Volume II Part 51 (1/2)

”3. That a joint committee of both Houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen.”[1011]

Thus it came about that the designation of Was.h.i.+ngton as ”First in war, first in peace, and first in the hearts of his countrymen” was attributed to Marshall. But Marshall's colleague, Henry Lee, was the author of these words. Marshall's refusal to allow history to give him the credit for this famous description is characteristic. He might easily have accepted that honor. Indeed, he found it difficult to make the public believe that he did not originate this celebrated phraseology. He presented the resolutions; they stand on the record in Marshall's name; and, for a long time, the world insisted on ascribing them to him.

In a last effort to make history place the laurels on General Lee, where they belong, Marshall, three years before his death, wrote the exact facts:--

”As the stage pa.s.sed through Philadelphia,” says Marshall, ”some pa.s.senger mentioned to a friend he saw in the street the death of General Was.h.i.+ngton. The report flew to the hall of Congress, and I was asked to move an adjournment. I did so.

”General Lee was not at the time in the House. On receiving the intelligence which he did on the first arrival of the stage, he retired to his room and prepared the resolutions which were adopted with the intention of offering them himself.

”But the House of Representatives had voted on my motion, and it was expected by all that I on the next day announce the lamentable event and propose resolutions adapted to the occasion.

”General Lee immediately called on me and showed me his resolutions. He said it had now become improper for him to offer them, and wished me to take them. As I had not written anything myself and was pleased with his resolutions which I entirely approved, I told him I would offer them the next day when I should state to the House of Representatives the confirmation of the melancholy intelligence received the preceding day.

I did so.

”You will see the fact stated in a note to the preface of the Life of Was.h.i.+ngton on p. [441] v. [2] and again in a note to the 5th vol. p.

765. Whenever the subject has been mentioned in my presence,” Marshall adds in a postscript, ”I have invariably stated that the resolution was drawn by General Lee and have referred to these notes in the Life of Was.h.i.+ngton.”[1012]

During the first session Marshall was incessantly active, although his work was done with such ease that he gave to his colleagues the impression of indolence. Few questions came before the House on which he did not take the floor; and none, apparently, about which he did not freely speak his mind in private conversation. The interminable roll-calls of the first session show that Marshall failed to vote only six times.[1013] His name is prominent throughout the records of the session. For example, the Republicans moved to amend the army laws so that enlistments should not exempt non-commissioned officers and privates from imprisonment for debt. Marshall spoke against the motion, which was defeated.[1014] He was appointed chairman of a special committee to bring in a bill for removing military forces from election places and ”preventing their interference in elections.” Marshall drew this measure, reported it to the House, where it pa.s.sed, only to be defeated in the Senate.[1015]

Early in the session Marshall was appointed chairman of the committee to report upon the cession by Connecticut to the United States of that priceless domain known as the Western Reserve. He presented the committee report recommending the acceptance of the lands and introduced the bill setting out the terms upon which they could be taken over.[1016] After much debate, which Marshall led, Gallatin fighting by his side, the bill was pa.s.sed by a heavy majority.[1017]

Marshall's vote against abrogating the power of the Governor of the Territory of the Mississippi to prorogue the Legislature;[1018] his vote for the resolution that the impertinence of a couple of young officers to John Randolph at the theater did not call ”for the interposition of this House,” on the ground of a breach of its privileges;[1019] his vote against that part of the Marine Corps Bill which provided that any officer, on the testimony of two witnesses, should be cas.h.i.+ered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on sh.o.r.e, offended against the person or property of any citizen,[1020] are fair examples of the level good sense with which Marshall invariably voted.

On the Marine Corps Bill a debate arose so suddenly and sharply that the reporter could not record it. Marshall's part in this encounter reveals his military bent of mind, the influence of his army experience, and his readiness in controversy, no less than his unemotional sanity and his disdain of popular favor if it could be secured only by sacrificing sound judgment. Marshall strenuously objected to subjecting the Marine Corps officers to trial by jury in the civil courts; he insisted that courts-martial were the only tribunals that could properly pa.s.s on their offenses. Thereupon, young John Randolph of Roanoke, whose pose at this particular time was extravagant hostility to everything military, promptly attacked him. The incident is thus described by one who witnessed the encounter ”which was incidentally and unexpectedly started and as suddenly and warmly debated”:--

”Your representative, Mr. Marshall, was the princ.i.p.al advocate for _letting the power remain with courts martial and for withholding it from the courts of law_. In the course of the debate there was some warmth and personality between him and Mr. Randolph, in consequence of the latter charging the former with adopting opinions, and using arguments, which went to sap the mode of trial by jury.

”Mr. Marshall, with leave, rose a third time, and exerted himself to repel and invalidate the deductions of Mr. Randolph, who also obtained permission, and defended the inference he had drawn, by stating that Mr.

Marshall, in the affair of Robbins,[1021] had strenuously argued against the jurisdiction of the American courts, and had contended that it was altogether an _Executive_ business; that in the present instance he strongly contended that the business ought not to be left with the civil tribunals, but that it ought to be transferred to military tribunals, and thus the trial by jury would be lessened and frittered away, and insensibly sapped, at one time by transferring the power to the Executive, and at another to the military departments; and in other ways, as occasions might present themselves. The debate happened so unexpectedly that the shorthand man did not take it down, although its manner, its matter, and its tendency, made it more deserving of preservation, than most that have taken place during the session.”[1022]

Marshall's leaders.h.i.+p in the fight of the Virginia Revolutionary officers for land grants from the National Government, strongly resisted by Gallatin and other Republican leaders, ill.u.s.trates his unfailing support of his old comrades. Notwithstanding the Republican opposition, he was victorious by a vote of more than two to one.[1023]

But Marshall voted to rebuke a pet.i.tion of ”free men of color” to revive the slave-trade laws, the fugitive from justice laws, and to take ”such measures as shall in due course” free the slaves.[1024] The debate over this resolution is important, not only as explaining the vote of Marshall, who came from Virginia and was himself a slaveholder, as were Was.h.i.+ngton and Jefferson, but also as showing the mind of the country on slavery at that particular time.

Marshall's colleague, General Lee, said that the pet.i.tion ”contained sentiments ... highly improper ... to encourage.”[1025] John Rutledge of South Carolina exclaimed: ”They now tell the House these people are in slavery--I thank G.o.d they are! if they were not, dreadful would be the consequences.... Some of the states would never have adopted the Federal form of government if it had not been secured to them that Congress never would legislate on the subject of slavery.”[1026]

Harrison Gray Otis of Ma.s.sachusetts was much disgusted by the resolution, whose signers ”were incapable of writing their names or of reading the pet.i.tions”; he ”thought those who did not possess that species of property [slaves] had better leave the regulation of it to those who were cursed with it.” John Brown of Rhode Island ”considered [slaves] as much personal property as a farm or a s.h.i.+p.... We want money; we want a navy; we ought therefore to use the means to obtain it.... Why should we see Great Britain getting all the slave trade to themselves; why may not our country be enriched by that lucrative traffic?”[1027] Gabriel Christie of Maryland hoped the pet.i.tion would ”go under the table instead of upon it.”[1028] Mr. Jones of Georgia thought that the slaves ”have been immensely benefited by coming amongst us.”[1029]

Finally, after two days of debate, in which the cause of freedom for the blacks was almost unsupported, Samuel Goode of Virginia moved: ”That the parts of the said pet.i.tion which invite Congress to legislate upon subjects from which the General Government is precluded by the Const.i.tution have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this House.”[1030] On this motion, every member but one, including John Marshall, voted aye.

George Thacher, a Congregationalist preacher from Ma.s.sachusetts, alone voted nay.[1031] Such, in general, and in spite of numerous humanitarian efforts against slavery, was American sentiment on that subject at the dawn of the nineteenth century.[1032]

Five subjects of critical and historic importance came before the session: the Federalists' Disputed Elections Bill; the Republican attack on the provisional army raised for the probable emergency of war with France; the Republican attack on the Executive power in the Jonathan Robins case; the Republican onslaught upon the Alien and Sedition Laws; and the National Bankruptcy Bill. In each of these Marshall took a leading and determining part.

Early in the session (January 23) the Republicans brought up the vexed question of the Sedition Law. A resolution to repeal the obnoxious section of this measure was presented on January 29, and after a hot debate was adopted by the close vote of 50 to 48. Marshall voted for the repeal and against his own party.[1033] Had he voted with his party, the Republican attack would have failed. But no pressure of party regularity could influence Marshall against his convictions, no crack of the party whip could frighten him.

Considering the white heat of partisan feeling at the time, and especially on the subject of the Alien and Sedition Laws; considering, too, the fact that these offensive acts were Administration measures; and taking into account the prominence as a Federalist leader which Marshall had now achieved, his vote against the reprobated section of the Sedition Law was a supreme act of independence of political ties and party discipline. He had been and still was the only Federalist to disapprove, openly, the Alien and Sedition Laws.[1034] ”To make a little saving for our friend Marshall's address,” Chief Justice Ellsworth sarcastically suggested that, in case of the repeal of the Sedition Law, ”the preamble ... should read thus: 'Whereas the increasing danger and depravity of the present time require that the law against seditious practices _should be restored to its full rigor_, therefore,'

etc.”[1035]

From the point of view of its probable effect on Marshall's political fortunes, his vote appeared to spell his destruction, for it practically left him outside of either party. He abhorred the doctrine of State Sovereignty which Jefferson now was making the rallying-point of the Republican Party; he believed, quite as fervently as had Was.h.i.+ngton himself, that the principle of Nationality alone could save the Republic. So Marshall could have no hopes of any possible future political advancement through the Republican Party.