FOOTNOTES:

FOOTNOTES:[95]Marshall, ii, 150-51. "The agitation had been too great to be suddenly calmed; and for the active opponents of the system [Constitution] to become suddenly its friends, or even indifferent to its fate, would have been a victory of reason over passion." (Ib.; and see Beard:Econ. O. J. D., 85, 101, 102-07.)[96]"The effort was made to fill the legislature with the declared enemies of the government, and thus to commit it, in its infancy, to the custody of its foes." (Marshall, ii, 151.)[97]Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong. Madison adds this cryptic sentence: "This hint may not be unworthy of your attention."[98]Madison to Washington, June 27, 1788;Writings: Hunt, v, 234. Madison here refers to the project of calling a new Federal Convention for the purpose of amending the Constitution or making a new one.Randolph was still more apprehensive. "Something is surely meditated against the new Constitution more animated, forcible, and violent than a simple application for calling a Convention." (Randolph to Madison, Oct. 23, 1788; Conway, 118.)[99]When Jefferson left Virginia for France, his political fortunes were broken. (Eckenrode:R. V., chap. viii; and Dodd, 63-64; and Ambler, 35-36.) The mission to France at the close of the American Revolution, while "an honor," was avoided rather than sought by those who were keen for career. (Dodd, 36-39.)Seldom has any man achieved such a recovery as that of Jefferson in the period now under review. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the depths of disfavor this genius of party management climbed to the heights of popularity and fame.[100]Jefferson to Hopkinson, March 13, 1789;Works: Ford, v, 456.[101]Jefferson to Washington, Paris, Dec. 4, 1788;Works: Ford, v, 437-38. Compare with Jefferson's statements when the fight was on against ratifying the Constitution. (See vol.i, chap.viii; also Jefferson to Humphreys, Paris, March 18, 1789;Works: Ford, v, 470.)[102]Jefferson to Short, Dec. 14, 1789;Works: Ford, vi, 24.[103]The Legislature which met on the heels of the Virginia Constitutional Convention hastened to adjourn in order that its members might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; Monroe'sWritings: Hamilton, i, 188.) But at its autumn session, it made up for lost time in its practical display of antagonism to the Nationalist movement.[104]Marshall, ii, 205-26. Throughout this chapter the terms "Nationalist" and "Anti-Nationalist" are used instead of the customary terms "Federalist" and "Anti-Federalist," the latter not clearly expressing the fundamental difference between the contending political forces at that particular time.[105]Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.[106]Ib., 416-18.[107]Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also see the vivid description of the debate under these resolutions in Henry, ii, 418-23.[108]Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.[109]Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788;Writings: Hunt, v, 269-79.[110]Madison to Randolph, Nov. 2, 1788;Writings: Hunt, v, 296.[111]See vol.iof this work.[112]Henry, ii, 427; see also Scott, 172.[113]Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and Henry, ii, 427-28.[114]Madison to Randolph, Nov. 2, 1788;Writings: Hunt, v, 295.[115]Monroe became a candidate against Madison and it was "thought that he [would] ... carry his election." (Mason to John Mason, Dec. 18, 1788; Rowland, ii, 304.) But so ardent were Madison's assurances of his modified Nationalist views that he was elected. His majority, however, was only three hundred. (Monroe to Jefferson, Feb. 15, 1789; Monroe'sWritings: Hamilton, i, 199.)[116]Randolph to Madison, Nov. 10, 1788; Conway, 121.[117]Journal, H.D. (Nov. 14, 1788), 42-44. Also seeAnnals, 1st Cong., 1st Sess., 259.[118]The Nationalist substitute is pathetic in its apprehensive tone. It closes with a prayer "that Almighty God in his goodness and wisdom will direct your councils to such measures as will establish our lasting peace and welfare and secure to our latest posterity the blessings of freedom; and that he will always have you in his holy keeping." (Journal, H.D. (Nov. 14, 1788), 43.)[119]Ib., 44.[120]Pennsylvania Resolutions: Gallatin'sWritings: Adams, i, 3. This was unjust to New England, where rum was "the common drink of the nation" and played an interesting part in our tariff laws and New England trade.[121]Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong.[122]Randolph to Madison, July 19, 1789; Conway, 127.[123]Journal, H.D. (Oct. 20, 1789), 4.[124]Ib., 7-16.[125]Ib., 16. Marshall probably drew the bill that finally passed. He carried it from the House to the Senate. (Ib., 136.)[126]Ib.(Oct. 28, 1790), 19-22. Whether or not a voter owned land was weighed in delicate scales. Even "treating" was examined.[127]Journal, H.D. (Oct. 28, 1790), 24-29.[128]Ib., 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For extent of this revision see Conway, 130.[129]Journal, H.D. (1789), 57-58.[130]Ib., 78. See report of the committee in this interesting case. (Ib., 103.) The bill was passed. (Ib., 141.) At that time divorces in Virginia could be had only by an act of the Legislature. Contrast the above case, where the divorce was granted for cruelty, abandonment, waste of property, etc., with that of the Mattauer case (ib.(1793), 112, 126), where the divorce was refused for admitted infidelity on the part of the wife who bore a child by the brother of her husband while the latter was abroad.[131]Ib.(1789), 96. Kentucky was then a part of Virginia and legislation by the latter State was necessary. It is more than probable that Marshall drew this important statute, which passed. (Ib., 115, 131, 141.)[132]Journal, H.D. (1789), 112. At this period, lotteries were the common and favorite methods of raising money for schools, and other public institutions and enterprises. Even the maintenance of cemeteries was provided for in this way. The Journals of the House of Delegates are full of resolutions and Hening's Statutes contain many acts concerning these enterprises. (See, for example, Journal, H.D. (1787), 16-20; (1797), 39.)[133]An uncommonly able state paper was laid before the House of Delegates at this session. It was an arraignment of the Virginia Constitution of 1776, and mercilessly exposed, without the use of direct terms, the dangerous political machine which that Constitution made inevitable; it suggested "that as harmony with the Federal Government ... is to be desired our own Constitution ought to be compared with that of the United States and retrenched where it is repugnant"; and it finally recommended that the people instruct their representatives in the Legislature to take the steps for reform. The author of this admirable petition is unknown. (Journal, H.D. (1789), 113.)From this previous vote for a new Constitution, it is probable that Marshall warmly supported this resolution. But the friends of the old and vicious system instantly proposed an amendment "that the foregoing statement contains principles repugnant to Republican Government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this House or be recommended to the consideration of the people"; and so strong were they that the whole subject was dropped by postponement, without further contest. (Journal, H.D. (1789), 108-09.)[134]Ib.(Nov. 17, 1789), 20.[135]Ib.(Nov. 13, 1789), 12.[136]Ib.(Nov. 16, 1789), 14.[137]Ib.(Nov. 27, 1789), 49. The James River Company was formed in 1784. Washington was its first president. (Randolph to Washington, Aug. 8, 1784; Conway, 58.) Marshall's Account Book shows many payments on stock in this company.[138]Journal, H.D. (1789), 117, 135. For many years after the Constitution was adopted the United States Senate sat behind closed doors. The Virginia Legislature continued to demand public debate in the National Senate until that reform was accomplished. (See Journal, H.D. (Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.)In 1789 the Nationalists were much stronger in the Legislatures of the other States than they had been in the preceding year. Only three States had answered Virginia's belated letter proposing a new Federal Convention to amend the Constitution. Disgusted and despondent, Henry quitted his seat in the House of Delegates in the latter part of November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.)[139]Journal, H.D. (1789), 17, 19, 98.[140]Ib., 107-12.[141]Ib., 90-91.[142]Journal, H.D. (1789), 96.[143]Ib., 102.[144]Ib., 119. The objections were that the liberty of the press, trial by jury, freedom of speech, the right of the people to assemble, consult, and "to instruct their representatives," were not guaranteed; and in general, that the amendments submitted "fall short of affording security to personal rights." (Senate Journal, December 12, 1789; MS., Va. St. Lib.)[145]Annals, 1st Cong., 1st Sess., 444; and see entire debate. The amendments were offered as a measure of prudence to mollify the disaffected. (Rives, iii, 38-39.)[146]The House agreed to seventeen amendments. But the Senate reduced these to twelve, which were submitted to the States. The first of these provided for an increase of the representation in the House; the second provided that no law "varying" the salaries of Senators or Representatives "shall take effect until an election of Representatives shall have intervened." (Annals, 1st Cong., 1st Sess., Appendix to ii, 2033.) The States ratified only the last ten. (For good condensed treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth Amendment, as ratified, was the twelfth as submitted and is sometimes referred to by the latter number in the documents and correspondence of 1790-91, as in Jefferson's "Opinion on the Constitutionality of the Bank of the United States." (Seeinfra.) New York, Virginia, Maryland, South Carolina, North Carolina, and Rhode Island accepted the twelve amendments as proposed. The other States rejected one or both of the first two amendments.[147]Randolph to Madison, June 30, 1789; Conway, 126.[148]See Beard:Econ. O. J. D., 76.[149]Ib., 86.[150]Ib., 132-33.[151]Marshall, ii, 192.[152]Money was exceedingly scarce. Even Washington had to borrow to travel to New York for his inauguration, and Patrick Henry could not attend the Federal Constitutional Convention for want of cash. (Conway, 132.)[153]"First Report on the Public Credit";Works: Lodge, ii, 227et seq.The above analysis, while not technically precise, is sufficiently accurate to give a rough idea of Hamilton's plan. (See Marshall's analysis; Marshall, ii, 178-80.)[154]This, indeed, was a portion of Hamilton's plan and he succeeded in it as he did in other parts of his broad purpose to combine as much strength as possible in support of the National Government. "The northern states and the commercial and monied people are zealously attached to ... the new government." (Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62.)[155]This was emphatically true. From the National point of view it was the best feature of Hamilton's plan.[156]In his old age, John Adams, Hamilton's most venomous and unforgiving enemy, while unsparing in his personal abuse, paid high tribute to the wisdom and necessity of Hamilton's financial statesmanship. "I know not," writes Adams, "how Hamilton could have done otherwise." (Adams to Rush, Aug. 23, 1805;Old Family Letters, 75.) "The sudden rise of public securities, after the establishment of the funding system was no misfortune to the Public but an advantage. The necessity of that system arose from the inconsistency of the People in contracting debts and then refusing to pay them." (Same to same, Jan. 25, 1806;ib., 93.)Fisher Ames thus states the different interests of the sections: "The funding system, they [Southern members of Congress] say, is in favor of the moneyed interest—oppressive to the land; that is, favorable to us [Northern people], hard on them. They pay tribute, they say, and the middle and eastern people ... receive it. And here is the burden of the song, almost all the little [certificates of State or Continental debts] that they had and which cost them twenty shillings, for supplies or services, has been bought up, at a low rate, and now they pay more tax towards the interest than they received for the paper. Thistribute, they say, is aggravating." (Ames to Minot, Nov. 30, 1791;Works: Ames, i, 104.)[157]Marshall, ii, 181. The attack on Hamilton's financial plan and especially on Assumption was the beginning of the definite organization of the Republican Party. (Washington'sDiary: Lossing, 166.)[158]Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii, 22.[159]At one time, when it appeared that Assumption was defeated, Sedgwick of Massachusetts intimated that his section might secede. (Annals, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii, 90et seq.)[160]Marshall's statement of the debate is the best and fairest brief account of this historic conflict. (See Marshall, ii, 181-90. See entire debate inAnnals, 1st Cong., i, ii, under caption "Public Debt.")[161]"This despicable grog-shop contest, whether the taverns of New York or Philadelphia shall get the custom of Congress, keeps us in discord and covers us all with disgrace." (Ames to Dwight, June 11, 1790;Works: Ames, i, 80.)[162]Jefferson to Monroe, June 20, 1790;Works: Ford, vi, 78-80; and seeib., 76; to Gilmer, June 27,ib., 83; to Rutledge, July 4,ib., 87-88; to Harvie, July 25,ib., 108.[163]Ib.; and see also Jefferson to Eppes, July 25,ib., 106; to Randolph, March 28,ib., 37; to same, April 18,ib., 47; to Lee, April 26,ib., 53; to Mason, June 13,ib., 75; to Randolph, June 20,ib., 76-77; to Monroe, June 20,ib., 79; to Dumas, June 23,ib., 82; to Rutledge, July 4,ib., 87-88; to Dumas, July 13,ib., 96. Compare these letters with Jefferson's statement, February, 1793;ib., vii, 224-26; and with the "Anas,"ib., i, 171-78. Jefferson then declared that "I was really a stranger to the whole subject." (Ib., 176.)[164]Jefferson's statement;Works: Ford, vii, 224-26, and i, 175-77.[165]Gibbs, i, 32; and see Marshall, ii, 190-91.[166]Henry, ii, 453. But Marshall says that more votes would have changed had that been necessary to consummate the bargain. (See Marshall, ii, footnote to 191.)[167]Ib., 192.[168]Marshall, ii, 191-92.[169]Henry, ii, 453-55.[170]Journal, H.D. (1790), 35.[171]Journal, H.D. (1790), 35.[172]Ib.[173]Ib., 80-81.[174]Journal, H.D. (1790), 80-81; and seeAm. St. Prs., Finance, i, 90-91. The economic distinction is here clearly drawn. Jefferson, who later made this a chief part of his attack, had not yet raised the point.[175]Ames to Minot, Feb. 16, 1792;Works: Ames, i, 113.[176]This was the sentence which declared that Hamilton's reasoning would result in "fictitious wealth through a paper medium," referring to his plan for making the transferable certificates of the National debt serve as currency.[177]Journal, H.D. (1790), 141.[178]Hamilton to Jay, Nov. 13, 1790;Works: Lodge, ix, 473-74. Virginia was becoming very hostile to the new Government. First, there was a report that Congress was about to emancipate the slaves. Then came the news of the Assumption of the State debts, with the presence in Virginia of speculators from other States buying up State securities; and this added gall to the bitter cup which Virginians felt the National Government was forcing them to drink. Finally the tidings that the Senate had defeated the motion for public sessions inflamed the public mind still more. (Stuart to Washington, June 2, 1790;Writings: Ford, xi, footnote to 482.)Even close friends of Washington deeply deplored a "spirit so subversive of the true principles of the constitution.... If Mr. Henry has sufficient boldness to aim the blow at its [Constitution's] existence, which he has threatened, I think he can never meet with a more favorable opportunity if the assumption should take place." (Ib.)Washington replied that Stuart's letter pained him. "The public mind in Virginia ... seems to be more irritable, sour, and discontented than ... it is in any other State in the Union except Massachusetts." (Washington to Stuart, June 15, 1790;ib., 481-82.)Marshall's father most inaccurately reported to Washington that Kentucky favored the measures of the Administration; and the President, thanking him for the welcome news, asked the elder Marshall for "any information of a public or private nature ... from your district." (Washington to Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.) Kentucky was at that time in strong opposition and this continued to grow.[179]Taylor's "An Enquiry, etc.," as quoted in Beard:Econ. O. J. D., 209. (Ib., chap. vii.) Taylor's pamphlet was revised by Pendleton and then sent to Madison before publication. (Monroe to Madison, May 18, 1793; Monroe'sWritings: Hamilton, i, 254.) Taylor wanted "banks ... demolished" and bankers "excluded from public councils." (Beard:Econ. O. J. D., 209.)[180]Marshall, ii, 192.[181]In Jefferson's letters, already cited, not the faintest suggestion appears that he thought the law unconstitutional. Not until Patrick Henry's resolution, and the address of the Virginia Legislature to Congress based thereon, made the point that Assumption was in violation of this instrument, because the power to pass such a law was not expressly given in the Constitution, did Jefferson take his stand against implied powers.[182]"Whether ... right or wrong, abstractedly, more attention should be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791;Works: Ford, vi, 186.)[183]Monroe had advised Madison of the hostility of Virginia to Assumption and incidentally asked for an office for his own brother-in-law. (Monroe to Madison, July 2, 1790; Monroe'sWritings: Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790;ib., 209.)[184]Anderson, 21.[185]Jefferson himself, a year after he helped pass the Assumption Act, had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter answered in a formal statement to the President. These two documents are the ablest summaries of the opposing sides of this great controversy. (See Jefferson to President, May 23, 1792;Works: Ford, vi, 487-95; and Hamilton to Washington, Aug. 18, 1792;Works: Lodge, ii, 426-72.)[186]Ames to Minot, March 8, 1792;Works: Ames, i, 114.[187]Tenth Amendment, as ratified.[188]"Opinion on the Constitutionality of a National Bank of the United States";Works: Ford, vi, 198; and see Madison's argument against the constitutionality of the Bank Act inAnnals, 1st Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also,Writings: Hunt, vi, 19-42. This argument best shows Madison's sudden and radical change from an extreme Nationalist to an advocate of the most restricted National powers.[189]Hamilton's "Opinion as to the Constitutionality of the Bank of the United States";Works: Lodge, iii, 445-93. Adams took the same view. (See Adams to Rush, Dec. 27, 1810;Old Family Letters, 272.)[190]"Opinion as to the Constitutionality of the Bank of the United States";Works: Lodge, iii, 445-93. Washington was sorely perplexed by the controversy and was on the point of vetoing the Bank Bill. (See Rives, iii, 170-71.)[191]Marshall, ii, 206-07.[192]Ames to Dwight, Jan. 23, 1792;Works: Ames, i, 110-11.[193]"A Candid State of Parties"—National Gazette, Sept. 26, 1792.[194]"I was no party man myself and the first wish of my heart was, if parties did exist, to reconcile them." (Washington to Jefferson, July 6, 1796;Writings: Ford, xiii, 230.)

[95]Marshall, ii, 150-51. "The agitation had been too great to be suddenly calmed; and for the active opponents of the system [Constitution] to become suddenly its friends, or even indifferent to its fate, would have been a victory of reason over passion." (Ib.; and see Beard:Econ. O. J. D., 85, 101, 102-07.)

[96]"The effort was made to fill the legislature with the declared enemies of the government, and thus to commit it, in its infancy, to the custody of its foes." (Marshall, ii, 151.)

[97]Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong. Madison adds this cryptic sentence: "This hint may not be unworthy of your attention."

[98]Madison to Washington, June 27, 1788;Writings: Hunt, v, 234. Madison here refers to the project of calling a new Federal Convention for the purpose of amending the Constitution or making a new one.Randolph was still more apprehensive. "Something is surely meditated against the new Constitution more animated, forcible, and violent than a simple application for calling a Convention." (Randolph to Madison, Oct. 23, 1788; Conway, 118.)

Randolph was still more apprehensive. "Something is surely meditated against the new Constitution more animated, forcible, and violent than a simple application for calling a Convention." (Randolph to Madison, Oct. 23, 1788; Conway, 118.)

[99]When Jefferson left Virginia for France, his political fortunes were broken. (Eckenrode:R. V., chap. viii; and Dodd, 63-64; and Ambler, 35-36.) The mission to France at the close of the American Revolution, while "an honor," was avoided rather than sought by those who were keen for career. (Dodd, 36-39.)Seldom has any man achieved such a recovery as that of Jefferson in the period now under review. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the depths of disfavor this genius of party management climbed to the heights of popularity and fame.

Seldom has any man achieved such a recovery as that of Jefferson in the period now under review. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the depths of disfavor this genius of party management climbed to the heights of popularity and fame.

[100]Jefferson to Hopkinson, March 13, 1789;Works: Ford, v, 456.

[101]Jefferson to Washington, Paris, Dec. 4, 1788;Works: Ford, v, 437-38. Compare with Jefferson's statements when the fight was on against ratifying the Constitution. (See vol.i, chap.viii; also Jefferson to Humphreys, Paris, March 18, 1789;Works: Ford, v, 470.)

[102]Jefferson to Short, Dec. 14, 1789;Works: Ford, vi, 24.

[103]The Legislature which met on the heels of the Virginia Constitutional Convention hastened to adjourn in order that its members might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; Monroe'sWritings: Hamilton, i, 188.) But at its autumn session, it made up for lost time in its practical display of antagonism to the Nationalist movement.

[104]Marshall, ii, 205-26. Throughout this chapter the terms "Nationalist" and "Anti-Nationalist" are used instead of the customary terms "Federalist" and "Anti-Federalist," the latter not clearly expressing the fundamental difference between the contending political forces at that particular time.

[105]Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.

[106]Ib., 416-18.

[107]Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also see the vivid description of the debate under these resolutions in Henry, ii, 418-23.

[108]Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415.

[109]Madison to Randolph, Oct. 17, 1788; to Pendleton, Oct. 20, 1788;Writings: Hunt, v, 269-79.

[110]Madison to Randolph, Nov. 2, 1788;Writings: Hunt, v, 296.

[111]See vol.iof this work.

[112]Henry, ii, 427; see also Scott, 172.

[113]Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and Henry, ii, 427-28.

[114]Madison to Randolph, Nov. 2, 1788;Writings: Hunt, v, 295.

[115]Monroe became a candidate against Madison and it was "thought that he [would] ... carry his election." (Mason to John Mason, Dec. 18, 1788; Rowland, ii, 304.) But so ardent were Madison's assurances of his modified Nationalist views that he was elected. His majority, however, was only three hundred. (Monroe to Jefferson, Feb. 15, 1789; Monroe'sWritings: Hamilton, i, 199.)

[116]Randolph to Madison, Nov. 10, 1788; Conway, 121.

[117]Journal, H.D. (Nov. 14, 1788), 42-44. Also seeAnnals, 1st Cong., 1st Sess., 259.

[118]The Nationalist substitute is pathetic in its apprehensive tone. It closes with a prayer "that Almighty God in his goodness and wisdom will direct your councils to such measures as will establish our lasting peace and welfare and secure to our latest posterity the blessings of freedom; and that he will always have you in his holy keeping." (Journal, H.D. (Nov. 14, 1788), 43.)

[119]Ib., 44.

[120]Pennsylvania Resolutions: Gallatin'sWritings: Adams, i, 3. This was unjust to New England, where rum was "the common drink of the nation" and played an interesting part in our tariff laws and New England trade.

[121]Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong.

[122]Randolph to Madison, July 19, 1789; Conway, 127.

[123]Journal, H.D. (Oct. 20, 1789), 4.

[124]Ib., 7-16.

[125]Ib., 16. Marshall probably drew the bill that finally passed. He carried it from the House to the Senate. (Ib., 136.)

[126]Ib.(Oct. 28, 1790), 19-22. Whether or not a voter owned land was weighed in delicate scales. Even "treating" was examined.

[127]Journal, H.D. (Oct. 28, 1790), 24-29.

[128]Ib., 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For extent of this revision see Conway, 130.

[129]Journal, H.D. (1789), 57-58.

[130]Ib., 78. See report of the committee in this interesting case. (Ib., 103.) The bill was passed. (Ib., 141.) At that time divorces in Virginia could be had only by an act of the Legislature. Contrast the above case, where the divorce was granted for cruelty, abandonment, waste of property, etc., with that of the Mattauer case (ib.(1793), 112, 126), where the divorce was refused for admitted infidelity on the part of the wife who bore a child by the brother of her husband while the latter was abroad.

[131]Ib.(1789), 96. Kentucky was then a part of Virginia and legislation by the latter State was necessary. It is more than probable that Marshall drew this important statute, which passed. (Ib., 115, 131, 141.)

[132]Journal, H.D. (1789), 112. At this period, lotteries were the common and favorite methods of raising money for schools, and other public institutions and enterprises. Even the maintenance of cemeteries was provided for in this way. The Journals of the House of Delegates are full of resolutions and Hening's Statutes contain many acts concerning these enterprises. (See, for example, Journal, H.D. (1787), 16-20; (1797), 39.)

[133]An uncommonly able state paper was laid before the House of Delegates at this session. It was an arraignment of the Virginia Constitution of 1776, and mercilessly exposed, without the use of direct terms, the dangerous political machine which that Constitution made inevitable; it suggested "that as harmony with the Federal Government ... is to be desired our own Constitution ought to be compared with that of the United States and retrenched where it is repugnant"; and it finally recommended that the people instruct their representatives in the Legislature to take the steps for reform. The author of this admirable petition is unknown. (Journal, H.D. (1789), 113.)From this previous vote for a new Constitution, it is probable that Marshall warmly supported this resolution. But the friends of the old and vicious system instantly proposed an amendment "that the foregoing statement contains principles repugnant to Republican Government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this House or be recommended to the consideration of the people"; and so strong were they that the whole subject was dropped by postponement, without further contest. (Journal, H.D. (1789), 108-09.)

From this previous vote for a new Constitution, it is probable that Marshall warmly supported this resolution. But the friends of the old and vicious system instantly proposed an amendment "that the foregoing statement contains principles repugnant to Republican Government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this House or be recommended to the consideration of the people"; and so strong were they that the whole subject was dropped by postponement, without further contest. (Journal, H.D. (1789), 108-09.)

[134]Ib.(Nov. 17, 1789), 20.

[135]Ib.(Nov. 13, 1789), 12.

[136]Ib.(Nov. 16, 1789), 14.

[137]Ib.(Nov. 27, 1789), 49. The James River Company was formed in 1784. Washington was its first president. (Randolph to Washington, Aug. 8, 1784; Conway, 58.) Marshall's Account Book shows many payments on stock in this company.

[138]Journal, H.D. (1789), 117, 135. For many years after the Constitution was adopted the United States Senate sat behind closed doors. The Virginia Legislature continued to demand public debate in the National Senate until that reform was accomplished. (See Journal, H.D. (Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.)In 1789 the Nationalists were much stronger in the Legislatures of the other States than they had been in the preceding year. Only three States had answered Virginia's belated letter proposing a new Federal Convention to amend the Constitution. Disgusted and despondent, Henry quitted his seat in the House of Delegates in the latter part of November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.)

In 1789 the Nationalists were much stronger in the Legislatures of the other States than they had been in the preceding year. Only three States had answered Virginia's belated letter proposing a new Federal Convention to amend the Constitution. Disgusted and despondent, Henry quitted his seat in the House of Delegates in the latter part of November and went home in a sulk. (Henry, ii, 448-49; Conway, 131.)

[139]Journal, H.D. (1789), 17, 19, 98.

[140]Ib., 107-12.

[141]Ib., 90-91.

[142]Journal, H.D. (1789), 96.

[143]Ib., 102.

[144]Ib., 119. The objections were that the liberty of the press, trial by jury, freedom of speech, the right of the people to assemble, consult, and "to instruct their representatives," were not guaranteed; and in general, that the amendments submitted "fall short of affording security to personal rights." (Senate Journal, December 12, 1789; MS., Va. St. Lib.)

[145]Annals, 1st Cong., 1st Sess., 444; and see entire debate. The amendments were offered as a measure of prudence to mollify the disaffected. (Rives, iii, 38-39.)

[146]The House agreed to seventeen amendments. But the Senate reduced these to twelve, which were submitted to the States. The first of these provided for an increase of the representation in the House; the second provided that no law "varying" the salaries of Senators or Representatives "shall take effect until an election of Representatives shall have intervened." (Annals, 1st Cong., 1st Sess., Appendix to ii, 2033.) The States ratified only the last ten. (For good condensed treatment of the subject see Hildreth, iv, 112-24.) Thus the Tenth Amendment, as ratified, was the twelfth as submitted and is sometimes referred to by the latter number in the documents and correspondence of 1790-91, as in Jefferson's "Opinion on the Constitutionality of the Bank of the United States." (Seeinfra.) New York, Virginia, Maryland, South Carolina, North Carolina, and Rhode Island accepted the twelve amendments as proposed. The other States rejected one or both of the first two amendments.

[147]Randolph to Madison, June 30, 1789; Conway, 126.

[148]See Beard:Econ. O. J. D., 76.

[149]Ib., 86.

[150]Ib., 132-33.

[151]Marshall, ii, 192.

[152]Money was exceedingly scarce. Even Washington had to borrow to travel to New York for his inauguration, and Patrick Henry could not attend the Federal Constitutional Convention for want of cash. (Conway, 132.)

[153]"First Report on the Public Credit";Works: Lodge, ii, 227et seq.The above analysis, while not technically precise, is sufficiently accurate to give a rough idea of Hamilton's plan. (See Marshall's analysis; Marshall, ii, 178-80.)

[154]This, indeed, was a portion of Hamilton's plan and he succeeded in it as he did in other parts of his broad purpose to combine as much strength as possible in support of the National Government. "The northern states and the commercial and monied people are zealously attached to ... the new government." (Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62.)

[155]This was emphatically true. From the National point of view it was the best feature of Hamilton's plan.

[156]In his old age, John Adams, Hamilton's most venomous and unforgiving enemy, while unsparing in his personal abuse, paid high tribute to the wisdom and necessity of Hamilton's financial statesmanship. "I know not," writes Adams, "how Hamilton could have done otherwise." (Adams to Rush, Aug. 23, 1805;Old Family Letters, 75.) "The sudden rise of public securities, after the establishment of the funding system was no misfortune to the Public but an advantage. The necessity of that system arose from the inconsistency of the People in contracting debts and then refusing to pay them." (Same to same, Jan. 25, 1806;ib., 93.)Fisher Ames thus states the different interests of the sections: "The funding system, they [Southern members of Congress] say, is in favor of the moneyed interest—oppressive to the land; that is, favorable to us [Northern people], hard on them. They pay tribute, they say, and the middle and eastern people ... receive it. And here is the burden of the song, almost all the little [certificates of State or Continental debts] that they had and which cost them twenty shillings, for supplies or services, has been bought up, at a low rate, and now they pay more tax towards the interest than they received for the paper. Thistribute, they say, is aggravating." (Ames to Minot, Nov. 30, 1791;Works: Ames, i, 104.)

Fisher Ames thus states the different interests of the sections: "The funding system, they [Southern members of Congress] say, is in favor of the moneyed interest—oppressive to the land; that is, favorable to us [Northern people], hard on them. They pay tribute, they say, and the middle and eastern people ... receive it. And here is the burden of the song, almost all the little [certificates of State or Continental debts] that they had and which cost them twenty shillings, for supplies or services, has been bought up, at a low rate, and now they pay more tax towards the interest than they received for the paper. Thistribute, they say, is aggravating." (Ames to Minot, Nov. 30, 1791;Works: Ames, i, 104.)

[157]Marshall, ii, 181. The attack on Hamilton's financial plan and especially on Assumption was the beginning of the definite organization of the Republican Party. (Washington'sDiary: Lossing, 166.)

[158]Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii, 22.

[159]At one time, when it appeared that Assumption was defeated, Sedgwick of Massachusetts intimated that his section might secede. (Annals, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii, 90et seq.)

[160]Marshall's statement of the debate is the best and fairest brief account of this historic conflict. (See Marshall, ii, 181-90. See entire debate inAnnals, 1st Cong., i, ii, under caption "Public Debt.")

[161]"This despicable grog-shop contest, whether the taverns of New York or Philadelphia shall get the custom of Congress, keeps us in discord and covers us all with disgrace." (Ames to Dwight, June 11, 1790;Works: Ames, i, 80.)

[162]Jefferson to Monroe, June 20, 1790;Works: Ford, vi, 78-80; and seeib., 76; to Gilmer, June 27,ib., 83; to Rutledge, July 4,ib., 87-88; to Harvie, July 25,ib., 108.

[163]Ib.; and see also Jefferson to Eppes, July 25,ib., 106; to Randolph, March 28,ib., 37; to same, April 18,ib., 47; to Lee, April 26,ib., 53; to Mason, June 13,ib., 75; to Randolph, June 20,ib., 76-77; to Monroe, June 20,ib., 79; to Dumas, June 23,ib., 82; to Rutledge, July 4,ib., 87-88; to Dumas, July 13,ib., 96. Compare these letters with Jefferson's statement, February, 1793;ib., vii, 224-26; and with the "Anas,"ib., i, 171-78. Jefferson then declared that "I was really a stranger to the whole subject." (Ib., 176.)

[164]Jefferson's statement;Works: Ford, vii, 224-26, and i, 175-77.

[165]Gibbs, i, 32; and see Marshall, ii, 190-91.

[166]Henry, ii, 453. But Marshall says that more votes would have changed had that been necessary to consummate the bargain. (See Marshall, ii, footnote to 191.)

[167]Ib., 192.

[168]Marshall, ii, 191-92.

[169]Henry, ii, 453-55.

[170]Journal, H.D. (1790), 35.

[171]Journal, H.D. (1790), 35.

[172]Ib.

[173]Ib., 80-81.

[174]Journal, H.D. (1790), 80-81; and seeAm. St. Prs., Finance, i, 90-91. The economic distinction is here clearly drawn. Jefferson, who later made this a chief part of his attack, had not yet raised the point.

[175]Ames to Minot, Feb. 16, 1792;Works: Ames, i, 113.

[176]This was the sentence which declared that Hamilton's reasoning would result in "fictitious wealth through a paper medium," referring to his plan for making the transferable certificates of the National debt serve as currency.

[177]Journal, H.D. (1790), 141.

[178]Hamilton to Jay, Nov. 13, 1790;Works: Lodge, ix, 473-74. Virginia was becoming very hostile to the new Government. First, there was a report that Congress was about to emancipate the slaves. Then came the news of the Assumption of the State debts, with the presence in Virginia of speculators from other States buying up State securities; and this added gall to the bitter cup which Virginians felt the National Government was forcing them to drink. Finally the tidings that the Senate had defeated the motion for public sessions inflamed the public mind still more. (Stuart to Washington, June 2, 1790;Writings: Ford, xi, footnote to 482.)Even close friends of Washington deeply deplored a "spirit so subversive of the true principles of the constitution.... If Mr. Henry has sufficient boldness to aim the blow at its [Constitution's] existence, which he has threatened, I think he can never meet with a more favorable opportunity if the assumption should take place." (Ib.)Washington replied that Stuart's letter pained him. "The public mind in Virginia ... seems to be more irritable, sour, and discontented than ... it is in any other State in the Union except Massachusetts." (Washington to Stuart, June 15, 1790;ib., 481-82.)Marshall's father most inaccurately reported to Washington that Kentucky favored the measures of the Administration; and the President, thanking him for the welcome news, asked the elder Marshall for "any information of a public or private nature ... from your district." (Washington to Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.) Kentucky was at that time in strong opposition and this continued to grow.

Even close friends of Washington deeply deplored a "spirit so subversive of the true principles of the constitution.... If Mr. Henry has sufficient boldness to aim the blow at its [Constitution's] existence, which he has threatened, I think he can never meet with a more favorable opportunity if the assumption should take place." (Ib.)

Washington replied that Stuart's letter pained him. "The public mind in Virginia ... seems to be more irritable, sour, and discontented than ... it is in any other State in the Union except Massachusetts." (Washington to Stuart, June 15, 1790;ib., 481-82.)

Marshall's father most inaccurately reported to Washington that Kentucky favored the measures of the Administration; and the President, thanking him for the welcome news, asked the elder Marshall for "any information of a public or private nature ... from your district." (Washington to Thomas Marshall, Feb., 1791; Washington's Letter Book, MS., Lib. Cong.) Kentucky was at that time in strong opposition and this continued to grow.

[179]Taylor's "An Enquiry, etc.," as quoted in Beard:Econ. O. J. D., 209. (Ib., chap. vii.) Taylor's pamphlet was revised by Pendleton and then sent to Madison before publication. (Monroe to Madison, May 18, 1793; Monroe'sWritings: Hamilton, i, 254.) Taylor wanted "banks ... demolished" and bankers "excluded from public councils." (Beard:Econ. O. J. D., 209.)

[180]Marshall, ii, 192.

[181]In Jefferson's letters, already cited, not the faintest suggestion appears that he thought the law unconstitutional. Not until Patrick Henry's resolution, and the address of the Virginia Legislature to Congress based thereon, made the point that Assumption was in violation of this instrument, because the power to pass such a law was not expressly given in the Constitution, did Jefferson take his stand against implied powers.

[182]"Whether ... right or wrong, abstractedly, more attention should be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791;Works: Ford, vi, 186.)

[183]Monroe had advised Madison of the hostility of Virginia to Assumption and incidentally asked for an office for his own brother-in-law. (Monroe to Madison, July 2, 1790; Monroe'sWritings: Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790;ib., 209.)

[184]Anderson, 21.

[185]Jefferson himself, a year after he helped pass the Assumption Act, had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter answered in a formal statement to the President. These two documents are the ablest summaries of the opposing sides of this great controversy. (See Jefferson to President, May 23, 1792;Works: Ford, vi, 487-95; and Hamilton to Washington, Aug. 18, 1792;Works: Lodge, ii, 426-72.)

[186]Ames to Minot, March 8, 1792;Works: Ames, i, 114.

[187]Tenth Amendment, as ratified.

[188]"Opinion on the Constitutionality of a National Bank of the United States";Works: Ford, vi, 198; and see Madison's argument against the constitutionality of the Bank Act inAnnals, 1st Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also,Writings: Hunt, vi, 19-42. This argument best shows Madison's sudden and radical change from an extreme Nationalist to an advocate of the most restricted National powers.

[189]Hamilton's "Opinion as to the Constitutionality of the Bank of the United States";Works: Lodge, iii, 445-93. Adams took the same view. (See Adams to Rush, Dec. 27, 1810;Old Family Letters, 272.)

[190]"Opinion as to the Constitutionality of the Bank of the United States";Works: Lodge, iii, 445-93. Washington was sorely perplexed by the controversy and was on the point of vetoing the Bank Bill. (See Rives, iii, 170-71.)

[191]Marshall, ii, 206-07.

[192]Ames to Dwight, Jan. 23, 1792;Works: Ames, i, 110-11.

[193]"A Candid State of Parties"—National Gazette, Sept. 26, 1792.

[194]"I was no party man myself and the first wish of my heart was, if parties did exist, to reconcile them." (Washington to Jefferson, July 6, 1796;Writings: Ford, xiii, 230.)

I think nothing better could be done than to make him [Marshall] a judge. (Jefferson to Madison, June 29, 1792.)To doubt the holiness of the French cause was the certain road to odium and proscription. (Alexander Graydon.)The trouble and perplexities have worn away my mind. (Washington.)

I think nothing better could be done than to make him [Marshall] a judge. (Jefferson to Madison, June 29, 1792.)

To doubt the holiness of the French cause was the certain road to odium and proscription. (Alexander Graydon.)

The trouble and perplexities have worn away my mind. (Washington.)

In Richmond, Marshall was growing ever stronger in his belief in Nationalism. Hamilton's immortal plea for a vital interpretation of the fundamental law of the Nation and his demonstration of the constitutionality of extensive implied powers was a clear, compact statement of what Marshall himself had been thinking. The time was coming when he would announce it in language still more lucid, expressive of a reasoning even more convincing. Upon Hamilton's constitutional doctrine John Marshall was to place the seal of finality.[195]

But Marshall did not delay until that great hour to declare his Nationalist opinions. Not only did he fight for them in the House of Delegates; but in his club at Farmicola's Tavern, on the street corners, riding the circuit, he argued for the constitutionality and wisdom of those measures of Washington'sAdministration which strengthened and broadened the powers of the National Government.[196]

Although he spoke his mind, in and out of season, for a cause increasingly unpopular, Marshall, as yet, lost little favor with the people. At a time when political controversy severed friendship and interrupted social relations,[197]his personality still held sway over his associates regardless of their political convictions. Even Mason, the ultra-radical foe of broad National powers, wrote, at this heated juncture, that Marshall "is an intimate friend of mine."[198]

His winning frankness, easy manner, and warm-heartedness saved him from that dislike which his bold views otherwise would have created. "Independent principles, talents, and integrity are denounced [in Virginia] as badges of aristocracy; but if you add to these good manners and a decent appearance, his political death is decreed without the benefit of a hearing," testifies Francis Corbin.[199]

"Independent principles, talents, and integrity" Marshall possessed in fullest measure, as all admitted; but his manners were far from those which men like the modish Corbin called "good," and his appearance would not have passed muster under the critical eye of that fastidious and disgruntled young Federalist. We shall soon hear Jefferson denouncing Marshall's deportment as the artifice of a cunningand hypocritical craft. As yet, however, Jefferson saw in Marshall only an extremely popular young man who was fast becoming the most effective supporter in Virginia of the National Government.

In the year of the Bank Act, Jefferson and Madison went on their eventful "vacation," swinging up the Hudson and through New England. During this journey Jefferson drew around Madison "the magic circle" of his compelling charm and won entirely to the extreme Republican cause[200]the invaluable aid of that superb intellect. In agreement as to common warfare upon the Nationalist measures of the Administration,[201]the two undoubtedly talked over the Virginia Federalists.[202]

Marshall's repeated successes at the polls with a constituency hostile to the young lawyer's views particularly impressed them. Might not Marshall become a candidate for Congress? If elected, here would be a skillful, dauntless, and captivating supporter of all Nationalist measures in the House of Representatives. What should be done to avert this misfortune?

Jefferson's dexterous intellect devised the idea of getting rid of Marshall, politically, by depositing him on the innocuous heights of the State bench. Better, far better, to make Marshall a Virginia judge than to permit him to become a Virginia Representative in Congress. So, upon his return, Jefferson wrote to Madison:—

"I learn that he [Hamilton] has expressed the strongest desire that Marshall should come into Congress from Richmond, declaring that there is no man in Virginia whom he wishes so much to see there; and I am told that Marshall has expressed half a mind to come. Hence I conclude that Hamilton has plyed him well with flattery & sollicitation and I think nothing better could be done than to make him a judge."[203]

Hamilton's "plying" Marshall with "flattery & solicitation" occurred only in Jefferson's teeming, but abnormally suspicious, mind. Marshall was in Virginia all this time, as his Account Book proves, while Hamilton was in New York, and no letters seem to have passed between them.[204]But Jefferson's information that his fellow Secretary wished the Nationalist Richmond attorney in Congress was probably correct. Accounts of Marshall's striking ability and of his fearless zeal in support of the Administration's measures had undoubtedly reached Hamilton, perhaps through Washington himself; and so sturdy and capable a Federalist in Congressfrom Virginia would have been of great strategic value.

But Jefferson might have spared his pains to dispose of Marshall by cloistering him on the State bench. Nothing could have induced the busy lawyer to go to Congress at this period. It would have been fatal to his law practice[205]which he had built up until it was the largest in Richmond and upon the returns from which his increasing family depended for support. Six years later, Washington himself labored with Marshall for four days before he could persuade him to stand for the National House, and Marshall then yielded to his adored leader only as a matter of duty, at one of the Nation's most critical hours, when war was on the horizon.[206]

The break-up of Washington's Cabinet was now approaching. Jefferson was keeping pace with the Anti-Nationalist sentiment of the masses—drilling his followers into a sternly ordered political force. "The discipline of the [Republican] party," wrote Ames, "is as severe as the Prussian."[207]Jefferson and Madison had secured an organ in the "National Gazette,"[208]edited by Freneau, whom Jefferson employed as translator in the State Department. Through this paper Jefferson attacked Hamilton without mercy. The spirited Secretary of the Treasury keenly resented the opposition of his Cabinet associate which was at once covert and open.

In vain the President pathetically begged Jefferson for harmony and peace.[209]Jefferson responded with a bitter attack on Hamilton. "I was duped," said he, "by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me."[210]To somewhat, but not much, better purpose did Washington ask Hamilton for "mutual forbearances."[211]Hamilton replied with spirit, yet pledged his honor that he would "not, directly or indirectly, say or do a thing that shall endanger a feud."[212]

The immense speculation, which had unavoidably grown out of the Assumption and Funding Acts, inflamed popular resentment against the whole financial statesmanship of the Federalists.[213]More material, this, for the hands of the artificer who was fashioning the Republican Party into a capacious vessel into which the people might pour all their discontent, all their fears, all their woes and all theirhopes. And Jefferson, with practical skill, used for that purpose whatever material he could find.

Still more potter's earth was brought to Jefferson. The National Courts were at work. Creditors were securing judgments for debts long due them. In Virginia the debtors of British merchants, who for many years had been rendered immune from payment, were brought to the bar of this "alien" tribunal. Popular feeling ran high. A resolution was introduced into the House of Delegates requesting the Virginia Senators and Representatives in Congress to "adopt such measures as will tend, not only to suspend all executions and the proceedings thereon, but prevent any future judgments to be given by the Federal Courts in favor of British creditors until" Great Britain surrendered the posts and runaway negroes.[214]Thus was the practical overthrow of the National Judiciary proposed.[215]

Nor was this all. A State had been haled before a National Court.[216]The Republicans saw in this the monster "consolidation." The Virginia Legislature passed a resolution instructing her Senators and Representatives to "unite their utmost and earliest exertions" to secure a constitutional amendment preventing a State from being sued "in any court ofthe United States."[217]The hostility to the National Bank took the form of a resolution against a director or stockholder of the Bank of the United States being a Senator or Representative in Congress.[218]But apparently this trod upon the toes of too many ambitious Virginians, for the word "stockholders" was stricken out.[219]

The slander that the Treasury Department had misused the public funds had been thoroughly answered;[220]but the Legislature of Virginia by a majority of 111 out of a total vote of 124, applauded her Senators and Representatives who had urged the inquiry.[221]Such was the developing temper of Republicanism as revealed by the emotionless pages of the public records; but these furnish scarcely a hint of the violence of public opinion.

Jefferson was now becoming tigerish in his assaults on the measures of the Administration. Manymembers of Congress had been holders of certificates which Assumption and Funding had made valuable. Most but not all of them had voted for every feature of Hamilton's financial plan.[222]Three or four were directors of the Bank, but no dishonesty existed.[223]Heavy speculation went on in Philadelphia.[224]This, said Republicans, was the fruit which Hamilton's Nationalist financial scheme gathered from the people's industry to feed to "monocrats."

"Here [Philadelphia]," wrote Jefferson, "the unmonied farmer... his cattle & corps [sic] are no more thought of than if they did not feed us. Script & stock are food & raiment here.... The credit & fate of the nation seem to hang on the desperate throws & plunges of gambling scoundrels."[225]But Jefferson comforted himself with the prophecy that"this nefarious business" would finally "tumble its authors headlong from their heights."[226]

The National law taxing whiskey particularly aroused the wrath of the multitude. Here it was at last!—a direct tax laid upon the universal drink of the people, as the razor-edged Pennsylvania resolutions declared.[227]Here it was, just as the patriotic foes of the abominable National Constitution had predicted when fighting the ratification of that "oppressive" instrument. Here was the exciseman at every man's door, just as Henry and Mason and Grayson had foretold—and few were the doors in the back counties of the States behind which the owner's private still was not simmering.[228]And why was this tribute exacted? To provide funds required by the corrupt Assumption and Funding laws, asserted the agitators.

Again it was the National Government that was to blame; in laying the whiskey tax it had invaded the rights of the States, hotly declared the Republicans. "All that powerful party," Marshall bears witness, "which attached itself to the local [State] rather than to the general [National] government ... considered ... a tax by Congress on any domestic manufacture as the intrusion of a foreign power into their particular concerns which excited serious apprehensions for state importance and for liberty."[229]The tariff did not affect most people, especially those in the back country, because they used few or no imported articles; but the whiskey tax did reach them, directly and personally.[230]

Should such a despotic law be obeyed? Never! It was oppressive! It was wicked! Above all, it was "unconstitutional"! But what to do! The agencies of the detested and detestable National Government were at work! To arms, then! That was the only thing left to outraged freemen about to be ravaged of their liberty![231]Thus came the physical defiance of the law in Pennsylvania; Washington's third proclamation[232]demanding obedience to the National statutes after his earnest pleas[233]to the disaffected to observe the laws; the march of the troops accompanied by Hamilton[234]against the insurgents; theforcible suppression of this first armed assault on the laws of the United States in which men had been killed, houses burned, mails pillaged—all in the name of the Constitution,[235]which the Republicans now claimed as their peculiar property.[236]

Foremost in the fight for the whiskey insurgents were the democratic societies, which, as has been seen, were the offspring of the French Jacobin Clubs. Washington finally became certain that these organizations had inspired this uprising against National law and authority. While the Whiskey Rebellion was economic in its origin, yet it was sustained by the spirit which the French Revolution had kindled in the popular heart. Indeed, when the troops sent to put down the insurrection reached Harrisburg, they found the French flag flying over the courthouse.[237]

Marshall's old comrade in the Revolution, close personal friend, and business partner,[238]Henry Lee, was now Governor of Virginia. He stood militantly with Washington and it was due to Lee's efforts thatthe Virginia militia responded to help suppress the Whiskey Rebellion. He was made Commander-in-Chief of all the forces that actually took the field.[239]To Lee, therefore, Washington wrote with unrestrained pen.

"I consider," said the President, "this insurrection as the firstformidablefruit of the Democratic Societies ... instituted by ...artful and designingmembers [of Congress] ... to sow the seeds of jealousy and distrust among the people of the government.... I see, under a display of popular and fascinating guises, the most diabolical attempts to destroy ... the government."[240]He declared: "That they have been the fomenters of the western disturbances admits of no doubt."[241]

Never was that emphatic man more decided than now; he was sure, he said, that, unless lawlessness were overcome, republican government was at an end, "and nothing but anarchy and confusion is to be expected hereafter."[242]If "the daring and factious spirit" is not crushed, "adieu to all government in this country, except mob and club government."[243]

Such were Washington's positive and settled opinions, and they were adopted and maintained by Marshall, his faithful supporter.

And not only by argument and speech did Marshall uphold the measures of Washington's Administration. In 1793 he had been commissioned as Brigadier-General of Militia, and when the President's requisition came for Virginia troops to enforce the National revenue law against those who were violently resisting the execution of it, he was placed in command of one of the detachments to be raised for that purpose.[244]Although it is not established that his brigade was ordered to Pennsylvania, the probabilities are that it was and that Marshall, in command of it, was on the scene of the first armed opposition to the National Government. And it is certain that Marshall was busy and effective in the work of raising and properly equipping the troops for duty. He suggested practical plans for expediting the muster and for economizing the expenditure of the public money, and his judgment was highly valued.[245]

All the ability, experience, and zeal at the disposal of the State were necessary, for the whiskey tax was only less disliked in Virginia than in Pennsylvania, and a portion of the Commonwealth was inclined to assist rather than to suppress the insurrection.[246]Whether or not he was one of the military force that, on the ground, overawed the whiskey insurgents, it is positively established that Marshall was ready, in person, to help put down with arms all forcible opposition to the National laws and authority.

Jefferson, now the recognized commander-in-chief of the new party, was, however, heartily with the popular outbreak. He had approved Washington'sfirst proclamations against the whiskey producers;[247]but, nevertheless, as the anger of the people grew, it found Jefferson responsive. "The excise law is an infernal one," he cried; the rebellion against it, nothing more than "riotous" at the worst.[248]

And Jefferson wielded his verbal cat-o'-nine-tails on Washington's order to put the rebellion down by armed forces.[249]It was all "for the favorite purpose of strengthening government and increasing public debt."[250]Washington thought the Whiskey Rebellion treasonable; and Jefferson admitted that "there was ... a meeting to consult about a separation" from the Union; but talking was not acting.[251]Thus the very point was raised which Marshall enforced in the Burr trial twelve years later, when Jefferson took exactly opposite grounds. But to take the popular view now made for Republican solidarity and strength. Criticism is ever more profitable politics than building.

All this had different effects on different public men. The Republican Party was ever growing stronger, and under Jefferson's skillful guidance, was fast becoming a seasoned political army. The sentiment of the multitude against the National Government continued to rise. But instead of weakening John Marshall's Nationalist principles, this turbulent opposition strengthened and hardened them. So did other and larger events of that period which tumultuously crowded fast upon one another's heels.As we have seen, the horrors of the Reign of Terror in Paris did not chill the frenzied enthusiasm of the masses of Americans for France. "By a strange kind of reasoning," wrote Oliver Wolcott to his brother, "some suppose the liberties of America depend on the right of cutting throats in France."[252]

In the spring of 1793 France declared war against England. The popular heart in America was hot for France, the popular voice loud against England. The idea that the United States was an independent nation standing aloof from foreign quarrels did not enter the minds of the people. But it was Washington's one great conception. It was not to make the American people the tool of any foreign government that he had drawn his sword for their independence. It was to found a separate nation with dignity and rights equal to those of any other nation; a nation friendly to all, and allied with none[253]—this was the supreme purpose for which he had fought, toiled, and suffered. And Washington believed that only on this broad highway could the American people travel to ultimate happiness and power.[254]He determined upon a policy of absolute impartiality.

On the same day that the Minister of the new French Republic landed on American shores, Washington proclaimed Neutrality.[255]This action, which to-day all admit to have been wise and far-seeing statesmanship, then caused an outburst of popular resentment against Neutrality and the Administration that had dared to take this impartial stand. For the first time Washington was openly abused by Americans.[256]

"A great majority of the American people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy [Great Britain] and republican France," declares Marshall. The people, he writes, thought Great Britain was waging war "with the sole purpose of imposing a monarchical government on the French people. The few who did not embrace these opinions, and they were certainly very few, were held up as objects of public detestation; and were calumniated as the tools of Britain and the satellites of despotism."[257]

The National Government was ungrateful, cried the popular voice; it was aiding the tyrants of Europe against a people struggling for freedom; it was cowardly, infamous, base. "Could any friend of his kind be neutral?" was the question on the popular tongue; of course not! unless, indeed, the miscreant who dared to be exclusively American was a monarchist at heart. "To doubt the holiness of their [the French] cause was the certain road to odiumand proscription," testifies an observer.[258]The Republican press, following Paine's theory, attacked "all governments, including that of the United States, as naturally hostile to the liberty of the people," asserts Marshall.[259]Few were the friends of Neutrality outside of the trading and shipping interests.[260]

Jefferson, although still in Washington's Cabinet, spoke of "the pusillanimity of the proclamation"[261]and of "the sneaking neutrality" it set up.[262]"In every effort made by the executive to maintain the neutrality of the United States," writes Marshall,"that great party [Republican] which denominated itself 'The People' could perceive only a settled hostility to France and to liberty."[263]

And, of course, Washington's proclamation of Neutrality was "unconstitutional," shouted the Republican politicians. Hamilton quickly answered. The power to deal with foreign affairs was, he said, lodged somewhere in the National Government. Where, then? Plainly not in the Legislative or Judicial branches, but in the Executive Department, which is "theorganof intercourse between the nation and foreign nations" and "theinterpreterof ... treaties in those cases in which the judiciary is not competent—that is between government and government.... Theexecutive powerof the United States is completely lodged in the President," with only those exceptions made by the Constitution, as that of declaring war. But if it is the right of Congress to declare war, "it is the duty of the Executive to preserve peace till the declaration is made."[264]

Washington's refusal to take sides in the European war was still more fuel for the Republican furnace. The bill to maintain Neutrality escaped defeat in Congress by a dangerously narrow margin: on amendments and motions in the Senate it was rescued time and again only by the deciding vote of the Vice-President.[265]In the House, resolutions were introduced which, in the perspective of history, were stupid. Public speakers searched for expressions strong enough for the popular taste; the newspapersblazed with denunciation. "The artillery of the press," declares Marshall, "was played with unceasing fury on" the supporters of Neutrality; "and the democratic societies brought their whole force into operation. Language will scarcely afford terms of greater outrage, than were employed against those who sought to stem the torrent of public opinion and to moderate the rage of the moment."[266]

At the most effective hour, politically, Jefferson resigned[267]from the Cabinet, as he had declared, two years before, he intended to do.[268]He had prepared well for popular leadership. His stinging criticism of the Nationalist financial measures, his warm championship of France, his bitter hostility to Great Britain, and most of all, his advocacy of the popular view of the Constitution, secured him the favor of the people. Had he remained Secretary of State, he would have found himself in a hazardous political situation. But now, freed from restraint, he could openly lead the Republican forces which so eagerly awaited his formal command.[269]

As in the struggle for the Constitution, so now Neutrality was saved by the combined efforts of the mercantile and financial interests who dreaded the effect of the war on business and credit;[270]and bythe disinterested support of those who wished the United States to become a nation, distinct from, unconnected with, and unsubservient to any other government.

Among these latter was John Marshall, although he also held the view of the commercial classes from which most of his best clients came; and his personal loyalty to Washington strengthened his opinions. Hot as Virginia was against the Administration, Marshall was equally hot in its favor. Although he was the most prudent of men, and in Virginia silence was the part of discretion for those who approved Washington's course, Marshall would not be still. He made speeches in support of Washington's stand, wrote pamphlets, and appealed in every possible way to the solid reason and genuine Americanism of his neighbors. He had, of course, read Hamilton's great defense of Neutrality; and he asserted that sound National policy required Neutrality and that it was the duty of the President to proclaim and enforce it. Over and over again, by tongue and pen,he demonstrated the constitutional right of the Executive to institute and maintain the Nation's attitude of aloofness from foreign belligerents.[271]

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