The Life of John Marshall Volume II Part 6

Was.h.i.+ngton had made Jefferson his Secretary of State purely on merit.

For similar reasons of efficiency Hamilton had been appointed Secretary of the Treasury, after Robert Morris, Was.h.i.+ngton's first choice, had declined that office.

At Jefferson's dinner table, the two Secretaries discussed the predicament and made the bargain. Thereupon, Jefferson, with all the zeal of his ardent temperament, threw himself into the contest to pa.s.s Hamilton's financial measure; and not only secured the necessary votes to make a.s.sumption a law, but wrote letters broadcast in support of it.

"Congress has been long embarra.s.sed," he advised Monroe, "by two of the most irritating questions that ever can be raised, ... the funding the public debt and ... the fixing on a more central residence.... Unless they can be reconciled by some plan of compromise, there will be no funding bill agreed to, our credit ... will burst and vanish and the states separate to take care every one of itself." Jefferson outlines the bargain for fixing the Capital and a.s.suming the debts, and concludes: "If this plan of compromise does not take place, I fear one infinitely worse."[162] To John Harvie he writes: "With respect to Virginia the measure is ... divested of ... injustice."[163]

Jefferson delivered three Southern votes to pa.s.s the bill for a.s.sumption of the State debts, and Hamilton got enough Northern votes to locate the National Capital permanently where it now stands.[164] Thus this vital part of Hamilton's comprehensive financial plan was squeezed through Congress by only two votes.[165] But Virginia was not appeased and remained the center of the opposition.[166]

Business at once improved. "The sudden increase of monied capital,"

writes Marshall, "invigorated commerce, and gave a new stimulus to agriculture."[167] But the "immense wealth which individuals acquired"

by the instantaneous rise in the value of the certificates of debt caused popular jealousy and discontent. The debt was looked upon, not as the funding of obligations incurred in our War for Independence, but as a scheme newly hatched to strengthen the National Government by "the creation of a monied interest ... subservient to its will."[168]

The Virginia Legislature, of which Marshall was now the foremost Nationalist member, convened soon after a.s.sumption had become a National law. A smas.h.i.+ng resolution, drawn by Henry,[169] was proposed, a.s.serting that a.s.sumption "is repugnant to the const.i.tution of the United States, as it goes to the exercise of a power not expressly granted to the general government."[170] Marshall was active among and, indeed, led those who resisted to the uttermost the attack upon this thoroughly National measure of the National Government.

Knowing that they were outnumbered in the Legislature and that the people were against a.s.sumption, Marshall and his fellow Nationalists in the House of Delegates employed the expedient of compromise. They proposed to amend Henry's resolution by stating that a.s.sumption would place on Virginia a "heavy debt ... which never can be extinguished" so long as the debt of any other State remained unpaid; that it was "inconsistent with justice"; that it would "alienate the affections of good citizens of this Commonwealth from the government of the United States ... and finally tend to produce measures extremely unfavorable to the interests of the Union."[171]

Savage enough for any one, it would seem, was this amendment of the Nationalists in the Virginia Legislature; but its fangs were not sufficiently poisonous to suit the opposition. It lacked, particularly, the supreme virtue of a.s.serting the law's unconst.i.tutionality. So the Virginia Anti-Nationalists rejected it by a majority of 41 votes out of a total of 135.

Marshall and his determined band of Nationalists labored hard to retrieve this crus.h.i.+ng defeat. On Henry's original resolution, they slightly increased their strength, but were again beaten by a majority of 23 out of 127 voting.[172]

Finally, the triumphant opposition reported a protest and remonstrance to Congress. This brilliant Anti-Nationalist State paper--the Magna Charta of States' Rights--sounded the first formal call to arms for the doctrine that all powers not expressly given in the Const.i.tution were reserved to the States. It also impeached the a.s.sumption Act as an effort "to erect and concentrate and perpetuate a large monied interest in opposition to the landed interests," which would prostrate "agriculture at the feet of commerce" or result in a "change in the present form of Federal Government, fatal to the existence of American liberty."[173]

But the unconst.i.tutionality of a.s.sumption was the main objection. The memorial declared that "during the whole discussion of the federal const.i.tution by the convention of Virginia, your memorialists were taught to believe 'that every power not expressly granted was retained' ... and upon this positive condition" the Const.i.tution had been adopted. But where could anything be found in the Const.i.tution "authorizing Congress to express terms or to a.s.sume the debts of the states?" Nowhere! Therefore, Congress had no such power.

"As the guardians, then, of the rights and interests of their const.i.tuents; as sentinels placed by them over the ministers of the Federal Government, to s.h.i.+eld it from their encroachments," the Anti-Nationalists in the Virginia Legislature sounded the alarm.[174] It was of this jealous temper of the States that Ames so accurately wrote a year later: "The [National] government is too far off to gain the affections of the people.... Instead of feeling as a Nation, a State is our country. We look with indifference, often with hatred, fear, and aversion, to the other states."[175]

Marshall and his fellow Nationalists strove earnestly to extract from the memorial as much venom as possible, but were able to get only three or four lines left out;[176] and the report was adopted practically as originally drafted.[177] Thus Marshall was in the first skirmish, after the National Government had been established, of that const.i.tutional engagement in which, ultimately, Nationalism was to be challenged on the field of battle. Sumter and Appomattox were just below the horizon.

The remainder of Hamilton's financial plan was speedily placed upon the statute books of the Republic, though not without determined resistance which, more and more, took on a grim and ugly aspect both in Congress and throughout the country.

When Henry's resolution, on which the Virginia remonstrance was based, reached Hamilton, he instantly saw its logical result. It was, he thought, the major premise of the syllogism of National disintegration.

"This," exclaimed Hamilton, of the Virginia resolution, "is the first symptom of a spirit which must either be killed or it will kill the Const.i.tution of the United States."[178]

The Anti-Nationalist memorial of the Legislature of Virginia accurately expressed the sentiment of the State. John Taylor of Caroline two years later, in pamphlets of marked ability, attacked the Administration's entire financial system and its management. While he exhaustively a.n.a.lyzed its economic features, yet he traced all its supposed evils to the Nationalist idea. The purpose and result of Hamilton's whole plan and of the manner of its execution was, declared Taylor, to "Swallow up ... the once sovereign ... states.... Hence all a.s.sumptions and ... the enormous loans." Thus "the state governments will become only speculative commonwealths to be read for amus.e.m.e.nt, like Harrington's _Oceana_ or Moore's _Utopia_."[179]

The fight apparently over, Marshall declined to become a candidate for the Legislature in the following year. The Administration's financial plan was now enacted into law and the vital part of the National machinery thus set up and in motion. The country was responding with a degree of prosperity hitherto unknown, and, for the time, all seemed secure.[180] So Marshall did not again consent to serve in the House of Delegates until 1795. But the years between these periods of his public life brought forth events which were determinative of the Nation's future. Upon the questions growing out of them, John Marshall was one of the ever-decreasing Virginia minority which stanchly upheld the policies of the National Government.

Virginia's declaration of the unconst.i.tutionality of the a.s.sumption Act had now thundered in Jefferson's ears. He himself was instrumental in the enactment of this law and its unconst.i.tutionality never occurred to him[181] until Virginia spoke. But, faithful to the people's voice,[182]

Jefferson was already publicly opposing, through the timid but resourceful Madison[183] and the fearless and aggressive[184] Giles, the Nationalist statesmans.h.i.+p of Hamilton.[185]

Thus it came about that when Was.h.i.+ngton asked his Cabinet's opinion upon the bill to incorporate the Bank of the United States, Jefferson promptly expressed with all his power the const.i.tutional theory of the Virginia Legislature. The opposition had reached the point when, if no other objection could be found to any measure of the National Government, its "unconst.i.tutionality" was urged against it. "We hear, incessantly, from the old foes of the Const.i.tution 'this is unconst.i.tutional and that is,' and, indeed, what is not? I scarce know a point which has not produced this cry, not excepting a motion for adjourning."[186] Jefferson now proceeded "to produce this cry" against the Bank Bill.

Hamilton's plan, said Jefferson, violated the Const.i.tution. "To take a single step beyond the boundaries thus specially drawn around the powers of Congress [the Twelfth Amendment][187] is to take possession of a boundless field of power, no longer susceptible of any definition." Even if the bank were "convenient" to carry out any power specifically granted in the Const.i.tution, yet it was not "_necessary_," argued Jefferson; all powers expressly given could be exercised without the bank. It was only indispensable powers that the Const.i.tution permitted to be implied from those definitely bestowed on Congress--"convenience is not necessity."[188]

Hamilton answered with his argument for the doctrine of implied powers.[189] Banks, said he, are products of civilized life--all enlightened commercial nations have them. He showed the benefits and utility of banks; answered all the objections to these financial agencies; and then examined the disputed const.i.tutionality of the bill for the incorporation of the Bank of the United States.

All the powers of the National Government were not set down in words in the Const.i.tution and could not be. For instance, there are the "resulting powers," as over conquered territory. n.o.body could deny the existence of such powers--yet they were not granted by the language of the fundamental law. As to Jefferson's argument based on the word "necessary," his contention meant, said Hamilton, that "no means are to be considered _necessary_ without which the power would be _nugatory_"--which was absurd. Jefferson's reasoning would require that an implied power should be "_absolutely_ or _indispensably_ necessary."

But this was not the ordinary meaning of the word and it was by this usual and customary understanding of terms that the Const.i.tution must be interpreted. If Jefferson was right, Congress could act only in "a case of extreme necessity." Such a construction of the Const.i.tution would prevent the National Government even from erecting lighthouses, piers, and other conveniences of commerce which _could_ be carried on without them. These ill.u.s.trations revealed the paralysis of government concealed in Jefferson's philosophy.

The true test of implied powers, Hamilton showed, was the "natural relation [of means] to the ... lawful ends of the government."

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 Const.i.tution 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 Const.i.tution, 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 const.i.tution 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 lat.i.tude of discretion in the selection and application of those means."[190]

So were stated the opposing principles of liberal and narrow interpretation of the Const.i.tution, 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 ma.s.ses.[193]

Such was the popular doctrine preached by the opponents of the National Government; but all economic objections centered in a common a.s.sault 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 Const.i.tution 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 Const.i.tution was adopted, the term "party" was used as an expression of reproach. The correspondence of the period teems with ill.u.s.trations 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 parties[194] almost as much as against foreign alliances.

FOOTNOTES:

[95] Marshall, ii, 150-51. "The agitation had been too great to be suddenly calmed; and for the active opponents of the system [Const.i.tution] to become suddenly its friends, or even indifferent to its fate, would have been a victory of reason over pa.s.sion." (_Ib._; and see Beard: _Econ. O. J. D._, 85, 101, 102-07.)

[96] "The effort was made to fill the legislature with the declared enemies of the government, and thus to commit it, in its infancy, to the custody of its foes." (Marshall, ii, 151.)

[97] Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. Cong.

Madison adds this cryptic sentence: "This hint may not be unworthy of your attention."

[98] Madison to Was.h.i.+ngton, June 27, 1788; _Writings_: Hunt, v, 234.

Madison here refers to the project of calling a new Federal Convention for the purpose of amending the Const.i.tution or making a new one.

Randolph was still more apprehensive. "Something is surely meditated against the new Const.i.tution more animated, forcible, and violent than a simple application for calling a Convention." (Randolph to Madison, Oct.

23, 1788; Conway, 118.)

[99] When Jefferson left Virginia for France, his political fortunes were broken. (Eckenrode: _R. V._, chap. viii; and Dodd, 63-64; and Ambler, 35-36.) The mission to France at the close of the American Revolution, while "an honor," was avoided rather than sought by those who were keen for career. (Dodd, 36-39.)

Seldom has any man achieved such a recovery as that of Jefferson in the period now under review. Perhaps Talleyrand's rehabilitation most nearly approaches Jefferson's achievement. From the depths of disfavor this genius of party management climbed to the heights of popularity and fame.

[100] Jefferson to Hopkinson, March 13, 1789; _Works_: Ford, v, 456.

[101] Jefferson to Was.h.i.+ngton, Paris, Dec. 4, 1788; _Works_: Ford, v, 437-38. Compare with Jefferson's statements when the fight was on against ratifying the Const.i.tution. (See vol. I, chap. VIII; also Jefferson to Humphreys, Paris, March 18, 1789; _Works_: Ford, v, 470.)

[102] Jefferson to Short, Dec. 14, 1789; _Works_: Ford, vi, 24.

[103] The Legislature which met on the heels of the Virginia Const.i.tutional Convention hastened to adjourn in order that its members might attend to their harvesting. (Monroe to Jefferson, July 12, 1788; Monroe's _Writings_: Hamilton, i, 188.) But at its autumn session, it made up for lost time in its practical display of antagonism to the Nationalist movement.