The Life of John Marshall (Volume 2 of 4). Beveridge Albert Jeremiah
Collection of taxes, foreign and interstate trade, were, admittedly, such ends. The National power to "regulate" these is "sovereign"; and therefore "to employ all the means which will relate to their regulation to the best and greatest advantage" is permissible.
"This general principle is inherent in the very definition of government," declared he, "and essential to every step of the progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign and included by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution or not immoral, or not contrary to the essential ends of political society…
"The powers of the Federal Government, as to its objects are sovereign"; the National Constitution, National laws, and treaties are expressly declared to be "the supreme law of the land." And he added, sarcastically: "The power which can create the supreme law of the land in any case is doubtless sovereign as to such case." But, said Hamilton, "it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government."
And, finally: "The powers contained in a constitution of government … ought to be construed liberally in advancement of the public good… The means by which natural exigencies are to be provided for, national inconveniences obviated, national prosperity promoted are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means."190
So were stated the opposing principles of liberal and narrow interpretation of the Constitution, about which were gathering those political parties that, says Marshall, "in their long and dubious conflict … have shaken the United States to their centre."191 The latter of these parties, under the name "Republican," was then being shaped into a compact organization. Its strength was increasing. The object of Republican attack was the National Government; that of Republican praise and affection was the sovereignty of the States.
"The hatred of the Jacobites towards the house of Hanover was never more deadly than that … borne by many of the partisans of State power towards the government of the United States," testifies Ames.192 In the Republican view the basis of the two parties was faith as against disbelief in the ability of the people to govern themselves; the former favored the moneyed interests, the latter appealed to the masses.193 Such was the popular doctrine preached by the opponents of the National Government; but all economic objections centered in a common assault on Nationalism.
Thus a clear dividing line was drawn separating the people into two great political divisions; and political parties, in the present-day sense of definite organizations upon fundamental and popularly recognized principles, began to emerge. Henceforth the terms "Federalist" and "Republican" mean opposing party groups, the one standing for the National and the other for the provincial idea. The various issues that arose were referred to the one or the other of these hostile conceptions of government.
In this rise of political parties the philosophy of the Constitution was negatived; for our fundamental law, unlike those of other modern democracies, was built on the non-party theory and did not contemplate party government. Its architects did not foresee parties. Indeed, for several years after the Constitution was adopted, the term "party" was used as an expression of reproach. The correspondence of the period teems with illustrations of this important fact.
For a considerable time most of the leading men of the period looked with dread upon the growing idea of political parties; and the favorite rebuke to opponents was to accuse them of being a "party" or a "faction," those designations being used interchangeably. The "Farewell Address" is a solemn warning against political parties194 almost as much as against foreign alliances.
CHAPTER III
LEADING THE VIRGINIA FEDERALISTS
I think nothing better could be done than to make him [Marshall] a judge. (Jefferson to Madison, June 29, 1792.)
To doubt the holiness of the French cause was the certain road to odium and proscription. (Alexander Graydon.)
The trouble and perplexities have worn away my mind. (Washington.)
In Richmond, Marshall was growing ever stronger in his belief in Nationalism. Hamilton's immortal plea for a vital interpretation of the fundamental law of the Nation and his demonstration of the constitutionality of extensive implied powers was a clear, compact statement of what Marshall himself had been thinking. The time was coming when he would announce it in language still more lucid, expressive of a reasoning even more convincing. Upon Hamilton's constitutional doctrine John Marshall was to place the seal of finality.195
But Marshall did not delay until that great hour to declare his Nationalist opinions. Not only did he fight for them in the House of Delegates; but in his club at Farmicola's Tavern, on the street corners, riding the circuit, he argued for the constitutionality and wisdom of those measures of Washington's Administration which strengthened and broadened the powers of the National Government.196
Although he spoke his mind, in and out of season, for a cause increasingly unpopular, Marshall, as yet, lost little favor with the people. At a time when political controversy severed friendship and interrupted social relations,197 his personality still held sway over his associates regardless of their political convictions. Even Mason, the ultra-radical foe of broad National powers, wrote, at this heated juncture, that Marshall "is an intimate friend of mine."198
His winning frankness, easy manner, and warm-heartedness saved him from that dislike which his bold views otherwise would have created. "Independent principles, talents, and integrity are denounced [in Virginia] as badges of aristocracy; but if you add to these good manners and a decent appearance, his political death is decreed without the benefit of a hearing," testifies Francis Corbin.199
"Independent principles, talents, and integrity" Marshall possessed in fullest measure, as all admitted; but his manners were far from those which men like the modish Corbin called "good," and his appearance would not have passed muster under the critical eye of that fastidious and disgruntled young Federalist. We shall soon hear Jefferson denouncing Marshall's deportment as the artifice of a cunning and hypocritical craft. As yet, however, Jefferson saw in Marshall only an extremely popular young man who was fast becoming the most effective supporter in Virginia of the National Government.
In the year of the Bank Act, Jefferson and Madison went on their eventful "vacation," swinging up the Hudson and through New England. During this journey Jefferson drew around Madison "the magic circle" of his compelling charm and won entirely to the extreme Republican cause200 the invaluable aid of that superb intellect. In agreement as to common warfare upon the Nationalist measures of the Administration,201 the two undoubtedly talked over the Virginia Federalists.202
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
"Opinion as to the Constitutionality of the Bank of the United States";
Marshall, ii, 206-07.
Ames to Dwight, Jan. 23, 1792;
"A Candid State of Parties" —
"I was no party man myself and the first wish of my heart was, if parties did exist, to reconcile them." (Washington to Jefferson, July 6, 1796;
Compare Hamilton's "Opinion as to the Constitutionality of the Bank of the United States" with Marshall's opinion in McCulloch vs. Maryland, The student of Marshall cannot devote too much attention to Hamilton's great state papers, from the "First Report on the Public Credit" to "Camillus." It is interesting that Hamilton produced all these within five years, notwithstanding the fact that this was the busiest and most crowded period of his life.
Binney, in Dillon, iii, 301-02.
La Rochefoucauld, iii, 73. For a man even "to be passive … is a satisfactory proof that he is on the wrong side." (Monroe to Jefferson, July 17, 1792; Monroe's
George Mason to John Mason, July 12, 1791; Rowland, ii, 338.
Corbin to Hamilton, March 17, 1793; as quoted in Beard:
"Patrick Henry once said 'that he could forgive anything else in Mr. Jefferson, but his corrupting Mr. Madison.'" (Pickering to Marshall, Dec. 26, 1828; Pickering MSS., Mass. Hist. Soc.) "His [Madison's] placing himself under the pupilage of Mr. Jefferson and supporting his public deceptions, are sufficient to put him out of my book." (Pickering to Rose, March 22, 1808;
Madison's course was irreconcilable with his earlier Nationalist stand. (See Beard:
See brief but excellent account of this famous journey in Gay: