John Marshall

by Harlow Giles Unger

  Morris had been in charge of government finances during the war, but his own finances had suffered so badly that he needed to return to private life to rebuild his fortune. Jay had headed foreign affairs under the confederation and authored five of the Federalist essays that made so compelling an argument for constitutional ratification, but he had no inclination to serve as a mere extension of Washington’s overarching persona. Jay revered the President but had his eye on the US Supreme Court, where he would be free to act independently, and Washington finally named him the nation’s first Chief Justice.

  For treasury secretary Washington turned next to the young lawyer Alexander Hamilton—one of the heroic Men of Monmouth who had been a courageous officer throughout the Revolutionary War and one of Washington’s most trusted aides-de-camp.

  Twenty-three years younger than the President, Hamilton studied law after the war and married into a politically powerful family with strong ties to New York’s business and banking communities. A passionate advocate of the Constitution, Hamilton had written fifty-one of the eighty-five Federalist essays and proved himself as proficient in politics as he had been in the military, maneuvering his way into the top ranks of the new Federalist Party at both the state and national levels.

  After Jay refused to lead the foreign service, Washington asked his fellow Virginian Thomas Jefferson to take the job. Jefferson was in his fifth year as America’s minister plenipotentiary in Paris—an appointee of the Confederation Congress. Except for Benjamin Franklin, who was too old for the job, and John Adams, who was now vice president, no one had more experience in foreign affairs than Jefferson.

  Nonetheless, Washington had some misgivings. Eleven years younger than the President, Jefferson had, to his credit, supported Henry’s famous call to arms against British rule before winning election to the Continental Congress and coauthoring the Declaration of Independence. But he not only failed to serve in the war; he made disastrous—indeed, some thought, treasonous—decisions as governor of Virginia. He had ignored Washington’s orders to defend the state’s waterways, opening the way for British troops to sail up the James River unimpeded and burn Richmond, then march across the state ravaging some of the richest farms and plantations.

  Adding to Washington’s reluctance was Jefferson’s resistance to ratification of the Constitution. His stance immediately put him at logger-heads with Alexander Hamilton. Each had radically different visions of the presidential structure they would have to swear to help Washington build. Hamilton mistrusted the political intelligence of ordinary citizens and their ability to govern; he believed in a strong, national government that conformed in many ways to Plato’s Republic, with both voting and public service restricted to a highly educated, propertied elite, led by a powerful chief executive.

  Jefferson, in contrast, distrusted government—especially a centralized national government. He had cheered Paris mobs that stormed the Bastille prison in Paris and forced the French monarch to cede powers to a popularly elected national assembly. Like Patrick Henry, Jefferson held a naive belief in the goodness of man and espoused Jean-Jacques Rousseau’s embrace of the common man’s right to govern himself, free from government intrusion. The opening words of Rousseau’s Le Contrat Social (The Social Contact) had stunned the world in 1762 with a revolutionary new sociopolitical concept: Man was born free and everywhere he is in chains.13

  Appointed the nation’s first Secretary of State by President George Washington, Thomas Jefferson immediately crossed swords with Treasury Secretary Alexander Hamilton and threw Washington’s cabinet into chaos. (LIBRARY OF CONGRESS)

  Both Hamilton and Washington saw anarchy as the inevitable result of Rousseau’s and Jefferson’s visions of society, but Jefferson exalted anarchy as “proof that the people have liberty. . . . I hold it that a little rebellion now and then is a good thing. . . . The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”14

  From the first, Hamilton and Jefferson mistrusted and disliked each other—with good reason. Both sought to influence Washington’s policies; both lusted for power and eyed the Presidency if and when Washington relinquished it.

  The first break between the two came when Hamilton praised certain aspects of Britain’s constitutional monarchy. Jefferson lashed out, accusing Hamilton of being a monarchist when, in fact, Hamilton had been primary author of the Federalist essays in support of republican government and the very Constitution that Jefferson now pledged to uphold.

  Jefferson’s remarks infuriated Hamilton, who, unlike Jefferson, did not own and had never owned slaves. In fact, he had joined Aaron Burr Jr., his former comrade in arms at Monmouth, to lead the struggle to free slaves in New York State. An active member of the New York Manumission Society, Hamilton called slavery “repugnant to humanity . . . inconsistent with the liberality and justice which should distinguish a free and enlightened people.”15

  In contrast, Jefferson owned about 200 slaves, calling them inferior to whites. While publicly embracing populism, he lived off slavery at his isolated mountain home while tarring Hamilton and northern Federalists as aristocrats.

  The outbreak of the French Revolution only added to Hamilton-Jefferson differences. During Jefferson’s last days as American minister to France, Parisian mobs had stormed the Bastille prison, then raged through the streets massacring friends and foes alike.

  “The liberty of the whole earth was depending on the issue,” Jefferson exulted. “Rather than it should have failed, I would have seen half the earth desolated.”16 Later, he added, “If the happiness of the mass of the people can be secured at the expense of a little tempest now and then, or even a little blood, it will be a precious purchase. Malo libertum periculosum quam quietam servitutem. [I prefer dangerous liberty to quiet servitude.]”17

  Jefferson’s enthusiasm for French violence disgusted Washington, Hamilton, and other American leaders. Washington warned that “little irritation would be necessary to blow up the spark of discontent into a flame that might not easily be quenched.”18 Hamilton called radical leaders of the French Revolution “assassins reeking with the blood of murdered fellow citizens.”19 Vice President Adams said the French revolutionaries “make murder itself as indifferent as shooting a plover.”20

  While Anglophiles and Francophiles in America’s capital debated the benefits and evils of the French Revolution, sleepy Richmond and other inland towns were far more concerned with property rights, state rights, and other domestic issues. For the Marshalls, their concerns were even more personal: in February 1792 Polly gave birth to another boy, John James—only to watch him die in June—and two months later, in August, the Marshalls lost their thirty-month-old daughter, Mary Ann.

  John Marshall all but abandoned his law practice during those first eight fateful months of the year to be near Polly’s bedside and care for their two surviving boys, eight-year-old Thomas and five-year-old Jacquelin Ambler. They needed his constant attention—as did Polly—and he decided the time had come to sell his practice, abandon public service, move to the peaceful Blue Ridge, and let chaos consume the rest of the nation.

  And it did.

  _______________

  * Wealthy homeowners built kitchens and other, similar facilities in outbuildings to prevent damage to the main house in the event of kitchen fires.

  * Rebecca after five days, Mary Ann at two and one-half years, and John James, four months.

  * Like horseshoes, quoits required players to ring a peg with an iron ring or a ring made of thick, stiff rope.

  * In the codicil to his will, dated August 13, 1832, Marshall emancipated “my faithful servant Robin,” bequeathing him fifty dollars, or one hundred dollars “in the event of his going to Liberia. . . . Should it be found impracticable to liberate him consistently with the law and his own inclination, I desire that he may choose his master among my sons, or if he prefer my daughter” (JM PAPERS, 12:198).

  CHAPTER 5

  The Great D
ivide

  FROM THE MOMENT HE ENTERED PRESIDENT WASHINGTON’S CABINET in March 1790, Thomas Jefferson suffered badly in confrontations with the glib and gifted New York lawyer Alexander Hamilton. Hamilton was a street fighter. Orphaned and often forced to survive on his wits as a child, he developed a quick tongue that made him a far more effective lawyer than the soft-spoken Jefferson. Although Virginia’s young lawyers like John Marshall considered Jefferson one of the state’s “ablest men and soundest lawyers,”1 Jefferson nonetheless personified Hamilton’s impression of the typically lethargic Virginia gentleman, raised in a cradle, gently rocked by slaves who hummed him to sleep on his father’s tobacco plantation.

  Hamilton’s heroism as a Revolutionary War officer further embarrassed and embittered Jefferson. While Hamilton charged into enemy lines with John Marshall, James Monroe, and Aaron Burr at Trenton and Monmouth, gentleman Tom Jefferson sat by the fire in his mountain-top mansion in central Virginia, playing his violin, sipping fine French wines, and never firing a shot at the enemy. An admitted failure as Virginia’s wartime governor, Jefferson entered George Washington’s cabinet smarting from taunts of cowardice, while Hamilton collected accolades from his fellow New Yorkers for his wartime heroism. Seething with envy, Jefferson tried to undermine the low-born hero’s reputation.

  “Hamilton . . . would be a phenomenon,” Jefferson sneered to his acolyte James Madison, “if the courage of which he has the reputation in military occasions were genuine.”2

  As Washington’s first term progressed, the President expressed growing weariness with the burdens of office and whetted both Hamilton’s and Jefferson’s appetite for power. Raw ambition tinctured their competing visions of government and turned the two men into irrational adversaries. Each nourished the embryos of a divisive two-party system, with Hamilton organizing supporters under the banner of federalism and support for strong, centralized government. In contrast, Jefferson supporters feared centralized government. Calling themselves “Republicans” or, in some cases, “Democrat Republicans,” they espoused state sovereignty. Hamilton fed northern hatred for the South with warnings that slave labor was not only immoral, it would undermine the northern economy, which depended on workers paid by the piece. Jefferson whipped up southern hatred for the North with warnings that Federalists planned to strip states of their sovereignty, establish a monarchy, and, worst of all, impoverish the South by abolishing slavery and letting blacks roam free to slaughter their former white tormentors.

  In Richmond John Marshall steered clear of national politics. Though a Federalist at heart and a member of the Virginia state assembly, he had been sincere in turning down the President’s appointment as Virginia’s district attorney. He loved private practice and the close ties it allowed him to maintain to his home, his wife, his children, and his friends. He built an enormous, thriving practice and remained a doting husband and father. At the same time he was an active state legislator and an equally active competitor at quoits. To his joy, assembly membership required little more time or effort than quoits.

  To promote his presidential ambitions, Jefferson enlisted his friend James Madison to help organize “Democratic Clubs” in major cities while paying newspaper editors to smear Hamilton’s character. One pseudonymous article charged that Hamilton was an illegitimate child—that his mother had not divorced her first husband when she entered into a common-law relationship with Alexander’s father and gave birth to their son. To further tar Hamilton, the article noted the high incidence of illegitimate mixed-race children in the West Indies.

  Hamilton retaliated by accusing Jefferson of subverting “principles of good government” by fostering disorder and opposition to taxes. He labeled Jefferson a danger “to the union, peace, and happiness of the country.” When Jefferson accused Hamilton of preparing “a change from the present republican form of government to that of a monarchy,”3 Hamilton responded angrily that he, not Jefferson, had authored the Federalist essays that ensured ratification of the Constitution. Hamilton asserted that he was “affectionately attached to the republican theory. I desire above all things to see the quality of political rights, exclusive of all hereditary distinction.”4

  Visibly annoyed by the public feud, Washington scolded Jefferson: “I believe it will be difficult, if not impracticable to manage the reins of government or to keep the parts of it together . . . if . . . one pulls this way and another that, before the utility of the thing is fairly tried. It must inevitably be torn asunder, and, in my opinion, the fairest prospect of happiness and prosperity that ever was presented to man will be lost—perhaps forever!”5

  Washington’s reelection to the presidency in December 1792 combined with the Christmas holidays to calm cabinet chaos for a while, but the public execution on the guillotine of French King Louis XVI in January 1793 renewed the sniping, with Hamilton calling the execution “horrid and disgusting” and Jefferson all but rejoicing.

  “We are not expected to be transported from despotism to liberty in a feather bed,” Jefferson smiled.6

  Washington was too appalled by events in France to comment, but he turned noticeably cold toward Jefferson and kept a bust of the French king prominently displayed in his office—for all to see as they entered and left.

  On February 1, 1793, France declared war on Britain, Holland, and Spain and further divided Washington’s cabinet. Under the Franco-American treaty of alliance in 1778, each nation had pledged to help the other repel attacks by foreign enemies, and France now demanded that the United States join her at war against Britain—much as she had joined Americans in their War of Independence against Britain.

  “Nothing should be spared on our part to attach France to us,” Jefferson told the President as he urged sending American armed forces to join the French.7

  Outraged by Jefferson’s embrace of French revolutionaries “wading through seas of blood,” Hamilton argued against American participation in the war, calling it self-destructive. Britain, he said, was America’s most important trading partner and source of government revenues. To war on the side of France against Britain, Hamilton asserted, was not only economically suicidal; it was morally indefensible.

  “When I contemplate the horrid . . . massacres,” he raged, “I am glad to believe there is no real resemblance between what was the cause of America and what is the cause of France.”8 Hamilton urged Washington to strengthen ties to Britain, arguing that the treaty with France was a defensive alliance against attack on either nation by a third party. Britain had not attacked France; France had been the aggressor, declaring war on England when England had been at peace.

  Washington agreed that France had embarked on an offensive, not defensive, war—that the Franco-American treaty did not apply. He also agreed on the economic sense of rapprochement with England. With the United States all but defenseless—with only a token army and no navy—the President knew he could not risk war with England, or any other nation, for that matter.

  More than annoyed by the resumption of the Jefferson-Hamilton feud over foreign affairs, Washington again scolded Jefferson: “It behooves the government of this country,” the President warned his secretary of state, “to use every means in its power to prevent the citizens . . . from embroiling us with either of these powers [England or France] by endeavoring to maintain a strict neutrality. I therefore require that you will . . . [take] such measures as shall be deemed most likely to effect this desirable purpose . . . without delay.”9

  As the Franco-English war gained momentum, groups gathered outside printers’ offices to read the newspapers—or hear them read by the more literate of their number. Half sided passionately with their ancestral motherland, while others demanded—just as passionately—that the American government support its Revolutionary War ally and go to war against her former oppressor England. To enhance newspaper sales, the press fanned the flames of war, with some editors demanding a break with France, while others assailed Anglophiles as monarchists and traitors. What beg
an as street-corner debates deteriorated into fights that spread down alleys and avenues in major cities and exploded into bursts of street brawls.

  President Washington pleaded for national unity, saying it would be “unwise in the extreme . . . to involve ourselves in the contests of European nations.”10 Newspaper editors all but ignored him, knowing that the uglier and more widespread the riots, the more newspapers they would sell.

  Richmond was not immune. “A great majority of the American people deems it criminal to remain unconcerned spectators of a conflict between their ancient enemy [Britain] and republican France,” John Marshall wrote in Richmond’s Virginia Gazette and General Advertiser under the pseudonym Gracchus.* Recalling the Franco-American alliance during the Revolutionary War, Marshall declared, “The attachment to France is warm and universal. . . . Few things would more disgust the people with their government than a belief that it opposed the general wish and was unfriendly to our favored ally.”11

  In an effort to calm the presses and the nation, Washington proposed issuing a formal proclamation of neutrality—only to set the simmering cabinet chaos aboil again. Jefferson argued that the Constitution gave the President no power to issue proclamations and that the Constitution reserved the power to declare war to Congress. A declaration of neutrality, he said, was a declaration not to go to war and, therefore, within the purview of congressional, not presidential, authority. As the President grumbled, Hamilton retorted that presidential powers stretched well beyond strict constitutional wording. Scoffing at Jefferson’s semantics over the term “neutrality,” Hamilton suggested that the President simply eliminate the word from his final proclamation.

  Putting aside his pro-French sentiments, John Marshall joined other Richmond leaders in rallying behind the President and echoing Hamilton’s words that “it is in the interest of the United States . . . to maintain a strict neutrality towards the belligerent powers of Europe.”12