The Life of John Marshall Volume I Part 36

Very considerable were the obligations "public and private" which Madison wrote his father that he "strongly suspected" a part of the country intended to repudiate. The public debt, foreign and domestic, of the Confederation and the States, at the close of the Revolutionary War, appeared to the people to be a staggering sum.[911] The private debt aggregated a large amount.[912] The financial situation was chaos. Paper money had played such havoc with specie that, in Virginia in 1786, as we have seen, there was not enough gold and silver to pay current taxes.[913] The country had had bitter experience with a fict.i.tious medium of exchange. In Virginia by 1781 the notes issued by Congress "fell to 1000 for 1," records Jefferson, "and then expired, as it had done in other States, without a single groan."[914]

Later on, foreigners bought five thousand dollars of this Continental scrip for a single dollar of gold or silver.[915] In Philadelphia, toward the end of the Revolution, the people paraded the streets wearing this make-believe currency in their hats, with a dog tarred and covered with paper dollars instead of feathers.[916] For land sold by Jefferson before paper currency was issued he "did not receive the money till it was not worth Oak leaves."[917]

Most of the States had uttered this fiat medium, which not only depreciated and fluctuated within the State issuing it, but made trade between citizens of neighboring States almost impossible. Livingston found it a "loss to shop it in New York with [New] Jersey Money at the unconscionable discount which your [New York] brokers and merchants exact; and it is as d.a.m.nifying to deal with our merchants here [New Jersey] in that currency, since they proportionably advance the price of their commodities."[918] Fithian in Virginia records that: "In the evening I borrowed of _Ben Carter_ 15/--I have plenty of money with me but it is in Bills of Philadelphia Currency and will not pa.s.s at all here."[919]

Virginia had gone through her trial of financial fiction-for-fact, ending in a law fixing the scale of depreciation at forty to one, and in other unique and bizarre devices;[920] and finally took a determined stand against paper currency.[921] Although Virginia had burned her fingers, so great was the scarcity of money that there was a formidable agitation to try inflation again.[922] Throughout the country there once more was a "general rage for paper money."[923] Bad as this currency was, it was counterfeited freely.[924] Such coin as existed was cut and clipped until Was.h.i.+ngton feared that "a man must travel with a pair of money scales in his pocket, or run the risk of receiving gold of one fourth less by weight than it counts."[925]

If there was not money enough, let the Government make more--what was a government for if not for that? And if government could not make good money, what was the good of government? Courts were fine examples of what government meant--they were always against the common people. Away with them! So ran the arguments and appeals of the demagogues and they found an answer in the b.r.e.a.s.t.s of the thoughtless, the ignorant, and the uneasy. This answer was broader than the demand for paper money, wider than the protest against particular laws and specific acts of administration. This answer also was, declared General Knox, "that the property of the United States ... ought to be the common property of all. And he that attempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the earth." Knox was convinced that the discontented were "determined to annihilate all debts, public and private."[926]

Ideas and purposes such as these swayed the sixteen thousand men who, in 1787, followed Daniel Shays in the popular uprising in Ma.s.sachusetts against taxes, courts, and government itself.[927] "The restlessness produced by the uneasy situation of individuals, connected with lax notions concerning public and private faith, and erroneous[928]

opinions which confound liberty with an exemption from legal control, produced ... unlicensed conventions, which, after voting on their own const.i.tutionality, and a.s.suming the name of the people, arrayed themselves against the legislature," was John Marshall's summary of the forces that brought about the New England rebellion.

The "army" of lawlessness, led by Shays, took the field, says Marshall, "against taxes, and against the administration of justice; and the circulation of a depreciated currency was required, as a relief from the pressure of public and private burdens, which had become, it was alleged, too heavy to be borne. Against lawyers and courts the strongest resentments were manifested; and to such a dangerous extent were these dispositions indulged, that, in many instances, tumultuous a.s.semblages of people arrested the course of law, and restrained the judges from proceeding in the execution of their duty."

"The ordinary recourse to the power of the country was found insufficient protection," records Marshall, "and the appeals made to reason were attended with no beneficial effect. The forbearance of the government was attributed to timidity rather than moderation, and the spirit of insurrection appeared to be organized into a regular system for the suppression of courts."[929] Such was Marshall's a.n.a.lysis of the Northern convulsion; and thus was strengthened in him that tendency of thought started at Valley Forge, and quickened in the Virginia House of Delegates.

"It rather appears to me," wrote David Humphries to Was.h.i.+ngton, in an attempt to explain the root of the trouble, "that there is a licentious spirit prevailing among many of the people; a levelling principle; and a desire of change; with a wish to annihilate all debts, public and private."[930] Unjust taxes were given as the cause of the general dislike of government, yet those who composed the mobs erupting from this crater of anarchy, now located in New England, paid few or no taxes.

"High taxes are the ostensible cause of the commotions, but that they are the real cause is as far remote from truth as light from darkness,"

a.s.serts Knox. "The people who are the insurgents have never paid any, or but very little taxes," testifies this stanch Revolutionary officer.

"But," continues Knox, "they see the weakness of the government. They feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter, in order to remedy the former."[931]

This condition brought to a head a distrust of the good sense, justice, and moderation of the people, which had been forming in the minds of many of the best and ablest men of the time.[932] "The knaves and fools of this world are forever in alliance," was the conclusion reached in 1786[933] by Jay, who thought that the people considered "liberty and licentiousness" as the same thing.[934] The patient but bilious Secretary of State felt that "the wise and the good never form the majority of any large society, and it seldom happens that their measures are uniformly adopted, or that they can always prevent being overborne themselves by the strong and almost never-ceasing union of the wicked and the weak."[935] The cautious Madison was equally doubtful of the people: "There are subjects to which the capacities of the bulk of mankind are unequal and on which they must and will be governed by those with whom they happen to have acquaintance and confidence" was Madison's judgment.[936]

Was.h.i.+ngton, black with depression, decided and bluntly said "that mankind, when left to themselves, are unfit for their own government."

Lee had suggested that Was.h.i.+ngton use his "influence" to quiet the disorders in New England; but, flung back Was.h.i.+ngton, "_Influence_ is no _government_. Let us have one by which our lives, liberties, and properties will be secured, or let us know the worst at once.... To be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible."[937]

"No morn ever dawned more favorably than ours did; and no day was ever more clouded than the present.... We are fast verging to anarchy,"[938]

cried the great captain of our war for liberty. The wings of Was.h.i.+ngton's wrath carried him far. "Good G.o.d!" cried he, "Who, besides a Tory, could have foreseen, or a Briton predicted" the things that were going on! "The disorders which have arisen in these States, the present prospect of our affairs ... seems to me to be like the vision of a dream. My mind can scarcely realize it as a thing in actual existence.... There are combustibles in every State, which a spark might set fire to."[939]

Marshall echoed his old commander's views. The dreams of his youth were fading, his confidence in the people declining. He records for us his altered sentiments: "These violent, I fear b.l.o.o.d.y, dissensions in a state [Ma.s.sachusetts] I had thought inferior in wisdom and virtue to no one in the union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over the bright prospect which the revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself."[940] Thus wrote Marshall in 1787, when he was not yet thirty-two years old.

But Jefferson in Paris was beholding a different picture that strengthened the views which he and Marshall held in common when America, in arms, challenged Great Britain. "The Spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now & then.

It is like a storm in the atmosphere." So wrote Jefferson after the Ma.s.sachusetts insurrection had been quelled.[941]

The author of our Declaration of Independence was tasting the delights of the charming French Capital at this time, but he also was witnessing the shallowness and stupidity of the peculiarly weak royalty and n.o.bility; and although it was this same Royal Government that had aided us with men and money in our struggle to throw off the yoke of England, Jefferson's heart grew wrathful against it and hot for popular rule in France. Yet in the same apostrophe to rebellion, Jefferson declares that the French people were too shallow for self-rule. "This [French]

nation," writes Jefferson, "is incapable of any serious effort but under the word of command."[942]

After having had months to think about it, this enraptured enthusiast of popular upheaval spread his wings and was carried far into crimson skies. "Can history produce an instance of rebellion so honourably conducted?" exclaimed Jefferson, of the Ma.s.sachusetts anarchical outburst, nearly a year after it had ended; and continued thus:--

"G.o.d forbid! we should ever be 20 years without such a rebellion....

What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance?

Let them take arms!... What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure."[943]

Thus did his contact with a decadent monarchy on the one hand and an enchanting philosophy on the other hand, help to fit him for the leaders.h.i.+p of American radicalism. No better training for that mission could have been afforded. French thought was already challenging all forms of existing public control; it was a spirit Gamaliel which found in Jefferson an eager Saul at its feet; and American opinion was prepared for its doctrines. In the United States general dislike and denunciation of the established governments had uncovered the feeling against government itself which lay at the root of opposition to any stronger one.

The existing American system was a very masterpiece of weakness. The so-called Federal Government was like a horse with thirteen bridle reins, each held in the hands of separate drivers who usually pulled the confused and powerless beast in different directions. Congress could make treaties with foreign nations; but each of the States could and often did violate them at will. It could borrow money, but could not levy taxes or impose duties to pay the debt. Congress could get money only by making humble requests, called "requisitions," on the "sovereign" Commonwealths. It had to depend upon the whims of the various States for funds to discharge princ.i.p.al and interest of public obligations; and these springs of revenue, when not entirely dry, yielded so little that the Federal establishment was like to die of financial thirst.[944]

The requisitions of Congress upon the various States for money to pay the National obligations to foreign creditors were usually treated with neglect and often with contempt by those jealous and pompous "Sovereignties." "Requisitions are a perfect nullity where thirteen sovereign, independent, disunited States are in the habit of discussing and refusing compliance with them at their option. Requisitions are actually little better than a jest and a by-word throughout the land. If you tell the legislatures they have violated the treaty of peace, and invaded the prerogatives of the confederacy, they will laugh in your face."[945] Thus raged Was.h.i.+ngton. "Congress cannot command money" even to redeem Americans held in slavery in Algiers,[946] testified the powerless and despondent Secretary of State. Indeed, Congress amounted to so little that the delegates from many States often refused to attend.[947]

Though debts were great and financial confusion maddening, they furnished no solid excuse for the failure of the States to enable Congress to preserve American honor by the payment of our admitted National debt. Jay reviewed the situation and showed that "the resources of the country ... notwithstanding all appearances to the contrary, are abundant.... Our country is fertile, abounding in useful productions, and those productions in demand and bearing a good price."[948] The general opinion appears to have been that the people did not want to support the Government.

"The treasury is empty, though the country abounds in resources, and our people are far more unwilling than unable to pay taxes," wrote Jay, early in 1787.[949] Madison excused his support of the bill authorizing tobacco to be taken for specie in payment of taxes, upon the ground that it "could not be rejected without ... exciting some worse project of a popular cast";[950] and "by a fear that some greater evil under the name of relief to the people would be subst.i.tuted."[951] Debt "made it extremely inconvenient to most people to submit to a regular government," was the conclusion Rutledge finally reached.[952]

But, whatever the cause, the States did not act. Was.h.i.+ngton thought it a combination of the scheming of demagogues and the ignorance and dishonesty of the people. "I think there is more wickedness than ignorance mixed in our councils.... Ignorance and design are difficult to combat.... To be so fallen! so lost!... Virtue, I fear has in a great degree taken its departure from our land and the want of a disposition to do justice is the source of the national embarra.s.sments; for, whatever guise or colorings are given to them, this I apprehend is the origin of the evils we now feel."[953] Such was Was.h.i.+ngton's cry of despair four years after he had wrested American liberty from Great Britain.

Look where one will among the cla.s.s of men of whom Was.h.i.+ngton was the highest representative, one finds that they believed the fountain head of the country's desperate conditions to be in the people themselves.

Jay put this opinion in a nutsh.e.l.l when he said, "The ma.s.s of men are neither wise nor good."[954] Not that these leaders despaired that an American People would finally be evolved who should realize the exalted expectations of the patriot leaders of the Revolution; not that out of the flux of popular heedlessness and dishonor, indifference and disorder, idleness and avarice, the n.o.bler qualities of human nature would not, in the end, bring forth a nation and rule it for the happiness and well-being of its people. But they thought that only a strong government could fas.h.i.+on the clay and breathe into its nostrils the breath of life. "Virtue, like the other resources of a country, can only be drawn to a point and exerted by strong circ.u.mstances ably managed, or a strong government ably administered," said Jay.[955]

The s.h.i.+eld of all this turmoil and baseness was the State Governments.

"Their unreasonable jealousy of that body [Congress] and of one another ... will, if there is not a change in the system, be our downfall as a nation," exclaimed Was.h.i.+ngton only a few months after peace had been established.[956] It was the States, he declared, which made the Federal establishment "a half-starved, limping government, that appears to be always moving upon crutches and tottering at every step."[957]

It was the States which always were thwarting every plan for the general welfare; the States which were forever impairing the National obligations; the States which bound hand and foot the straw man of the central power, clothed it in rags and made it a mere scarecrow of government. And it was State pride, prejudice, and ignorance which gave provincial demagogues their advantage and opportunity. The State Governments were the "people's" Governments; to yield State "sovereignty" was to yield the "people's" power over their own affairs, shouted the man who wished to win local prominence, power, and office.

Those who did not want to pay taxes and who disliked much government of any kind felt that they could make s.h.i.+ft with mere State establishments.[958] "A thirst for power, and the bantling, I had liked to have said monster for sovereignty, which have taken such fast hold of the States individually, will, when joined by the many whose personal consequence in the control of State politics will in a manner be annihilated, form a strong phalanx against"[959] the National Const.i.tution, prophesied the leader of the Revolution.

But it was not alone the powerlessness of the Federal Government to keep the National faith, plighted by solemn treaties with foreign Governments; or to uphold the National honor by paying debts made to win American independence, that wrought that bloodless revolution[960] which produced the Const.i.tution. Nor was it the proud and far-seeing plans of a few great minds whose heart's desire was to make the American People a Nation.

Finance, commerce, and business a.s.sembled the historic Philadelphia Convention; although it must be said that statesmans.h.i.+p guided its turbulent councils. The senseless and selfish nagging at trade in which the States indulged, after peace was declared, produced a brood of civil abuses as noisome as the military dangers which State control of troops had brought forth during the Revolution. Madison truly said that "most of our political evils may be traced up to our commercial ones."[961]

The States pa.s.sed tariff laws against one another as well as against foreign nations; and, indeed, as far as commerce was concerned, each State treated the others as foreign nations.[962] There were retaliations, discriminations, and every manner of trade restrictions and impediments which local ingenuity and selfishness could devise.

The idea of each State was to keep money from going outside its borders into other States and to build up its own business and prosperity at the expense of its neighbors.[963] States having no seaports were in a particularly hard case. Madison picturesquely describes their unhappy plight: "New Jersey placed between Phil^a & N. York, was likened to a cask tapped at both ends; And N. Carolina, between Virg^a & S. Carolina to a patient bleeding at both Arms."[964] Merchants and commercial bodies were at their wits' end to carry on business and pet.i.tioned for a general power over commerce.[965]

The commercial view, as stated by Madison, was that "the National Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c., &c."

Madison then lays down this extreme Nationalist principle as the central article of his political faith: "Over and above this positive power, a negative in _all cases whatsoever_ on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated. The States will continue to invade the National jurisdiction, to violate treaties and the law of nations & to hara.s.s each other with rival and spiteful measures dictated by mistaken views of interest."[966]

Too much emphasis cannot be put upon the fact that the mercantile and financial interests were the weightiest of all the influences for the Const.i.tution; the debtors and agricultural interests the strongest groups against it. It deserves repet.i.tion, for a proper understanding of the craft and force practiced by both sides in the battle over ratification, that those who owed debts were generally against the Const.i.tution and practically all to whom debts were due were for the new Government. "I have little prospect of bringing Banks [a debtor] to terms as the Law of this State now stands," wrote a Virginia agent of a creditor, "but I hope when the New Federal const.i.tution is adopted that the Laws will be put upon a better footing.... Three fourths of the people that oppose it [the Const.i.tution] are those that are deeply in debt & do not wish to pay."[967]

London merchants were very anxious for a new order of things. "I hope ere long your Federal Government will be established, and that honest Men will again have the a.s.sendency in your Country, for without such a change it must ever remain a poor place to live in," was the opinion of a business man living in the British Capital.[968]

A few weeks after Virginia ratified the Const.i.tution, Minton Collins reported to his princ.i.p.al about a person named Banks, who, says Collins, "begins to be a little alarmed from the adoption of the Federal Const.i.tution. I hope it will alarm every such R[asca]l. He had run his rig long enough for he boasts of being worth from 150,000 to 200,000 pounds; this is not bad for a man that six years ago could scarcely raise a suit of clothes to his back."[969]

Marshall was becoming a prosperous lawyer and his best clients were from the mercantile interests. His family relations.h.i.+ps were coming to be more and more with the property cla.s.ses. He had no ambition for a political career, which might have given to his thinking and conclusions a "more popular cast," to use Madison's contemptuous phrase. Thus Marshall's economic and political convictions resulting from experience and reasoning were in harmony with his business connections and social environment.

Undoubtedly he would have taken the same stand had none of these circ.u.mstances developed; his constructive mind, his conservative temperament, his stern sense of honor, his abhorrence of disorder and loose government, his army experience, his legislative schooling, his fidelity to and indeed adoration of Was.h.i.+ngton, would have surely placed him on the side of the Const.i.tution. Still, the professional and social side of his life should not be ignored, if we are to consider fully all the forces which then surrounded him, and which, with ever-growing strength, worked out the ultimate Marshall.

Jefferson, in France, experienced only the foreign results of the sharp and painful predicament which John Marshall was sadly witnessing in America. While not busy with the scholars and society of the French Capital, Jefferson had been engaged in the unhappy official task of staving off our French creditors and quieting, as well as he could, complaints of our trade regulations and other practices which made it hard and hazardous for the French to do business with us.[970] He found that "the nonpaiment of our debts and the want of energy in our government ... discourage a connection with us";[971] and "want of punctuality & a habitual protection of the debtor" prevented him from getting a loan in France to aid the opening of the Potomac.[972] All this caused even Jefferson to respond to the demand for unifying the American Government as to foreign nations; but he would not go further.

"Make the States one as to every thing connected with foreign nations, & several as to everything purely domestic," counseled Jefferson while the Const.i.tutional Convention was quarreling at Philadelphia.[973]

But he did not think badly of the weakness of the Articles of Confederation which so aroused the disgust, anger, and despair of Was.h.i.+ngton, Madison, Jay, and other men of their way of thinking, who were on the ground. "With all the imperfections of our present government [Articles of Confederation]," wrote Jefferson in Paris, in 1787, "it is without comparison the best existing or that ever did exist";[974] and he declared to one of his French friends that "the confederation is a wonderfully perfect instrument."[975] Jefferson found but three serious defects in the Articles of Confederation: no general rule for admitting States; the apportionment of the State's quota of money upon a land instead of a population basis; and the imperfect power over treaties, import duties, and commerce.[976]

He frankly said: "I am not a friend to a very energetic government"; and he thought that "our governments will remain virtuous for many centuries"--but added with seer-like vision: "as long as ... there shall be vacant lands in America."[977] Jefferson wished the United States "to practice neither commerce nor navigation, but to stand with respect to Europe precisely on the footing of China."[978] Far from thinking that the low state of our credit was a bad thing for us, he believed that its destruction would work an actual benefit to America. "Good will arise from the destruction of our credit," he a.s.serted in a letter to Stuart written from Paris in 1786. "I see nothing else which can restrain our disposition to luxury, and the loss of those manners which alone can preserve republican government."[979]

We have now seen the state of the country and the condition of the people, their situation and habits, their manner of life and trend of feeling. We have witnessed the change thus wrought in the leading men during this period, so destructive of confidence in the wisdom or virtue of majorities, at least on first impulse and without abundant time for reflection and second thought. Thus we have measured, with some degree of accuracy, the broad and well-marked s.p.a.ce that separated the hostile forces which were to meet in what was for the moment a decisive conflict when Virginia's Const.i.tutional Convention should a.s.semble at Richmond.

In one camp the uninformed and credulous, those who owed debts and abhorred government, with a sprinkling among them of eminent, educated, and well-meaning men who were philosophic apostles of theoretical liberty; and in the other camp men of property and lovers of order, the trading and moneyed interests whose first thought was business; the veterans of the Revolution who had learned on the battlefield the need of a strong central Government; and, here and there, a prophetic and constructive mind who sought to build a Nation. John Marshall was one of the latter; and so he promptly took his place by the side of his old general and leader in the camp of the builders.