Albert Beveridge - The Life of John Marshall (Volume 2 of 4)

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

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

"I learn that he [Hamilton] has expressed the strongest desire that Marshall should come into Congress from Richmond, declaring that there is no man in Virginia whom he wishes so much to see there; and I am told that Marshall has expressed half a mind to come. Hence I conclude that Hamilton has plyed him well with flattery & sollicitation and I think nothing better could be done than to make him a judge." 203 203 Jefferson to Madison, June 29, 1792; Works : Ford, vii, 129-30.

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

But Jefferson might have spared his pains to dispose of Marshall by cloistering him on the State bench. Nothing could have induced the busy lawyer to go to Congress at this period. It would have been fatal to his law practice 205 205 "The length of the last session has done me irreparable injury in my profession, as it has made an impression on the general opinion that two occupations are incompatible." (Monroe to Jefferson, June 17, 1792; Monroe's Writings : Hamilton, i, 230.) which he had built up until it was the largest in Richmond and upon the returns from which his increasing family depended for support. Six years later, Washington himself labored with Marshall for four days before he could persuade him to stand for the National House, and Marshall then yielded to his adored leader only as a matter of duty, at one of the Nation's most critical hours, when war was on the horizon. 206 206 See infra , chap. x.

The break-up of Washington's Cabinet was now approaching. Jefferson was keeping pace with the Anti-Nationalist sentiment of the masses – drilling his followers into a sternly ordered political force. "The discipline of the [Republican] party," wrote Ames, "is as severe as the Prussian." 207 207 Ames to Dwight, Jan., 1793; Works : Ames, i, 126-27. Jefferson and Madison had secured an organ in the "National Gazette," 208 208 Rives, iii, 192-94; and see McMaster, ii, 52-53; also Hamilton to Carrington, May 26, 1792; Works : Lodge, ix, 513-35. edited by Freneau, whom Jefferson employed as translator in the State Department. Through this paper Jefferson attacked Hamilton without mercy. The spirited Secretary of the Treasury keenly resented the opposition of his Cabinet associate which was at once covert and open.

In vain the President pathetically begged Jefferson for harmony and peace. 209 209 Washington to Jefferson, Aug. 23, 1792; Writings : Ford, xii, 174-75. This letter is almost tearful in its pleading. Jefferson responded with a bitter attack on Hamilton. "I was duped," said he, "by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me." 210 210 Jefferson to Washington, Sept. 9, 1792; Works : Ford, vii, 137 et seq. The quotation in the text refers to Jefferson's part in the deal fixing the site of the Capital and passing the Assumption Act. Compare with Jefferson's letters written at the time. ( Supra , 64.) It is impossible that Jefferson was not fully advised; the whole country was aroused over Assumption, Congress debated it for weeks, it was the one subject of interest and conversation at the seat of government, and Jefferson himself so testifies in his correspondence. To somewhat, but not much, better purpose did Washington ask Hamilton for "mutual forbearances." 211 211 Washington to Hamilton, Aug. 26, 1792; Writings : Ford, xii, 177-78. Hamilton replied with spirit, yet pledged his honor that he would "not, directly or indirectly, say or do a thing that shall endanger a feud." 212 212 Hamilton to Washington, Sept, 9, 1792; Works : Lodge, vii, 306.

The immense speculation, which had unavoidably grown out of the Assumption and Funding Acts, inflamed popular resentment against the whole financial statesmanship of the Federalists. 213 213 See Marshall, ii, 191-92. More material, this, for the hands of the artificer who was fashioning the Republican Party into a capacious vessel into which the people might pour all their discontent, all their fears, all their woes and all their hopes. And Jefferson, with practical skill, used for that purpose whatever material he could find.

Still more potter's earth was brought to Jefferson. The National Courts were at work. Creditors were securing judgments for debts long due them. In Virginia the debtors of British merchants, who for many years had been rendered immune from payment, were brought to the bar of this "alien" tribunal. Popular feeling ran high. A resolution was introduced into the House of Delegates requesting the Virginia Senators and Representatives in Congress to "adopt such measures as will tend, not only to suspend all executions and the proceedings thereon, but prevent any future judgments to be given by the Federal Courts in favor of British creditors until" Great Britain surrendered the posts and runaway negroes. 214 214 Journal, H.D. (Nov. 28, 1793), 101. Thus was the practical overthrow of the National Judiciary proposed. 215 215 Ib. The Legislature instructed Virginia's Senators and Representatives to endeavor to secure measures to "suspend the operation and completion" of the articles of the treaty of peace looking to the payment of British debts until the posts and negroes should be given up. ( Ib. , 124-25; also see Virginia Statutes at Large, New Series, i, 285.) Referring to this Ames wrote: "Thus, murder, at last, is out." (Ames to Dwight, May 6, 1794; Works : Ames, i, 143-44.)

Nor was this all. A State had been haled before a National Court. 216 216 Chisholm vs. Georgia, 2 Dallas, 419. The Republicans saw in this the monster "consolidation." The Virginia Legislature passed a resolution instructing her Senators and Representatives to "unite their utmost and earliest exertions" to secure a constitutional amendment preventing a State from being sued "in any court of the United States." 217 217 Journal, H.D. (1793), 92-99; also see Virginia Statutes at Large, New Series, i, 284. This was the origin of the Eleventh Amendment to the Constitution. The Legislature "Resolved, That a State cannot, under the Constitution of the United States, be made a defendant at the suit of any individual or individuals, and that the decision of the Supreme Federal Court, that a State may be placed in that situation, is incompatible with, and dangerous to the sovereignty and independence of the individual States, as the same tends to a general consolidation of these confederated republics." Virginia Senators were "instructed" to make "their utmost exertions" to secure an amendment to the Constitution regarding suits against States. The Governor was directed to send the Virginia resolution to all the other States. (Journal, H.D. (1793), 99.) The hostility to the National Bank took the form of a resolution against a director or stockholder of the Bank of the United States being a Senator or Representative in Congress. 218 218 Ib. , 125. But apparently this trod upon the toes of too many ambitious Virginians, for the word "stockholders" was stricken out. 219 219 Ib. ; also Statutes at Large, supra , 284.