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

Such was the public temper in Virginia, as accurately if bombastically expressed by the youthful Thompson, when the elections for the Legislature of 1795 were held. It was certain that the General Assembly would take drastic and hostile action against the treaty; and, perhaps, against Washington himself, in case the Republicans secured a majority in that body. The Federalists were in terror and justly so; for the Republicans, their strength much increased by the treaty, were aggressive and confident.

The Federalist candidate in Richmond was the member of the Legislature whom the Federalists had succeeded in electing after Marshall's retirement three years before. He was Marshall's intimate friend and a stanch supporter of Washington's Administration. But it appears that in the present crisis his popularity was not sufficient to secure his election, nor his courage robust enough for the stern fight that was certain to develop in the General Assembly.

The polls were open and the voting in progress. Marshall was among the first to arrive; and he announced his choice. 373 373 The voting was viva voce . See infra , chap. x. Upon his appearance "a gentleman demanded that a poll be opened for Mr. Marshall." 374 374 Undoubtedly this gentleman was one of the perturbed Federalist managers. Marshall, of course, indignantly refused; he had promised to support his friend, he avowed, and now to become a candidate was against "his wishes and feeling and honor." But Marshall promised that he would stand for the Legislature the following year.

Thereupon Marshall left the polls and went to the court-house to make an argument in a case then pending. No sooner had he departed than a poll was opened for him in spite of his objections; 375 375 North American Review , xxvi, 22. While this story seems improbable, no evidence has appeared which throws doubt upon it. At any rate, it serves to illustrate Marshall's astonishing popularity. he was elected; and in the evening was told of the undesired honor with which the freeholders of Richmond had crowned him.

Washington was apprehensive of the newly elected Legislature. He anxiously questioned Carrington "as to the temper of our Assembly." The latter reported that he did not "expect an extravagant conduct during the session." 376 376 Carrington's reports to Washington were often absurd in their optimistic inaccuracy. They are typical of those which faithful office-holding politicians habitually make to the appointing power. For instance, Carrington told Washington in 1791 that, after traveling all over Virginia as United States Marshal and Collector of Internal Revenue, he was sure the people were content with Assumption and the whiskey tax (Washington's Diary : Lossing, footnote to 166), when, as a matter of fact, the State was boiling with opposition to those very measures. He thought that "the spirit of dissatisfaction is considerably abated abroad" (throughout Virginia and away from Richmond), because recent attempts to hold county and district meetings "for the avowed purpose of condemning the Administration & the Treaty" had been "abortive." It seemed to him, however, that "there is a very general impression unfavorable to the Treaty, owing to the greater industry of those who revile, over the supporters of it." 377 377 The mingling, in the Republican mind, of the Jay Treaty, Neutrality, unfriendliness to France, and the Federalist Party is illustrated in a toast at a dinner in Lexington, Virginia, to Senator Brown, who had voted against the treaty: "The French Republic – May every power or party who would attempt to throw any obstacle in the way of its independence or happiness receive the reward due to corruption." ( Richmond and Manchester Advertiser , Oct. 15, 1795.)

Still, Carrington was not sure about the Legislature itself; for, as he said, "it has every year for several past been observable, that, at meeting [of the Legislature] but few hot heads were to be seen, while the great body were rational; but in the course of the session it has seldom happened otherwise than that the spirit of party has been communicated so as to infect a majority. In the present instance I verily believe a question put on this day [the first day of the session] for making the Treaty a subject of consideration would be negatived – yet sundry members are here who will attempt every injury to both the Administration & the Treaty. The party will want ability in their leaders… General Lee, C. Lee, Gen ḷMarshall & Mr. Andrews will act with ability on the defensive." 378 378 Carrington to Washington, Nov. 10, 1795; MS., Lib. Cong.

Three days later the buoyant official advised the President that the Republicans doubted their own strength and, at worst, would delay their attack "in order that, as usual, a heat may be generated." Marshall was still busy searching for a properly qualified person to appoint to the unfilled vacancy in the office of Attorney-General; and Carrington tells Washington that "Gen ḷMarshall and myself have had a private consultation" on that subject and had decided to recommend Judge Blain. But, he adds, "The suggestion rests entirely with Gen ḷM[arshall] & myself & will there expire, should you, for any consideration, forbear to adopt it." His real message of joy, however, was the happy frame of mind of the Legislature. 379 379 Ib. , Nov. 13, 1795; MS.; Lib. Cong. [381] The resolution "was warmly agitated three whole days." (Randolph to Jefferson, Nov. 22, 1795; Works : Ford, viii, footnote to 197.)

Alas for this prophecy of optimism! The Legislature had not been in session a week before the anti-Administration Banquo's ghost showed its grim visage. The Republicans offered a resolution approving the vote of Virginia Senators against the Jay Treaty. For three days the debate raged. Marshall led the Federalist forces. "The support of the Treaty has fallen altogether on Gen ḷMarshall and Mr. Chas. Lee," Carrington reports to Washington. 380 380 Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

Among the many objections to the treaty the principal one, as we have seen, was that it violated the Constitution. The treaty regulated commerce; the Constitution gave that power to Congress, which included the House of Representatives; yet the House had not been consulted. The treaty involved naturalization, the punishment of piracies, the laying of imposts and the expenditure of money – all of these subjects were expressly placed under the control of Congress and one of them 381 381 See debates; Annals , 4th Cong., 1st Sess., 423-1291; also see Petersburg Resolutions; American Remembrancer , i, 102-07. (the raising and expending of public money) must originate in the House; yet that popular branch of the Government had been ignored. The treaty provided for a quasi-judicial commission to settle the question of the British debts; yet "all the power of the Federal government with respect to debts is given [Congress] by a concise article of the Constitution… What article of the Constitution authorizes President and Senate to establish a judiciary colossus which is to stand with one foot on America and the other on Britain, and drag the reluctant governments of those countries to the altar of justice?" 382 382 Thompson's address, Aug. 1, 1795, at Petersburg; ib. , 21 et seq.

Thus the question was raised whether a commercial treaty, or an international compact requiring an appropriation of money, or, indeed, any treaty whatever in the execution of which any action of any kind on the part of the House of Representatives was necessary, could be made without the concurrence of the House as well as the Senate. On this, the only vital and enduring question involved, Marshall's views were clear and unshakable.