CHAPTER XII

CHIEF JUSTICE OF THE UNITED STATES

I consider General Marshall as more than a secretary--as a state

conservator. (Oliver Wolcott.)

To Mr. Jefferson I have felt insuperable objections. The morals of

the author of the letter to Mazzei cannot be pure. (Marshall.)

You have given an opinion in exact conformity with the wishes of

your party. Come forward and defend it. (George Hay to Marshall.)

"The P. requests Mr. McHenry's company for one minute," wrote President

Adams to his Secretary of War on the morning of May 5, 1800.[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.)

The Life of John Marshall, Volume 2: Politician, diplomatist, statesman, 1789-1801 · 第 12 / 13 章