Chapter XII: Chief Justice of the United States (1)

I consider General Marshall as more than a secretary--as a state
conservator. (Oliver Wolcott.)

To Mr. Jefferson I have felt insuperable objections. The morals of
the author of the letter to Mazzei cannot be pure. (Marshall.)

You have given an opinion in exact conformity with the wishes of
your party. Come forward and defend it. (George Hay to Marshall.)

"The P. requests Mr. McHenry's company for one minute," wrote President Adams to his Secretary of War on the morning of May 5, 1800.[1093] The unsuspicious McHenry at once responded. The President mentioned an unimportant departmental matter; and then, suddenly flying into a rage, abused his astounded Cabinet adviser in "outrageous"[1094] fashion and finally demanded his resignation.[1095] The meek McHenry resigned. To the place thus made vacant, the harried President, without even consulting him, immediately appointed Marshall, who "as immediately declined."[1096] Then Adams tendered the office to Dexter, who accepted.

And resign, too, demanded Adams of his Secretary of State.[1097] The doughty Pickering refused[1098]--"I did not incline to accept this insidious favor,"[1099] he reported to Hamilton. Adams dismissed him.[1100] Again the President turned to Marshall, who, deeply troubled, considered the offer. The Federalist Cabinet was broken to pieces, and a presidential election was at hand which would settle the fate of the first great political party in American history.

The campaign had already started. The political outlook was dark enough before the President's outburst; this shattering of his Cabinet was a wicked tongue of lightning from the threatening clouds which, after the flash, made them blacker still.[1101]

Few Presidents have ever faced a more difficult party condition than did John Adams when, by a humiliating majority of only three votes, he was elected in 1796. He succeeded Washington; the ruling Federalist politicians looked to Hamilton as their party chieftain; even Adams's Cabinet, inherited from Washington, was personally unfriendly to the President and considered the imperious New York statesman as their supreme and real commander. "I had all the officers and half the crew always ready to throw me overboard," accurately declared Adams some years later.[1102]

Adams's temperament was the opposite of Washington's, to which the Federalist leaders had so long been accustomed that the change exasperated them.[1103] From the very beginning they bound his hands. The new President had cherished the purpose of calling to his aid the ablest of the Republicans, but found himself helpless. "When I first took the Chair," bitterly records Adams, "I was extremely desirous of availing myself of Mr. Madison's abilities, ... and experience. But the violent Party Spirit of Hamilton's Friends, jealous of every man who possessed qualifications to eclipse him, prevented it. I could not do it without quarreling outright with my Ministers whom Washington's appointment had made my Masters."[1104]

On the other hand, the high Federalist politicians, most of whom were Hamilton's adherents, felt that Adams entertained for their leader exactly the same sentiments which the President ascribed to them. "The jealousy which the P.[resident] has felt of H.[amilton] he now indulges toward P.[inckney], W.[olcott] & to'd _very many of their friends_ who are suspected of having too much influence in the Community, & of not knowing how to appreciate his [Adams's] merits.... The Consequence is that his ears are shut to his best real friends & open to Flatterers, to Time servers & even to some Jacobins."[1105]

Adams, the scholar and statesman, but never the politician, was the last man to harmonize these differences. And Hamilton proved to be as inept as Adams.

After the President had dispatched the second mission to France, Hamilton's followers, including Adams's Cabinet, began intriguing in a furtive and vicious fashion to replace him with some other Federalist at the ensuing election. While, therefore, the President, as a personal matter, was more than justified in dismissing McHenry and Pickering (and Wolcott also[1106]), he chose a fatal moment for the blow; as a matter of political strategy he should have struck sooner or not at all.

At this late hour the great party task and duty of the President was, by any and every honorable means, to unite all Federalist factions for the impending battle with the eager, powerful, and disciplined Republicans. Frank and full conference, tolerance, and conciliation, were the methods now required. These might not have succeeded, but at least they would not have irritated still more the ragged edges of party dissension. Not only did the exasperated President take the opposite course, but his manner and conduct were acid instead of ointment to the raw and angry wounds.[1107]

This, then, was the state of the Federalist Party, the frame of mind of the President, and the distracted condition of the Cabinet, when Marshall was asked to become Secretary of State in the late spring of 1800. He was minded to refuse this high station as he had that of Secretary of War. "I incline to think Mr. Marshall will decline this office also," wrote McHenry to his brother.[1108] If he accepted, he would be loyal to the President--his nature made anything else impossible. But he was the personal friend of all the Federalist leaders, who, in spite of his disapproval of the Alien and Sedition Laws and of his dissent from his party's plans in Congress, in spite, even, of his support of the President's detested second mission to France,[1109] nevertheless trusted and liked him.

The President's selection of Marshall had been anticipated by the Republicans. "General Marshall ... has been nominated to hold the station of Secretary of War," said the "Aurora," in an article heavy with abuse of Pickering. "This ... however, is said to be but preparatory to General Marshall's appointment to succeed Mr. Pickering who is expected to resign."[1110]

Strangely enough the news of his elevation to the head of the Cabinet called forth only gentle criticism from the Republican press. "From what is said of Mr. Marshall," the "Aurora" thought that he was "as little likely to conciliate" France as Pickering. He "is well known to have been the disingenuous writer of all the X. Y. Z. Dispatches," which the Federalists had "confessed to be one of the best and most successful political _tricks_ that was ever _played off_.... General Marshall's fineering and var[ni]shing capacity" was "well known," said the "Aurora." "General Marshall consequently has been nominated and appointed.... In genuine federal principles, General Marshall is as inflexible as Mr. Pickering; but in the negotiation with France, the General may not have imbibed so strong prejudices--and, having been one of the Envoys to that Republic, he may be supposed to be more conversant with some of the points in dispute, than Col. Pickering, and consequently to be preferred.

"We find him very well spoken of in the _reformed Gazettes of France_," continues the "Aurora," "which being now under guardianship[1111] may be considered as speaking the language of the government--'_Le Bien Informé_,' after mentioning the motion Gen. M. made in announcing to Congress the death of Gen. Washington, adds--'This is the gentleman who some time since came as Envoy from the _United States_; and who so virtuously and so spiritedly refused to fill the pockets of some of _our gentry_ with Dutch inscriptions, and millions of livres.'"[1112]

For nearly two weeks Marshall pondered over the President's offer. The prospect was not inviting. It was unlikely that he could hold the place longer than three quarters of a year, for Federalist defeat in the presidential election was more than probable; and it seemed certain that the head of the Cabinet would gather political cypress instead of laurel in this brief and troubled period. Marshall consulted his friends among the Federalist leaders; and, finally, accepted the proffered portfolio. Thereupon the "Aurora," quoting Pickering's statement that the office of Secretary of State "was never better filled than by General Marshall," hopes that "Gen. Marshall will take care of his _accounts_," which that Republican paper had falsely charged that Pickering had manipulated corruptly.[1113]

Expressing the Republican temper the "Aurora" thus analyzes the new Federalist Cabinet: "The Secretary of the Treasury [Oliver Wolcott]" was "scarcely qualified to hold the second desk in a Mercantile Counting-House"; the Attorney-General [Charles Lee] was "without talents"; the Secretary of the Navy [Benjamin Stoddert] was "a small Georgetown politician ... cunning, gossiping, ... of no ... character or ... principles"; the Secretary of War [Samuel Dexter] was no more fit for the place than "his MOTHER"; and Marshall, Secretary of State, was "more distinguished as a _rhetorician_ and a _sophist_ than as a _lawyer_ and a _statesman_--sufficiently pliant to succeed in a corrupt court, too insincere to command respect, or confidence in a republic." However, said the "Aurora," Adams was "able to teach Mr. Marshall 'l'art diplomatique.'"[1114]

Some of the Federalist leaders were not yet convinced, it appears, of Marshall's party orthodoxy. Pinckney reassures them. Writing from Virginia, he informs McHenry that "Marshall with reluctance accepts, but you may rely on his federalism, & be certain that he will not unite with Jefferson & the Jacobins."[1115] Two months later even the Guy Fawkes of the Adams Cabinet declares himself more than satisfied: "If the gentlemen now in office [Marshall and Dexter] had declined," declares Wolcott, "rage, vexation & despair would probably have occasioned the most extravagant conduct[1116] [on the part of the President]." After Marshall had been at the head of the Cabinet for four months, Cabot writes that "Mr. Wolcott thinks Mr. Marshall accepted the secretaryship from good motives, and with a view of preserving union, and that he and Dexter, by _accepting_, have rendered the nation great service; for, if they had refused, we should have had--_Heaven alone knows whom!_ He thinks, however, as all must, that under the present chief they will be disappointed in their hopes, and that if Jefferson is President they will probably resign."[1117]

In view of "the temper of his [Adams's] mind," which, asserts the unfaithful Wolcott, was "revolutionary, violent, and vindictive, ... their [Marshall's and Dexter's] acceptance of their offices is the best evidence of their patriotism.... I consider Gen. Marshall and Mr. Dexter as more than secretaries--as state conservators--the value of whose services ought to be estimated, not only by the good they do, but by the mischief they have prevented. If I am not mistaken, however, Gen. Marshall will find himself out of his proper element."[1118]

No sooner was Marshall in the Secretary's chair than the President hastened to his Massachusetts home and his afflicted wife. Adams's part in directing the Government was done by correspondence.[1119] Marshall took up his duties with his characteristically serious, yet nonchalant, patience.

The National Capital had now been removed to Washington; and here, during the long, hot summer of 1800, Marshall remained amidst the steaming swamps and forests where the "Federal City" was yet to be built.[1120] Not till October did he leave his post, and then but briefly and on urgent private business.[1121]

The work of the State Department during this period was not onerous. Marshall's chief occupation at the Capital, it would appear, was to act as the practical head of the Government; and even his political enemies admitted that he did this well. Jefferson's most partial biographer says that "under the firm and steady lead [of Marshall and Dexter] ... the Government soon acquired an order, system, and character which it never had before possessed."[1122] Still, enough routine business came to his desk to give the new Secretary of State something to do in his own department.

Office-seeking, which had so annoyed Washington, still vexed Adams, although but few of these hornets' nests remained for him to deal with. "Your knowledge of persons, characters, and circumstances," wrote the President to Marshall concerning the applications for the office of United States Marshal for Maryland, "are so much better than mine, and my confidence in your judgment and impartiality so entire, that I pray you ... give the commission to him whom you may prefer."[1123] Adams favored the son of Judge Chase; but, on the advice of Stoddert of Maryland, who was Secretary of the Navy, Marshall decided against him: "Mr. Chase is a young man who has not yet acquired the public confidence and to appoint him in preference to others who are generally known and esteem'd, might be deem'd a mere act of favor to his Father. Mr. Stoddert supposes it ineligible to accumulate, without superior pretensions, offices in the same family."

Marshall generally trimmed his sails, however, to the winds of presidential preference. He undoubtedly influenced the Cabinet, in harmony with the President's wish, to concur in the pardon of Isaac Williams, convicted, under the Jay Treaty, of waging war on the high seas against Great Britain. Williams, though sailing under a French commission, was a pirate, and accumulated much wealth from his indiscriminate buccaneering.[1125] But the President wrote Marshall that because of "the man's generosity to American prisoners," and "his present poverty and great distress," he desired to pardon Williams.[1126]

Marshall informed the President that "repeated complaints are made to this department of the depredations committed by the Spaniards on the American commerce."[1127] The French outrages were continuing; indeed, our naval war with France had been going on for months and Spain was aiding the French. An American vessel, the Rebecca Henry, had been captured by a French privateer. Two Yankee sailors killed the French prize master in recapturing the vessel, which was taken again by another French sea rover and conveyed into a Spanish port. The daring Americans were imprisoned and threatened with death. Marshall thought "proper to remonstrate and to threaten retaliation if the prisoners should be executed."[1128]

The French ship Sandwich was captured by Captain Talbot, an American officer, in a Spanish port which Spain had agreed to transfer to France. Marshall considered this a violation of our treaty with Spain. "I have therefore directed the Sandwich to be given up to the minister of his Catholic Majesty,"[1129] he advised the President. The Spanish Minister thanked Marshall for his "justice" and "punctuality."[1130]

But Talbot would not yield his prize; the United States Marshal declined to act. Marshall took "measures[1131] which will," he reported to the President, "I presume occasion the delivery of this vessel, unless ... the government has no right to interpose, so far as captors are interested." Talbot's attitude perplexed Marshall; for, wrote he, "if the Executive of the United States cannot restore a vessel captured by a national ship, in violation of the law of nations, ... cause for war may be given by those who, of all others, are, perhaps, most apt to give it, and that department of the government, under whose orders they are plac'd will be unable to correct the mischief."[1132]

That picturesque adventurer, Bowles, whose plots and activities among the Indians had been a thorn to the National Government since the early part of Washington's Administration,[1133] again became annoying. He was stirring up the Indians against the Spanish possessions in Florida and repeated his claim of having the support of Great Britain. The Spaniards eagerly seized on this as another pretext for annoying the American Government. Measures were taken to break Bowles's influence with the Indians and to suppress the adventurer's party.[1134]

But, although the President was of the opinion that "the military forces ... should join [the Spaniards] in an expedition against Bowles,"[1135] Marshall did not think "that the Spaniards require any military aid; nor," continues he, "do I suppose they would be willing to receive it.... American troops in either of the Floridas wou'd excite very much their jealousy, especially when no specific requisition for them has been made, and when their own force is entirely competent to the object."[1136]

Liston, the British Minister, assured Marshall that the British Government had no connection with Bowles.[1137] But, irritated by gossip and newspaper stories, he offensively demanded that Marshall "meet these insidious calumnies by a flat and formal contradiction."[1138] Without waiting for the President's approval, Marshall quickly retorted:[1139] the "suspicions ... were not entirely unsupported by appearances." Newspaper "charges and surmises ... are always causes of infinite regret" to the Government "and wou'd be prevented if the means of prevention existed." But, said Marshall, the British Government itself was not blameless in that respect; "without going far back you may find examples in your own of the impunity with which a foreign friendly nation [America] may be grossly libel'd." As to the people's hostility to Great Britain, he tartly reminded the British Minister that "in examining the practice of your officers employ'd in the business of impressment, and of your courts of Vice Admiralty, you will perceive at least some of the causes, by which this temper may have been produc'd."[1140]

Sweden and Denmark proposed to maintain, jointly with the United States, a naval force in the Mediterranean to protect their mutual commerce from the Barbary Powers. Marshall declined because of our treaties with those piratical Governments; and also because, "until ... actual hostilities shall cease between" France and America, "to station American frigates in the Mediterranean would be a hazard, to which our infant Navy ought not perhaps to be exposed."[1141]

Incidents amusing, pathetic, and absurd arose, such as announcements of the birth of princes, to which the Secretary of State must prepare answers;[1142] the stranding of foreign sailors on our shores, whose plight we must relieve;[1143] the purchase of jewels for the Bey of Tunis, who was clamoring for the glittering bribes.[1144]

In such fashion went on the daily routine work of his department while Marshall was at the head of the Cabinet.

The only grave matters requiring Marshall's attention were the perplexing tangle of the British debts and the associated questions of British impressment of American seamen and interference with American commerce.

Under the sixth article of the Jay Treaty a joint commission of five members had been appointed to determine the debts due British subjects. Two of the Commissioners were British, two Americans, and the fifth chosen by lot. Chance made this deciding member British also. This Commission, sitting at Philadelphia, failed to agree. The treaty provided, as we have seen, that the United States should pay such British debts existing at the outbreak of the Revolutionary War as the creditors were not able to collect because of the sequestration laws and other "legal impediments," or because, during the operation of these statutes, the debtor had become insolvent.

Having a majority of the Commission, the British members made rules which threw the doors wide open.[1145] "They go the length to make the United States at once the debtor for all the _outstanding_ debts of British subjects contracted before the peace of 1783.... The amount of the claims presented exceeds nineteen millions of dollars."[1146] And this was done by the British representatives with overbearing personal insolence. Aside from the injustice of the British contention, this bullying of the American members[1147] made the work of the Commission all but impossible.

A righteous popular indignation arose. "The construction put upon the Treaty by the British Commissioners ... will never be submitted to by this country.... The [British] demand ... excites much ill blood."[1148] The American Commissioners refused to attend further sittings of the Board. Thereupon, the British Government withdrew its members of the associate Commission sitting in London, under the seventh article of the treaty, to pass upon claims of American citizens for property destroyed by the British.

The situation was acute. It was made still sharper by the appointment of our second mission to France. For, just as France had regarded Jay's mission and treaty as offensive, so now Great Britain looked upon the Ellsworth mission as unfriendly. As a way out of the difficulty, the American Government insisted upon articles explanatory of the sixth article of the Jay Treaty which would define exactly what claims the Commission should consider.[1149] The British Government refused and suggested a new commission.[1150]

This was the condition that faced Marshall when he became Secretary of State. War with Great Britain was in the air from other causes and the rupture of the two Commissions made the atmosphere thicker. On June 24, 1800, Marshall wrote the President that we ought "still to press an amicable explanation of the sixth article of our treaty"; perhaps during the summer or autumn the British Cabinet might feel "more favorable to an accommodation." But he "cannot help fearing that ... the British Ministry" intends "to put such a construction on the law of nations ... as to throw into their hands some equivalent to the probable claims of British creditors on the United States."[1151]

Lord Grenville then suggested to Rufus King, our Minister at London, that the United States pay a gross sum to Great Britain in settlement of the whole controversy.[1152] Marshall wondered whether this simple way out of the tangle could "afford just cause of discontent to France?"[1153] Adams thought not. "We surely have a right to pay our honest debts in the manner least inconvenient to ourselves and no foreign power has anything to do with it," said the President. Adams, however, foresaw many other difficulties;[1154] but Marshall concluded that, on the whole, a gross payment was the best solution in case the British Government could not be induced to agree to explanatory articles.[1155]

Thereupon Marshall wrote his memorable instructions to our Minister to Great Britain. In this, as in his letters to Talleyrand two years earlier, and in the notable one on British impressment, contraband, and freedom of the seas,[1156] he shows himself an American in a manner unusual at that period. Not the least partiality does he display for any foreign country; he treats them with exact equality and demands from all that they shall deal with the American Government as a _Nation_, independent of and unconnected with any of them.[1157]

The United States, writes Marshall, "can never submit to" the resolutions adopted by the British Commissioners, which put "new and injurious burthens" upon the United States "unwarranted by compact," and to which, if they had been stated in the treaty, "this Government never could and never would have assented." Unless the two Governments can "forget the past," arbitration cannot be successful; it is idle to discuss who committed the first fault, he says, when two nations are trying to adjust their differences.

The American Commissioners, declares Marshall, withdrew from the Board because the hostile majority established rules under which "a vast mass of cases never submitted to their consideration" could and would be brought in against American citizens. The proceedings of the British Commissioners were not only "totally unauthorized," but "were conducted in terms and in a spirit only calculated to destroy all harmony between the two nations."

The cases which the Board could consider were distinctly and specifically stated in the fifth article of the treaty. Let the two Governments agree to an explanation, instead of leaving the matter to wrangling commissioners. But, if Minister King finds that the British Government will not agree to explanatory articles, he is authorized to substitute "a gross sum in full compensation of all claims made or to be made on this Government."

It would, of course, be difficult to agree upon the amount. "The extravagant claims which the British creditors have been induced to file," among which "are cases ... so notoriously unfounded that no commissioners retaining the slightest degree of self-respect can establish them; ... others where the debt has been fairly and voluntarily compromised by agreement between creditor and debtor"; others "where the money has been paid in specie, and receipts in full given"; and still others even worse, all composing that "enormous mass of imagined debt," will, says Marshall, make it hard to agree on a stated amount.[1158]

The British creditors, he asserts, had been and then were proceeding to collect their debts through the American courts, and "had they not been seduced into the opinion that the trouble and expense inseparable from the pursuit of the old debts, might be avoided by one general resort to the United States, it is believed they would have been still more rapidly proceeding in the collection of the very claims, so far as they are just, which have been filed with the commissioners. They meet with no objection, either of law or fact, which are not common to every description of creditors, in every country.... Our judges are even liberal in their construction of the 4th article of the treaty of peace" and have shown "no sort of partiality for the debtors."

Marshall urges this point with great vigor, and concludes that, if a gross amount can be agreed upon, the American Minister must see to it, of course, that this sum is made as small as possible, not "to exceed one million sterling" in any event.[1159] In a private letter, Marshall informs King that "the best opinion here is that not more than two million Dollars could justly be chargeable to the United States under the treaty."[1160]

Adams was elated by Marshall's letter. "I know not," he wrote, "how the subject could have been better digested."[1161]

Almost from the exchange of ratifications of the Jay compact, impressment of American seamen by the British and their taking from American ships, as contraband, merchandise which, under the treaty, was exempt from seizure, had injured American commerce and increasingly irritated the American people.[1162] The brutality with which the British practiced these depredations had heated still more American resentment, already greatly inflamed.[1163]

In June, 1799, Marshall's predecessor had instructed King "to persevere ... in denying the right of British Men of War to take from our Ships of War any men whatever, and from our merchant vessels any Americans, or foreigners, or even Englishmen."[1164] But the British had disregarded the American Minister's protests and these had now been entirely silenced by the break-up of the British Debts Commissions.

Nevertheless, Marshall directed our Minister at the Court of St. James to renew the negotiations. In a state paper which, in ability, dignity, and eloquence, suggests his famous Jonathan Robins speech and equals his memorial to Talleyrand, he examines the vital subjects of impressment, contraband, and the rights of neutral commerce.

It was a difficult situation that confronted the American Secretary of State. He had to meet and if possible modify the offensive, determined, and wholly unjust British position by a statement of principles based on fundamental right; and by an assertion of America's just place in the world.

The spirit of Marshall's protest to the British Government is that America is an independent nation, a separate and distinct political entity, with equal rights, power, and dignity with all other nations[1165]--a conception then in its weak infancy even in America and, apparently, not entertained by Great Britain or France. These Powers seemed to regard America, not as a sovereign nation, but as a sort of subordinate state, to be used as they saw fit for their plans and purposes.

But, asserts Marshall, "the United States do not hold themselves in any degree responsible to France or to Britain for their negotiations with the one or the other of these Powers, but are ready to make amicable and reasonable explanations with either.... An exact neutrality ... between the belligerent Powers" is the "object of the American Government.... Separated far from Europe, we mean not to mingle in their quarrels.... We have avoided and we shall continue to avoid any ... connections not compatible with the neutrality we profess.... The aggressions, sometimes of one and sometimes of another belligerent power have forced us to contemplate and prepare for war as a probable event.... But this is a situation of necessity, not of choice." France had compelled us to resort to force against her, but in doing so "our preference for peace was manifest"; and now that France makes friendly advances, "America meets those overtures, and, in doing so, only adheres to her pacific system."

Marshall lays down those principles of international conduct which have become the traditional American policy. Reviewing our course during the war between France and Great Britain, he says: "When the combination against France was most formidable, when, if ever, it was dangerous to acknowledge her new Government" and maintain friendly relations with the new Republic, "the American Government openly declared its determination to adhere to that state of impartial neutrality which it has ever since sought to maintain; nor did the clouds which, for a time, lowered over the fortunes of the [French] Republic, in any degree shake this resolution. When victory changed sides and France, in turn, threatened those who did not arrange themselves under her banners, America, pursuing with undeviating step the same steady course," nevertheless made a treaty with Great Britain; "nor could either threats or artifices prevent its ratification."

"At no period of the war," Marshall reminds the British Government, "has France occupied such elevated ground as at the very point of time when America armed to resist her: triumphant and victorious everywhere, she had dictated a peace to her enemies on the continent and had refused one to Britain." On the other hand, "in the reverse of her fortune, when defeated both in Italy and on the Rhine, in danger of losing Holland, before the victory of Massena had changed the face of the last campaign, and before Russia had receded from the coalition against her, the present negotiation [between America and France] was resolved on. During this pendency," says Marshall, "the state of the war has changed, but the conduct of the United States" has not.

"Our terms remain the same: we still pursue peace. We still embrace it, if it can be obtained without violating our national honor or our national faith; but we will reject without hesitation all propositions which may compromit the one or the other."

All this, he declares, "shows how steadily it [the American Government] pursues its system [Neutrality and peace] without regarding the dangers from the one side or the other, to which the pursuit may be exposed. The present negotiation with France is a part of this system, and ought, therefore, to excite in Great Britain no feelings unfriendly to the United States."

Marshall then takes up the British position as to contraband of war. He declares that even under the law of nations, "neutrals have a right to carry on their usual commerce; belligerents have a right to prevent them from supplying the enemy with instruments of war." But the eighteenth article of the treaty itself covered the matter in express terms, and specifically enumerated certain things as contraband and also "generally whatever may serve _directly_ to the equipment of vessels." Yet Great Britain had ruthlessly seized and condemned American vessels regardless of the treaty--had actually plundered American ships of farming material upon the pretense that these articles might, by some remote possibility, be used "to equip vessels." The British contention erased the word "_directly_"[1166] from the express terms of the treaty. "This construction we deem alike unfriendly and unjust," he says. Such "garbling a compact ... is to substitute another agreement for that of the parties...."

"It would swell the list of contraband to" suit British convenience, contrary to "the laws and usages of nations.... It would prohibit ... articles ... necessary for the ordinary occupations of men in peace" and require "a surrender, on the part of the United States, of rights in themselves unquestionable, and the exercise of which is essential to themselves.... A construction so absurd and so odious ought to be rejected."[1167]

Articles, "even if contraband," should not be confiscated, insists Marshall, except when "they are attempted to be carried to an enemy." For instance, "vessels bound to New Orleans and laden with cargoes proper for the ordinary use of the citizens of the United States who inhabit the Mississippi and its waters ... cannot be justly said to carry those cargoes to an enemy.... Such a cargo is not a just object of confiscation, although a part of it should also be deemed proper for the equipment of vessels, because it is not attempted to be carried to an enemy."

On the subject of blockade, Marshall questions whether "the right to confiscate vessels bound to a blockaded port ... can be applied to a place not completely invested by land as well as by sea." But waiving "this departure from principle," the American complaint "is that ports not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockage, and vessels attempting to enter therein have been seized, and, on that account, confiscated." This "vexation ... may be carried, if not resisted, to a very injurious extent."

If neutrals submit to it, "then every port of the belligerent powers may at all times be declared in that [blockaded] state and the commerce of neutrals be thereby subjected to universal capture." But if complete blockage be required, then "the capacity to blockade will be limited by the naval force of the belligerent, and, of consequence, the mischief to neutral commerce can not be very extensive. It is therefore of the last importance to neutrals that this principle be maintained unimpaired."

The British Courts of Vice-Admiralty, says Marshall, render "unjust decisions" in the case of captures. "The temptation which a rich neutral commerce offers to unprincipled avarice, at all times powerful, becomes irresistible unless strong and efficient restraints be imposed by the Government which employs it." If such restraints are not imposed, the belligerent Government thereby "causes the injuries it tolerates." Just this, says Marshall, is the case with the British Government.

For "the most effectual restraint is an impartial judiciary, which will decide impartially between the parties and uniformly condemn the captor in costs and damages, where the seizure has been made without probable cause." If this is not done, "indiscriminate captures will be made." If an "unjust judge" condemns the captured vessel, the profit is the captor's; if the vessel is discharged, the loss falls upon the owner. Yet this has been and still is the indefensible course pursued against American commerce.

"The British Courts of Vice Admiralty, whatever may be the case, seldom acquit and when they do, costs and damages for detention are never awarded." Marshall demands that the British Government shall "infuse a spirit of justice and respect for law into the Courts of Vice Admiralty"--this alone, he insists, can check "their excessive and irritating vexations.... This spirit can only be infused by uniformly discountenancing and punishing those who tarnish alike the seat of justice and the honor of their country, by converting themselves from judges into mere instruments of plunder." And Marshall broadly intimates that these courts are corrupt.

As to British impressment, "no right has been asserted to impress" Americans; "yet they are impressed, they are dragged on board British ships of war with the evidence of citizenship in their hands, and forced by violence there to serve until conclusive testimonials of their birth can be obtained." He demands that the British Government stop this lawless, violent practice "by punishing and frowning upon those who perpetrate it. The mere release of the injured, after a long course of service and of suffering, is no compensation for the past and no security for the future.... The United States therefore require positively that their seamen ... be exempt from impressments." Even "alien seamen, not British subjects, engaged in our merchant service ought to be equally exempt with citizens from impressments.... Britain has no pretext of right to their persons or to their service. To tear them, then, from our possession is, at the same time, an insult and an injury. It is an act of violence for which there exists no palliative."

Suppose, says Marshall, that America should do the things Great Britain was doing? "Should we impress from the merchant service of Britain not only Americans but foreigners, and even British subjects, how long would such a course of injury, unredressed, be permitted to pass unrevenged? How long would the [British] Government be content with unsuccessful remonstrance and unavailing memorials?"

Or, were America to retaliate by inducing British sailors to enter the more attractive American service, as America might lawfully do, how would Great Britain look upon it? Therefore, concludes Marshall, "is it not more advisable to desist from, and to take effectual measures to prevent an acknowledged wrong, than be perseverant in that wrong, to excite against themselves the well founded resentment of America, and to force our Government into measures which may possibly terminate in an open rupture?"[1168]

Thus boldly and in justifiably harsh language did Marshall assert American rights as against British violation of them, just as he had similarly upheld those rights against French assault. Although France desisted from her lawless practices after Adams's second mission negotiated with Bonaparte an adjustment of our grievances,[1169] Great Britain persisted in the ruthless conduct which Marshall and his successors denounced until, twelve years later, America was driven to armed resistance.

Working patiently in his stuffy office amidst the Potomac miasma and mosquitoes during the sweltering months, it was Marshall's unhappy fate to behold the beginning of the break-up of that great party which had built our ship of state, set it upon the waters, navigated it for twelve tempestuous years, through the storms of domestic trouble and foreign danger.[1170] He was powerless to stay the Federalist disintegration. Even in his home district Marshall's personal strength had turned to water, and at the election of his successor in Congress, his party was utterly crushed. "Mr. Mayo, who was proposed to succeed Gen. Marshall, lost his election by an immense majority," writes the alert Wolcott; "was grossly insulted in public by a brother-in-law of the late Senator Taylor, and was afterwards wounded by him in a duel. This is a specimen of the political influence of the Secretary of State in his own district."[1171]

Marshall himself was extremely depressed. "Ill news from Virginia," he writes Otis. "To succeed me has been elected by an immense majority one of the most decided democrats[1172] in the union." Upon the political horizon Marshall beheld only storm and blackness: "In Jersey, too, I am afraid things are going badly. In Maryland the full force of parties will be tried but the issue I should feel confident would be right if there did not appear to be a current setting against us of which the force is incalculable. There is a tide in the affairs of nations, of parties, and of individuals. I fear that of real Americanism is on the ebb."[1173] Never, perhaps, in the history of political parties was calm, dispassionate judgment and steady courage needed more than they were now required to avert Federalist defeat.

Yet in all the States revenge, apprehension, and despair blinded the eyes and deranged the councils of the supreme Federalist managers.[1174] The voters in the party were confused and angered by the dissensions of those to whom they looked for guidance.[1175] The leaders agreed that Jefferson was the bearer of the flag of "anarchy and sedition," captain of the hordes of "lawlessness," and, above all, the remorseless antagonist of Nationalism. What should be done "by the friends of order and true liberty to keep the [presidential] chair from being occupied by an enemy [Jefferson] of both?" was the question which the distressed Federalist politicians asked one another.[1176]

In May, Hamilton thought that "to support _Adams_ and _Pinckney_ equally is the only thing that can save us from the fangs of _Jefferson_."[1177] Yet, six days later, Hamilton wrote that "_most_ of the most _influential men_ of that [Federalist] party consider him [Adams] as a very _unfit_ and _incapable_ character.... My mind is made up. I will never more be responsible for him by any direct support, even though the consequence should be the election of _Jefferson_.... If the cause is to be sacrificed to a weak and perverse man, I withdraw from the party."[1178]

As the summer wore on, so acrimonious grew the feeling of Hamilton's supporters toward the President that they seriously considered whether his reëlection would not be as great a misfortune as the success of the Republican Party.[1179] Although the Federalist caucus had agreed to support Adams and Pinckney equally as the party's candidates for President,[1180] yet the Hamiltonian faction decided to place Pinckney in the presidential chair.[1181]

But, blindly as they groped, their failing vision was still clear enough to discern that the small local leaders in New England, which was the strong Federalist section of the country, were for Adams;[1182] and that everywhere the party's rank and file, though irritated and perplexed, were standing by the President. His real statesmanship had made an impression on the masses of his party: Dayton declared that Adams was "the most popular man in the United States."[1183] Knox assured the President that "the great body of the federal sentiment confide implicitly in your knowledge and virtue.... They will ... cling to you in preference to all others."[1184]

Some urged Adams to overthrow the Hamiltonian cabal which opposed him. "Cunning half Jacobins assure the President that he can combine the virtuous and moderate men of both parties, and that all our difficulties are owing to an oligarchy which it is in his power to crush, and thus acquire the general support of the nation,"[1185] testifies Wolcott.

The President heeded this mad counsel. Hamilton and his crew were not the party, said Adams; they were only a faction and a "British faction" at that.[1186] He would "rip it up."[1187] The justly angered President, it appears, thought of founding a new party, an American Party, "a constitutionalist party."[1188] It was said that the astute Jefferson so played upon him that Adams came to think the engaging but crafty Virginian aspired only to be and to be known as the first lieutenant of the Massachusetts statesman.[1189] Adams concluded that he could make up any Federalist loss at the polls by courting the Republicans, whose "friendship," wrote Ames, "he seeks for himself."[1190]

But the Republicans had almost recovered from the effect of the X. Y. Z. disclosures. "The _rabies canina_ of Jacobinism has gradually spread ... from the cities, where it was confined to docks and mob, to the country,"[1191] was the tidings of woe that Ames sent to Gore. The Hamiltonian leaders despaired of the continuance of the Government and saw "a convulsion of revolution" as the result of "excessive democracy."[1192] The union of all Federalist votes was "the only measure by which the government can be preserved."[1193] But Federalist union! As well ask shattered glass to remould itself!

The harmonious and disciplined Republicans were superbly led. Jefferson combined their battle-cries of the last two years into one mighty appeal--simple, affirmative, popular. Peace, economy, "freedom of the press, freedom of religion, trial by jury, ... no standing armies," were the issues he announced, together with the supreme issue of all, States' Rights. Upon this latter doctrine Jefferson planted all the Republican guns and directed their fire on "centralization" which, said he, would "monarchise" our Government and make it "the most corrupt on earth," with increased "stock-jobbing, speculating, plundering, office-holding, and office-hunting."[1194]

The Federalists could reply but feebly. The tax-gatherer's fingers were in every man's pockets; and Adams had pardoned the men who had resisted the collectors of tribute. The increased revenue was required for the army and navy, which, thought the people, were worse than needless[1195] if there were to be no war and the President's second mission made hostilities improbable (they had forgotten that this very preparation had been the principal means of changing the haughty attitude of France). The Alien and Sedition Laws had infuriated the "foreign" voters[1196] and alarmed thousands of American-born citizens. Even that potent bribe of free institutions, the expectation of office, could no longer be employed effectively with the party workers, who, testifies Ebenezer Huntington, were going over "to Jefferson in hopes to partake of the loaves and fishes, which are to be distributed by the new President."[1197]

The Federalist leaders did nothing, therefore, but write letters to one another denouncing the "Jacobins" and prophesying "anarchy." "Behold France--what is theory here is fact there."[1198] Even the tractable McHenry was disgusted with his stronger associates. "Their conduct," said he, "is tremulous, timid, feeble, deceptive & cowardly. They write private letters. To whom? To each other. But they do nothing.... If the party recover its pristine energy & splendor, shall I ascribe it to such cunning, paltry, indecisive, backdoor conduct?"[1199]

What had become of the French mission?[1200] Would to God it might fail! That outcome might yet save the Federalist fortunes. "If Mr. Marshall has any [news of the second French mission] beg him to let it out," implored Chauncey Goodrich.[1201] But Marshall had none for public inspection. The envoys' dispatches of May 17,[1202] which had reached him nearly seven weeks afterward, were perplexing. Indeed, Marshall was "much inclined to think that ... the French government may be inclined to protract it [the negotiation] in the expectation that events in America[1203] may place them on higher ground than that which they now occupy."[1204] To Hamilton, he cautiously wrote that the dispatches contained nothing "on which a positive opinion respecting the result of that negotiation can be formed."[1205]

But he told the President that he feared "the impression which will probably be made by the New York Election,"[1206] and that European military developments might defeat the mission's purpose. He advised Adams to consider what then should be done. Should "hostilities against France with the exception of their West India privateers ... be continued if on their part a change of conduct shall be manifest?"[1207] Adams was so perturbed that he asked Marshall whether, in case the envoys returned without a treaty, Congress ought not to be asked to declare war, which already it had done in effect. For, said Adams, "the public mind cannot be held in a state of suspense; public opinion must be always a decided one whether right or not."[1208]

Marshall counseled patience and moderation. Indeed, he finally informed Adams that he hoped for an adjustment: "I am greatly disposed to think," he advised the President, "that the present [French] government is much inclined to correct, at least in part, the follies of the past. Of these, none were perhaps more conspicuous or more injurious to the french nation, than their haughty and hostile conduct to neutrals. Considerable retrograde steps in this respect have already been taken, and I expect the same course will be continued." If so, "there will exist no cause for war, but to obtain compensation for past injuries"; and this, Marshall is persuaded, is not "a sufficient motive" for war.[1209]

To others, however, Marshall was apprehensive: "It is probable that their [the French] late victories and the hope which many of our papers [Republican] are well calculated to inspire, that America is disposed once more to crouch at her [France's] feet may render ineffectual our endeavors to obtain peace."[1210]

But the second American mission to France had dealt with Bonaparte himself, who was now First Consul. The man on horseback had arrived, as Marshall had foreseen; a statesman as well as a soldier was now the supreme power in France. Also, as we have seen, the American Government had provided for an army and was building a navy which, indeed, was even then attacking and defeating French ships. "America in arms was treated with some respect," as Marshall expresses it.[1211] At any rate, the American envoys did not have to overcome the obstacles that lay in the way two years earlier and the negotiations began without difficulty and proceeded without friction.

Finally a treaty was made and copies sent to Marshall, October 4, 1800.[1212] The Republicans were rejoiced; the Federalist politicians chagrined.[1213] Hamilton felt that in "the general politics of the world" it "is a make-weight in the wrong scale," but he favored its ratification because "the contrary ... would ... utterly ruin the federal party," and "moreover it is better to close the thing where it is than to leave it to a Jacobin to do much worse."[1214]

Marshall also advised ratification, although he was "far, very far, from approving"[1215] the treaty. The Federalists in the Senate, however, were resolved not to ratify it; they were willing to approve only with impossible amendments. They could not learn the President's opinion of this course; as to that, even Marshall was in the dark. "The Secretary of State knows as little of the intentions of the President as any other person connected with the government."[1216] Finally the Senate rejected the convention; but it was so "extremely popular," said the Republicans, that the Federalist Senators were "frightened" to "recant."[1217] They reversed their action and approved the compact. The strongest influence to change their attitude, however, was not the popularity of the treaty, but the pressure of the mercantile interests which wanted the business-destroying conflict settled.[1218]

The Hamiltonian group daily became more wrathful with the President. In addition to what they considered his mistakes of policy and party blunders, Adams's charge that they were a "British faction" angered them more and more as the circulation of it spread and the public credited it. Even "General M[arshall] said that the hardest thing for the Federalists to bear was the charge of British influence."[1219] That was just what the "Jacobins" had been saying all along.[1220] "If this cannot be counteracted, our characters are the sacrifice," wrote Hamilton in anger and despair.[1221] Adams's adherents were quite as vengeful against his party enemies. The rank and file of the Federalists were more and more disgusted with the quarrels of the party leaders. "I cannot describe ... how broken and scattered your federal friends are!" lamented Troup. "We have no rallying-point; and no mortal can divine where and when we shall again collect our strength.... Shadows, clouds, and darkness rest on our future prospects."[1222] The "Aurora" chronicles that "the disorganized state of the anti-Republican [Federalist] party ... is scarcely describable."[1223]

Marshall, alone, was trusted by all; a faith which deepened, as we shall see, during the perplexing months that follow. He strove for Federalist union, but without avail. Even the most savage of the President's party enemies felt that "there is not a man in the U. S. of better intentions [than Marshall] and he has the confidence of all good men--no man regrets more than he does the disunion which has taken place and no one would do more to heal the wounds inflicted by it. In a letter ... he says 'by union we can securely maintain our ground--without it we must sink & with us all sound correct American principle.' His efforts will ... prove ineffectual."[1224]

It seems certain, then, that Hamilton did not consult the one strong man in his party who kept his head in this hour of anger-induced madness. Yet, if ever any man needed the advice of a cool, far-seeing mind, lighted by a sincere and friendly heart, Hamilton required it then. And Marshall could and would have given it. But the New York Federalist chieftain conferred only with those who were as blinded by hate as he was himself. At last, in the midst of an absurd and pathetic confusion of counsels,[1225] Hamilton decided to attack the President, and, in October, wrote his fateful and fatal tirade against Adams.[1226] It was an extravaganza of party folly. It denounced Adams's "extreme egotism," "terrible jealousy," "eccentric tendencies," "violent rage"; and questioned "the solidity of his understanding." Hamilton's screed went back to the Revolution to discover faults in the President. Every act of his Administration was arraigned as a foolish or wicked mistake.

This stupid pamphlet was not to be made public, but to be circulated privately among the Federalist leaders in the various States. The watchful Burr secured a copy[1227] and published broadcast its bitterest passages. The Republican politicians shook with laughter; the Republican masses roared with glee.[1228] The rank and file of the Federalists were dazed, stunned, angered; the party leaders were in despair. Thus exposed, Hamilton made public his whole pamphlet. Although its purpose was to further the plan to secure for Pinckney more votes than would be given Adams, it ended with the apparent advice to support both. Absurd conclusion! There might be intellects profound enough to understand why it was necessary to show that Adams was not fit to be President and yet that he should be voted for; but the mind of the average citizen could not fathom such ratiocination. Hamilton's influence was irreparably impaired.[1229] The "Washington Federalist" denounced his attack as "the production of a disappointed man" and declared that Adams was "much his superior as a statesman."[1230]

The campaign was a havoc of virulence. The Federalists' hatred for one another increased their fury toward the compact Republicans, who assailed their quarreling foes with a savage and unrestrained ferocity. The newspapers, whose excesses had whipped even the placid Franklin into a rage a few years before, now became geysers spouting slander, vituperation, and unsavory[1231] insinuations. "The venal, servile, base and stupid"[1232] "newspapers are an overmatch for any government," cried Ames. "They will first overawe and then usurp it."[1233] And Noah Webster felt that "no government can be durable ... under the licentiousness of the press that now disgraces our country."[1234] Discordant Federalists and harmonious Republicans resorted to shameful methods.[1235] "Never ... was there such an Election in America."[1236]

As autumn was painting the New England trees, Adams, still tarrying at his Massachusetts home, wrote Marshall to give his "sentiments as soon as possible in writing" as to what the President should say to Congress when it met December 3.[1237] Three days later, when his first request was not yet halfway to Washington, Adams, apparently forgetful of his first letter, again urged Marshall to advise him as President in regard to his forthcoming farewell address to the National Legislature.[1238]