The Life of John Marshall (Volume 2 of 4)

LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

All references here are to the List of Authorities at the end of this volume

Am. St. Prs. See American State Papers.

Beard: Econ. I. C. See Beard, Charles A. Economic Interpretation of the Constitution of the United States.

Beard: Econ. O. J. D. See Beard, Charles A. Economic Origins of Jeffersonian Democracy.

Cor. Rev.: Sparks. See Sparks, Jared. Correspondence of the Revolution.

Cunningham Letters. See Adams, John. Correspondence with William Cunningham.

Letters: Ford. See Vans Murray, William. Letters to John Quincy Adams. Edited by Worthington Chauncey Ford.

Monroe's Writings: Hamilton. See Monroe, James. Writings. Edited by Stanislaus Murray Hamilton.

Old Family Letters. See Adams, John. Old Family Letters. Edited by Alexander Biddle.

Works: Adams. See Adams, John. Works. Edited by Charles Francis Adams.

Works: Ames. See Ames, Fisher. Works. Edited by Seth Ames.

Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited by Paul Leicester Ford.

Works: Hamilton. See Hamilton, Alexander. Works. Edited by John C. Hamilton.

Works: Lodge. See Hamilton, Alexander. Works. Federal Edition. Edited by Henry Cabot Lodge.

Writings: Conway. See Paine, Thomas. Writings. Edited by Moncure Daniel Conway.

Writings: Ford. See Washington, George. Writings. Edited by Worthington Chauncey Ford.

Writings: Hunt. See Madison, James. Writings. Edited by Gaillard Hunt.

Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. Edited by Worthington Chauncey Ford.

Writings: Smyth. See Franklin, Benjamin. Writings. Edited by Albert Henry Smyth.

Writings: Sparks. See Washington, George. Writings. Edited by Jared Sparks.

THE LIFE OF JOHN MARSHALL

CHAPTER I
INFLUENCE OF THE FRENCH REVOLUTION ON AMERICA

Were there but an Adam and an Eve left in every country, and left free, it would be better than it now is. (Jefferson.)

That malignant philosophy which can coolly and deliberately pursue, through oceans of blood, abstract systems for the attainment of some fancied untried good. (Marshall.)

The only genuine liberty consists in a mean equally distant from the despotism of an individual and a million. ("Publicola": J. Q. Adams, 1792.)

The decision of the French King, Louis XVI, on the advice of his Ministers, to weaken Great Britain by aiding the Americans in their War for Independence, while it accomplished its purpose, was fatal to himself and to the Monarchy of France. As a result, Great Britain lost America, but Louis lost his head. Had not the Bourbon Government sent troops, fleets, munitions, and money to the support of the failing and desperate American fortunes, it is probable that Washington would not have prevailed; and the fires of the French holocaust which flamed throughout the world surely would not have been lit so soon.

The success of the American patriots in their armed resistance to the rule of George III, although brought about by the aid of the French Crown, was, nevertheless, the shining and dramatic example which Frenchmen imitated in beginning that vast and elemental upheaval called the French Revolution.¹ Thus the unnatural alliance in 1778 between French Autocracy and American Liberty was one of the great and decisive events of human history.

In the same year, 1789, that the American Republic began its career under the forms of a National Government, the curtain rose in France on that tremendous drama which will forever engage the interest of mankind. And just as the American Revolution vitally influenced French opinion, so the French Revolution profoundly affected American thought; and, definitely, helped to shape those contending forces in American life that are still waging their conflict.

While the economic issue, so sharp in the adoption of the Constitution, became still keener, as will appear, after the National Government was established, it was given a higher temper in the forge of the French Revolution. American history, especially of the period now under consideration, can be read correctly only by the lights that shine from that titanic smithy; can be understood only by considering the effect upon the people, the thinkers, and the statesmen of America, of the deeds done and words spoken in France during those inspiring if monstrous years.

The naturally conservative or radical temperaments of men in America were hardened by every episode of the French convulsion. The events in France, at this time, operated upon men like Hamilton on the one hand, and Jefferson on the other hand, in a fashion as deep and lasting as it was antagonistic and antipodal; and the intellectual and moral phenomena, manifested in picturesque guise among the people in America, impressed those who already were, and those who were to become, the leaders of American opinion, as much as the events of the Gallic cataclysm itself.

George Washington at the summit of his fame, and John Marshall just beginning his ascent, were alike confirmed in that non-popular tendency of thought and feeling which both avowed in the dark years between our War for Independence and the adoption of our Constitution.² In reviewing all the situations, not otherwise to be fully understood, that arose from the time Washington became President until Marshall took his seat as Chief Justice, we must have always before our eyes the extraordinary scenes and consider the delirious emotions which the French Revolution produced in America. It must be constantly borne in mind that Americans of the period now under discussion did not and could not look upon it with present-day knowledge, perspective, or calmness. What is here set down is, therefore, an attempt to portray the effects of that volcanic eruption of human forces upon the minds and hearts of those who witnessed, from across the ocean, its flames mounting to the heavens and its lava pouring over the whole earth.

Unless this portrayal is given, a blank must be left in a recital of the development of American radical and conservative sentiment and of the formation of the first of American political parties. Certainly for the purposes of the present work, an outline, at least, of the effect of the French Revolution on American thought and feeling is indispensable. Just as the careers of Marshall and Jefferson are inseparably intertwined, and as neither can be fully understood without considering the other, so the American by-products of the French Revolution must be examined if we would comprehend either of these great protagonists of hostile theories of democratic government.

At first everybody in America heartily approved the French reform movement. Marshall describes for us this unanimous approbation. "A great revolution had commenced in that country," he writes, "the first stage of which was completed by limiting the powers of the monarch, and by the establishment of a popular assembly. In no part of the globe was this revolution hailed with more joy than in America. The influence it would have on the affairs of the world was not then distinctly foreseen; and the philanthropist, without becoming a political partisan, rejoiced in the event. On this subject, therefore, but one sentiment existed."³

Jefferson had written from Paris, a short time before leaving for America: "A complete revolution in this [French] government, has been effected merely by the force of public opinion; … and this revolution has not cost a single life."⁴ So little did his glowing mind then understand the forces which he had helped set in motion. A little later he advises Madison of the danger threatening the reformed French Government, but adds, reassuringly, that though "the lees … of the patriotic party [the French radical party] of wicked principles & desperate fortunes" led by Mirabeau who "is the chief … may produce a temporary confusion … they cannot have success ultimately. The King, the mass of the substantial people of the whole country, the army, and the influential part of the clergy, form a firm phalanx which must prevail."⁵

So, in the beginning, all American newspapers, now more numerous, were exultant. "Liberty will have another feather in her cap… The ensuing winter [1789] will be the commencement of a Golden Age,"⁶ was the glowing prophecy of an enthusiastic Boston journal. Those two sentences of the New England editor accurately stated the expectation and belief of all America.

But in France itself one American had grave misgivings as to the outcome. "The materials for a revolution in this country are very indifferent. Everybody agrees that there is an utter prostration of morals; but this general position can never convey to an American mind the degree of depravity… A hundred thousand examples are required to show the extreme rottenness… The virtuous … stand forward from a background deeply and darkly shaded… From such crumbling matter … the great edifice of freedom is to be erected here [in France]… [There is] a perfect indifference to the violation of engagements… Inconstancy is mingled in the blood, marrow, and very essence of this people… Consistency is a phenomenon… The great mass of the common people have … no morals but their interest. These are the creatures who, led by drunken curates, are now in the high road à la liberté."⁷ Such was the report sent to Washington by Gouverneur Morris, the first American Minister to France under the Constitution.

Three months later Morris, writing officially, declares that "this country is … as near to anarchy as society can approach without dissolution."⁸ And yet, a year earlier, Lafayette had lamented the French public's indifference to much needed reforms; "The people … have been so dull that it has made me sick" was Lafayette's doleful account of popular enthusiasm for liberty in the France of 1788.⁹

Gouverneur Morris wrote Robert Morris that a French owner of a quarry demanded damages because so many bodies had been dumped into the quarry that they "choked it up so that he could not get men to work at it." These victims, declared the American Minister, had been "the best people," killed "without form of trial, and their bodies thrown like dead dogs into the first hole that offered."¹⁰ Gouverneur Morris's diary abounds in such entries as "[Sept. 2, 1792] the murder of the priests, … murder of prisoners… [Sept. 3] The murdering continues all day… [Sept. 4th]… And still the murders continue."¹¹

John Marshall was now the attorney of Robert Morris; was closely connected with him in business transactions; and, as will appear, was soon to become his relative by the marriage of Marshall's brother to the daughter of the Philadelphia financier. Gouverneur Morris, while not related to Robert Morris, was "entirely devoted" to and closely associated with him in business; and both were in perfect agreement of opinions.¹² Thus the reports of the scarlet and revolting phases of the French Revolution that came to the Virginia lawyer were carried through channels peculiarly personal and intimate.

They came, too, from an observer who was thoroughly aristocratic in temperament and conviction.¹³ Little of appreciation or understanding of the basic causes and high purposes of the French Revolution appears in Gouverneur Morris's accounts and comments, while he portrays the horrible in unrelieved ghastliness.¹⁴

Such, then, were the direct and first-hand accounts that Marshall received; and the impression made upon him was correspondingly dark, and as lasting as it was somber. Of this, Marshall himself leaves us in no doubt. Writing more than a decade later he gives his estimate of Gouverneur Morris and of his accounts of the French Revolution.

"The private correspondence of Mr. Morris with the president [and, of course, much more so with Robert Morris] exhibits a faithful picture, drawn by the hand of a master, of the shifting revolutionary scenes which with unparalleled rapidity succeeded each other in Paris. With the eye of an intelligent, and of an unimpassioned observer, he marked all passing events, and communicated them with fidelity. He did not mistake despotism for freedom, because it was sanguinary, because it was exercised by those who denominated themselves the people, or because it assumed the name of liberty. Sincerely wishing happiness and a really free government to France, he could not be blind to the obvious truth that the road to those blessings had been mistaken."¹⁵

Everybody in America echoed the shouts of the Parisian populace when the Bastille fell. Was it not the prison where kings thrust their subjects to perish of starvation and torture?¹⁶ Lafayette, "as a missionary of liberty to its patriarch," hastened to present Washington with "the main key of the fortress of despotism."¹⁷ Washington responded that he accepted the key of the Bastille as "a token of the victory gained by liberty."¹⁸ Thomas Paine wrote of his delight at having been chosen by Lafayette to "convey … the first ripe fruits of American principles, transplanted into Europe, to his master and patron."¹⁹ Mutual congratulations were carried back and forth by every ship.

Soon the mob in Paris took more sanguinary action and blood flowed more freely, but not in sufficient quantity to quench American enthusiasm for the cause of liberty in France. We had had plenty of mobs ourselves and much crimson experience. Had not mobs been the precursors of our own Revolution?

The next developments of the French uprising and the appearance of the Jacobin Clubs, however, alarmed some and gave pause to all of the cautious friends of freedom in America and other countries.

Edmund Burke hysterically sounded the alarm. On account of his championship of the cause of American Independence, Burke had enjoyed much credit with all Americans who had heard of him. "In the last age," exclaimed Burke in Parliament, February 9, 1790, "we were in danger of being entangled by the example of France in the net of a relentless despotism… Our present danger from the example of a people whose character knows no medium, is, with regard to government, a danger from anarchy; a danger of being led, through an admiration of successful fraud and violence, to an imitation of the excesses of an irrational, unprincipled, proscribing, confiscating, plundering, ferocious, bloody, and tyrannical democracy."²⁰

Of the French declaration of human rights Burke declared: "They made and recorded a sort of institute and digest of anarchy, called the rights of man, in such a pedantic abuse of elementary principles as would have disgraced boys at school… They systematically destroyed every hold of authority by opinion, religious or civil, on the minds of the people.²¹… On the scheme of this barbarous philosophy, which is the offspring of cold hearts and muddy understandings," exclaimed the great English liberal, "laws are to be supported only by their own terrours… In the groves of their academy, at the end of every vista, you see nothing but the gallows."²²

Burke's extravagant rhetoric, although reprinted in America, was little heeded. It would have been better if his pen had remained idle. For Burke's wild language, not yet justified by the orgy of blood in which French liberty was, later, to be baptized, caused a voice to speak to which America did listen, a page to be written that America did read. Thomas Paine, whose "Common Sense" had made his name better known to all people in the United States than that of any other man of his time except Washington, Franklin, Jefferson, and Henry, was then in France. This stormy petrel of revolution seems always to have been drawn by instinct to every part of the human ocean where hurricanes were brooding.²³

Paine answered Burke with that ferocious indictment of monarchy entitled "The Rights of Man," in which he went as far to one extreme as the English political philosopher had gone to the other; for while Paine annihilated Burke's Brahminic laudation of rank, title, and custom, he also penned a doctrine of paralysis to all government. As was the case with his "Common Sense," Paine's "Rights of Man" abounded in attractive epigrams and striking sentences which quickly caught the popular ear and were easily retained by the shallowest memory.

"The cause of the French people is that of … the whole world," declared Paine in the preface of his flaming essay;²⁴ and then, the sparks beginning to fly from his pen, he wrote: "Great part of that order which reigns among mankind is not the effect of government… It existed prior to government, and would exist if the formality of government was abolished… The instant formal government is abolished," said he, "society begins to act; … and common interest produces common security." And again: "The more perfect civilization is, the less occasion has it for government… It is but few general laws that civilised life requires."

Holding up our own struggle for liberty as an illustration, Paine declared: "The American Revolution … laid open the imposition of governments"; and, using our newly formed and untried National Government as an example, he asserted with grotesque inaccuracy: "In America … all the parts are brought into cordial unison. There the poor are not oppressed, the rich are not privileged… Their taxes are few, because their government is just."²⁵

Proceeding thence to his assault upon all other established governments, especially that of England, the great iconoclast exclaimed: "It is impossible that such governments as have hitherto [1790] existed in the world, could have commenced by any other means than a violation of every principle sacred and moral."

Striking at the foundations of all permanent authority, Paine declared that "Every age and generation must be … free to act for itself in all cases… The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies." The people of yesterday have "no right … to bind or to control … the people of the present day … in any shape whatever… Every generation is, and must be, competent to all the purposes which its occasions require."²⁶ So wrote the incomparable pamphleteer of radicalism.

Paine's essay, issued in two parts, was a torch successively applied to the inflammable emotions of the American masses. Most newspapers printed in each issue short and appealing excerpts from it. For example, the following sentence from Paine's "Rights of Man" was reproduced in the "Columbian Centinel" of Boston on June 6, 1792: "Can we possibly suppose that if government had originated in right principles and had not an interest in pursuing a wrong one, that the world could have been in the wretched and quarrelsome condition it is?" Such quotations from Paine appeared in all radical and in some conservative American publications; and they were repeated from mouth to mouth until even the backwoodsmen knew of them – and believed them.

"Our people … love what you write and read it with delight" ran the message which Jefferson sent across the ocean to Paine. "The printers," continued Jefferson, "season every newspaper with extracts from your last, as they did before from your first part of the Rights of Man. They have both served here to separate the wheat from the chaff… Would you believe it possible that in this country there should be high & important characters²⁷ who need your lessons in republicanism & who do not heed them. It is but too true that we have a sect preaching up & pouting after an English constitution of king, lords, & commons, & whose heads are itching for crowns, coronets & mitres…

"Go on then," Jefferson urged Paine, "in doing with your pen what in other times was done with the sword, … and be assured that it has not a more sincere votary nor you a more ardent well-wisher than … Tho^ṣ Jefferson."²⁸

And the wheat was being separated from the chaff, as Jefferson declared. Shocked not more by the increasing violence in France than by the principles which Paine announced, men of moderate mind and conservative temperament in America came to have misgivings about the French Revolution, and began to speak out against its doings and its doctrines.

A series of closely reasoned and well-written articles were printed in the "Columbian Centinel" of Boston in the summer of 1791, over the nom de guerre "Publicola"; and these were widely copied. They were ascribed to the pen of John Adams, but were the work of his brilliant son.²⁹

The American edition of Paine's "Rights of Man" was headed by a letter from Secretary of State Jefferson to the printer, stating his pleasure that the essay was to be printed in this country and "that something is at length to be publickly said against the political heresies which have sprung up among us."³⁰ Publicola called attention to this and thus, more conspicuously, displayed Jefferson as an advocate of Paine's doctrines.³¹

All Americans had "seen with pleasure the temples of despotism levelled with the ground," wrote the keen young Boston law student.³² There was "but one sentiment… – that of exultation." But what did Jefferson mean by "heresies"? asked Publicola. Was Paine's pamphlet "the canonical book of scripture?" If so, what were its doctrines? "That which a whole nation chooses to do, it has a right to do" was one of them.

Was that "principle" sound? No! avowed Publicola, for "the eternal and immutable laws of justice and of morality are paramount to all human legislation." A nation might have the power but never the right to violate these. Even majorities have no right to do as they please; if so, what security has the individual citizen? Under the unrestrained rule of the majority "the principles of liberty must still be the sport of arbitrary power, and the hideous form of despotism must lay aside the diadem and the scepter, only to assume the party-colored garments of democracy."

"The only genuine liberty consists in a mean equally distant from the despotism of an individual and of a million," asserted Publicola. "Mr. Paine seems to think it as easy for a nation to change its government as for a man to change his coat." But "the extreme difficulty which impeded the progress of its [the American Constitution's] adoption … exhibits the fullest evidence of what a more than Herculean task it is to unite the opinions of a free people on any system of government whatever."

The "mob" which Paine exalted as the common people, but which Publicola thought was really only the rabble of the cities, "can be brought to act in concert" only by "a frantic enthusiasm and ungovernable fury; their profound ignorance and deplorable credulity make them proper tools for any man who can inflame their passions; … and," warned Publicola, "as they have nothing to lose by the total dissolution of civil society, their rage may be easily directed against any victim which may be pointed out to them… To set in motion this inert mass, the eccentric vivacity of a madman is infinitely better calculated than the sober coolness of phlegmatic reason."

"Where," asked Publicola, "is the power that should control them [Congress]?" if they violate the letter of the Constitution. Replying to his own question, he asserted that the real check on Congress "is the spirit of the people."³³ John Marshall had said the same thing in the Virginia Constitutional Convention; but even at that early period the Richmond attorney went further and flatly declared that the temporary "spirit of the people" was not infallible and that the Supreme Court could and would declare void an unconstitutional act of Congress – a truth which he was, unguessed at that time by himself or anybody else, to announce with conclusive power within a few years and at an hour when dissolution confronted the forming Nation.

Such is a rapid précis of the conservative essays written by the younger Adams. Taken together, they were a rallying cry to those who dared to brave the rising hurricane of American sympathy with the French Revolution; but they also strengthened the force of that growing storm. Multitudes of writers attacked Publicola as the advocate of "aristocracy" and "monarchy." "The papers under the signature of Publicola have called forth a torrent of abuse," declared the final essay of the series.

Brown's "Federal Gazette" of Philadelphia branded Publicola's doctrines as "abominable heresies"; and hoped that they would "not procure many proselytes either to monarchy or aristocracy."³⁴ The "Independent Chronicle" of Boston asserted that Publicola was trying to build up a "system of Monarchy and Aristocracy … on the ruins both of the Reputation and Liberties of the People."³⁵ Madison reported to Jefferson that because of John Adams's reputed authorship of these unpopular letters, the supporters of the Massachusetts statesman had become "perfectly insignificant in … number" and that "in Boston he is … distinguished for his unpopularity."³⁶

In such fashion the controversy began in America over the French Revolution.

But whatever the misgivings of the conservative, whatever the alarm of the timid, the overwhelming majority of Americans were for the French Revolution and its doctrines;³⁷ and men of the highest ability and station gave dignity to the voice of the people.

In most parts of the country politicians who sought election to public office conformed, as usual, to the popular view. It would appear that the prevailing sentiment was influential even with so strong a conservative and extreme a Nationalist as Madison, in bringing about his amazing reversal of views which occurred soon after the Constitution was adopted.³⁸ But those who, like Marshall, were not shaken, were made firmer in their opinions by the very strength of the ideas thus making headway among the masses.

An incident of the French Revolution almost within sight of the American coast gave to the dogma of equality a new and intimate meaning in the eyes of those who had begun to look with disfavor upon the results of Gallic radical thought. Marshall and Jefferson best set forth the opposite impressions made by this dramatic event.

"Early and bitter fruits of that malignant philosophy," writes Marshall, "which … can coolly and deliberately pursue, through oceans of blood, abstract systems for the attainment of some fancied untried good, were gathered in the French West Indies… The revolutionists of France formed the mad and wicked project of spreading their doctrines of equality among persons [negroes and white people] between whom distinctions and prejudices exist to be subdued only by the grave. The rage excited by the pursuit of this visionary and baneful theory, after many threatening symptoms, burst forth on the 23d day of August 1791, with a fury alike destructive and general.

"In one night, a preconcerted insurrection of the blacks took place throughout the colony of St. Domingo; and the white inhabitants of the country, while sleeping in their beds, were involved in one indiscriminate massacre, from which neither age nor sex could afford an exemption. Only a few females, reserved for a fate more cruel than death, were intentionally spared; and not many were fortunate enough to escape into the fortified cities. The insurgents then assembled in vast numbers, and a bloody war commenced between them and the whites inhabiting the towns."³⁹

After the African disciples of French liberty had overthrown white supremacy in St. Domingo, Jefferson wrote his daughter that he had been informed "that the Patriotic party [St. Domingo revolutionists] had taken possession of 600 aristocrats & monocrats, had sent 200 of them to France, & were sending 400 here… I wish," avowed Jefferson, in this intimate family letter, "we could distribute our 400 [white French exiles] among the Indians, who would teach them lessons of liberty & equality."⁴⁰

Events in France marched swiftly from one bloody climax to another still more scarlet. All were faithfully reflected in the views of the people of the United States. John Marshall records for us "the fervour of democracy" as it then appeared in our infant Republic. He repeats that, at first, every American wished success to the French reformers. But the later steps of the movement "impaired this … unanimity of opinion… A few who had thought deeply on the science of government … believed that … the influence of the galleries over the legislature, and of mobs over the executive; … the tumultuous assemblages of the people and their licentious excesses … did not appear to be the symptoms of a healthy constitution, or of genuine freedom… They doubted, and they feared for the future."

Of the body of American public opinion, however, Marshall chronicles that: "In total opposition to this sentiment was that of the public. There seems to be something infectious in the example of a powerful and enlightened nation verging towards democracy, which imposes on the human mind, and leads human reason in fetters… Long settled opinions yield to the overwhelming weight of such dazzling authority. It wears the semblance of being the sense of mankind, breaking loose from the shackles which had been imposed by artifice, and asserting the freedom, and the dignity, of his nature."

American conservative writers, says Marshall, "were branded as the advocates of royalty, and of aristocracy. To question the duration of the present order of things [in France] was thought to evidence an attachment to unlimited monarchy, or a blind prejudice in favour of British institutions… The war in which the several potentates of Europe were engaged against France, although in almost every instance declared by that power, was pronounced to be a war for the extirpation of human liberty, and for the banishment of free government from the face of the earth. The preservation of the constitution of the United States was supposed to depend on its issue; and the coalition against France was treated as a coalition against America also."⁴¹

Marshall states, more clearly, perhaps, than any one else, American conservative opinion of the time: "The circumstances under which the abolition of royalty was declared, the massacres which preceded it, the scenes of turbulence and violence which were acted in every part of the nation, appeared to them [American conservatives] to present an awful and doubtful state of things… The idea that a republic was to be introduced and supported by force, was, to them, a paradox in politics."