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- John Marshall and the Constitution, - 6/27 -


issues involved as well as to bring his great debating powers to bear with the best advantage.

* "The Life of John Marshall," vol. II, p. 177.

Meanwhile Marshall was also rising into political prominence. >From the first a supporter of Washington's Administration, he was gradually thrust into the position of Federalist leader in Virginia. In 1794 he declined the post of Attorney-General, which Washington had offered him. In the following year he became involved in the acrimonious struggle over the Jay Treaty with Great Britain, and both in the Legislature and before meetings of citizens defended the treaty so aggressively that its opponents were finally forced to abandon their contention that it was unconstitutional and to content themselves with a simple denial that it was expedient. Early in 1796 Marshall made his first appearance before the Supreme Court, in the case of Ware vs. Hylton. The fame of his defense of "the British Treaty" during the previous year had preceded him, and his reception by the Federalist leaders from New York and New England was notably cordial. His argument before the Court, too, though it did not in the end prevail, added greatly to his reputation. "His head," said Rufus King, who heard the argument, "is one of the best organized of any one that I have known."

Either in 1793 or early in the following year, Marshall participated in a business transaction which, though it did not impart to his political and constitutional views their original bent, yet must have operated more or less to confirm his opinions. A syndicate composed of Marshall, one of his brothers, and two other gentlemen, purchased from the British heirs what remained of the great Fairfax estate in the Northern Neck, a tract "embracing over 160,000 acres of the best land in Virginia." By an Act passed during the Revolution, Virginia had decreed the confiscation of all lands held by British subjects; and though the State had never prosecuted the forfeiture of this particular estate, she was always threatening to do so. Marshall's investment thus came to occupy for many years a precarious legal footing which, it may be surmised, did not a little to keep alert his natural sympathy for all victims of legislative oppression. Moreover the business relation which he formed with Robert Morris in financing the investment brought him into personal contact for the first time with the interests behind Hamilton's financial program, the constitutionality of which he had already defended on the hustings.

It was due also to this business venture that Marshall was at last persuaded to break through his rule of declining office and to accept appointment in 1797, together with Pinckney and Gerry, on the famous "X.Y.Z. "mission to France. From this single year's employment he obtained nearly $20,000, which, says his biographer, "over and above his expenses," was "three times his annual earnings at the bar"; and the money came just in the nick of time to save the Fairfax investment, for Morris was now bankrupt and in jail. But not less important as a result of his services was the enhanced reputation which Marshall's correspondence with Talleyrand brought him. His return to Philadelphia was a popular triumph, and even Jefferson, temporarily discomfited by the "X.Y.Z." disclosures, found it discreet to go through the form of paying him court--whereby hangs a tale. Jefferson called at Marshall's tavern. Marshall was out. Jefferson thereupon left a card deploring how "un/lucky" he had been. Commenting years afterwards upon the occurrence, Marshall remarked that this was one time at least when Jefferson came NEAR telling the truth.

Through the warm insistence of Washington, Marshall was finally persuaded in the spring of 1799 to stand as Federalist candidate for Congress in the Richmond district. The expression of his views at this time is significant. A correspondent of an Alexandria newspaper signing himself "Freeholder" put to him a number of questions intended to call forth Marshall's opinions on the issues of the day. In answering a query as to whether he favored an alliance with Great Britain, the candidate declared that the whole of his "politics respecting foreign nations" was "reducible to this single position.... Commercial intercourse with all, but political ties with none." But a more pressing issue on which the public wished information was that furnished by the Alien and Sedition laws, which Marshall had originally criticized on grounds both of expediency and of constitutionality. Now, however, he defended these measures on constitutional grounds, taking the latitudinarian position that "powers necessary for the attainment of all objects which are general in their nature, which interest all America, ...would be naturally vested in the Government of the whole," but he declared himself strongly opposed to their renewal. At the same time he denounced the Virginia Resolutions as calculated "to sap the foundations of our Union."

The election was held late in April, under conditions which must have added greatly to popular interest. Following the custom in Virginia, the voter, instead of casting a ballot, merely declared his preference in the presence of the candidates, the election officials, and the assembled multitude. In the intensity of the struggle no voter, halt, lame, or blind, was overlooked; and a barrel of whisky near at hand lent further zest to the occasion. Time and again the vote in the district was a tie, and as a result frequent personal encounters took place between aroused partisans. Marshall's election by a narrow majority in a borough which was strongly pro-Jeffersonian was due, indeed, not to his principles but to his personal popularity and to the support which he received from Patrick Henry, the former Governor of the State.

The most notable event of his brief stay in Congress was his successful defense of President Adams's action in handing over to the British authorities, in conformity with the twenty-seventh article of the Jay treaty, Jonathan Robins, who was alleged to be a fugitive from justice. Adams's critics charged him with having usurped a judicial function. "The President," said Marshall in reply, "is sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty where he, and he alone, possesses the means of executing it." This is one of the few speeches ever uttered on the floor of Congress which demonstrably made votes. Gallatin, who had been set to answer Marshall, threw up his brief; and the resolutions against the President were defeated by a House hostile to him.

Marshall's course in Congress was characterized throughout by independence of character, moderation of views, and level good sense, of which his various congressional activities afford abundant evidence. Though he had himself been one of the "X.Y.Z." mission, Marshall now warmly supported Adams's policy of renewing diplomatic relations with France. He took his political life in his hands to register a vote against the Sedition Act, a proposal to repeal which was brought before the House. He foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the electoral vote--a plan all too likely to precipitate civil war. His Federalist brethren of the extreme Hamiltonian type quite resented the frequency with which he was wont to kick over the party traces. "He is disposed," wrote Sedgwick, the Speaker, "to express great respect for the sovereign people and to quote their opinions as an evidence of truth," which "is of all things the most destructive of personal independence and of that weight of character which a great man ought to possess."*

* Letter from Sedgwick to King, May 11, 1800. "Life and Correspondence of Rufus King," vol. III, pp. 236-7.

Marshall had now come to be practically indispensable to the isolated President, at whose most earnest insistence he entered the Cabinet as Secretary of State, though he had previously declined to become Secretary of War. The presidential campaign was the engrossing interest of the year, and as it spread its "havoc of virulence" throughout the country, Federalists of both factions seemed to turn to Marshall in the hope that, by some miracle of conciliation, he could save the day. The hope proved groundless, however, and all that was ultimately left the party which had founded the Government was to choose a President from the rival leaders of the opposition. Of these Marshall preferred Burr, because, as he explained, he knew Jefferson's principles better. Besides having foreign prejudices, Mr. Jefferson, he continued, "appears to me to be a man who will embody himself with the House of Representatives, and by weakening the office of President, he will increase his personal power." Better political prophecy has, indeed, rarely been penned. Deferring nevertheless to Hamilton's insistence--and, as events were to prove, to his superior wisdom--Marshall kept aloof from the fight in the House, and his implacable foe was elected.

Marshall was already one of the eminent men of the country when Adams, without consulting him, nominated him for Chief Justice. He stood at the head of the Virginia bar; he was the most generally trusted leader of his party; he already had a national reputation as an interpreter of the Constitution. Yet his appointment as Chief Justice aroused criticism even among his party friends. Their doubt did not touch his intellectual attainments, but in their opinion his political moderation, his essential democracy, his personal amiability, all counted against him. "He is," wrote Sedgwick, "a man of very affectionate disposition, of great simplicity of manners, and honest and honorable in all his conduct. He is attached to pleasures, with convivial habits strongly fixed. He is indolent therefore. He has a strong attachment to popularity but is indisposed to sacrifice to it his integrity; hence he is disposed on all popular subjects to feel the public pulse, and hence results indecision and AN EXPRESSION of doubt."*

* Op. cit.

It was perhaps fortunate for the Federal Judiciary, of which he was now to take command, that John Marshall was on occasion "disposed...to feel the public pulse." A headstrong pilot might speedily have dashed his craft on the rocks; a timid, one would have abandoned his course; but Marshall did neither. The better answer to Sedgwick's fears was given in 1805 when John Randolph declared that Marshall's "real worth was never known until he was appointed Chief Justice." And Sedgwick is further


John Marshall and the Constitution, - 6/27

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