Chapter X: Candidate for Congress (1)

Of the three envoys, the conduct of General Marshall alone has
been entirely satisfactory. (Adams.)

In heart and sentiment, as well as by birth and interest, I am an
American. We should make no political connection with any nation
on earth. (Marshall to constituents.)

Tell Marshall I love him because he felt and acted as a Republican
and an American. (Patrick Henry.)

In the congressional campaign of 1798-99, the Federalists of the Richmond District were without a strong candidate. The one they had put up lacked that personal popularity which then counted for as much in political contests as the issues involved. Upon Marshall's return from France and his enthusiastic reception, ending with the Richmond demonstration, the Federalist managers pressed Marshall to take the place of the candidate then running, who, indeed, was anxious to withdraw in his favor. But the returned envoy refused, urged the Federalist then standing to continue his candidacy, and pledged that he would do all in his power to secure his election.

Finally Washington asked Marshall to come to see him. "I received an invitation from General Washington," writes Marshall in his account of this important event, "to accompany his nephew ... on a visit to Mount Vernon."[856]

When Bushrod Washington wrote that Marshall accepted the invitation, the General was extremely gratified. "I learnt with much pleasure ... of General Marshall's intention to make me a visit," he writes his nephew. "I wish it of all things; and it is from the ardent desire I have to see him that I have not delayed a moment to express it.... The crisis is most important.... The temper of the people in this state ... is so violent and outrageous that I wish to converse with General Marshall and yourself on the elections which must soon come."[857] Washington says that when his visitors arrive the matter of the fictitious Langhorne letter will also be taken up "and we will let General Marshall into the whole business and advise with him thereon."[858]

To Mount Vernon, therefore, Marshall and his companion journeyed on horseback. For convenience in traveling, they had put their clothing in the same pair of saddle-bags. They arrived in a heavy rain and were "drenched to the skin." Unlocking the saddle-bags, the first article they took out was a black bottle of whiskey. With great hilarity each charged this to be the property of the other. Then came a thick twist of tobacco, some corn bread, and finally the worn apparel of wagoners; at some tavern on the way their saddle-bags had become exchanged for those of drivers. The rough clothes were grotesque misfits; and when, clad in these, his guests presented themselves, Washington, roaring with laughter, expressed his sympathy for the wagoners when they, in turn, discovered the exchange they had made with the lawyers.[859] In such fashion began the conference that ended in John Marshall's candidacy for Congress in the vital campaign of 1798-99.

This was the first time, so far as is known, that Marshall had visited Washington at his Potomac home. No other guest except Washington's nephew seems to have been present at this conference, so decisive of Marshall's future. The time was September, 1798, and the conversations were held on the broad piazza,[860] looking out upon the river, with the new Capitol almost within sight. There, for "four or five days," his old commander used all his influence to induce Marshall to become the Federalist candidate.

"General Washington urged the importance of the crisis," writes Marshall in describing the circumstance; "every man," insisted Washington, "who could contribute to the success of sound opinions was required by the most sacred duty to offer his services to the public." Marshall doubted his "ability to do any good. I told him that I had made large pecuniary engagements which required close attention to my profession and which would distress me should the emoluments derived from it be abandoned."

Marshall told of his promise to the Federalist candidate who was then making his campaign for election. Washington declared that this candidate still would withdraw in Marshall's favor; but Marshall remained unshaken. Finally Washington gave his own conduct as an example. Marshall thus describes the final appeal which his old leader made to him: "He had withdrawn from office with a declaration of his determination never again, under any circumstances, to enter public life. No man could be more sincere in making that declaration, nor could any man feel stronger motives for adhering to it. No man could make a stronger sacrifice than he did in breaking a resolution, thus publicly made, and which he had believed to be unalterable. Yet I saw him," continues Marshall, "in opposition to his public declaration, in opposition to his private feelings, consenting, under a sense of duty, to surrender the sweets of retirement, and again to enter the most arduous and perilous station which an individual could fill. My resolution yielded to this representation."[861]

There is a tradition that, at one point in the conference, Marshall, becoming offended by Washington's insistence, which, runs the story, took the form of a peremptory and angrily expressed command, determined to leave so early in the morning that his host would have no opportunity to press the matter further; but, Washington noting Marshall's irritation and anticipating his purpose, was on the piazza when his departing guest appeared at dawn, and there made the final appeal which won Marshall's reluctant consent.

Marshall felt that he was making a heavy personal sacrifice; it meant to him the possible loss of the Fairfax estate. As we have seen, he had just declined appointment to the Supreme Bench[862] for this very reason, and this place later was given to Bushrod Washington, largely on Marshall's advice.[863] Adams had been reluctant to give Marshall up as one of the Associate Justices of the Supreme Court; "General Marshall or Bushrod Washington will succeed Judge Wilson," wrote the President to his Secretary of State[864] nearly three months after the first tender of the place to Marshall in Philadelphia. Later on the President again returned to Marshall.

"I still think that General Marshall ought to be preferred," he wrote. "Of the three envoys, the conduct of Marshall alone has been entirely satisfactory, and ought to be marked by the most decided approbation of the public. He has raised the American people in their own esteem, and, if the influence of truth and justice, reason and argument is not lost in Europe, he has raised the consideration of the United States in that quarter of the world.... If Mr. Marshall should decline, I should next think of Mr. [Bushrod] Washington."[865]

Washington's appeal to Marshall's patriotism and sense of duty, however, outbalanced the weighty financial reasons which decided him against becoming an Associate Justice of the Supreme Court. Thus, against his desire, he found himself once more in the hurly-burly of partisan politics. But this time the fight which he was forced to lead was to be desperate, indeed.

The moment Marshall announced his candidacy he became the center of Republican attack in Virginia. The virulence of the campaign against him was so great that it has become a tradition; and while scarcely any of the personal assaults, which appeared in print, are extant, they are known to have been ruthless, and utterly unrestrained both as to the charges made and the language used in making them.

In his scurrilous review of Adams's Administration, which Adams properly denounced as "a Mass of Lyes from the first page to the last,"[866] John Wood repeats the substance of some of the attacks which, undoubtedly, were launched against Marshall in this bitter political conflict. "John Marshall," says Wood, "was an improper character in several respects; his principles of aristocracy were well known. Talleyrand, when in America, knew that this man was regarded as a royalist and not as a republican, and that he was abhorred by most honest characters."[867]

The abuse must have been very harsh and unjust; for Marshall, who seldom gave way to resentment, complained to Pickering with uncharacteristic temper. "The whole malignancy of Anti-federalism," he writes, "not only in the district, where it unfortunately is but too abundant, but throughout the State, has become uncommonly active and considers itself as peculiarly interested in the reëlection of the old member [Clopton].

"The Jacobin presses, which abound with us and only circulate within the State, teem with publications of which the object is to poison still further the public opinion and which are level'd particularly at me. Anything written by me on the subject of French affairs wou'd be ascrib'd to me, whether it appear'd with or without my signature and wou'd whet and sharpen up the sting of every abusive scribbler who had vanity enough to think himself a writer because he cou'd bestow personal abuse and cou'd say things as malignant as they are ill founded."[868]

The publication of the American envoys' dispatches from France, which had put new life into the Federalist Party, had also armed that decaying organization with enough strength to enact the most imprudent measures that its infatuated leaders ever devised. During June and July, 1798, they had succeeded in driving through Congress the famous Alien and Sedition Laws.[869]

The Alien Act authorized the President to order out of the country all aliens whom he thought "dangerous" or "suspected" of any "treasonable or secret machination against the government" on pain of imprisonment not to exceed three years and of being forever afterwards incapacitated from becoming citizens of the United States. But if the alien could prove to the satisfaction of the President that he was not dangerous, a presidential "license" might be granted, permitting the alien to remain in the United States as long as the President saw fit and in such place as he might designate. If any expelled alien returned without permission he was to be imprisoned as long as the President thought "the public safety may require."

The Sedition Act provided penalties for the crime of unlawful combination and conspiracy against the Government;[870] a fine not exceeding two thousand dollars and imprisonment not exceeding two years for any person who should write, print, publish, or speak anything "false, scandalous and malicious" against the Government, either House of Congress, or the President "with intent to defame" the Government, Congress, or the President, or "to bring them or either of them into contempt or disrepute; or to excite against them or either or any of them the hatred of the good people of the United States, or to stir up sedition within the United States."

When Jefferson first heard of this proposed stupid legislation, he did not object to it, even in his intimate letters to his lieutenant Madison.[871] Later, however, he became the most ferocious of its assailants. Hamilton, on the other hand, saw the danger in the Sedition Bill the moment a copy reached him: "There are provisions in this bill ... highly exceptionable," he wrote. "I hope sincerely the thing may not be hurried through. Let us not establish a tyranny. Energy is a very different thing from violence."[872] When Madison got the first inkling of the Alien Bill, he wrote to Jefferson that it "is a monster that must forever disgrace its parents."[873]

As soon as the country learned what the Alien and Sedition Laws contained, the reaction against the Federalist Party began. In vain did the Federalists plead to the people, as they had urged in the debate in Congress, that these laws were justified by events; in vain did they point out the presence in America of large numbers of foreigners who were active and bitter against the American Government; in vain did they read to citizens the abuse published in newspapers against the Administration and cite the fact that the editors of these libelous sheets were aliens.[874]

The popular heart and instinct were against these crowning blunders of Federalism. Although the patriotic wave started by Marshall's return and the X. Y. Z. disclosures was still running strong, a more powerful counter-current was rising. "Liberty of the press," "freedom of speech," "trial by jury" at once became the watchwords and war-cries of Republicanism. On the hustings, in the newspapers, at the taverns, the Alien and Sedition Laws were denounced as unconstitutional--they were null and void--no man, much less any State, should obey or respect them.

The Alien Law, said its opponents, merged the Judicial and the Executive Departments, which the Constitution guaranteed should be separate and distinct; the Sedition Act denied freedom of speech, with which the Constitution expressly forbade Congress to interfere; both struck at the very heart of liberty--so went the Republican argument and appeal.[875]

In addition to their solid objections, the Republicans made delirious prophecies. The Alien and Sedition Laws were, they asserted, the beginning of monarchy, the foundation of absolutism. The fervid Jefferson indulged, to his heart's content, in these grotesque predictions: "The alien & sedition laws are working hard," declared the great Republican. Indeed, he thought them only "an experiment on the American mind to see how far it will bear an avowed violation of the constitution. If this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the Senate for life.... That these things are in contemplation, I have no doubt; nor can I be confident of their failure, after the dupery of which our countrymen have shewn themselves susceptible."[876]

Washington was almost as extravagant on the other side. When an opponent of the Alien and Sedition Acts asked him for his opinion of them, he advised his questioner to read the opposing arguments "and consider to what lengths a certain description of men in our country have already driven and seem resolved further to drive matters" and then decide whether these laws are not necessary, against those "who acknowledge no allegiance to this country, and in many instances are sent among us ... for the express purpose of poisoning the minds of our people,--and to sow dissensions among them, in order to alienate their affections from the government of their choice, thereby endeavoring to dissolve the Union."[877]

Washington thought that the ferocious Republican attack on the Alien and Sedition Laws was but a cunning maneuver of politicians, and this, indeed, for the moment at least, seems to have been the case. "The Alien and Sedition Laws are now the desiderata of the Opposition.... But any thing else would have done,--and something there will always be, for them to torture; and to disturb the public mind with their unfounded and ill favored forebodings" was his pessimistic judgment.[878]

He sent "to General Marshall Judge Addison's charge to the grand juries of the county courts of the Fifth Circuit of the State of Pennsylvania.... This charge is on the liberty of speech and of the press and is a justification of the sedition and alien laws. But," wrote Washington, "I do not believe that ... it ... or ... any other writing will produce the least change in the conduct of the leaders of the opposition to the measures of the general government. They have points to carry from which no reasoning, no consistency of conduct, no absurdity can divert them. If, however, such writings should produce conviction in the mind of those who have hitherto placed faith in their assertions, it will be a fortunate event for this country."[879]

Marshall had spoken in the same vein soon after his arrival at Richmond. "The people ... are pretty right as it respects France," he reports to the Secretary of State. The Republican criticisms of the X. Y. Z. mission "make so little impression that I believe France will be given up and the attack upon the government will be supported by the alien and sedition laws. I am extremely sorry to observe that here they are more successful and that these two laws, especially the sedition bill, are viewed by a great many well meaning men, as unwarranted by the constitution.

"I am entirely persuaded that with many the hate of Government of our country is implacable and that if these bills did not exist the same clamor would be made by them on some other account, but," truthfully and judicially writes Marshall, "there are also many who are guided by very different motives, and who tho' less noisy in their complaints are seriously uneasy on this subject."[880]

The Republicans pressed Marshall particularly hard on the Alien and Sedition Laws, but he found a way to answer. Within a few days after he had become the Federalist candidate, an anonymous writer, signing himself "Freeholder," published in the Richmond newspapers an open letter to Marshall asking him whether he was for the Constitution; whether the welfare of America depended on a foreign alliance; whether a closer connection with Great Britain was desirable; whether the Administration's conduct toward France was wise; and, above all, whether Marshall was "an advocate of the alien and sedition bills or in the event of your election will you use your influence to obtain a repeal of these laws?"

In printing Marshall's answers to "Freeholder," the "Times and Virginia Advertiser" of Alexandria remarked: "Mr. John Marshall has offered as a candidate for a representative in the next Congress. He has already begun his electioneering campaign. The following are answers to some queries proposed to him. Whether the queries were propounded with a view of discovering his real sentiments, or whether they were published by one of his friends to serve electioneering purposes, is immaterial:--The principles Mr. Marshall professes to possess are such as influence the conduct of every real American."[881]

A week later Marshall published his answers. "Every citizen," says he, "has a right to know the political sentiments of a candidate"; and besides, the candidate wishes everybody to know his "real principles" and not "attribute" to him "those with which active calumny has ... aspersed" him. In this spirit Marshall answers that "in heart and sentiment, as well as by birth and interest," he is "an American; attached to the ... Constitution ... which will preserve us if we support it firmly."

He is, he asserts, against any alliance, "offensive or defensive," with Great Britain or "any closer connection with that nation than already exists.... No man in existence is more decidedly opposed to such an alliance or more fully convinced of the evils that would result from it." Marshall declares that he is for American neutrality in foreign wars; and cites his memorial to Talleyrand as stating his views on this subject.

"The whole of my politics respecting foreign nations, are reducible to this single position: ... Commercial intercourse with all, but political ties with none ... buy as cheap and sell as dear as possible ... never connect ourselves politically with any nation whatever."

He disclaims the right to speak for the Administration, but believes it to have the same principles. If France, while at war with Great Britain, should also make war on America, "it would be madness and folly" not to secure the "aid of the British fleets to prevent our being invaded"; but, not even for that, would he "make such a sacrifice as ... we should make by forming a permanent political connection with ... any nation on earth."

Marshall says that he believes the Administration's policy as regards France to have been correct, and necessary to the maintenance "of the neutrality and independence of our country." Peace with France was not possible "without sacrificing those great objects," for "the primary object of France is ... dominion over others." The French accomplish this purpose by "immense armies on their part and divisions among ... those whom they wish to subdue."

Marshall declares that he is "not an advocate of the Alien and Sedition Bills," and, had he been in Congress, "certainly would have opposed them," although he does not "think them fraught with all those mischiefs ascribed to them." But he thinks them "useless ... calculated to create unnecessary discontents and jealousies"; and that, too, "at a time when our very existence as a nation may depend on our union."

He believes that those detested laws "would never have been enacted" if they had been opposed on these principles by a man not suspected of intending to destroy the government or being hostile to it." The effort to repeal them "will be made before he can become a member of Congress"; if it fails and is renewed after he takes his seat, he "will obey the voice of his constituents." He thinks, however, it will be unwise to revive the Alien and Sedition Acts which are, by their own terms, about to expire; and Marshall pledges that he will "indisputably oppose their revival."[882]

Upon Marshall as their favorite candidate for Congress, the eyes of the Federalist leaders in other States were focused. They were particularly anxious and uncertain as to his stand on the Alien and Sedition Laws; for he seems to have privately expressed, while in Philadelphia on his return from France, a mild disapproval of the wisdom and political expediency of this absurd legislation. His answers to "Freeholder" were therefore published everywhere. When the New England Federalists read them in the "Columbian Centinel" of Saturday, October 20, most of them were as hot against Marshall as were the rabid Virginia Republicans.

Ames whetted his rhetoric to razor edge and slashed without mercy. He describes Republican dismay when Marshall's dispatches were published: "The wretches [Republicans] looked round, like Milton's devils when first recovering from the stunning force of their fall from Heaven, to see what new ground they could take." They chose, says Ames, "the alien and sedition bills, and the land tax" with which to arouse discontent and revive their party. So "the implacable foes of the Constitution--foes before it was made, while it was making, and since--became full of tender fears lest it should be violated by the alien and sedition laws."

The Federalists, complained Ames, "are forever hazarding the cause by heedless and rash concessions. John Marshall, with all his honors in blossom and bearing fruit, answers some newspaper queries unfavorably to these laws.... No correct man,--no incorrect man, even,--whose affections and feelings are wedded to the government, would give his name to the base opposers of the law.... This he has done. Excuses may palliate,--future zeal in the cause may partially atone,--but his character is done for.... Like a man who in battle receives an ounce ball in his body--it may heal, it lies too deep to be extracted.... There let it lie. False Federalists, or such as act wrong from false fears, should be dealt hardly by, if I were Jupiter Tonans.... The moderates [like Marshall] are the meanest of cowards, the falsest of hypocrites."[883] Theodore Sedgwick declared that Marshall's "mysterious & unpardonable" conduct had aided "french villainy" and that he had "degraded himself by a mean & paltry electioneering trick."[884]

At first, the Republicans praised Marshall's stand; and this made the New England Federalists frantic. Cabot, alone, defended Marshall in the press, although not over his own name and only as a matter of party tactics. He procured some one to write to the "Columbian Centinel" under the name of "A Yankee Freeholder." This contributor tried to explain away Marshall's offense.

"General Marshall is a citizen too eminent for his talents, his virtues and his public services, to merit so severe a punishment as to [receive the] applause of disorganizers [Republicans]." He should be saved from the "admiration of the _seditious_"--that much was due to Marshall's "spirit, firmness and eloquence" in the contest with "the Despots of _France_." As "drowning men would catch at straws" so "the eagle-eyed and disheartened sons of faction" had "with forlorn and desperate ... avidity ... seized on" Marshall's answers to "Freeholder."

And no wonder; for "even _good men_ have stood appalled, at observing a man whom they so highly venerate soliciting votes at the expense of principles which they deem sacred and inviolable." "Yankee Freeholder" therefore proposes "to vindicate General MARSHALL."

Marshall was the only Richmond Federalist who could be elected; he "patriotically" had consented to run only because of "the situation and danger of his country at this moment." Therefore "it was absolutely necessary to take all the ordinary steps" to succeed. This "may appear extraordinary ... to those who are only acquainted with the delicacy of _New England_ elections where _personal_ solicitation is the Death-warrant to success"; but it was "not only pardonable but necessary ... in the Southern States."

"Yankee Freeholder" reminded his readers that "Calumny had assailed General MARSHALL, in common with other men of merit." Virginia newspapers had "slandered him"; politicians had called him "_Aristocrat_, _Tory_, and _British Agent_. All this abuse ... would infallibly have rendered him popular in _New-England_"--but not so in "_Virginia_," where there were "too many ignorant, ill-informed and inflamed minds."

Therefore, "it became necessary that General MARSHALL should explicitly exhibit his political creed." After all, his answers to "Freeholder" were not so bad--he did not assail the constitutionality of the Alien and Sedition Laws. "If Gen. MARSHALL thought them unconstitutional or dangerous to liberty, would he" be content merely to say they were unnecessary? "Would a man of General MARSHALL'S force of reasoning, simply denominate _laws useless_," if he thought them unconstitutional? "No--the idea is too absurd to be indulged.... Time and General MARSHALL'S conduct will hereafter prove that I am not mistaken in my opinion of his sentiments."[885]

Cabot's strategy had little effect on New England, which appeared to dislike Virginia with a curious intolerance. The Essex County politician, nevertheless, stood by his guns; and six months later thus reassures King: "I am ready to join you as well as Ames in reprobating the publication of Marshall's sentiments on the Sedition & Alien Acts, but I still _adhere_ to my first opinion that Marshall ought not to be attacked in the Newspapers, nor too severely condemned anywhere, because Marshall has not yet learned his whole lesson, but has a mind & disposition which can hardly fail to make him presently an accomplished (political) Scholar & a very useful man.

"Some allowance too should be made," contends Cabot, "for the influence of the Atmosphere of Virginia which doubtless makes every one who breathes it visionary &, upon the subject of Free Govt., incredibly credulous; but it is certain that Marshall at Phila. would become a most powerful auxiliary to the cause of order & good Govt., & _therefore_ we ought not to diminish his fame which wou'd ultimately be a loss to ourselves."[886]

The experienced practical politician, Sedgwick, correctly judged that "Freeholder's" questions to Marshall and Marshall's answers were an "electioneering trick." But Pickering stoutly defended Marshall upon this charge. "I have not met with one good federalist, who does not regret his answers to the Freeholder; but I am sorry that it should be imagined to be an 'electioneering trick.'... General Marshall is incapable of doing a dishonorable act." Only Marshall's patriotism had induced him to accept the French mission, said the Secretary of State.[887] Nothing but "the urging of friends ... overcame his reluctance to come to Congress.... A man of untainted honor," had informed Pickering that "Marshall is a _Sterling fellow_."[888]

The Federalists' complaints of him continued to be so strong and widespread, however, that they even reached our legations in Europe: "I too have lamented that John Marshall, after such a mission particularly, should lend himself thus against a law which the French Jacobinism in the United States had forced government to adopt. M[arshall] _before_, was not, that we ever heard of, one of us."[889]

Toward the end of October Marshall gives his private opinion of the Virginia Republicans and their real motives, and foretells the Virginia Resolutions. "The real french party of this country again begins to show itself," he writes. "There are very many indeed in this part of Virginia who speak of our own government as an enemy infinitely more formidable and infinitely more to be guarded against than the French Directory. Immense efforts are made to induce the legislature of the state which will meet in Dec'r to take some violent measure which may be attended with serious consequences. I am not sure that these efforts will entirely fail. It requires to be in this part of Virginia to know the degree of irritation which has been excited and the probable extent of the views of those who excite it."[890]

The most decent of the attacks on Marshall were contained in a series of open letters first published in the "Aurora"[891] and signed "Curtius."

"You have long been regarded," writes Curtius, "as the leader of that party in this State" which has tried "by audacious efforts to erect a monarchy or aristocracy upon the ruins of our free constitution. The energy of your mind and the violence of your zeal have exalted you to this bad eminence." If you had "employed your talents in defense of the people ... your history would have been read in a nation's eyes."

"The publication of your dispatches and the happy exercise of diplomatic skill has produced a momentary delusion and infatuation in which an opposition to the administration is confounded with hostility to the government and treason to the country.... The execrations and yells against French cruelty and French ambition, are incessantly kept up by the hirelings of Great Britain and the enemies of liberty."

But, he cries, "the vengeance of an oppressed and insulted people is almost as terrible as the wrath of Heaven"; and, like a true partisan, Curtius predicts that this is about to fall on Marshall. Why, he asks, is Marshall so vague on the constitutionality of the Alien and Sedition Laws?[892] "Notwithstanding the magnitude ... of your talents, you are ridiculously awkward in the arts of dissimulation and hypocrisy.... It is painful to attack ... a man whose talents are splendid and whose private character is amiable"; but "sacred duties ... to the cause of truth and liberty require it." Alas for Marshall! "You have lost forever," Curtius assures him, "the affection of a nation and the applause of a world. In vain will you pursue the thorny and rugged path that leads to fame."[893]

But while "monarchist," "aristocrat," "British agent," "enemy of free speech," "destroyer of trial by jury" were among the more moderate epithets that filled the air from Republican lips; and "anarchist," "Frenchman," "traitor," "foe of law and order," "hater of government" were the milder of the counter-blasts from the Federalists, all this was too general, scattered, and ineffective to suit the leader of the Republican Party. Jefferson saw that the growing popular rage against the Alien and Sedition Laws must be gathered into one or two concentrated thunderbolts and thus hurled at the heads of the already quaking Federalists.

How to do it was the question to which Jefferson searched for an answer. It came from the bravest, most consistent, most unselfish, as well as one of the very ablest of Republicans, John Taylor "of Caroline," Virginia. In a letter to Jefferson concerning the Alien and Sedition Laws, this eminent and disinterested radical suggested that "_the right of the State governments to expound the constitution_ might possibly be made the basis of a movement towards its amendment. If this is insufficient the people in state conventions are incontrovertibly the contracting parties and, possessing the infringing rights, may proceed by orderly steps to attain the object."[894]

So was planted in Jefferson's mind the philosophy of secession. In that fertile and receptive soil it grew with magic rapidity and bore fatal fruit. Within two months after he received Taylor's letter, Jefferson wrote the historic resolutions which produced a situation that, a few years afterward, called forth Marshall's first great constitutional opinion, and, not many decades later, gave the battle-cry that rallied heroic thousands to armed resistance to the National Government.[895] On October 5, 1798, Nicholas writes Jefferson that he has delivered to "Mr. John Breckenridge a copy of the resolutions that you sent me."[896] They were passed by the Legislature of Kentucky on November 14, 1798; and the tremendous conflict between Nationality and States' Rights, which for so long had been preparing, at last was formally begun.[897] Jefferson's "Kentucky Resolutions" declared that parts of the Alien and Sedition Laws were "altogether void and of no effect."[898] Thus a State asserted the "right" of any or all States to annul and overthrow a National law.

As soon as Kentucky had acted, Jefferson thus writes Madison: "I enclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain so as to hold that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent."[899]

Madison accordingly drew the resolutions adopted by the Legislature of Virginia, December 21, 1798. While declaring the Alien and Sedition Laws unconstitutional, the Virginia Resolutions merely appealed to the other States to "co-operate with this state in maintaining unimpaired the authority, rights, and liberties reserved to the states respectively or to the people."[900]

The Legislature promptly adopted them and would gladly have approved far stronger ones. "The leaders ... were determined upon the overthrow of the General Government; and if no other measure would effect it, that they would risk it upon the chance of war.... Some of them talked of 'seceding from the Union,'"[901] Iredell writes his wife: "The General Assembly of Virginia are pursuing steps which directly lead to a civil war; but there is a respectable minority struggling in defense of the General Government, and the Government itself is fully prepared for anything they can do, resolved, if necessary, to meet force with force."[902] Marshall declared that he "never saw such intemperance as existed in the V[irginia] Assembly."[903]

Following their defiant adoption of Madison's resolutions, the Republican majority of the Legislature issued a campaign pamphlet, also written by Madison,[904] under the form of an address to the people. The "guardians of State Sovereignty would be perfidious if they did not warn" the people "of encroachments which ... may" result in "usurped power"; the State Governments would be "precipitated into impotency and contempt" in case they yielded to such National laws as the Alien and Sedition Acts; if like "infractions of the Federal Compact" were repeated "until the people arose ... in the majesty of their strength," it was certain that "the way for a revolution would be prepared."

The Federalist pleas "to disregard usurpation until foreign danger shall have passed" was "an artifice which may be forever used," because those who wished National power extended "can ever create national embarrassments to soothe the people to sleep whilst that power is swelling, silently, secretly and fatally."

Such was the Sedition Act which "commits the sacrilege of arresting reason; ... punishes without trial; ... bestows on the President despotic powers ... which was never expected by the early friends of the Constitution." But now "Federal authority is deduced by implication" by which "the states will be stript of every right reserved." Such "tremendous pretensions ... inflict a death wound on the Sovereignty of the States." Thus wrote the same Madison who had declared that nothing short of a veto by the National Government on "any and every act of the states" would suffice. There was, said Madison's campaign document, no "specified power" in the National Government "embracing a right against freedom of the press"--that was a "constitutional" prerogative of the States.

"Calumny" could be redressed in the State courts; but "usurpation can only be controuled by the act of society [revolution]." Here Madison quotes _verbatim_ and in italics from Marshall's second letter to Talleyrand in defense of the liberty of the press, without, however, giving Marshall credit for the language or argument.[905] Madison's argument is characteristically clear and compact, but abounds in striking phrases that suggest Jefferson.[906]

This "Address" of the Virginia Legislature was aimed primarily at Marshall, who was by far the most important Federalist candidate for Congress in the entire State. It was circulated at public expense and Marshall's friends could not possibly get his views before the people so authoritatively or so widely. But they did their best, for it was plain that Madison's Jeffersonized appeal, so uncharacteristic of that former Nationalist, must be answered. Marshall wrote the reply[907] of the minority of the Legislature, who could not "remain silent under the unprecedented" attack of Madison. "Reluctantly," then, they "presented the present crisis plainly before" the people.

"For ... national independence ... the people of united America" changed a government by the British King for that of the Constitution. "The will of the majority produced, ratified, and conducts" this constitutional government. It was not perfect, of course; but "the best rule for freemen ... in the opinion of our ancestors, was ... that ... of obedience to laws enacted by a majority of" the people's representatives.

Two other principles "promised immortality" to this fundamental idea: power of amendment and frequency of elections. "Under a Constitution thus formed, the prosperity of America" had become "great and unexampled." The people "bemoaned foreign war" when it "broke out"; but "they did not possess even a remote influence in its termination." The true American policy, therefore, was in the "avoiding of the existing carnage and the continuance of our existing happiness." It was for this reason that Washington, after considering everything, had proclaimed American Neutrality. Yet Genêt had "appealed" to the people "with acrimony" against the Government. This was resented "for a while only" and "the fire was rekindled as occasion afforded fuel."

Also, Great Britain's "unjustifiable conduct ... rekindled our ardor for hostility and revenge." But Washington, averse to war, "made his last effort to avert its miseries." So came the Jay Treaty by which "peace was preserved with honor."

Marshall then reviews the outbursts against the Jay Treaty and their subsidence. France "taught by the bickerings of ourselves ... reëchoed American reproaches with French views and French objects"; as a result "our commerce became a prey to French cruisers; our citizens were captured" and British outrages were repeated by the French, our "former friend ... thereby committing suicide on our national and individual happiness."

Emulating Washington, Adams had twice striven for "honorable" adjustment. This was met by "an increase of insolence and affront." Thus America had "to choose between submission ... and ... independence. What American," asks Marshall, "could hesitate in the option?" And, "the choice being made, self-preservation commanded preparations for self-defense....--the fleet, ... an army, a provision for the removal of dangerous aliens and the punishment of seditious citizens." Yet such measures "are charged with the atrocious design of creating a monarchy ... and violating the constitution." Marshall argues that military preparation is our only security.

"Upon so solemn an occasion what curses would be adequate," asks Marshall, "to the supineness of our government, if militia were the only resort for safety, against the invasion of a veteran army, flushed with repeated victories, strong in the skill of its officers, and led by distinguished officers?" He then continues with the familiar arguments for military equipment.

Then comes his attack on the Virginia Resolutions. Had the criticisms of the Alien and Sedition Laws "been confined to ordinary peaceable and constitutional efforts to repeal them," no objection would have been made to such a course; but when "general hostility to our government" and "proceedings which may sap the foundations of our union" are resorted to, "duty" requires this appeal to the people.

Marshall next defends the constitutionality of these acts. "Powers necessary for the attainment of all objects which are general in their nature, which interest all America" and "can only be obtained by the coöperation of the whole ... would be naturally vested in the government of the whole." It is obvious, he argues, that States must attend to local subjects and the Nation to general affairs.

The power to protect "the nation from the intrigues and conspiracies of dangerous aliens; ... to secure the union from their wicked machinations, ... which is essential to the common good," belongs to the National Government in the hands of which "is the force of the nation and the general power of protection from hostilities of every kind." Marshall then makes an extended argument in support of his Nationalist theory. Occasionally he employs almost the exact language which, years afterwards, appears in those constitutional opinions from the Supreme Bench that have given him his lasting fame. The doctrine of implied powers is expounded with all of his peculiar force and clearness, but with some overabundance of verbiage. In no writing or spoken word, before he became Chief Justice of the United States, did Marshall so extensively state his constitutional views as in this unknown paper.[908]

The House of Delegates, by a vote of 92 against 52,[909] refused to publish the address of the minority along with that of the majority. Thereupon the Federalists printed and circulated it as a campaign document. It was so admired by the supporters of the Administration in Philadelphia that, according to the untrustworthy Callender, ten thousand copies were printed in the Capital and widely distributed.[910]

Marshall's authorship of this paper was not popularly known; and it produced little effect. Its tedious length, lighted only by occasional flashes of eloquence, invited Republican ridicule and derision. It contained, said Callender, "such quantities of words ... that you turn absolutely tired"; it abounded in "barren tautology"; some sentences were nothing more than mere "assemblages of syllables"; and "the hypocritical canting that so strongly marks it corresponds very well with the dispatches of X. Y. and Z."[911]

Marshall's careful but over-elaborate paper was not, therefore, generally read. But the leading Federalists throughout the country were greatly pleased. The address was, said Sedgwick, "a masterly performance for which we are indebted to the pen of General Marshall, who has, by it, in some measure atoned for his pitiful electioneering epistle."[912]

When Murray, at The Hague, read the address, he concluded that Marshall was its author: "He may have been weak enough to declare _against_ those laws that _might_ be against the _policy_ or necessity, etc., etc., etc., yet sustain their constitutionality.... I _hope_ J. Marshall did write the Address."[913]

The Republican appeal, unlike that of Marshall, was brief, simple, and replete with glowing catchwords that warmed the popular heart and fell easily from the lips of the multitude. And the Republican spirit was running high. The Virginia Legislature provided for an armory in Richmond to resist "encroachments" of the National Government.[914] Memorials poured into the National Capital.[915] By February "the tables of congress were loaded with petitions against" the unpopular Federalist legislation.[916]

Marshall's opinion of the motives of the Republican leaders, of the uncertainty of the campaign, of the real purpose of the Virginia Resolutions, is frankly set forth in his letter to Washington acknowledging the receipt of Judge Addison's charge: "No argument," wrote Marshall, "can moderate the leaders of the opposition.... However I may regret the passage of one of the acts complained of [Sedition Law] I am firmly persuaded that the tempest has not been raised by them. Its cause lies much deeper and is not easily to be removed. Had they [Alien and Sedition Laws] never been passed, other measures would have been selected. An act operating on the press in any manner, affords to its opposers arguments which so captivate the public ear, which so mislead the public mind that the efforts of reason" are unavailing.

Marshall tells Washington that "the debates were long and animated" upon the Virginia Resolutions "which were substantiated by a majority of twenty-nine." He says that "sentiments were declared and ... views were developed of a very serious and alarming extent.... There are men who will hold power by any means rather than not hold it; and who would prefer a dissolution of the union to a continuance of an administration not of their own party. They will risk all ills ... rather than permit that happiness which is dispensed by other hands than their own."

He is not sure, he says, of being elected; but adds, perhaps sarcastically, that "whatever the issue ... may be I shall neither reproach myself, nor those at whose instance I have become a candidate, for the step I have taken. The exertions against me by" men in Virginia "and even from other states" are more "active and malignant than personal considerations would excite. If I fail," concludes Marshall, "I shall regret the failure more" because it will show "a temper hostile to our government ... than of" his own "personal mortification."[917]

The Federalists were convinced that these extreme Republican tactics were the beginning of a serious effort to destroy the National Government. "The late attempt of Virginia and Kentucky," wrote Hamilton, "to unite the State Legislatures in a direct resistance to certain laws of the Union can be considered in no other light than as an attempt to change the government"; and he notes the "hostile declarations" of the Virginia Legislature; its "actual preparation of the means of supporting them by force"; its "measures to put their militia on a more efficient footing"; its "preparing considerable arsenals and magazines"; and its "laying new taxes on its citizens" for these purposes.[918]

To Sedgwick, Hamilton wrote of the "tendency of the doctrine advanced by Virginia and Kentucky to destroy the Constitution of the United States," and urged that the whole subject be referred to a special committee of Congress which should deal with the Virginia and Kentucky Resolutions and justify the laws at which they were aimed. "No pains or expense," he insisted, "should be spared to disseminate this report.... A little pamphlet containing it should find its way into every house in Virginia."[919]

Thus the congressional campaign of 1798-99 drew to a close. Marshall neglected none of those personal and familiar campaign devices which the American electorate of that time loved so well. His enemies declared that he carried these to the extreme; at a rally in Hanover County he "threw billets into the bonfires and danced around them with his constituents";[920] he assured the voters that "his sentiments were the same as those of Mr. Clopton [the Republican candidate]"; he "spent several thousands of dollars upon barbecues."[921]

These charges of the besotted Callender,[922] written from his cell in the jail at Richmond, are, of course, entirely untrue, except the story of dancing about the bonfire. Marshall's answers to "Freeholder" dispose of the second; his pressing need of money for the Fairfax purchase shows that he could have afforded no money for campaign purposes; and, indeed, this charge was so preposterous that even the reckless Callender concludes it to be unworthy of belief.

From the desperate nature of the struggle and the temper and political habit of the times, one might expect far harder things to have been said. Indeed, as the violence of the contest mounted to its climax, worse things were charged or intimated by word of mouth than were then put into type. Again it is the political hack, John Wood, who gives us a hint of the baseness of the slanders that were circulated; he describes a scandal in which Marshall and Pinckney were alleged to have been involved while in Paris, the unhappy fate of a woman, her desperate voyage to America, her persecution and sad ending.[923]

Marshall was profoundly disgusted by the methods employed to defeat him. Writing to his brother a short time before election day he briefly refers to the Republican assaults in stronger language than is to be found in any other letter ever written by him:--

"The fate of my election is extremely uncertain. The means us'd to defeat it are despicable in the extreme and yet they succeed. Nothing I believe more debases or pollutes the human mind than faction [party]."[924]

The Republicans everywhere grew more confident as the day of voting drew near. Neutrality, the Alien and Sedition Laws, the expense of the provisional army, the popular fear and hatred of a permanent military force, the high taxes, together with the reckless charges and slanders against the Federalists and the perfect discipline exacted of the Republicans by Jefferson--all were rapidly overcoming the patriotic fervor aroused by the X. Y. Z. disclosures. "The tide is evidently turning ... from Marshall's romance" was the Republican commander's conclusion as the end of the campaign approached.[925]

For the first time Marshall's personal popularity was insufficient to assure victory. But the animosity of the Republicans caused them to make a false move which saved him at the very last. They circulated the report that Patrick Henry, the archenemy of "aristocrats," was against Marshall because the latter was one of this abhorred class. Marshall's friend, Archibald Blair, Clerk of the Executive Council, wrote Henry of this Republican campaign story.

Instantly both the fighter and the politician in Henry were roused; and the old warrior, from his retirement at Red Hill, wrote an extraordinary letter, full of affection for Marshall and burning with indignation at the Republican leaders. The Virginia Resolutions meant the "dissolution" of the Nation, wrote Henry; if that was not the purpose of the Republicans "they have none and act _ex tempore_." As to France, "her conduct has made it to the interest of the great family of mankind to wish the downfall of her present government." For the French Republic threatened to "destroy the great pillars of all government and social life--I mean virtue, morality, and religion," which "alone ... is the armour ... that renders us invincible." Also, said Henry, "infidelity, in its broad sense, under the name of philosophy, is fast spreading ... under the patronage of French manners and principles."

Henry makes "these prefatory remarks" to "point out the kind of character amongst our countrymen most estimable in my [his] eyes." The ground thus prepared, Henry discharges all his guns against Marshall's enemies. "General Marshall and his colleagues exhibited the American character as respectable. France, in the period of her most triumphant fortune, beheld them as unappalled. Her threats left them as she found them....

"Can it be thought that with these sentiments I should utter anything tending to prejudice General Marshall's election? Very far from it indeed. Independently of the high gratification I felt from his public ministry, he ever stood high in my esteem as a private citizen. His temper and disposition were always pleasant, his talents and integrity unquestioned.

"These things are sufficient to place that gentleman far above any competitor in the district for congress. But when you add the particular information and insight which he has gained, and is able to communicate to our public councils, it is really astonishing, that even blindness itself should hesitate in the choice....

"Tell Marshall I love him, because he felt and acted as a republican, as an American. The story of the Scotch merchants and old torys voting for him is too stale, childish, and foolish, and is a French _finesse;_ an appeal to prejudice, not reason and good sense.... I really should give him my vote for Congress, preferably to any citizen in the state at this juncture, one only excepted [Washington]."[926]

Henry's letter saved Marshall. Not only was the congressional district full of Henry's political followers, but it contained large numbers of his close personal friends. His letter was passed from hand to hand among these and, by election day, was almost worn out by constant use.[927]

But the Federalist newspapers gave Henry no credit for turning the tide; according to these partisan sheets it was the "anarchistic" action of the Kentucky and Virginia Legislatures that elected Marshall. Quoting from a letter of Bushrod Washington, who had no more political acumen than a turtle, a Federalist newspaper declared: "We hear that General Marshall's election is placed beyond all doubt. I was firmly convinced that the violent measures of our Legislature (which were certainly intended to influence the election) would favor the pretensions of the Federal candidates by disclosing the views of the opposite party."[928]

Late in April the election was held. A witness of that event in Richmond tells of the incidents of the voting which were stirring even for that period of turbulent politics. A long, broad table or bench was placed on the Court-House Green, and upon it the local magistrates, acting as election judges, took their seats, their clerks before them. By the side of the judges sat the two candidates for Congress; and when an elector declared his preference for either, the favored one rose, bowing, and thanked his supporter.

Nobody but freeholders could then exercise the suffrage in Virginia.[929] Any one owning one hundred acres of land or more in any county could vote, and this landowner could declare his choice in every county in which he possessed the necessary real estate. The voter did not cast a printed or written ballot, but merely stated, in the presence of the two candidates, the election officials, and the assembled gathering, the name of the candidate of his preference. There was no specified form for this announcement.[930]

"I vote for John Marshall."

"Thank you, sir," said the lank, easy-mannered Federalist candidate.

"Hurrah for Marshall!" shouted the compact band of Federalists.

"And I vote for Clopton," cried another freeholder.

"May you live a thousand years, my friend," said Marshall's competitor.

"Three cheers for Clopton!" roared the crowd of Republican enthusiasts.