John Marshall

by Harlow Giles Unger

  In arguing before the Supreme Court, Marshall’s attorneys cited the Anglo-American Treaty of Paris of 1783 that ended the Revolutionary War and banned any American confiscations of British property. The Supreme Court under Chief Justice John Jay agreed, thus denying the property rights of Jost Hite and giving Denny Fairfax clear title and the right to sell the Manor Lands to the Marshall family.

  On February 1, 1794, Fairfax drew up a bill of sale, and John Marshall and his brothers had only to raise £20,000 to become owners of 215,000 acres of Virginia’s—indeed, America’s—most valuable and fertile lands. Fortunately John’s older brother James Markham was engaged to Hester Morris, daughter of the famed Philadelphia banker Robert Morris.

  Widely hailed at the time as the “Financier of the Revolution,” Morris had served as superintendent of finance for the Continental Congress during the Revolutionary War and speculated in land after the war—some of it in Virginia. He had appointed John Marshall his attorney in that state and agreed to pay Marshall’s legal fees by financing the Marshall family purchase of the Fairfax Manor Lands.

  The property the Marshalls acquired covered twelve counties stretching from the Potomac River in the East across the Blue Ridge Mountains and Shenandoah Valley in the West, north to the Mason-Dixon Line and south to the Rappahannock River (see map, page 43). At a price of less than two shillings an acre, the Marshalls stood to reap upward of four times their investment if they resold the land—about $6 million in today’s currency. The sale of land he did not reserve for his own use would earn John Marshall enough wealth to allow him to devote the remainder of his life to public service without financial strain.

  News of his son’s court victory elated the aging Thomas Marshall, who longed for a family reunion. “The thoughts of seeing you once more,” he wrote to his son from Kentucky, “I really believe is a principal means of keeping me alive.”

  And I will endeavor to live one more year in hopes of that event. I am told Mr. J. Ambler [Polly Marshall’s father] talks of coming out with you. Happy shall I be to see him with you and all my family and friends who may think it worthwhile to ride out to this country to take leave of me before I close my eyes forever.19

  Marshall’s father praised his son for defending Washington and the Jay Treaty. “Next to that of my own family,” the Marshall family patriarch declared, “the good of my country and our worthy President is nearest my heart, and the part you take in the present storm gives me much pleasure. Indeed, you never seriously disobliged me in your life. . . . God bless you once more, prays your [father], T. Marshall.”

  In contrast to John Marshall, Thomas Jefferson kept his eyes focused on the presidency, appealing constantly to public rage over the Jay Treaty. In a letter to his friend Philip Mazzei, an Italian doctor-turned-wine-merchant who had bought a farm near Jefferson’s Monticello, the former secretary of state shed all traces of loyalty to the government he had once pledged to serve:

  “In place of the noble love of liberty and republican government,” Jefferson charged “an Anglican, monarchical, and aristocratical party has sprung up whose avowed object is to draw over us . . . the forms of the British government. . . . All the officers of the government . . . prefer calm despotism to the boisterous sea of liberty.”

  Spurred by Jefferson, Republicans spread rumors that Vice President Adams would deliver the nation back to the English if he won election and succeeded Washington to the presidency. Jefferson even vilified the man who had once entrusted him with the conduct of the nation’s foreign affairs:

  “It would give you a fever,” Jefferson wrote to Mazzei of Washington and Adams, “were I to name to you the apostates who have gone over to these heresies, men who were Samsons in the field and Solomons in the councils, but who have had their heads shorn by the harlot England.”20

  At Jefferson’s behest, the southern Republican minority in the House of Representatives provoked a constitutional crisis aimed at seizing treaty-making powers from the President and Senate by refusing to appropriate funds for the Jay Treaty’s joint arbitration commission until Washington submitted all of Jay’s documents from the treaty negotiations. Using its control over the purse to “defund” the treaty, the House prepared, in effect, to “Jacobinize” the US government by shifting control of government to the popularly elected branch of the legislature.

  Although the Constitution gave the Senate sole authority to reject or approve treaties, it gave the House sole authority to appropriate funds. By refusing to fund the Jay Treaty, the House threatened to use its funding authority to nullify a treaty—an eventuality that the framers of the Constitution had not intended or envisioned.

  In Richmond Marshall sprang to defend the President and the Constitution by calling another public meeting. Warned that he might be “treated rudely,” Marshall was “fully prepared not only with the words of the Constitution and the universal practice of nations . . . to show that a commercial treaty [with Britain] was constitutional.”

  One or two of my cautious friends advised me not to engage in the debate . . . that it would destroy me totally. I had reasons to know that a politician even in times of violent party spirit maintains his respectability by showing his strength and is most safe when he encounters prejudice more fearlessly. There was scarcely an intelligent man in the House who did not yield . . . on the constitutional question.21

  Infuriated at what he saw as a clear violation of the Constitution by House Republicans, Washington delivered a stern lecture:

  Having been a member of the general convention, I have ever entertained but one opinion . . . that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate . . . and that every treaty so made became the law of the land . . . [and] they become obligatory. . . . This construction agrees with the opinions entertained by the state conventions, when they were deliberating on the Constitution. . . . All the papers . . . were laid before the Senate . . . the assent of the House of Representatives is not necessary to the validity of a treaty.

  Washington refused to release any documents of the treaty negotiations, saying it would “establish a dangerous precedent. . . . A just compliance with the Constitution . . . forbids compliance with your request.”22

  Only Washington, with his enormous prestige and popularity, could have addressed Congress in such demeaning language. Although he made no threats, he did not have to. Brigadier General John Marshall stood firmly behind Washington with two brigades of Virginia militiamen in the South. And Alexander Hamilton had lined up almost every House Federalist behind the President. Recalcitrant congressmen quickly retreated, fearing political consequences if they refused. In the end Washington crushed the House attempt to defund the Jay Treaty and insert itself into foreign affairs and treaty negotiations, two areas over which he seized full control for himself and all future Presidents.

  “I do not know how to thank you,” the President wrote in an emotional letter to Alexander Hamilton,

  for the trouble you have taken . . . on the request of the House of Representatives for the papers relative to the British treaty . . . to show the impropriety of that request. . . . To express again my sincere thanks for the pains you have been at to investigate the subject, and to assure you, over and over, of the warmth of my friendship and of the affectionate regard with which I am . . . G. Washington23

  Washington’s words had no effect on the French revolutionary government, however. Calling the Jay Treaty a violation of the 1778 Franco-American treaty of amity and commerce, the French government abruptly ended its alliance with the United States and ordered French ships to seize American vessels and cargoes bound to and from England. It ordered captured crews and passengers imprisoned, and told its military to prepare for all-out war and an invasion of North America. In Richmond Governor Lee put the state militia on alert, and Brigadier General John Marshall prepared to go to war again.

  _______________

  * Yes, it’ll do; yes, i
t’ll do; yes, it’ll do; the aristocrats hanging high on the gallows; yes, etc.; we’ll hang them all.

  ** One of Genet’s great grandsons, Edmond Charles Clinton Genet, was the first American aviator killed in World War I in the skies over France with the Lafayette Escadrille, a group of American fliers who volunteered to fight with the allies before the United States formally entered the war.

  * The first Speaker of the US House of Representatives, Muhlenberg was the son of Heinrich Melchior Muhlenberg, a German immigrant and patriarch of the Lutheran Church in America.

  * Until the 1913 ratification of the Seventeenth Amendment allowing popular election of US senators, state legislatures determined each state’s senators.

  CHAPTER 7

  X, Y, Z

  WHILE JOHN MARSHALL PREPARED FOR WAR AGAINST THE FRENCH IN Virginia, his boyhood friend and Revolutionary War comrade James Monroe, the American minister to France, raced about Paris trying to placate French officials and prevent war. He sent strong protests to the State Department and to President Washington that it was “in the interest of America to avoid a rupture with France.”1 Because of the time it took for mail to cross the Atlantic, however, Monroe did not and could not know that Washington had replaced Francophile Edmund Randolph with the avidly Francophobic Timothy Pickering, who embraced all things English and supported the Jay Treaty.

  Pickering’s first act in office was to purge the State Department of pro-French employees, including Monroe. A few weeks later, on September 1, 1796, the French recalled their minister from the United States, and a week later Monroe received Pickering’s letter of recall “owing to [your] misconduct.”2 Astonished by Pickering’s accusation, Monroe fired a long, bitter response:

  “You charge me . . . with a neglect of duty,” raged Marshall’s friend. “Permit me to remark that this charge is not more unjust and unexpected than the testimony by which you support it is inapplicable and inconclusive.” Monroe charged that the Jay Treaty had given the French government more than ample justification for severing relations with the United States.

  “Paris was starving,” he wrote, “and our vessels destined for the ports of France were seized and carried into England.”

  Do difficulties like these . . . give cause to suspect that I was idle or negligent at my post? . . . But you urge that as I knew this discontent existed, I ought to have encountered and removed it. I do not distinctly comprehend . . . what it was you wish . . . I should have done.3

  Monroe believed Pickering had deceived him. While his Federalist counterpart in London, John Jay, was undermining Franco-American relations, Monroe had followed his instructions to the letter in Paris. He had established warm, cordial diplomatic relations, promoted peaceful trade in nonmilitary goods, and firmly established America’s diplomatic presence in western Europe. He had done his job to perfection.

  The original State Department instructions to Monroe had pledged that “Mr. Jay . . . is positively forbidden to weaken the engagements between this country and France,”4 but Secretary of State Pickering had put partisan politics above national interests and done exactly what Jay had been forbidden to do.

  Pickering used Monroe’s complaints and favoritism for France to convince Washington to replace him with someone “who will promote not thwart the neutral policy of the government.” The President then wrote to John Marshall that “nothing would be more pleasing to me” than for Marshall to go to France, “if only for a few months . . . to explain the views of this government” to the French.

  Again Marshall turned down a presidential appointment, this time citing pressures of work but, in fact, refusing to participate even indirectly in the censure of his longtime friend Monroe. Having already introduced some friction into their friendship during their debate over ratification of the Constitution, Marshall had no intention of profiting from Monroe’s dismissal from government service. Patrick Henry also refused to replace Monroe, and Washington finally appointed South Carolina’s Charles Cotesworth Pinckney.5

  A hero of the Revolutionary War, James Monroe had repaired relations with the Jacobin government in France, when the Secretary of State ordered his recall from Paris for “neglect of duty.” (LIBRARY OF CONGRESS)

  In the spring of 1797 James Monroe and his family sailed for home, with Monroe seething with anger and bitterness. Before leaving, he sent a long and detailed letter to his mentor Jefferson, the guardian of Hamilton’s confession to adultery and his letters to Mrs. James Reynolds. Before Monroe’s own ship had crossed the Atlantic, James Callender, a Scottish-born pamphleteer and journalist whom Jefferson called “a man of genius,” had published the entire Hamilton dossier. Callender said he had done so to respond to “unfounded [Federalist] reproaches on Mr. Monroe.”6

  “We shall presently see,” Callender wrote of Hamilton, “this great master of morality, although himself the father of a family, confessing that he had an illicit correspondence with another man’s wife.” Although the original Senate inquiry had cleared Hamilton of the charge, Callender repeated the libel that, as Treasury secretary, Hamilton had acted with James Reynolds to enrich himself by using privileged information to speculate in government securities.7

  After Monroe arrived in New York, Hamilton appeared at his door at ten one morning with his brother-in-law John Barker Church. Hamilton was “very much agitated” and blamed Monroe for releasing the dossier. Monroe explained he had left the dossier with a trusted “friend [Jefferson] in Virginia” and was unaware it had been released.

  Hamilton did not believe him: “This as your representation is totally false!”

  Offended at Hamilton’s tone, Monroe snapped back: “Do you say I represented falsely?”—and, without waiting for a reply, declared, “You are a scoundrel!”

  Once close comrades on the battlefield, the two Men of Monmouth stood toe to toe:

  “I will meet you like a gentleman!” Hamilton barked.

  “I am ready; get your pistols!” Monroe snapped.

  “I shall!” replied Hamilton, who, like Monroe, had been a crack marks-man in the war.

  “Gentlemen, gentlemen. Be moderate!” cried Church as he stepped between the two political titans.8

  “You have been and are actuated by motives towards me malignant and dishonorable!” Hamilton raged.

  Monroe shot back: “Why you have adopted this style I know not. If your object is to render this affair a personal one between us . . . I am ever ready to meet.”9

  Monroe called on his friend New York attorney Aaron Burr Jr. to serve as his second. Another of the heroic Men of Monmouth who had fought alongside Monroe and Hamilton, Burr had also served with Monroe in the US Senate. Although an Antifederalist, Burr dined and socialized with Hamilton and was a cordial professional colleague. Burr sought to be peacemaker between two old friends.

  He urged Monroe to send Hamilton a conciliatory letter, and Monroe complied: “Seeing no adequate cause . . . why I should give a challenge to you,” Monroe wrote, “I own it was not my intention to give or even provoke one.” After delivering Monroe’s letter, Burr urged Hamilton to accept Monroe at his word, and Hamilton relented, conceding that “any further step . . . would be improper.”10 Ironically, Burr prevented a duel that might have saved him from confronting Hamilton seven years later—almost to the day.

  After abandoning his challenge to Monroe, Hamilton ignored Burr’s further advice—and that of his own supporters—to put the Reynolds affair behind him. Instead, he published a pamphlet in which he confessed his sexual relationship with Mrs. Reynolds to the American people but presented incontrovertible proof of his innocence in her husband’s malfeasance. Although Hamilton’s pamphlet shocked his patron George Washington, it did little to reduce Hamilton’s influence among Federalists. With casual winks and smirks about their own sexual dalliances, the men whose appointments Hamilton had engineered in the President’s cabinet continued to follow his political directives.

  IN SEPTEMBER 1796 GEORGE WASHINGTON WAS NEARING TH
E END OF his second term in office and sent this announcement to the press:

  The period for a new election . . . to administer the executive government of the United States being not far distant . . . it appears to me proper . . . that I should now apprise you of the resolution I have formed to decline being considered among the number of those out of whom a choice is to be made.11

  With those words, the President began a memorable farewell message to the nation, saying he would limit his service in office to two terms—a precedent that every succeeding President would follow for 140 years.* Washington sent his message to the American Daily Advertiser as a letter to the American people. In it he tried to establish broad precedents for his successors in the conduct of national and foreign affairs.

  Warning Americans against “the baneful effects of the spirit of [political] party,” he urged binding the nation’s regions into “fraternal union.” Political parties, he argued, “kindle the animosity of one part [of the nation] against another, foment occasional riot and insurrection . . . open the door to foreign influence and corruption [and] become potent engines by which cunning, ambitious, and unprincipled men . . . subvert the power of the people and usurp for themselves the reins of government.”12

  In foreign affairs Washington warned against “the insidious wiles of foreign influence,” which he called “one of the most baneful foes of republican government. . . . The great rule of conduct for us, in regard to foreign nations is in extending our commercial relations to them with as little political connection as possible.”13

  Washington proclaimed what he hoped would be the defining words of America’s foreign policy: “‘Tis our true policy to steer clear of permanent alliances with any portion of the foreign world.”14

  The French government, however, would have none of it and sent a new minister to America with instructions to ensure election of a pro-French President. When Citizen Pierre-Auguste Adet arrived, he launched a barrage of pseudonymous warnings to the press that only by electing Thomas Jefferson President could the United States avoid war with France.