules under which "a vast mass
of cases never submitted to their consideration" could and would be
brought in against American citizens. The proceedings of the British
Commissioners were not only "totally unauthorized," but "were conducted
in terms and in a spirit only calculated to destroy all harmony between
the two nations."
The cases which the Board could consider were distinctly and
specifically stated in the fifth article of the treaty. Let the two
Governments agree to an explanation, instead of leaving the matter to
wrangling commissioners. But, if Minister King finds that the British
Government will not agree to explanatory articles, he is authorized to
substitute "a gross sum in full compensation of all claims made or to be
made on this Government."
It would, of course, be difficult to agree upon the amount. "The
extravagant claims which the British creditors have been induced to
file," among which "are cases ... so notoriously unfounded that no
commissioners retaining the slightest degree of self-respect can
establish them; ... others where the debt has been fairly and
voluntarily compromised by agreement between creditor and debtor";
others "where the money has been paid in specie, and receipts in full
given"; and still others even worse, all composing that "enormous mass
of imagined debt," will, says Marshall, make it hard to agree on a
stated amount.[1158]
The British creditors, he asserts, had been and then were proceeding to
collect their debts through the American courts, and "had they not been
seduced into the opinion that the trouble and expense inseparable from
the pursuit of the old debts, might be avoided by one general resort to
the United States, it is believed they would have been still more
rapidly proceeding in the collection of the very claims, so far as they
are just, which have been filed with the commissioners. They meet with
no objection, either of law or fact, which are not common to every
description of creditors, in every country.... Our judges are even
liberal in their construction of the 4th article of the treaty of peace"
and have shown "no sort of partiality for the debtors."
Marshall urges this point with great vigor, and concludes that, if a
gross amount can be agreed upon, the American Minister must see to it,
of course, that this sum is made as small as possible, not "to exceed
one million sterling" in any event.[1159] In a private letter, Marshall
informs King that "the best opinion here is that not more than two
million Dollars could justly be chargeable to the United States under
the treaty."[1160]
Adams was elated by Marshall's letter. "I know not," he wrote, "how the
subject could have been better digested."[1161]
Almost from the exchange of ratifications of the Jay compact,
impressment of American seamen by the British and their taking from
American ships, as contraband, merchandise which, under the treaty, was
exempt from seizure, had injured American commerce and increasingly
irritated the American people.[1162] The brutality with which the
British practiced these depredations had heated still more American
resentment, already greatly inflamed.[1163]
In June, 1799, Marshall's predecessor had instructed King "to
persevere ... in denying the right of British Men of War to take from
our Ships of War any men whatever, and from our merchant vessels any
Americans, or foreigners, or even Englishmen."[1164] But the British had
disregarded the American Minister's protests and these had now been
entirely silenced by the break-up of the British Debts Commissions.
Nevertheless, Marshall directed our Minister at the Court of St. James
to renew the negotiations. In a state paper which, in ability, dignity,
and eloquence, suggests his famous Jonathan Robins speech and equals his
memorial to Talleyrand, he examines the vital subjects of impressment,
contraband, and the rights of neutral commerce.
It was a difficult situation that confronted the American Secretary of
State. He had to meet and if possible modify the offensive, determined,
and wholly unjust British position by a statement of principles based on
fundamental right; and by an assertion of America's just place in the
world.
The spirit of Marshall's protest to the British Government is that
America is an independent nation, a separate and distinct political
entity, with equal rights, power, and dignity with all other
nations[1165]--a conception then in its weak infancy even in America
and, apparently, not entertained by Great Britain or France. These
Powers seemed to regard America, not as a sovereign nation, but as a
sort of subordinate state, to be used as they saw fit for their plans
and purposes.
But, asserts Marshall, "the United States do not hold themselves in any
degree responsible to France or to Britain for their negotiations with
the one or the other of these Powers, but are ready to make amicable and
reasonable explanations with either.... An exact neutrality ... between
the belligerent Powers" is the "object of the American Government....
Separated far from Europe, we mean not to mingle in their quarrels....
We have avoided and we shall continue to avoid any ... connections not
compatible with the neutrality we profess.... The aggressions, sometimes
of one and sometimes of another belligerent power have forced us to
contemplate and prepare for war as a probable event.... But this is a
situation of necessity, not of choice." France had compelled us to
resort to force against her, but in doing so "our preference for peace
was manifest"; and now that France makes friendly advances, "America
meets those overtures, and, in doing so, only adheres to her pacific
system."
Marshall lays down those principles of international conduct which have
become the traditional American policy. Reviewing our course during the
war between France and Great Britain, he says: "When the combination
against France was most formidable, when, if ever, it was dangerous to
acknowledge her new Government" and maintain friendly relations with the
new Republic, "the American Government openly declared its determination
to adhere to that state of impartial neutrality which it has ever since
sought to maintain; nor did the clouds which, for a time, lowered over
the fortunes of the [French] Republic, in any degree shake this
resolution. When victory changed sides and France, in turn, threatened
those who did not arrange themselves under her banners, America,
pursuing with undeviating step the same steady course," nevertheless
made a treaty with Great Britain; "nor could either threats or artifices
prevent its ratification."
"At no period of the war," Marshall reminds the British Government, "has
France occupied such elevated ground as at the very point of time when
America armed to resist her: triumphant and victorious everywhere, she
had dictated a peace to her enemies on the continent and had refused one
to Britain." On the other hand, "in the reverse of her fortune, when
defeated both in Italy and on the Rhine, in danger of losing Holland,
before the victory of Massena had changed the face of the last campaign,
and before Russia had receded from the coalition against her, the
present negotiation [between America and France] was resolved on. During
this pendency," says Marshall, "the state of the war has changed, but
the conduct of the United States" has not.
"Our terms remain the same: we still pursue peace. We still embrace it,
if it can be obtained without violating our national honor or our
national faith; but we will reject without hesitation all propositions
which may compromit the one or the other."
All this, he declares, "shows how steadily it [the American Government]
pursues its system [Neutrality and peace] without regarding the dangers
from the one side or the other, to which the pursuit may be exposed. The
present negotiation with France is a part of this system, and ought,
therefore, to excite in Great Britain no feelings unfriendly to the
United States."
Marshall then takes up the British position as to contraband of war. He
declares that even under the law of nations, "neutrals have a right to
carry on their usual commerce; belligerents have a right to prevent them
from supplying the enemy with instruments of war." But the eighteenth
article of the treaty itself covered the matter in express terms, and
specifically enumerated certain things as contraband and also "generally
whatever may serve _directly_ to the equipment of vessels." Yet Great
Britain had ruthlessly seized and condemned American vessels regardless
of the treaty--had actually plundered American ships of farming material
upon the pretense that these articles might, by some remote possibility,
be used "to equip vessels." The British contention erased the word
"_directly_"[1166] from the express terms of the treaty. "This
construction we deem alike unfriendly and unjust," he says. Such
"garbling a compact ... is to substitute another agreement for that of
the parties...."
"It would swell the list of contraband to" suit British convenience,
contrary to "the laws and usages of nations.... It would prohibit ...
articles ... necessary for the ordinary occupations of men in peace" and
require "a surrender, on the part of the United States, of rights in
themselves unquestionable, and the exercise of which is essential to
themselves.... A construction so absurd and so odious ought to be
rejected."[1167]
Articles, "even if contraband," should not be confiscated, insists
Marshall, except when "they are attempted to be carried to an enemy."
For instance, "vessels bound to New Orleans and laden with cargoes
proper for the ordinary use of the citizens of the United States who
inhabit the Mississippi and its waters ... cannot be justly said to
carry those cargoes to an enemy.... Such a cargo is not a just object of
confiscation, although a part of it should also be deemed proper for the
equipment of vessels, because it is not attempted to be carried to an
enemy."
On the subject of blockade, Marshall questions whether "the right to
confiscate vessels bound to a blockaded port ... can be applied to a
place not completely invested by land as well as by sea." But waiving
"this departure from principle," the American complaint "is that ports
not effectually blockaded by a force capable of completely investing
them, have yet been declared in a state of blockage, and vessels
attempting to enter therein have been seized, and, on that account,
confiscated." This "vexation ... may be carried, if not resisted, to a
very injurious extent."
If neutrals submit to it, "then every port of the belligerent powers may
at all times be declared in that [blockaded] state and the commerce of
neutrals be thereby subjected to universal capture." But if complete
blockage be required, then "the capacity to blockade will be limited by
the naval force of the belligerent, and, of consequence, the mischief to
neutral commerce can not be very extensive. It is therefore of the last
importance to neutrals that this principle be maintained unimpaired."
The British Courts of Vice-Admiralty, says Marshall, render "unjust
decisions" in the case of captures. "The temptation which a rich neutral
commerce offers to unprincipled avarice, at all times powerful, becomes
irresistible unless strong and efficient restraints be imposed by the
Government which employs it." If such restraints are not imposed, the
belligerent Government thereby "causes the injuries it tolerates." Just
this, says Marshall, is the case with the British Government.
For "the most effectual restraint is an impartial judiciary, which will
decide impartially between the parties and uniformly condemn the captor
in costs and damages, where the seizure has been made without probable
cause." If this is not done, "indiscriminate captures will be made." If
an "unjust judge" condemns the captured vessel, the profit is the
captor's; if the vessel is discharged, the loss falls upon the owner.
Yet this has been and still is the indefensible course pursued against
American commerce.
"The British Courts of Vice Admiralty, whatever may be the case, seldom
acquit and when they do, costs and damages for detention are never
awarded." Marshall demands that the British Government shall "infuse a
spirit of justice and respect for law into the Courts of Vice
Admiralty"--this alone, he insists, can check "their excessive and
irritating vexations.... This spirit can only be infused by uniformly
discountenancing and punishing those who tarnish alike the seat of
justice and the honor of their country, by converting themselves from
judges into mere instruments of plunder." And Marshall broadly intimates
that these courts are corrupt.
As to British impressment, "no right has been asserted to impress"
Americans; "yet they are impressed, they are dragged on board British
ships of war with the evidence of citizenship in their hands, and forced
by violence there to serve until conclusive testimonials of their birth
can be obtained." He demands that the British Government stop this
lawless, violent practice "by punishing and frowning upon those who
perpetrate it. The mere release of the injured, after a long course of
service and of suffering, is no compensation for the past and no
security for the future.... The United States therefore require
positively that their seamen ... be exempt from impressments." Even
"alien seamen, not British subjects, engaged in our merchant service
ought to be equally exempt with citizens from impressments.... Britain
has no pretext of right to their persons or to their service. To tear
them, then, from our possession is, at the same time, an insult and an
injury. It is an act of violence for which there exists no palliative."
Suppose, says Marshall, that America should do the things Great Britain
was doing? "Should we impress from the merchant service of Britain not
only Americans but foreigners, and even British subjects, how long would
such a course of injury, unredressed, be permitted to pass unrevenged?
How long would the [British] Government be content with unsuccessful
remonstrance and unavailing memorials?"
Or, were America to retaliate by inducing British sailors to enter the
more attractive American service, as America might lawfully do, how
would Great Britain look upon it? Therefore, concludes Marshall, "is it
not more advisable to desist from, and to take effectual measures to
prevent an acknowledged wrong, than be perseverant in that wrong, to
excite against themselves the well founded resentment of America, and to
force our Government into measures which may possibly terminate in an
open rupture?"[1168]
Thus boldly and in justifiably harsh language did Marshall assert
American rights as against British violation of them, just as he had
similarly upheld those rights against French assault. Although France
desisted from her lawless practices after Adams's second mission
negotiated with Bonaparte an adjustment of our grievances,[1169] Great
Britain persisted in the ruthless conduct which Marshall and his
successors denounced until, twelve years later, America was driven to
armed resistance.
Working patiently in his stuffy office amidst the Potomac miasma and
mosquitoes during the sweltering months, it was Marshall's unhappy fate
to behold the beginning of the break-up of that great party which had
built our ship of state, set it upon the waters, navigated it for twelve
tempestuous years, through the storms of domestic trouble and foreign
danger.[1170] He was powerless to stay the Federalist disintegration.
Even in his home district Marshall's personal strength had turned to
water, and at the election of his successor in Congress, his party was
utterly crushed. "Mr. Mayo, who was proposed to succeed Gen. Marshall,
lost his election by an immense majority," writes the alert Wolcott;
"was grossly insulted in public by a brother-in-law of the late Senator
Taylor, and was afterwards wounded by him in a duel. This is a specimen
of the political influence of the Secretary of State in his own
district."[1171]
Marshall himself was extremely depressed. "Ill news from Virginia," he
writes Otis. "To succeed me has been elected by an immense majority one
of the most decided democrats[1172] in the union." Upon the political
horizon Marshall beheld only storm and blackness: "In Jersey, too, I am
afraid things are going badly. In Maryland the full force of parties
will be tried but the issue I should feel confident would be right if
there did not appear to be a current setting against us of which the
force is incalculable. There is a tide in the affairs of nations, of
parties, and of individuals. I fear that of real Americanism is on the
ebb."[1173] Never, perhaps, in the history of political parties was
calm, dispassionate judgment and steady courage needed more than they
were now required to avert Federalist defeat.
Yet in all the States revenge, apprehension, and despair blinded the
eyes and deranged the councils of the supreme Federalist managers.[1174]
The voters in the party were confused and angered by the dissensions of
those to whom they looked for guidance.[1175] The leaders agreed that
Jefferson was the bearer of the flag of "anarchy and sedition," captain
of the hordes of "lawlessness," and, above all, the remorseless
antagonist of Nationalism. What should be done "by the friends of order
and true liberty to keep the [presidential] chair from being occupied by
an enemy [Jefferson] of both?" was the question which the distressed
Federalist politicians asked one another.[1176]
In May, Hamilton thought that "to support _Adams_ and _Pinckney_ equally
is the only thing that can save us from the fangs of _Jefferson_."[1177]
Yet, six days later, Hamilton wrote that "_most_ of the most
_influential men_ of that [Federalist] party consider him [Adams] as a
very _unfit_ and _incapable_ character.... My mind is made up. I will
never more be responsible for him by any direct support, even though the
consequence should be the election of _Jefferson_.... If the cause is to
be sacrificed to a weak and perverse man, I withdraw from the
party."[1178]
As the summer wore on, so acrimonious grew the feeling of Hamilton's
supporters toward the President that they seriously considered whether
his reëlection would not be as great a misfortune as the success of the
Republican Party.[1179] Although the Federalist caucus had agreed to
support Adams and Pinckney equally as the party's candidates for
President,[1180] yet the Hamiltonian faction decided to place Pinckney
in the presidential chair.[1181]
But, blindly as they groped, their failing vision was still clear enough
to discern that the small local leaders in New England, which was the
strong Federalist section of the country, were for Adams;[1182] and that
everywhere the party's rank and file, though irritated and perplexed,
were standing by the President. His real statesmanship had made an
impression on the masses of his party: Dayton declared that Adams was
"the most popular man in the United States."[1183] Knox assured the
President that "the great body of the federal sentiment confide
implicitly in your knowledge and virtue.... They will ... cling to you
in preference to all others."[1184]
Some urged Adams to overthrow the Hamiltonian cabal which opposed him.
"Cunning half Jacobins assure the President that he can combine the
virtuous and moderate men of both parties, and that all our difficulties
are owing to an oligarchy which it is in his power to crush, and thus
acquire the general support of the nation,"[1185] testifies Wolcott.
The President heeded this mad counsel. Hamilton and his crew were not
the party, said Adams; they were only a faction and a "British faction"
at that.[1186] He would "rip it up."[1187] The justly angered
President, it appears, thought of founding a new party, an American
Party, "a constitutionalist party."[1188] It was said that the astute
Jefferson so played upon him that Adams came to think the engaging but
crafty Virginian aspired only to be and to be known as the first
lieutenant of the Massachusetts statesman.[1189] Adams concluded that he
could make up any Federalist loss at the polls by courting the
Republicans, whose "friendship," wrote Ames, "he seeks for
himself."[1190]
But the Republicans had almost recovered from the effect of the X. Y. Z.
disclosures. "The _rabies canina_ of Jacobinism has gradually spread ...
from the cities, where it was confined to docks and mob, to the
country,"[1191] was the tidings of woe that Ames sent to Gore. The
Hamiltonian leaders despaired of the continuance of the Government and
saw "a convulsion of revolution" as the result of "excessive
democracy."[1192] The union of all Federalist votes was "the only
measure by which the government can be preserved."[1193] But Federalist
union! As well ask shattered glass to remould itself!
The harmonious and disciplined Republicans were superbly led. Jefferson
combined their battle-cries of the last two years into one mighty
appeal--simple, affirmative, popular. Peace, economy, "freedom of the
press, freedom of religion, trial by jury, ... no standing armies," were
the issues he announced, together with the supreme issue of all, States'
Rights. Upon this latter doctrine Jefferson planted all the Republican
guns and directed their fire on "centralization" which, said he, would
"monarchise" our Government and make it "the most corrupt on earth,"
with increased "stock-jobbing, speculating, plundering, office-holding,
and office-hunting."[1194]
The Federalists could reply but feebly. The tax-gatherer's fingers were
in every man's pockets; and Adams had pardoned the men who had resisted
the collectors of tribute. The increased revenue was required for the
army and navy, which, thought the people, were worse than needless[1195]
if there were to be no war and the President's second mission made
hostilities improbable (they had forgotten that this very preparation
had been the principal means of changing the haughty attitude of
France). The Alien and Sedition Laws had infuriated the "foreign"
voters[1196] and alarmed thousands of American-born citizens. Even that
potent bribe of free institutions, the expectation of office, could no
longer be employed effectively with the party workers, who, testifies
Ebenezer Huntington, were going over "to Jefferson in hopes to partake
of the loaves and fishes, which are to be distributed by the new
President."[1197]
The Federalist leaders did nothing, therefore, but write letters to one
another denouncing the "Jacobins" and prophesying "anarchy." "Behold
France--what is theory here is fact there."[1198] Even the tractable
McHenry was disgusted with his stronger associates. "Their conduct,"
said he, "is tremulous, timid, feeble, deceptive & cowardly. They write
private letters. To whom? To each other. But they do nothing.... If the
party recover its pristine energy & splendor, shall I ascribe it to such
cunning, paltry, indecisive, backdoor conduct?"[1199]
What had become of the French mission?[1200] Would to God it might fail!
That outcome might yet save the Federalist fortunes. "If Mr. Marshall
has any [news of the second French mission] beg him to let it out,"
implored Chauncey Goodrich.[1201] But Marshall had none for public
inspection. The envoys' dispatches of May 17,[1202] which had reached
him nearly seven weeks afterward, were perplexing. Indeed, Marshall was
"much inclined to think that ... the French government may be inclined
to protract it [the negotiation] in the expectation that events in
America[1203] may place them on higher ground than that which they now
occupy."[1204] To Hamilton, he cautiously wrote that the dispatches
contained nothing "on which a positive opinion respecting the result of
that negotiation can be formed."[1205]
But he told the President that he feared "the impression which will
probably be made by the New York Election,"[1206] and that European
military developments might defeat the mission's purpose. He advised
Adams to consider what then should be done. Should "hostilities against
France with the exception of their West India privateers ... be
continued if on their part a change of conduct shall be
manifest?"[1207] Adams was so perturbed that he asked Marshall whether,
in case the envoys returned without a treaty, Congress ought not to be
asked to declare war, which already it had done in effect. For, said
Adams, "the public mind cannot be held in a state of suspense; public
opinion must be always a decided one whether right or not."[1208]
Marshall counseled patience and moderation. Indeed, he finally informed
Adams that he hoped for an adjustment: "I am greatly disposed to think,"
he advised the President, "that the present [French] government is much
inclined to correct, at least in part, the follies of the past. Of
these, none were perhaps more conspicuous or more injurious to the
french nation, than their haughty and hostile conduct to neutrals.
Considerable retrograde steps in this respect have already been taken,
and I expect the same course will be continued." If so, "there will
exist no cause for war, but to obtain compensation for past injuries";
and this, Marshall is persuaded, is not "a sufficient motive" for
war.[1209]
To others, however, Marshall was apprehensive: "It is probable that
their [the French] late victories and the hope which many of our papers
[Republican] are well calculated to inspire, that America is disposed
once more to crouch at her [France's] feet may render ineffectual our
endeavors to obtain peace."[1210]
But the second American mission to France had dealt with Bonaparte
himself, who was now First Consul. The man on horseback had arrived, as
Marshall had foreseen; a statesman as well as a soldier was now the
supreme power in France. Also, as we have seen, the American Government
had provided for an army and was building a navy which, indeed, was even
then attacking and defeating French ships. "America in arms was treated
with some respect," as Marshall expresses it.[1211] At any rate, the
American envoys did not have to overcome the obstacles that lay in the
way two years earlier and the negotiations began without difficulty and
proceeded without friction.
Finally a treaty was made and copies sent to Marshall, October 4,
1800.[1212] The Republicans were rejoiced; the Federalist politicians
chagrined.[1213] Hamilton felt that in "the general politics of the
world" it "is a make-weight in the wrong scale," but he favored its
ratification because "the contrary ... would ... utterly ruin the
federal party," and "moreover it is better to close the thing where it
is than to leave it to a Jacobin to do much worse."[1214]
Marshall also advised ratification, although he was "far, very far, from
approving"[1215] the treaty. The Federalists in the Senate, however,
were resolved not to ratify it; they were willing to approve only with
impossible amendments. They could not learn the President's opinion of
this course; as to that, even Marshall was in the dark. "The Secretary
of State knows as little of the intentions of the President as any other
person connected with the government."[1216] Finally the Senate rejected
the convention; but it was so "extremely popular," said the Republicans,
that the Federalist Senators were "frightened" to "recant."[1217] They
reversed their action and approved the compact. The strongest influence
to change their attitude, however, was not the popularity of the treaty,
but the pressure of the mercantile interests which wanted the
business-destroying conflict settled.[1218]
The Hamiltonian group daily became more wrathful with the President. In
addition to what they considered his mistakes of policy and party
blunders, Adams's charge that they were a "British faction" angered them
more and more as the circulation of it spread and the public credited
it. Even "General M[arshall] said that the hardest thing for the
Federalists to bear was the charge of British influence."[1219] That was
just what the "Jacobins" had been saying all along.[1220] "If this
cannot be counteracted, our characters are the sacrifice," wrote
Hamilton in anger and despair.[1221] Adams's adherents were quite as
vengeful against his party enemies. The rank and file of the Federalists
were more and more disgusted with the quarrels of the party leaders. "I
cannot describe ... how broken and scattered your federal friends are!"
lamented Troup. "We have no rallying-point; and no mortal can divine
where and when we shall again collect our strength.... Shadows, clouds,
and darkness rest on our future prospects."[1222] The "Aurora"
chronicles that "the disorganized state of the anti-Republican
[Federalist] party ... is scarcely describable."[1223]
Marshall, alone, was trusted by all; a faith which deepened, as we shall
see, during the perplexing months that follow. He strove for Federalist
union, but without avail. Even the most savage of the President's party
enemies felt that "there is not a man in the U. S. of better intentions
[than Marshall] and he has the confidence of all good men--no man
regrets more than he does the disunion which has taken place and no one
would do more to heal the wounds inflicted by it. In a letter ... he
says 'by union we can securely maintain our ground--without it we must
sink & with us all sound correct American principle.' His efforts
will ... prove ineffectual."[1224]
It seems certain, then, that Hamilton did not consult the one strong man
in his party who kept his head in this hour of anger-induced madness.
Yet, if ever any man needed the advice of a cool, far-seeing mind,
lighted by a sincere and friendly heart, Hamilton required it then. And
Marshall could and would have given it. But the New York Federalist
chieftain conferred only with those who were as blinded by hate as he
was himself. At last, in the midst of an absurd and pathetic confusion
of counsels,[1225] Hamilton decided to attack the President, and, in
October, wrote his fateful and fatal tirade against Adams.[1226] It was
an extravaganza of party folly. It denounced Adams's "extreme egotism,"
"terrible jealousy," "eccentric tendencies," "violent rage"; and
questioned "the solidity of his understanding." Hamilton's screed went
back to the Revolution to discover faults in the President. Every act of
his Administration was arraigned as a foolish or wicked mistake.
This stupid pamphlet was not to be made public, but to be circulated
privately among the Federalist leaders in the various States. The
watchful Burr secured a copy[1227] and published broadcast its bitterest
passages. The Republican politicians shook with laughter; the Republican
masses roared with glee.[1228] The rank and file of the Federalists were
dazed, stunned, angered; the party leaders were in despair. Thus
exposed, Hamilton made public his whole pamphlet. Although its purpose
was to further the plan to secure for Pinckney more votes than would be
given Adams, it ended with the apparent advice to support both. Absurd
conclusion! There might be intellects profound enough to understand why
it was necessary to show that Adams was not fit to be President and yet
that he should be voted for; but the mind of the average citizen could
not fathom such ratiocination. Hamilton's influence was irreparably
impaired.[1229] The "Washington Federalist" denounced his attack as
"the production of a disappointed man" and declared that Adams was "much
his superior as a statesman."[1230]
The campaign was a havoc of virulence. The Federalists' hatred for one
another increased their fury toward the compact Republicans, who
assailed their quarreling foes with a savage and unrestrained ferocity.
The newspapers, whose excesses had whipped even the placid Franklin into
a rage a few years before, now became geysers spouting slander,
vituperation, and unsavory[1231] insinuations. "The venal, servile,
base and stupid"[1232] "newspapers are an overmatch for any government,"
cried Ames. "They will first overawe and then usurp it."[1233] And Noah
Webster felt that "no government can be durable ... under the
licentiousness of the press that now disgraces our country."[1234]
Discordant Federalists and harmonious Republicans resorted to shameful
methods.[1235] "Never ... was there such an Election in America."[1236]
As autumn was painting the New England trees, Adams, still tarrying at
his Massachusetts home, wrote Marshall to give his "sentiments as soon
as possible in writing" as to what the President should say to Congress
when it met December 3.[1237] Three days later, when his first request
was not yet halfway to Washington, Adams, apparently forgetful of his
first letter, again urged Marshall to advise him as President in regard
to his forthcoming farewell address to the National Legislature.[1238]
[Illustration: _Statue of John Marshall_
_By W. W. Story, at the Capitol, Washington, D. C._]
Marshall not only favored the President with his "sentiments"--he wrote
every word of the speech which Adams delivered to Congress and sent it
to the distressed Chief Magistrate in such haste that he did not
even make a copy.[1239] This presidential address, the first ever made
to Congress in Washington, was delivered exactly as Marshall wrote it,
with a change of only one word "much" for "such" and the omission of an
adjective "great."[1240]
The address is strong on the necessity for military and naval
preparation. It would be "a dangerous imprudence to abandon those
measures of self-protection ... to which ... violence and the injustice
of others may again compel us to resort.... Seasonable and systematic
arrangements ... for a defensive war" are "a wise and true economy." The
navy is described as particularly important, coast defenses are urged,
and the manufacture of domestic arms is recommended in order to
"supercede the necessity of future importations." The extension of the
national Judiciary is pressed as of "primary importance ... to the
public happiness."[1241]
The election, at last, was over. The Republicans won, but only by a
dangerously narrow margin. Indeed, outside of New York, the Federalists
secured more electoral votes in 1800 than in the election of Adams four
years earlier.[1242] The great constructive work of the Federalist Party
still so impressed conservative people; the mercantile and financial
interests were still so well banded together; the Federalist revival of
1798, brought about by Marshall's dispatches, was, as yet, so strong;
the genuine worth of Adams's statesmanship[1243] was so generally
recognized in spite of his unhappy manner, that it would seem as though
the Federalists might have succeeded but for the quarrels of their
leaders and Burr's skillful conduct of the Republican campaign in New
York.
Jefferson and Burr each had seventy-three votes for President. Under
the Constitution, as it stood at that time, the final choice for
President was thus thrown into the House of Representatives.[1244] By
united and persistent effort, it was possible for the Federalists to
elect Burr, or at least prevent any choice and, by law, give the
Presidency to one of their own number until the next election. This,
Jefferson advises Burr, "they are strong enough to do."[1245] The
Federalists saw their chance; the Republicans realized their
danger.[1246] Jefferson writes of the "great dismay and gloom on the
republican gentlemen here and equal exultation on the federalists who
openly declare they will prevent an election."[1247] This "opens upon us
an abyss, at which every sincere patriot must shudder."[1248]
Although Hamilton hated Burr venomously, he advised the Federalist
managers in Washington "to throw out a lure for him, in order to tempt
him to start for the plate, and then lay the foundation of dissension
between" him and Jefferson.[1249] The Federalists, however, already were
turning to Burr, not according to Hamilton's unworthy suggestion, but in
deadly earnest. At news of this, the fast-weakening New York Federalist
chieftain became frantic. He showered letters upon the party leaders in
Congress, and upon all who might have influence, appealing, arguing,
persuading, threatening.[1250]
But the Federalists in Congress were not to be influenced, even by the
once omnipotent Hamilton. "The Federalists, almost with one Mind, from
every Quarter of the Union, say elect Burr" because "they must be
disgraced in the Estimation of the People if they vote for Jefferson
having told Them that He was a Man without Religion, the Writer of the
Letter to Mazzei, a Coward, &c., &c."[1251] Hamilton's fierce warnings
against Burr and his black prophecies of "the _Cataline_ of
America"[1252] did not frighten them. They knew little of Burr,
personally, and the country knew less. What was popularly known of this
extraordinary man was not unattractive to the Federalists.
Burr was the son of the President of Princeton and the grandson of the
celebrated Jonathan Edwards, the greatest theologian America had
produced. He had been an intrepid and efficient officer in the
Revolutionary War, and an able and brilliant Senator of the United
States. He was an excellent lawyer and a well-educated, polished man of
the world. He was a politician of energy, resourcefulness, and decision.
And he was a practical man of affairs. If he were elected by Federalist
votes, the fury with which Jefferson and his friends were certain to
assail Burr[1253] would drive that practical politician openly into
their camp; and, as President, he would bring with him a considerable
Republican following. Thus the Federalists would be united and
strengthened and the Republicans divided and weakened.[1254]
This was the reasoning which drew and bound the Federalists together in
their last historic folly; and they felt that they might succeed.
"It is ... certainly within the compass of possibility that Burr may
ultimately obtain nine States," writes Bayard.[1255] In addition to the
solid Federalist strength in the House, there were at least three
Republican members, two corrupt and the other light-minded, who might by
"management" be secured for Burr.[1256] The Federalist managers felt
that "the high Destinies ... of this United & enlightened people are
up";[1257] and resolved upon the hazard. Thus the election of Burr, or,
at least, a deadlock, faced the Republican chieftain.
At this critical hour there was just one man who still had the
confidence of all Federalists from Adams to Hamilton. John Marshall,
Secretary of State, had enough influence to turn the scales of
Federalist action. Hamilton approached Marshall indirectly at first.
"You may communicate this letter to _Marshall_," he instructed Wolcott,
in one of his most savage denunciations of Burr.[1258] Wolcott obeyed
and reported that Marshall "has yet expressed no opinion."[1259]
Thereupon Hamilton wrote Marshall personally.
This letter is lost; but undoubtedly it was in the same vein as were
those to Wolcott, Bayard, Sedgwick, Morris, and other Federalists. But
Hamilton could not persuade Marshall to throw his influence to
Jefferson. The most Marshall would do was to agree to keep hands off.
"To Mr. Jefferson," replies Marshall, "whose political character is
better known than that of Mr. Burr, I have felt almost insuperable
objections. His foreign prejudices seem to me totally to unfit him for
the chief magistracy of a nation which cannot indulge those prejudices
without sustaining deep and permanent injury.
"In addition to this solid and immovable objection, Mr. Jefferson
appears to me to be a man, who will embody himself with the House of
Representatives.[1260] By weakening the office of President, he will
increase his personal power. He will diminish his responsibility, sap
the fundamental principles of the government, and become the leader of
that party which is about to constitute the majority of the legislature.
The morals of the author of the letter to Mazzei[1261] cannot be
pure....
"Your representation of Mr. Burr, with whom I am totally unacquainted,
shows that from him still greater danger than even from Mr. Jefferson
may be apprehended. Such a man as you describe is more to be feared, and
may do more immediate, if not greater mischief.
"Believing that you know him well, and are impartial, my preference
would certainly not be for him, but I can take no part in this business.
I cannot bring myself to aid Mr. Jefferson. Perhaps respect for myself
should, in my present situation, deter me from using any influence (if,
indeed I possessed any) in support of either gentleman.
"Although no consideration could induce me to be the Secretary of State
while there was a President whose political system I believed to be at
variance with my own; yet this cannot be so well known to others, and it
might be suspected that a desire to be well with the successful
candidate had, in some degree, governed my conduct."[1262]
Marshall had good personal reasons for wishing Burr to be elected, or at
least that a deadlock should be produced. He did not dream that the
Chief Justiceship was to be offered to him; his law practice, neglected
for three years, had passed into other hands; the head of the Cabinet
was then the most important[1263] office in the Government, excepting
only the Presidency itself; and rumor had it that Marshall would remain
Secretary of State in case Burr was chosen as Chief Magistrate. If the
tie between Jefferson and Burr were not broken, Marshall might even be
chosen President.[1264]
"I am rather inclined to think that Mr. Burr will be preferred....
General Marshall will then remain in the department of state; but if Mr.
Jefferson be chosen, Mr. Marshall will retire," writes Pickering.[1265]
But if Marshall cherished the ambition to continue as Secretary of
State, as seems likely, he finally stifled it and stood aloof from the
struggle. It was a decision which changed Marshall's whole life and
affected the future of the Republic. Had Marshall openly worked for
Burr, or even insisted upon a permanent deadlock, it is reasonably
certain that the Federalists would have achieved one of their alternate
purposes.
Although Marshall refrained from assisting the Federalists in their plan
to elect Burr, he did not oppose it. The "Washington Federalist," which
was the Administration organ[1266] in the Capital, presented in glowing
terms the superior qualifications of Burr over Jefferson for the
Presidency, three weeks after Marshall's letter to Hamilton.[1267] The
Republicans said that Marshall wrote much that appeared in this
newspaper.[1268] If he was influential with the editor, he did not
exercise his power to exclude the paper's laudation of the New York
Republican leader.
It was reported that Marshall had declared that, in case of a deadlock,
Congress "may appoint a Presidt. till another election is made."[1269]
The rumor increased Republican alarm and fanned Republican anger. From
Richmond came the first tidings of the spirit of popular resistance to
"such a usurpation,"[1270] even though it might result in the election
of Marshall himself to the Presidency. If they could not elect Burr,
said Jefferson, the Federalists planned to make Marshall or Jay the
Chief Executive by a law to be passed by the expiring Federalist
Congress.[1271]
Monroe's son-in-law, George Hay, under the _nom de guerre_ of
"Hortensius," attacked Marshall in an open letter in the "Richmond
Examiner," which was copied far and wide in the Republican press.
Whether Congress will act on Marshall's opinion, says Hay, "is a
question which has already diffused throughout America anxiety and
alarm; a question on the decision of which depends not only the peace of
the nation, but the existence of the Union." Hay recounts the many
indications of the Federalists' purpose and says: "I understand that
you, Sir, have not only examined the Constitution, but have given an
opinion in exact conformity with the wishes of your party." He
challenges Marshall to "come forward ... and defend it." If a majority
of the House choose Burr the people will submit, says Hay, because such
an election, though contrary to their wishes, would be constitutional.
But if, disregarding the popular will and also violating the
Constitution, Congress "shall elect a stranger to rule over us, peace
and union are driven from the land.... The usurpation ... will be
instantly and firmly repelled. The government will be at an end."[1272]
Although the "Washington Federalist" denounced as "a lie"[1273] the
opinion attributed to him, Marshall, personally, paid no attention to
this bold and menacing challenge. But Jefferson did. After waiting a
sufficient time to make sure that this open threat of armed revolt
expressed the feeling of the country, he asserted that "we thought best
to declare openly and firmly, one & all, that the day such an act
passed, the Middle States would arm, & that no such usurpation, even for
a single day, should be submitted to."[1274] The Republicans determined
not only to resist the "usurpation ... by arms," but to set aside the
Constitution entirely and call "a convention to reorganize and amend the
government."[1275]
The drums of civil war were beating. Between Washington and Richmond "a
chain of expresses" was established, the messengers riding "day and
night."[1276] In Maryland and elsewhere, armed men, wrought up to the
point of bloodshed, made ready to march on the rude Capital, sprawling
among the Potomac hills and thickets. Threats were openly made that any
man appointed President by act of Congress, pursuant to Marshall's
reputed opinion, would be instantly assassinated. The Governor of
Pennsylvania prepared to lead the militia into Washington by the 3d of
March.[1277]
To this militant attitude Jefferson ascribed the final decision of the
Federalists to permit his election. But no evidence exists that they
were intimidated in the least, or in any manner influenced, by the
ravings of Jefferson's adherents. On the contrary, the Federalists
defied and denounced the Republicans and met their threats of armed
interference with declarations that they, too, would resort to the
sword.[1278]
The proof is overwhelming and decisive that nothing but Burr's refusal
to help the Federalists in his own behalf,[1279] his rejection of their
proposals,[1280] and his determination, if chosen, to go in as a
Republican untainted by any promises;[1281] and, on the other hand, the
assurances which Jefferson gave Federalists as to offices and the
principal Federalist policies--Neutrality, the Finances, and the
Navy[1282]--only all of these circumstances combined finally made
Jefferson president. Indeed, so stubborn was the opposition that, in
spite of his bargain with the Federalists and Burr's repulsion of their
advances, nearly all of them, through the long and thrillingly dramatic
days and nights of balloting,[1283] with the menace of physical violence
hanging over them, voted against Jefferson and for Burr to the very
end.
The terms concluded with Jefferson, enough Federalists cast blank
ballots[1284] to permit his election; and so the curtain dropped on this
comedy of shame.[1285] "Thus has ended the most wicked and absurd
attempt ever tried by the Federalists," said the innocent
Gallatin.[1286] So it came about that the party of Washington, as a
dominant and governing force in the development of the American Nation,
went down forever in a welter of passion, tawdry politics, and
disgraceful intrigue. All was lost, including honor.
But no! All was not lost. The Judiciary remained. The newly elected
House and President were Republican and in two years the Senate also
would be "Jacobin"; but no Republican was as yet a member of the
National Judiciary. Let that branch of the Government be extended; let
new judgeships be created, and let new judges be made while Federalists
could be appointed and confirmed, so that, by means, at least, of the
National Courts, States' Rights might be opposed and retarded, and
Nationalism defended and advanced--thus ran the thoughts and the plans
of the Federalist leaders.
Adams, in the speech to Congress in December of the previous year, had
urged the enactment of a law to this end as "indispensably
necessary."[1287] In the President's address to the expiring Federalist
Congress on December 3, 1800, which Marshall wrote, the extension of the
National Judiciary, as we have seen, was again insistently urged.[1288]
Upon that measure, at least, Adams and all Federalists agreed. "Permit
me," wrote General Gunn to Hamilton, "to offer for your consideration,
the policy of the federal party _extending the influence of our
judiciary_; if neglected by the federalists the ground will be occupied
by the enemy, the very next session of Congress, and, sir, we shall see
---- and many other scoundrels placed on the seat of justice."[1289]
Indeed, extension of the National Judiciary was now the most cherished
purpose of Federalism.[1290] A year earlier, after Adams's first
recommendation of it, Wolcott narrates that "the steady men" in the
Senate and House were bent upon it, because "there is no other way to
combat the state opposition [to National action] but by an efficient and
extended organization of judges."[1291]
Two weeks after Congress convened, Roger Griswold of Connecticut
reported the eventful bill to carry out this Federalist plan.[1292] It
was carefully and ably drawn and greatly widened the practical
effectiveness of the National Courts. The Supreme Court was reduced,
after the next vacancy, to five members--to prevent, said the
Republicans, the appointment of one of their party to the Nation's
highest tribunal.[1293] Many new judgeships were created. The Justices
of the Supreme Court, who had sat as circuit judges, were relieved of
this itinerant labor and three circuit judges for each circuit were to
assume these duties. At first, even the watchful and suspicious
Jefferson thought that "the judiciary system will not be pushed, as the
appointments, if made, by the present administration, could not fall on
those who create them."[1294]
But Jefferson underestimated the determination of the Federalists.
Because they felt that the bill would "greatly extend the judiciary
power and of course widen the basis of government," they were resolved,
writes Rutledge, to "profit of our shortlived majority, and do as much
good as we can before the end of this session"[1295] by passing the
Judiciary Bill.
In a single week Jefferson changed from confidence to alarm. After all,
he reflected, Adams could fill the new judgeships, and these were life
appointments. "I dread this above all the measures meditated, because
appointments in the nature of freehold render it difficult to undo what
is done,"[1296] was Jefferson's second thought.
The Republicans fought the measure, though not with the vigor or
animosity justified by the political importance they afterwards attached
to it. Among the many new districts created was an additional one in
Virginia. The representatives from that State dissented; but, in the
terms of that period, even their opposition was not strenuous. They said
that, in Virginia, litigation was declining instead of increasing. "At
the last term the docket was so completely cleared in ... ten days ...
that the court ... had actually decided on several [suits] returnable to
the ensuing term."[1297]
That, replied the Federalists, was because the courts were too far away
from the citizens. As for the National revenues, they could be collected
only through National tribunals; for this purpose,[1298] two Federal
Courts in Virginia, as provided by the bill, were essential. But, of
course, sneered the Federalists, "Virginia would be well satisfied with
one court in preference to two or with no court whatever in preference
to one."[1299]
But there was a defect in the bill, intimated the Virginia Republicans,
that affected tenants and landowners of the Northern Neck. A clause of
section thirteen gave the newly established National Court jurisdiction
of all causes arising under the Constitution where original or exclusive
jurisdiction was not conferred upon the Supreme Court or Admiralty
Courts.[1300] The National Court of the new Virginia District was to be
held at Fredericksburg. Thus all suits for quitrents or other claims
against those holding their lands under the Fairfax title could be
brought in this near-by National Court, instead of in State Courts. This
criticism was so attenuated and so plainly based on the assumption that
the State Courts would not observe the law in such actions, that it was
not pressed with ardor even by the impetuous and vindictive Giles.
But Nicholas went so far as to move that the jurisdiction of National
Courts should be limited to causes exceeding five hundred dollars. This
would cut out the great mass of claims which the present holders of the
Fairfax title might lawfully have against tenants or owners. The
Marshalls were the Fairfax assignees, as we have seen. No Republican,
however, mentioned them in debate; but some one procured the insertion
in the record of an insinuation which nobody made on the floor. In
brackets, the "Annals," after the brief note of Nicholas's objection,
states: "[It is understood that the present assignees of the claims of
Lord Fairfax, are General Marshall, General Lee, and a third individual
and that they maintain their claims under the British Treaty.]"[1301]
For three weeks the debate in the House dragged along. Republican
opposition, though united, was languid.[1302] At last, without much
Republican resistance, the bill passed the House on January 20, 1801,
and reached the Senate the next day.[1303] Two weeks later the Senate
Republicans moved a substitute providing for fewer circuits, fewer
judges, and a larger Supreme Court, the members of which were to act as
circuit judges as formerly.[1304] It was defeated by a vote of 17 to
13.[1305] The next day the bill was passed by a vote of 16 to 11.[1306]
When the debate began, the National Judiciary was without a head.
Ellsworth, broken in health, had resigned. Adams turned to Jay, the
first Chief Justice, and, without asking his consent, reappointed him.
"I have nominated you to your old station,"[1307] wrote the President.
"This is as independent of the inconstancy of the people, as it is of
the will of a President." But Jay declined.[1308] Some of the Federalist
leaders were disgruntled at Jay's appointment. "Either Judge Paterson
[of New Jersey] or General Pinckney ought to have been appointed; but
both these worthies were your friends,"[1309] Gunn reported to Hamilton.
The Republicans were relieved by Jay's nomination--they "were afraid of
something worse."[1310]
Then, on January 20, 1801, with no herald announcing the event, no
trumpet sounding, suddenly, and without previous notification even to
himself, John Marshall was nominated as Chief Justice of the United
States a few weeks before the Federalists went out of power forever. His
appointment was totally unexpected. It was generally thought that Judge
Paterson was the logical successor to Ellsworth.[1311] Marshall, indeed,
had recommended his selection.[1312] The letters of the Federalist
leaders, who at this period were lynx-eyed for any office, do not so
much as mention Marshall's name in connection with the position of Chief
Justice.
Doubtless the President's choice of Marshall was influenced by the fact
that his "new minister, Marshall, did all to" his "entire
satisfaction."[1313] Federalist politicians afterward caviled at this
statement of Adams. It was quite the other way around, they declared.
"Every one who knew that great man [Marshall] knew that he possessed to
an extraordinary degree the faculty of putting his own ideas into the
minds of others, unconsciously to them. The secret of Mr. Adams's
satisfaction [with Marshall] was, that he obeyed his Secretary of State
without suspecting it."[1314]
The President gave Marshall's qualifications as the reason of his
elevation. Boudinot reported to Adams that the New Jersey bar hailed
with "the greatest pleasure" a rumor that "the office of Chief
Justice ... may be filled by" Adams himself "after the month of March
next." The President, who admitted that he was flattered, answered:
"I have already, by the nomination of a gentleman in the full vigor of
middle age, in the full habits of business, and whose reading of the
science is fresh in his head,[1315] to this office, put it wholly out of
my power as it never was in my hopes or wishes."[1316]
Marshall's appointment as Chief Justice was not greeted with applause
from any quarter; there was even a hint of Federalist resentment because
Paterson had not been chosen. "I see it denied in your paper that Mr.
Marshall was nominated Chief Justice of the U.S. The fact is so and he
will without doubt have the concurrence of the Senate, tho' some
hesitation was at first expressed from respect for the pretensions of
Mr. Paterson."[1317] The Republican politicians were utterly
indifferent; and the masses of both parties neither knew nor cared about
Marshall's elevation.
The Republican press, of course, criticized the appointment, as it felt
bound to attack any and every thing, good or bad, that the Federalists
did. But its protests against Marshall were so mild that, in view of the
recklessness of the period, this was a notable compliment. "The vacant
Chief Justiceship is to be conferred on John Marshall, one time General,
afterwards ambassador to X. Y. and Z., and for a short time incumbent of
the office of Secretary of State.... Who is to receive the salary of the
Secretary of State, after Mr. Marshall's resignation, we cannot
foretell, because the wisdom of our wise men surpasseth
understanding."[1318] Some days later the "Aurora," in a long article,
denounced the Judiciary Law as a device for furnishing defeated
Federalist politicians with offices,[1319] and declared that the act
would never be "carried into execution, ... unless" the Federalists
still meant to usurp the Presidency. But it goes on to say:--
"We cannot permit ourselves to believe that _John Marshall_ has been
called to the bench to foster such a plot.... Still, how can we account
for the strange mutations which have passed before us--Marshall for a
few weeks Secretary of State ascends the bench of the Chief
Justice."[1320] The principal objection of the Republican newspapers to
Marshall, however, was that he, "before he left the office [of Secretary
of State], made provision for all the Federal printers to the extent of
his power.... He employed the _aristocratic presses alone_ to publish
laws ... for ... one year."[1321]
Only the dissipated and venomous Callender, from his cell in prison,
displayed that virulent hatred of Marshall with which an increasing
number of Jefferson's followers were now obsessed. "We are to have that
precious acquisition John Marshall as Chief Justice.... The very sound
of this man's name is an insult upon truth and justice"; and the
dissolute scribbler then pours the contents of his ink-pot over
Marshall's X. Y. Z. dispatches, bespatters his campaign for election to
Congress, and continues thus:--
"John Adams first appointed John Jay in the room of Ellsworth. A strong
suspicion exists that John did this with the previous certainty that
John Jay would refuse the nomination. It was then in view to name John
Marshall: first, because President Jefferson will not be able to turn
him out of office, unless by impeachment; and in the second place that
the faction [Federalist Party] who burnt the war office might, with
better grace, attempt, forsooth, to set him up as a sort of president
himself. _Sus ad Minervam!_"[1322]
That the voice of this depraved man, so soon to be turned against his
patron Jefferson, who had not yet cast him off, was the only one raised
against Marshall's appointment to the highest judicial office in the
Nation, is a striking tribute, when we consider the extreme partisanship
and unrestrained abuse common to the times.
Marshall himself, it appears, was none too eager to accept the position
which Ellsworth had resigned and Jay refused; the Senate delayed the
confirmation of his nomination;[1323] and it was not until the last day
of the month that his commission was executed.
On January 31, 1801, the President directed Dexter "to execute the
office of Secretary of State so far as to affix the seal of the United
States to the inclosed commission to the present Secretary of State,
John Marshall, of Virginia, to be Chief Justice of the United States,
and to certify in your own name on the commission as executing the
office of Secretary of State _pro hac vice_."[1324]
It was almost a week before Marshall formally acknowledged and accepted
the appointment. "I pray you to accept my grateful acknowledgments for
the honor conferred on me in appointing me Chief Justice of the United
States. This additional and flattering mark of your good opinion has
made an impression on my mind which time will not efface. I shall enter
immediately on the duties of the office, and hope never to give you
occasion to regret having made this appointment."[1325] Marshall's
acceptance greatly relieved the President, who instantly acknowledged
his letter: "I have this moment received your letter of this morning,
and am happy in your acceptance of the office of Chief Justice."[1326]
Who should be Secretary of State for the remaining fateful four weeks?
Adams could think of no one but Marshall, who still held that office
although he had been appointed, confirmed, and commissioned as Chief
Justice. Therefore, wrote Adams, "the circumstances of the times ...
render it necessary that I should request and authorize you, as I do by
this letter, to continue to discharge all the duties of Secretary of
State until ulterior arrangements can be made."[1327]
Thus Marshall was at the same time Chief Justice of the Supreme Court
and Secretary of State. Thus for the second time these two highest
appointive offices of the National Government were held simultaneously
by the same man.[1328] He drew but one salary, of course, during this
period, that of Chief Justice,[1329] the salary of Secretary of State
remaining unpaid.
The President rapidly filled the newly created places on the Federal
Bench. Marshall, it appears, was influential in deciding these
appointments. "I wrote for you to Dexter, requesting him to show it
to Marshall,"[1330] was Ames's reassuring message to an aspirant to
the Federal Bench. With astounding magnanimity or blindness, Adams
bestowed one of these judicial positions upon Wolcott, and Marshall
"transmits ... the commission ... with peculiar pleasure. Permit me," he
adds, "to express my sincere wish that it may be acceptable to you." His
anxiety to make peace between Adams and Wolcott suggests that he induced
the President to make this appointment. For, says Marshall, "I will
allow myself the hope that this high and public evidence, given by the
President, of his respect for your services and character, will efface
every unpleasant sensation respecting the past, and smooth the way to a
perfect reconciliation."[1331]
Wolcott "cordially thanks" Marshall for "the obliging expressions of"
his "friendship." He accepts the office "with sentiments of gratitude
and good will," and agrees to Marshall's wish for reconciliation with
Adams, "not only without reluctance or reserve but with the highest
satisfaction."[1332] Thus did Marshall end one of the feuds which so
embarrassed the Administration of John Adams.[1333]
Until nine o'clock[1334] of the night before Jefferson's inauguration,
Adams continued to nominate officers, including judges, and the Senate
to confirm them. Marshall, as Secretary of State, signed and sealed the
commissions. Although Adams was legally within his rights, the only
moral excuse for his conduct was that, if it was delayed, Jefferson
would make the appointments, control the National Judiciary, and through
it carry out his States' Rights doctrine which the Federalists believed
would dissolve the Union; if Adams acted, the most the Republicans
could do would be to oust his appointees by repealing the law.[1335]
The angry but victorious Republicans denounced Adams's appointees as
"midnight judges." It was a catchy and clever phrase. It flew from
tongue to tongue, and, as it traveled, it gathered force and volume.
Soon a story grew up around the expression. Levi Lincoln, the incoming
Attorney-General, it was said, went, Jefferson's watch in his hand, to
Marshall's room at midnight and found him signing and sealing
commissions. Pointing to the timepiece, Lincoln told Marshall that, by
the President's watch, the 4th of March had come, and bade him instantly
lay down his nefarious pen; covered with humiliation, Marshall rose from
his desk and departed.[1336]
This tale is, probably, a myth. Jefferson never spared an enemy, and
Marshall was his especial aversion. Yet in his letters denouncing these
appointments, while he savagely assails Adams, he does not mention
Marshall.[1337] Jefferson's "Anas," inspired by Marshall's "Life of
Washington," omits no circumstance, no rumor, no second, third, or
fourth hand tale that could reflect upon an enemy. Yet he never once
refers to the imaginary part played by Marshall in the "midnight judges"
legend.[1338]
Jefferson asked Marshall to administer to him the presidential oath of
office on the following day. Considering his curiously vindictive
nature, it is unthinkable that Jefferson would have done this had he
sent his newly appointed Attorney-General, at the hour of midnight, to
stop Marshall's consummation of Adams's "indecent"[1339] plot.
Indeed, in the flush of victory and the multitude of practical and
weighty matters that immediately claimed his entire attention, it is
probable that Jefferson never imagined that Marshall would prove to be
anything more than the learned but gentle Jay or the able but innocuous
Ellsworth had been. Also, as yet, the Supreme Court was, comparatively,
powerless, and the Republican President had little cause to fear from it
that stern and effective resistance to his anti-national principles,
which he was so soon to experience. Nor did the Federalists themselves
suspect that the Virginia lawyer and politician would reveal on the
Supreme Bench the determination, courage, and constructive genius which
was presently to endow that great tribunal with life and strength and
give to it the place it deserved in our scheme of government.
In the opinions of those who thought they knew him, both friend and foe,
Marshall's character was well understood. All were agreed as to his
extraordinary ability. No respectable person, even among his enemies,
questioned his uprightness. The charm of his personality was admitted by
everybody. But no one had, as yet, been impressed by the fact that
commanding will and unyielding purpose were Marshall's chief
characteristics. His agreeable qualities tended to conceal his
masterfulness. Who could discern in this kindly person, with "lax,
lounging manners," indolent, and fond of jokes, the heart that dared all
things? And all overlooked the influence of Marshall's youth, his
determinative army life, his experience during the disintegrating years
after Independence was achieved and before the Constitution was adopted,
the effect of the French Revolution on his naturally orderly mind, and
the part he had taken and the ineffaceable impressions necessarily made
upon him by the tremendous events of the first three Administrations of
the National Government.
Thus it was that, unobtrusively and in modest guise, Marshall took that
station which, as long as he lived, he was to make the chief of all
among the high places in the Government of the American Nation.
FOOTNOTES:
[1093] Adams to McHenry, May 5, 1800; Steiner, 453.
[1094] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348.
[1095] According to McHenry, Adams's complaints were that the Secretary
of War had opposed the sending of the second mission to France, had not
appointed as captain a North Carolina elector who had voted for Adams,
had "EULOGIZED GENERAL WASHINGTON ... attempted to praise Hamilton,"
etc. (McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348; and see
Hamilton's "Public Conduct, etc., of John Adams"; Hamilton: _Works_:
Lodge, vii, 347-49.)
[1096] Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to
Hamilton, May 7, 1800; _Works_: Hamilton, vi, 437-38.
[1097] Adams to Pickering, May 10, 1800; _Works_: Adams, ix, 53.
[1098] Pickering to Adams, May 11, 1800; _ib._, 54.
[1099] Pickering to Hamilton, May 15, 1800; _Works_: Hamilton, vi, 443.
[1100] Adams to Pickering, May 12, 1800; _Works_: Adams, ix, 55.
[1101] Sedgwick to Hamilton, May 13, 1800; _Works_: Hamilton, vi, 442.
[1102] Adams to Rush, March 4, 1809; _Old Family Letters_, 219.
[1103] "There never was perhaps a greater contrast between two
characters than between those of the present President & his
predecessor.... The one [Washington] cool, considerate, & cautious, the
other [Adams] headlong & kindled into flame by every spark that lights
on his passions; the one ever scrutinizing into the public opinion and
ready to follow where he could not lead it; the other insulting it by
the most adverse sentiments & pursuits; W. a hero in the field, yet
overweighing every danger in the Cabinet--A. without a single pretension
to the character of a soldier, a perfect Quixotte as a statesman."
(Madison to Jefferson, Feb., 1798; _Writings_: Hunt, vi, 310.) And
[Adams] "always an honest man, often a wise one, but sometimes wholly
out of his senses." (Madison to Jefferson, June 10, 1798; _ib._, 325.)
[1104] Adams to Rush, Aug. 23, 1805; _Old Family Letters_, 76.
[1105] Cabot to King, April 26, 1799; King, iii, 8.
[1106] Wolcott was as malicious as, but more cautious than, Pickering in
his opposition to the President.
[1107] "He [Adams] is liable to gusts of passion little short of
frenzy.... I speak of what I have seen." (Bayard to Hamilton, Aug. 18,
1800; _Works_: Hamilton, vi, 457.) "He would speak in such a manner ...
as to persuade one that he was actually insane." (McHenry to John
McHenry, May 20, 1800; Gibbs, ii, 347.) "Mr. Adams had conducted
strangely and unaccountably." (Ames to Hamilton, Aug. 26, 1800; _Works_:
Ames, i, 280.) These men were Adams's enemies; but the extreme
irritability of the President at this time was noted by everybody.
Undoubtedly this was increased by his distress over the illness of his
wife.
[1108] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347.
[1109] See preceding chapter.
[1110] _Aurora_, May 9, 1800; the _Aurora_ had been attacking Pickering
with all the animosity of partisanship.
[1111] The French press had been quite as much under the control of the
Revolutionary authorities as it was under that of Bonaparte as First
Consul or even under his rule when he had become Napoleon I.
[1112] _Aurora_, May 27, 1800.
[1113] _Ib._, June 4, 1800; and June 17, 1800. The _Aurora_ now made a
systematic campaign against Pickering. It had "_substantial and damning
facts_" which it threatened to publish if Adams did not subject
Pickering to a "scrutiny" (_ib._, May 21, 1800). Pickering was a
"disgrace to his station" (_ib._, May 23); several hundred thousand
dollars were "unaccounted for" (_ib._, June 4, and 17).
The attack of the Republican newspaper was entirely political, every
charge and innuendo being wholly false. Adams's dismissal of his
Secretary of State was not because of these charges, but on account of
the Secretary's personal and political disloyalty. Adams also declared,
afterwards, that Pickering lacked ability to handle the grave questions
then pending and likely to arise. (_Cunningham Letters_, nos. xii, xiii,
and xiv.) But that was merely a pretense.
[1114] _Aurora_, June 12, 1800.
[1115] Pinckney to McHenry, June 10, 1800; Steiner, 460.
[1116] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 402.
[1117] Cabot to Gore, Sept. 30, 1800; Lodge: _Cabot_, 291.
[1118] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 401-02.
[1119] Adams's correspondence shows that the shortest time for a letter
to go from Washington to Quincy, Massachusetts, was seven days, although
usually nine days were required. "Last night I received your favor of
the 4th." (Adams at Quincy to Dexter at Washington, Aug. 13, 1800;
_Works_: Adams, ix, 76; and to Marshall, Aug. 14; _ib._, 77; and Aug.
26; _ib._, 78; and Aug. 30; _ib._, 80.)
[1120] Washington at this time was forest, swamp, and morass, with only
an occasional and incommodious house. Georgetown contained the only
comfortable residences. For a description of Washington at this period,
see chap. I, vol. III, of this work.
[1121] Marshall to Adams, Sept. 17, 1800; Adams MSS. This trip was to
argue the case of Mayo _vs._ Bentley (4 Call, 528), before the Court of
Appeals of Virginia. (See _supra_, chap. VI.)
[1122] Randall, ii, 547. Although Randall includes Dexter, this tribute
is really to Marshall who was the one dominating character in Adams's
reconstructed Cabinet.
[1123] Adams to Marshall, July 30, 1800; _Works_: Adams, ix, 66; also
Marshall to Adams, Aug. 1, Aug. 2, and July 29, 1800; Adams MSS.
[1124] Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams the
support of young Chase's powerful father. (McHenry to John McHenry, Aug.
24, 1800; Gibbs, ii, 408.)
[1125] McMaster, ii, 448.
[1126] Adams to Marshall, Aug. 7, 1800; _Works_: Adams, ix, 72; and
Marshall to Adams, Aug. 16, 1800; Adams MSS. Chief Justice Ellsworth
presided at the trial of Williams, who was fairly convicted. (Wharton:
_State Trials_, 652-58.) The Republicans, however, charged that it was
another "political" conviction. It seems probable that Adams's habitual
inclination to grant the request of any one who was his personal friend
(Adams's closest friend, Governor Trumbull, had urged the pardon) caused
the President to wish to extend clemency to Williams.
[1127] Marshall to Adams, June 24, 1800; Adams MSS.
[1128] Marshall to Adams, Aug. 2, 1800; _ib._
[1129] Marshall to Adams, July 26, 1800; _ib._
[1130] De Yrujo to Marshall, July 31, 1800; _ib._
[1131] Marshall does not state what these measures were.
[1132] Marshall to Adams, Sept. 6, 1800; Adams MSS.
[1133] _Am. St. Prs._, v, _Indian Affairs_, i, 184, 187, 246. For
picturesque description of Bowles and his claim of British support see
Craig's report, _ib._, 264; also, 305. Bowles was still active in 1801.
(_Ib._, 651.)
[1134] Adams to Marshall, July 31, 1800; _Works_: Adams, ix, 67;
Marshall to De Yrujo, Aug. 15, 1800; Adams MSS.
[1135] Adams to Marshall, Aug. 11, 1800; _Works_: Adams, ix, 73.
[1136] Marshall to Adams, Aug. 12, 1800; Adams MSS.
[1137] _Ib._
[1138] Liston to Marshall, Aug. 25, 1800; _ib._
[1139] Marshall to Adams, Sept. 6, 1800; _ib._
[1140] Marshall to Liston, Sept. 6, 1800; Adams MSS.
[1141] Marshall to J. Q. Adams, July 24, 1800; MS. It is incredible that
the Barbary corsairs held the whole of Europe and America under tribute
for many years. Although our part in this general submission to these
brigands of the seas was shameful, America was the first to move against
them. One of Jefferson's earliest official letters after becoming
President was to the Bey of Tripoli, whom Jefferson addressed as "Great
and Respected Friend ... Illustrious & honored ... whom God preserve."
Jefferson's letter ends with this fervent invocation: "I pray God, very
great and respected friend, to have you always in his holy keeping."
(Jefferson to Bey of Tripoli, May 21, 1801; _Am. St. Prs., For. Rel._,
ii, 349.)
And see Jefferson to Bey of Tunis (Sept. 9, 1801; _ib._, 358), in which
the American President addresses this sea robber and holder of Americans
in slavery, as "Great and Good Friend" and apologizes for delay in
sending our tribute. In Jefferson's time, no notice was taken of such
expressions, which were recognized as mere forms. But ninety years later
the use of this exact expression, "Great and Good Friend," addressed to
the Queen of the Hawaiian Islands, was urged on the stump and in the
press against President Cleveland in his campaign for re-election. For
an accurate and entertaining account of our relations with the Barbary
pirates see Allen: _Our Navy and the Barbary Corsairs_.
[1142] Marshall to Adams, Aug. 1, 1800; Adams MSS.
[1143] Marshall to Adams, June 24, 1800; Adams MSS.
[1144] Marshall to Adams, Aug. 16, 1800; July 24, 1800; _Ib._ and see
Adams to Marshall, Aug. 2, and to Secretary of State, May 25; King, iii,
243-46. The jewels were part of our tribute to the Barbary pirates.
[1145] King to Secretary of State, Oct. 11, 1799; note to Grenville;
King, iii, 129.
[1146] Secretary of State to King, Feb. 5, 1799; _Am. St. Prs., For.
Rel._, ii, 383. Hildreth says that the total amount of claims filed was
twenty-four million dollars. (Hildreth, v, 331; and see Marshall to
King, _infra_.)
[1147] Secretary of State to King, Sept. 4, 1799; _Am. St. Prs., For.
Rel._, ii, 383.
[1148] Troup to King, Sept. 2, 1799; King, iii, 91.
[1149] Secretary of State to King, Dec. 31, 1799; _Am. St. Prs._, _For.
Rel._, ii, 384-85.
[1150] King to Secretary of State, April 7, 1800; King, iii, 215.
[1151] Marshall to Adams, June 24, 1800; Adams MSS.
[1152] King to Secretary of State, April 22, 1800; King, iii, 222.
[1153] Marshall to Adams, July 21, 1800; Adams MSS.
[1154] Adams to Marshall, Aug. 1, 1800; _Works_: Adams, ix, 68-69.
[1155] Marshall to Adams, Aug. 12, 1800; Adams MSS.
[1156] _Infra_, 507 _et seq._
[1157] _Am. St. Prs._, _For. Rel._, ii, 386.
[1158] _Am. St. Prs., For. Rel._, ii, 387.
[1159] _Am. St. Prs., For. Rel._, ii, 387.
[1160] Marshall to Adams, Sept. 9, 1800; Adams MSS.
[1161] Adams to Marshall, Sept. 18, 1800; _Works_: Adams, ix, 84. After
Jefferson became President and Madison Secretary of State, King settled
the controversy according to these instructions of Marshall. But the
Republicans, being then in power, claimed the credit.
[1162] Secretary of State to King, Oct. 26, 1796; King, ii, 102.
[1163] For a comprehensive though prejudiced review of British policy
during this period see Tench Coxe: _Examination of the Conduct of Great
Britain Respecting Neutrals_. Coxe declares that the purpose and policy
of Great Britain were to "monopolize the commerce of the world.... She
denies the lawfulness of supplying and buying from her enemies, and, in
the face of the world, enacts statutes to enable her own subjects to do
these things. (_Ib._, 62.) ... She now aims at the Monarchy of the
ocean.... Her trade is war.... The spoils of neutrals fill her
warehouses, while she incarcerates their bodies in her floating castles.
She seizes their persons and property as the rich fruit of bloodless
victories over her unarmed friends." (_Ib._, 72.)
This was the accepted American view at the time Marshall wrote his
protest; and it continued to be such until the War of 1812. Coxe's book
is packed closely with citations and statistics sustaining his position.
[1164] Secretary of State to King, June 14, 1799; King, iii, 47; and see
King to Secretary of State, July 15, 1799; _ib._, 58-59; and King to
Grenville, Oct. 7, 1799; _ib._, 115-21.
[1165] This complete paper is in _Am. St. Prs., For. Rel._, ii, 486-90.
[1166] At one place the word "distinctly" is used and at another the
word "directly," in the _American State Papers_ (ii, 487 and 488). The
word "directly" is correct, the word "distinctly" being a misprint. This
is an example of the inaccuracies of these official volumes, which must
be used with careful scrutiny.
[1167] _Am. St. Prs., For. Rel._, ii, 488.
[1168] _Am. St. Prs., For. Rel._, ii, 490.
[1169] _Infra_, 524.
[1170] While political parties, as such, did not appear until the close
of Washington's first Administration, the Federalist Party of 1800 was
made up, for the most part, of substantially the same men and interests
that forced the adoption of the Constitution and originated all the
policies and measures, foreign and domestic, of the first three
Administrations.
[1171] Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 404.
[1172] During this period, the word "Democrat" was used by the
Federalists as a term of extreme condemnation, even more opprobrious
than the word "Jacobin." For many years most Republicans hotly resented
the appellation of "Democrat."
[1173] Marshall to Otis, Aug. 5, 1800; Otis MSS.
[1174] For a vivid review of factional causes of the Federalists'
decline see Sedgwick to King, Sept. 26, 1800; King, iii, 307-10; and
Ames to King, Sept. 24, 1800; _ib._, 304.
[1175] "The Public mind is puzzled and fretted. People don't know what
to think of measures or men; they are mad because they are in the dark."
(Goodrich to Wolcott, July 28, 1800; Gibbs, ii, 394.)
[1176] Ames to Hamilton, Aug. 26, 1800; _Works_: Ames, i, 280.
[1177] Hamilton to Sedgwick, May 4, 1800; _Works_: Lodge, x, 371.
[1178] Same to same, May 10, 1800; _ib._, 375.
[1179] "In our untoward situation we should do as well with Jefferson
for President and Mr. Pinckney Vice President as with anything we can
now expect. Such an issue of the election, if fairly produced, is the
only one that will keep the Federal Party together." (Cabot to Wolcott,
Oct. 5, 1800; Lodge: _Cabot_, 295.)
"If Mr. Adams should be reëlected, I fear our constitution would be more
injured by his unruly passions, antipathies, & jealousy, than by the
whimsies of Jefferson." (Carroll to McHenry, Nov. 4, 1800; Steiner,
473.)
"He [Adams] has palsied the sinews of the party, and" another four years
of his administration "would give it its death wound." (Bayard to
Hamilton, Aug. 18, 1800; _Works_: Hamilton, vi, 457.)
[1180] McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. According
to the caucus custom, two candidates were named for President, one of
whom was understood really to stand for Vice-President, the Constitution
at that time not providing for a separate vote for the latter officer.
[1181] "You may rely upon my co-operation in every reasonable measure
for effecting the election of General Pinckney." (Wolcott to Hamilton,
July 7, 1800; _Works_: Hamilton, vi, 447-48.)
"The affairs of this government will not only be ruined but ... the
disgrace will attach to the federal party if they permit the re-election
of Mr. Adams." (_Ib._) "In Massachusetts almost all the leaders of the
first class are dissatisfied with Mr. Adams and enter heartily into the
policy of supporting General Pinckney." (Hamilton to Bayard, Aug. 6,
_ib._, 452 (also in _Works_: Lodge, x, 384); and see Jefferson to
Butler, Aug. 11, 1800; _Works_: Ford, ix, 138.)
[1182] Hamilton to Carroll, July 1, 1800; _Works_: Lodge, x, 378; and
see Hamilton to Bayard, Aug. 6, 1800; _ib._, 384.
[1183] Sedgwick to Hamilton, May 7, 1800, quoting "our friend D.[ayton]
who is not perfectly right" (_Works_: Hamilton, vi, 437; and see Cabot
to Hamilton, Aug. 10, 1800; _ib._, 454; also Cabot to Wolcott, July 20,
1800; Lodge: _Cabot_, 282.)
[1184] Knox to Adams, March 5, 1799; _Works_: Adams, viii, 626-27. Knox
had held higher rank than Hamilton in the Revolutionary War and Adams
had tried to place him above Hamilton in the provisional army in 1798.
But upon the demand of Washington Knox was given an inferior rank and
indignantly declined to serve. (Hildreth, v, 242-44. And see Washington
to Knox, July 16, 1798; _Writings_: Ford, xiv, 43-46.) Thereafter he
became the enemy of Hamilton and the ardent supporter of Adams.
[1185] Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 315.
[1186] Hamilton to Adams, Aug. 1, 1800; _Works_: Lodge, x, 382, and see
390; Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396; Wolcott to Ames,
Dec. 29, 1799; _ib._, 315.
The public discussion of Adams's charge of a "British faction" against
his party enemies began with the publication of a foolish letter he had
written to Coxe, in May of 1792, insinuating that Pinckney's appointment
to the British Court had been secured by "much British influence."
(Adams to Coxe, May, 1792; Gibbs, ii, 424.) The President gave vitality
to the gossip by talking of the Hamiltonian Federalists as a "British
faction." He should have charged it publicly and formally or else kept
perfectly silent. He did neither, and thus only enraged his foe within
the party without getting the advantage of an open and aggressive
attack. (See Steiner, footnote 3, to 468.)
[1187] Phelps to Wolcott, July 15, 1800; relating Noah Webster's
endorsement of Adams's opinions; Gibbs, ii, 380.
[1188] Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396.
[1189] In the summer of 1800, Jefferson dined with the President. Adams
was utterly unreserved to the Republican leader. After dinner, General
Henry Lee, also a guest, remonstrated with the President, who responded
that "he believed Mr. Jefferson never had the ambition, or desire to
aspire to any higher distinction than to be his [Adams's] first
Lieutenant." (Lee to Pickering, 1802; Pickering MSS., Mass. Hist. Soc.;
also partly quoted in Gibbs, ii, 366; and see Ames to Wolcott, June 12,
1800; Gibbs, ii, 368; and to King, Sept. 24, 1800; King, iii, 304.)
[1190] Ames to Pickering, Nov. 5, 1799; _Works_: Ames, i, 261.
[1191] Ames to Gore, Nov. 10, 1799; _ib._, 265.
[1192] Ames to Gore, Nov. 10, 1799; Ames, i, 268.
[1193] Cabot to Wolcott, June 14, 1800; Lodge: _Cabot_, 274.
[1194] Jefferson to Granger, Aug. 13, 1800; _Works_: Ford, ix, 138-41;
and see Jefferson to Gerry, January 26, 1799; _ib._, 17-19.
[1195] "The Jacobins and the half federalists are ripe for attacking the
permanent force, as expensive, and unnecessary, and dangerous to
liberty." (Ames to Pickering, Oct. 19, 1799; _Works_: Ames, i, 258.)
[1196] "In my lengthy journey through this State [Pennsylvania] I have
seen many, very many Irishmen and with very few exceptions, they are
United Irishmen, Free Masons, and the most God-provoking Democrats on
this side of Hell," who, "with the joy and ferocity of the damned, are
enjoying the mortification of the few remaining honest men and
Federalists, and exalting their own hopes of preferment, and that of
their friends, in proportion as they dismiss the fears of the
gallows.... The Democrats are, without doubt, increasing." (Uriah Tracy
to Wolcott, Aug. 7, 1800; Gibbs, ii, 399.)
[1197] Huntington to Wolcott, Aug. 6, 1800; _ib._, 398.
[1198] Ames to Wolcott, June 12, 1800; _ib._, 369.
[1199] McHenry to Wolcott, July 22, 1800; Steiner, 462. "Your very wise
political correspondents will tell you anything sooner than the truth.
For not one of them will look for anything but profound reasons of state
at the bottom of the odd superstructure of parties here. There is
nothing of the kind at the bottom." (Ames to King, Aug. 19, 1800; King,
iii, 294.)
[1200] The Republicans were making much political capital out of the
second mission. They had "saved the country from war," they said, by
forcing Adams to send the envoys: "What a roaring and bellowing did this
excite among all the hungry gang that panted for blood only to obtain
pelf in every part of the country." (_Aurora_, March 4, 1800.)
[1201] Goodrich to Wolcott, Aug. 26, 1800; Gibbs, ii, 412.
[1202] _Am. St. Prs., For. Rel._, ii, 325.
[1203] Republican success in the approaching election.
[1204] Marshall to Adams, July 21, 1800; Adams MSS.
[1205] Marshall to Hamilton, Aug. 23, 1800; _Works_: Hamilton, vi, 460.
[1206] A Republican victory.
[1207] Marshall to Adams, Aug. 25, 1800; Adams MSS.
[1208] Adams to Marshall, Sept. 4 and 5, 1800; _Works_: Adams, ix,
80-82.
[1209] Marshall to Adams, Sept. 17, 1800; Adams MSS. The "retrograde
steps" to which Marshall refers were the modification of the French
_arrêts_ and decrees concerning attacks on our commerce.
[1210] Marshall to Tinsley, Sept. 13, 1800; MS., Mass. Hist. Soc.
[1211] Marshall, ii, 438.
[1212] _Am. St. Prs., For. Rel._, ii, 342 _et seq._
[1213] Gunn to Hamilton, Dec. 18, 1800; _Works_: Hamilton, vi, 492; and
Rutledge to Hamilton, Jan. 10, 1801; _ib._, 511; Ames to Gore, Nov. 10,
1799; _Works_: Ames, i, 265.
[1214] Hamilton to Sedgwick, Dec. 22, 1800; _Works_: Lodge, x, 397;
also, to Morris, Dec. 24, 1800; _ib._, 398.
[1215] Marshall to Hamilton, Jan. 1, 1801; _Works_: Hamilton, vi,
502-03; and see Brown: _Ellsworth_, 314-15. The principal American
demand was compensation for the immense spoliation of American commerce
by the French. The treaty not only failed to grant this, but provided
that we should restore the French ships captured by American vessels
during our two years' maritime war with France, which, though formally
undeclared, was vigorous and successful. "One part of the treaty
abandons all our rights, and the other part makes us the dupes of France
in the game she means to play against the maritime power of England....
We lose our honor, by restoring the ships we have taken, and by so
doing, perhaps, make an implicit acknowledgment of the injustice of our
hostile operations." (Rutledge to Hamilton, Jan. 10, 1801; _Works_:
Hamilton, vi, 511.)