John Marshall

by Harlow Giles Unger

  After Marshall conferred with the President, Adams sent Congress a message declaring, “I will never send another minister to France without assurances that he will be received, respected and honored as the representative of a great, free, powerful, and independent state.”3 Adams stopped short of advocating war, however, calling it “inexpedient,” and Marshall assured the President that he too favored the longstanding Washington policy of neutrality.

  Ultra-Federalists dominated Congress, however, and all but ignored the President’s message of caution. They voted to expand the army to 50,000 men and call up 80,000 state militiamen to stand at the ready. Two weeks later the President named—and Congress confirmed—George Washington as commander-in-chief of the armed forces. The aging former President, however, had no intention of quitting his idyllic nest in Mount Vernon and immediately promoted Alexander Hamilton to second in command, with the rank of inspector general. In effect, he gave the ambitious New York lawyer direct control of America’s military machine to complement his indirect control of the cabinet and the nation’s political machine.

  “That man,” Abigail Adams warned of Hamilton in a letter, “would, in my mind, become a second Buonaparty [sic] if he was possessed of equal power.”4

  Anti-French frenzy reached a peak on June 18, 1798, when Federalists in Congress rammed through the first of four vicious Alien and Sedition Acts, effectively annulling the Bill of Rights, to limit criticism of government and rid the nation of French influence. The Naturalization Act prevented immigrant voting by stretching the residency period for naturalization from five to twelve years and forcing aliens to report regularly to immigration authorities. The Act Concerning Aliens gave the President powers to arrest and deport without trial any aliens he deemed “dangerous to the peace and safety of the United States.” The Act Respecting Alien Enemies gave the President power to arrest, detain, and deport aliens in case of war—without presenting justification.

  To retaliate for Talleyrand’s treatment of Marshall and Pinckney, Congress waited until July 14, the French national holiday commemorating the storming of the Bastille, to pass the most oppressive of the four laws: the Act for the Punishment of Certain Crimes. In clear violation of the Constitution, the act annulled the First Amendment by restricting freedom of speech and of the press. It imposed fines of up to $2,000 and prison sentences of up to two years for anyone who opposed or interfered with law enforcement and made it a crime to publish “false or malicious writing directed against the President or Congress.” Within a few weeks Federalist prosecutors charged Vermont Representative Matthew Lyon—the “Spitting Lyon”—with sedition.

  The acts so outraged Vice President Thomas Jefferson that he called on state legislatures to restrict federal government powers. Declaring the Constitution a “compact” between states, he insisted that state legislatures could nullify federal laws that gave the national government powers not granted by the Constitution.5 He then drew up formal resolves for state legislatures to declare the Alien and Sedition Acts “altogether void and of no force.” He sent one to Kentucky, which he knew embraced his views, and a second to his protégé James Madison to present to the Virginia legislature. In effect, the Kentucky and Virginia Resolutions repudiated—or at least reinterpreted—the Constitution and threatened to rupture many of the ties that bound the states in union.

  Aware of fervent pro-English sentiment among Hamilton’s ultra-Federalists, English Prime Minister William Pitt sent President Adams a proposal for an Anglo-American alliance against France and Spain. Pitt offered to provide a British fleet if the United States provided troops to free the Americas from French and Spanish rule. Pitt also informed Hamilton, the effective commander of the American army, of his proposal, and Hamilton urged President Adams to accept. Ridding South America of Spanish rule, Hamilton told the President, would block “the channel through which the riches of Mexico and Peru are conveyed to France.”6

  Adams, however, steadfastly opposed America going to war—on either side—and he rejected Pitt’s plan. While Hamilton fumed at the President’s intransigence, John Marshall separated himself from Hamilton’s ultra-Federalists, setting himself squarely behind the President by reiterating George Washington’s beliefs:

  “No man in existence,” Marshall asserted, “is more decidedly opposed to such an alliance.”

  The whole of my politics respecting foreign nations are reducible to this single position: We ought to have commercial intercourse with all, but political ties with none. Let us buy as cheap and sell as dear as possible. Let commerce go wherever individual and consequently national interest will carry it, but let us never connect ourselves politically. . . . Europe is eternally engaged in wars in which we have no interest. . . . We ought to avoid any compact which may endanger . . . the neutrality of the United States.7

  Unwilling to involve himself further in the Anglo-French controversy, Marshall fled the national spotlight of the capital to rejoin Polly and the family.

  His return sparked Polly’s partial recovery, but not enough for her to go home to Richmond and reunite with her children, who were with her parents. Polly still smarted from fears and suspicions that her husband had succumbed to the wiles of Madame de Villette.

  “Your mama and friends are in good health,” Marshall reassured Polly after he arrived in Richmond. “Your sweet little [three-year-old] Mary is one of the most fascinating little creatures I ever beheld. . . . She comprehends everything that is said to her and is the most coquettish little prude and the most prudish little coquette I ever saw. . . . Poor little [eight-month-old] John is cutting teeth and of course is sick.”8

  I hear nothing from you my dearest Polly but I will cherish the hope that you are getting better and will indulge myself with expecting the happiness of seeing you in October quite yourself. Remember, my love . . . to use a great deal of exercise, to sleep tranquilly, and to stay cheerful in company. Farewell my dearest Polly.

  Virginia’s governor joined other state officials and a contingent of Revolutionary War heroes in greeting John Marshall at the state capitol. As cheering crowds watched, a colorful procession of state militiamen and cavalry in dress uniforms celebrated his return. The brilliant attorney Bushrod Washington, George Washington’s favorite nephew and a growing influence in state and national affairs, delivered a passionate welcoming address. Bushrod and Marshall had warmed to each other when they studied law together under George Whyte at College of William and Mary. They remained close and, indeed, worked together in support of ratification at Virginia’s constitutional ratification convention.

  The Virginia Gazette and General Advertiser of Richmond joined in hailing Marshall’s return. “When future generations pursue the history of America,” it declared, “they will find the name of Marshall on its sacred page as one of the brightest ornaments of the age in which he lived.”9

  Marshall, however, had tired of the fervor with which Americans greeted his return. Although elated that Richmond’s enthusiasm would ensure revival of his law practice, he clearly opposed ultranationalist trampling of constitutional rights.

  “I am not an advocate for the Alien and Sedition Laws,” he declared. “Had I been in Congress when they passed, I should . . . certainly have opposed them . . . because they are calculated to create, unnecessarily, discontent and jealousies at a time when our very existence as a nation may depend on our union.”10

  Above all, Marshall believed in the sanctity of the Constitution, which he said the Alien and Sedition Acts had breached:

  In heart and sentiment, as well as by birth and interest, I am an American, attached to the genuine principles of the Constitution, as sanctioned by the will of the people. . . . I consider that Constitution the rock of our political salvation, which has preserved us from misery, division, and civil war—and which will yet preserve us if we value it rightly and support it firmly.11

  Despite Marshall’s opposition to the Alien and Sedition Acts, they exacted a steep toll. In New England,
ultra-Federalist prosecuting attorneys used them to crush political opponents. In Vermont, Republican Representative Matthew Lyon, who owned and operated two newspapers, became the first American tried for violating the Sedition Act by criticizing President Adams’s naval actions against France.

  After forbidding Lyon from citing constitutional guarantees of free speech and free press, a Federalist judge found Lyon guilty and, on October 10, 1798, sentenced him to four months in jail and a fine of $1,000. Lyon nonetheless won reelection to Congress by a rousing two-to-one majority—from his Vermont jail cell. On his release Lyon sang out, “I am on my way to Philadelphia.”12

  Lyon was the first of twenty-five Republicans charged under the Sedition Act. Ten were convicted—all editors and printers.

  Although the Alien and Sedition Acts had appalled John Marshall, Vice President Jefferson’s Kentucky Resolution and Madison’s Virginia Resolution outraged him even more. The Alien and Sedition Acts, he pointed out, “will expire of themselves . . . during the term of the ensuing Congress,” but the Kentucky and Virginia Resolutions threatened to annul the Constitution and dissolve the Union.

  The Kentucky and Virginia Resolutions angered George Washington as much as they had Marshall, and he encouraged popular Federalists to run against Republicans for Congress. He invited Marshall and Bushrod Washington to Mount Vernon and warned them that “the temper of the people of this state” had grown “violent and outrageous.” He urged both men to run for Congress.

  “Bushrod,” he commanded, “it must be done!”

  Bushrod shuddered and knew he had little choice but to obey. Washington had, after all, financed his college and law school studies and had supported the young man until he established himself in his profession. Marshall, however, insisted that his family obligations came first, and having given the former President a final answer, he rose before dawn on the third day of his visit to leave Mount Vernon before Washington awakened. To Marshall’s astonishment, Washington awaited him, dressed in his uniform as commander-in-chief of the Continental Army.

  “He said there were crises in national affairs which made it the duty of a citizen to forego his private affairs for the public interest,” Marshall recalled. Washington told Marshall he had retired from the presidency “with the firmest determination never again to appear in public life. . . . Yet I saw him pledged to appear once more at the head of the American army. . . . I yielded to his representations and became a candidate.”13

  Before the campaign could get under way, however, Supreme Court Justice James Wilson died, and President Adams immediately offered the seat to Marshall. Much to the President’s surprise and disappointment, Marshall declined because the Court would keep him far from home in the national capital several weeks a year and riding the circuit another twelve weeks.* Service on the two courts would make it difficult, if not impossible, for him to rebuild his law practice. In contrast, a seat in Congress would keep him in Philadelphia only a few weeks a year and leave him free to practice law the rest of the year.

  Adams then offered the seat to Bushrod Washington, who accepted and withdrew from the election campaign.

  As it turned out, events in the Caribbean and Europe suddenly changed the complexion of the campaign. Construction and refitting of American warships progressed faster than anticipated. By midsummer the U.S. Constellation and two other frigates plowed through American coastal waters chasing French ships away, while the Delaware, a converted sloop with sixteen guns, captured the first French prize of the undeclared war with France. By midautumn the navy had launched a fourth frigate, the U.S. Constitution, and armed more than a thousand merchant ships. Together they cleared American coastal waters of French marauders and prepared to wage offensive warfare against the French.

  President Adams ordered the navy to “sweep the West India [sic] seas” of French ships and seize French seamen as hostages for the thousands of American seamen languishing in French prisons. Although the French had captured more than 800 American vessels, by the end of 1798 the surprising American navy had retaliated by seizing 84 French vessels. Four American squadrons of five ships each had gained control of Caribbean waters, with the fearless Captain Thomas Truxton and his squadron taking so many French vessels that Washington called him the equal of “a regiment in the field.”

  On February 9, 1799, Truxton’s Constellation engaged the big French frigate L’Insurgeante and, after a fierce battle off the island of Nevis, captured the vessel and added it to the American Navy. A year later, almost to the day, Truxton spotted the fifty-four-gun French frigate La Vengeance and ordered his crew to come about and pursue. The French vessel was carrying a huge cargo of money from Guadeloupe to France—the island’s entire profits from a month’s trade—along with eighty military passengers, thirty-six American prisoners, and a crew of thirty-two. The Constellation launched a barrage of cannon fire at the more powerful French warship, and after slightly more than an hour, the French struck their colors and surrendered.

  French forces were suffering similar humiliations elsewhere in the world. On August 1, 1798, a week after Napoléon Bonaparte and his troops had entered Cairo, Admiral Horatio Nelson’s British fleet surprised and annihilated the French fleet of 55 warships and 280 transports in Aboukir Bay, at the mouth of the Nile near Alexandria. The British had trapped the French army in Egypt.

  Napoléon Bonaparte invades Egypt not knowing that Admiral Horatio Nelson’s British fleet was about to sink the French fleet in Aboukir Bay, near Alexandria at the mouth of the Nile, and trap the French army on the African mainland. (PAINTING BY JEAN-ANTOINE GROS AT MUSÉE DE VERSAILLES, RÉUNION DES MUSÉES NATIONAUX)

  Hoping to establish an overland route back to France via the Levant and Constantinople, Bonaparte left half his army in Cairo and led 13,000 troops across the Sinai Peninsula to Palestine, where they captured Gaza and Jaffa and laid siege to the heavily fortified port of Acre. He ordered five assaults—all of them failures—before plague killed half of his men and forced the rest to limp back to Cairo.

  Convinced that Barras and other directors had betrayed him to the English to prevent his accession to power, Napoléon Bonaparte made secret arrangements to sail back to France with a handful of trusted aides on two frigates that had survived Nelson’s assault. He left in the middle of the night, leaving only a hastily scrawled note to announce his clandestine departure to his second in command, General Jean Baptiste Kléber.

  The note shocked Kléber, who accused the Corsican of “desertion. . . . There is no doubt: Bonaparte has sacrificed the country [Egypt],” Kléber wrote, “and he has fled in order to escape the catastrophe of surrender.”14 Within a year invading English troops would force the ill-fated French expeditionary force to lay down its arms and surrender—but not before a knife-wielding university student assassinated Kléber. (Infuriated French troops burned off the assassin’s right arm, then impaled him in a public square in Cairo and left him to die.)

  In Ireland the French suffered a similar humiliation when a British fleet trapped and captured nine French warships and transport vessels in Donegal Bay. Cut off from escape by sea, the French invaders cawed like mad hens and surrendered, clearing England’s North Atlantic trade routes of the danger of French naval attacks.

  As the aura of French invincibility disintegrated, conquered peoples in Belgium, Luxembourg, Switzerland, and Italy rose in rebellion against French occupation. Russia organized a new alliance with Britain, Naples, Portugal, Sardinia, and the Turks to halt French expansion. An Anglo-Russian army landed in Holland, while another Russian force joined the Austrians to push the French out of the Bavarian and Italian Alps, Switzerland, and the Rhineland.

  In the French Antilles Santo Domingo’s slave population rose up en masse and butchered more than 10,000 French troops and 3,000 French civilians, including Napoléon Bonaparte’s brother-in-law, the army commander-in-chief. The rebels seized control of the entire colony and shut off the vital flow of sugar and coffee to mainland
France.

  In France proper, royalists staged a massive counterrevolution in the central provinces, and when the Directory tried to draft 200,000 more men to strengthen the army, one-third refused to report.

  Besieged from all directions and stripped of revenue from foreign plunder, France faced economic collapse unless Talleyrand could restore the flow of supplies and foodstuffs from her former ally, the United States. The embargo on French goods had closed rich American markets to important revenue-producing products such as wines, silks, linens, and china, while British ships prevented French transports from carrying essential goods from the French Antilles back to France.

  Talleyrand responded by ordering immediate release of American seamen and other Americans from French prisons. He reopened French ports to American ships and ordered an end to French attacks on American shipping. In a contrite letter to Adams, Talleyrand issued a formal invitation to peace talks that purposely adopted the President’s own language, pledging that “whatever plenipotentiary the Government of the United States might send to France . . . would be undoubtedly received with respect due to the representative of a free, independent, and powerful nation.”15

  President Adams issued a cry of triumph, but rather than risk another humiliation by sending high-level public figures, he named America’s ambassador to Holland, William Vans Murray, as minister plenipotentiary to France to negotiate a peace agreement. Warned that Murray might not be a prestigious enough figure to extract concessions from the fox-like Talleyrand, the President sent Chief Justice Oliver Ellsworth of Connecticut and North Carolina Governor William R. Davie to join Murray.

  News of the French peace overture raised Marshall to heroic heights in the esteem of Virginians, who equated the sudden French policy reversal to Marshall’s tough stance earlier in the year—and he did nothing to dissuade them. Indeed, he plunged into the election campaign with great enthusiasm, spending more than $5,000 on barbecues for voters and happily joining their country dances around the bonfires. His investment was not unusual. As a young man, George Washington had drenched voters and their families with forty gallons of rum, twenty-six gallons of rum punch, thirty-four gallons of wine, and forty-three gallons of beer to win election to Virginia’s colonial assembly, the House of Burgesses. Washington’s final cost for victory was about one-half gallon of spirits per vote.