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, saysMarshall, 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 Americanservice, 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 theFederalist 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, anddespair 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 supportAdamsandPinckneyequally is the only thing that can save us from the fangs ofJefferson."[1177]Yet, six days later, Hamilton wrote that "mostof the mostinfluential menof that [Federalist] party consider him [Adams] as a veryunfitandincapablecharacter.... 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 ofJefferson.... 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. "Therabies caninaof 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 "aconvulsion 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 ofchanging 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 bemanifest?"[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 "GeneralM[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 hastaken 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]
Statue of John Marshall By W. W. Story, at the Capitol, Washington, D. C.Statue of John MarshallBy 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 tothe 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 ofAdams 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 votesfor 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 ofdissension 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 "theCatalineof 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 Burrmay 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 toMarshall," 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 apermanent 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 rumorincreased 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 thenom de guerreof "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 besubmitted 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]andhis 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 thePresident'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 partyextending 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 tocarry 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 onlythrough 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 notgreeted 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 thatJohn Marshallhas 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 thearistocratic presses aloneto publish laws ... for ... one year."[1321]