Chapter VIII: In Congress (1799-1800)

How fully Marshall enjoyed the confidence of Washington is proved by the facts that Washington offered him a seat in the cabinet as attorney-general and also an important foreign mission. Both these positions he had been obliged to decline. But the singularly responsible, difficult, and delicate task which he had accepted upon the nomination of Mr. Adams had been so well performed that further recognition of his ability was inevitable. In the summer of 1798 a vacancy occurred on the bench of the Supreme Court of the United States, and Adams resolved to appoint Mr. Marshall to fill it. He wrote to his secretary of state, Mr. Pickering, who was disposed to prefer Bushrod Washington, an eminent lawyer and a favorite nephew of the ex-President: “General Marshall or Bushrod Washington will succeed Judge Wilson, if you have not some other gentleman to propose who, in your opinion, can better promote the public honor and interest. Marshall is first in age, rank, and public services; probably not second in talents.” In a subsequent letter to the secretary, he further said:

“The name, the connections, the character, the merit, and abilities of Mr. Washington are greatly respected, but I still think General Marshall ought to be preferred. Of the three envoys [to France] the conduct of Marshall alone has been entirely satisfactory and ought to be marked by the most decided approbation of the public. He has raised the American people in their own esteem; and if the influence of truth and justice, reason and argument, is not lost in Europe, he has raised the consideration of the United States in that quarter. He is older at the bar than Mr. Washington, and you and I know by experience that seniority at the bar is nearly as much regarded as it is in the army. If Mr. Marshall should decline, I should next think of Mr. Washington.” [1]

Insurmountable considerations, as Mr. Marshall wrote to the secretary of state, obliged him to decline this honor, and the appointment accordingly fell to Bushrod Washington, very fortunately, as it turned out, for Washington made an excellent judge and Marshall soon became chief justice.

One of the chief reasons, doubtless the controlling one, which at this period (September 26, 1798) induced Marshall to decline the office thus tendered him was, that he had been induced, much against his will, to become a candidate for Congress. He had been invited to Mount Vernon, and there had been subjected to such earnest personal solicitation by General Washington that he had at last consented to accept a candidacy which he would have gladly shunned.

“I learned with much pleasure,” wrote Washington to his nephew, Bushrod Washington,“ from the postscript of your letter, of General Marshall’s intention to make me a visit. I wish it of all things, and it is from the ardent desire I have to see him, that I have not delayed a moment to express it, lest, if he should have intended it on his way to Frederic, and should hear of my indisposition, he might change his route. I can add with sincerity and truth, that if you can make it comport with your business I should be exceedingly happy to see you along with him. The crisis is important. The temper of the people in this State, at least in some places, is so violent and outrageous, that I wish to converse with General Marshall and yourself on the elections, which must come soon.” [2]

This visit to Mount Vernon, apart from all public considerations, seems to have afforded Washington great pleasure. Mr. Paulding has given us a pleasant memorial of it, with some amusing personal incidents. Washington sometimes related the anecdote to this effect:

“They came on horseback, and for convenience or some other purpose had bestowed their wardrobes in the same pair of saddle-bags, each party occupying his side. On their arrival at Mount Vernon, wet to the skin by a shower of rain, they were shown into a chamber to change their garments. One unlocked his side of the bag, and the first thing he drew forth was a black bottle of whiskey. He insisted that this was his companion’s repository, but on unlocking the other there was found a huge twist of tobacco, a few pieces of corn bread, and the complete equipment of a wagoner’s pack-saddle! They had exchanged saddle-bags with some travelers on the way, and finally made their appearance in borrowed clothes that fitted them most ludicrously. The general was highly diverted, and amused himself with anticipating the dismay of the wagoner when he discovered this oversight of the men of law.” [3]

Notwithstanding the great popularity of Mr. Marshall and the eclat of his conduct in the recent French mission, his election to Congress was warmly opposed by the Democratic party, with Mr. Jefferson at its head, and the contest was a severe one. Party feeling was highly inflamed, especially in Virginia. Marshall was severely arraigned as the advocate of a strong monarchical government, as a consolidationist, etc. One of the means used to defeat him was a report, industriously circulated in the district, that Patrick Henry, who belonged to the opposite political party, and whose name was a pillar of strength throughout the State, was opposed to his election. It is highly honorable to Colonel Henry that, when informed of the use thus made of his name, he promptly addressed a letter to his friend Mr. Blair of Richmond, in which he refuted the statement and thus spoke of General Marshall:

“General Marshall and his colleagues exhibited the American character as respectable. France in the period of her most triumphant fortune beheld them as unappalled. Her threats left them as she found them, mild, temperate, firm. Can it be thought that, with these sentiments, I should utter anything tending to prejudice General Marshall’s election? Very far from it indeed. Independently of the high gratification I felt from his public ministry, he ever stood high in my esteem as a private citizen. His temper and disposition were always pleasant. His talents and integrity unquestioned. These things are sufficient to place that gentleman far above any competition in the district for Congress; but when you add the particular information and insight which he has gained, and is able to communicate to our public councils, it is really astonishing that even blindness itself should hesitate in the choice. But it is to be observed that the efforts of France are to loosen the confidence of the people everywhere in the public functionaries, and to blacken characters most eminently distinguished for virtue, talents, and public confidence; thus smoothing the way to conquest, or those claims of superiority as abhorrent to my mind as conquest, from whatever quarter they may come.”

“Tell Marshall I love him, because he felt and acted as a republican, as an American. The story of the Scotch merchants and old Tories voting for him is too stale, childish, and foolish, and is a French finesse; an appeal to prejudice, not to reason and good sense. As to the particular words stated by you and said to come from me, I do not recollect saying them, but certain I am, I never said anything derogatory to General Marshall; but, on the contrary, I really should give him my vote for Congress preferably to any citizen in the State at this juncture, one only excepted, and that one is in another line.” [4]

From a political opponent, of very strong Democratic predilections, this was certainly a very handsome and a very unusual tribute.

Another unfounded and ungenerous report was diligently propagated in the canvass, and was keenly felt by Mr. Marshall. He alludes to it in a letter to General Washington, which, with the brief reply of the latter, we here insert:

“You may possibly have seen,” says Marshall, “a paragraph in a late publication stating that several important offices in the gift of the executive, and among others that of secretary of state, had been obtainable by me. Few of the unpleasant occurrences produced by my declaration as a candidate for Congress, and they have been very abundant, have given me more real chagrin than this. To make a parade of proffered offices is a vanity which I trust I do not possess, but to boast of one never in my power would argue a littleness of mind at which I ought to blush. I know not how the author may have acquired his information, but I beg leave to assure you that he never received it directly nor indirectly from me. I had no previous knowledge that such a publication was designed, or I should certainly have suppressed so much of it as relates to this subject. The writer was unquestionably actuated by a wish to serve me, and by resentment at the various malignant calumnies which have been so profusely bestowed on me. One of these was, that I only wished a seat in Congress for the purpose of obtaining some office, which my devotion to the administration might procure. To repel this was obviously the motive of the indiscreet publication I so much regret. A wish to rescue myself in your opinion from the imputation of an idle vanity, which forms, if I know myself, no part of my character, will, I trust, apologize for the trouble this explanation may give you.” [5]

It appears from the brief and gratifying letter of Washington in reply that Marshall’s explanation was needless.

“I am sorry to find,” Washington wrote, “that the publication you allude to should have given you a moment’s disquietude. I can assure you it made no impression on my mind of the tendency apprehended by you.”

But in spite of the best efforts which Marshall’s opponents could put forth, the Richmond district elected him. Though the majority was small, the result afforded high gratification to his friends. Washington wrote to his nephew, Bushrod Washington: “The election of General Lee and Marshall is grateful to my feelings. I wish, however, both of them had been elected by greater majorities; but they are elected, and that alone is pleasing. As the tide is turned I hope it will come in with a full flow, but this will not happen if there is any relaxation on the part of the Federalists.”

Congress convened in December, 1799, and Marshall took his seat in the House of Representatives, “a body,” says Mr. Horace Binney, “perhaps never exceeded in the number of its accomplished debaters, or in the spirit with which they contended for the prize of public approbation.” [6] It was the last which convened in Philadelphia.

In view of Washington’s extreme solicitude to see Marshall in Congress, and of the great pleasure his election afforded to his illustrious chief and friend, it is affecting to reflect that one of the first duties he was called to perform was to announce in the House the death of that great man, “the hero, the patriot, and the sage of America;” an unexpected calamity, which plunged a whole country into the profoundest grief. A rumor of Washington’s death had reached Philadelphia not long after the event occurred, but it was most earnestly hoped that it was unfounded. Later intelligence, however, dissipated this slender hope. On the next day, the 19th of December, “with suppressed voice and deep emotion,” Mr. Marshall addressed the chair, as follows:

“The melancholy event, which was yesterday announced with doubt, has been rendered but too certain. Our Washington is no more; the hero, the patriot, the sage of America, the man on whom in times of danger every eye was turned and all hopes were placed, lives now only in his own great actions, and in the hearts of an affectionate and afflicted people.”

“If, sir, it had even not been usual openly to testify respect for the memory of those whom Heaven has selected as its instruments for dispensing good to man, yet, such has been the uncommon worth and such the extraordinary incidents which have marked the life of him whose loss we all deplore, that the whole American nation, impelled by the same feelings, would call, with one voice, for a public manifestation of that sorrow which is so deep and so universal.”

“More than any other individual, and as much as to one individual was possible, has he contributed to found this, our wide-spreading empire, and to give to the western world independence and freedom.”

“Having effected the great object for which he was placed at the head of our armies, we have seen him convert the sword into the ploughshare, and sink the soldier in the citizen.”

“When the debility of our federal system had become manifest, and the bonds which connected this vast continent were dissolving, we have seen him the chief of those patriots who formed for us a Constitution which, by preserving the Union, will, I trust, substantiate and perpetuate those blessings which our Revolution had promised to bestow.”

“In obedience to the general voice of his country, calling him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the great interests of the nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, I trust, yet preserve our peace, our honor, and our independence.”

“Having been twice unanimously chosen the chief magistrate of a free people, we have seen him, at a time when his reelection with universal suffrage could not be doubted, afford to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life.”

“However the public confidence may change and the public affection fluctuate with respect to others, with respect to him they have, in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues.”

“Let us, then, Mr. Speaker, pay the last tribute of respect and affection to our departed friend. Let the grand council of the nation display those sentiments which the nation feels. For this purpose I hold in my hand some resolutions which I take the liberty of offering to the House.”

These resolutions, [7] after a preamble stating the death of General Washington, were in the following terms:

“Resolved, that this House will wait on the President in condolence of this mournful event.”

“Resolved, that the Speaker’s chair be shrouded with black, and the members and officers of the House wear black, during the session.”

“Resolved, that a committee, in conjunction with one from the Senate, be appointed to consider the most suitable manner of paying honors to the memory of the man first in war, first in peace, and first in the hearts of his fellow citizens.”

In the deliberations of the House of Representatives Mr. Marshall, who was ever “swift to hear, but slow to speak,” was constrained by circumstances to take a somewhat active part. His reputation for ability, his experience in public affairs, both at home and abroad, and the earnest desire of members to learn his views, forced him to occupy the floor oftener than he desired. On all questions involving international and constitutional law he soon became the leading authority; to discuss these was, with him, to exhaust them, for he left nothing more to be said. Of such a character was the question raised by a resolution offered by Mr. Livingston of New York, arraigning the President’s conduct in surrendering to the British authorities, under a clause of Jay’s treaty, one Thomas Nash, better known under his assumed name of Jonathan Robbins, claimed as a British subject upon a charge of murder committed on the high seas on board an English frigate. Robbins falsely claimed to be an American citizen, and to have been impressed into the British navy. He was arrested and imprisoned for his alleged crime in Charleston, South Carolina, at the instance of the British consul. The British minister made a requisition on the President for his surrender as a fugitive from justice. Under the provisions of the treaty, the United States judge in Charleston was advised by President Adams to surrender him to the British authorities, provided the evidence against him was such as, by the laws of this country, would justify his commitment for trial if the crime had been laid within the jurisdiction of the United States. The evidence of his criminality being satisfactory to the federal court, he was accordingly remanded into the custody of the British consul, was tried by a court-martial, found guilty, and executed. He confessed before his death that he was an Irishman.

This was the first case of the extradition of an alleged criminal arising under international law, recognized and enforced by treaty. Great popular excitement prevailed in the country in consequence of the surrender, inasmuch as the man alleged himself to be an American citizen, who had been unlawfully imprisoned, and had committed the homicide in an attempt to free himself from an illegal detention. But it was conceded at length, in the course of the debate in Congress, that he was not an American citizen, and that he had been guilty of the crime for which he had suffered death.

Mr. Marshall defended the course of the President in a close, argumentative speech, in which he maintained,

I. That the case came within the plain language of the treaty.

II. That it was a question of executive and not of judicial cognizance.

III. That the President could not be justly chargeable with any interference with the judicial department of the government.

In the discussion and defense of these propositions he was eminently successful, so much so, indeed, that although the case had become a party question, and had warmly enlisted party feelings, many of the Republicans voted with Marshall, and the resolutions of censure were lost by the decided vote of thirty-five ayes to sixty-one noes. It was by Marshall that public opinion was thus effectually changed, a result not often achieved by any number of speeches in times of extreme partisan excitement. Mr. Binney says of it:

“The speech which he delivered upon this question is believed to be the only one that he ever revised, and it was worthy of the case. It has all the merits, and nearly all the weight, of a judicial sentence. It is throughout inspired by the purest reason and the most copious and accurate learning. It separates the executive from the judicial power by a line so distinct and a discrimination so wise, that all can perceive and approve it. It demonstrated that the surrender was an act of political power, which belonged to the executive; and by excluding all such power by the grant of the Constitution to the judiciary, it prepared a pillow of repose for that department, where the success of the opposite argument would have planted thorns.” [8]

We cannot afford space for this great argument, but we make room for an extract, which embodies such fairness, such a sense of justice, and such clearness of argument, as to deserve preservation.

“The gentleman from Pennsylvania [Mr. Gallatin] has said that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this I concur entirely with that gentleman. I believe the opinion to be unquestionably correct, as are the reasons he has given in support of it. I never heard any American avow a contrary sentiment, nor do I believe a contrary sentiment can find a place in the bosom of an American. I cannot pretend, and do not pretend, to know the opinion of the executive on this subject, because I have never heard the opinions of that department; but I feel the most perfect conviction, founded on the general conduct of the government, that it could never surrender an impressed American to the nation which, in making the impressment, committed a national injury. This belief is in no degree shaken by the conduct of the executive in this particular case.”

“The President has decided that a murder, committed on board a British frigate on the high seas, is within the jurisdiction of that nation, and consequently within the twenty-seventh article of its treaty with the United States. He therefore directed Thomas Nash to be delivered to the British minister, if satisfactory evidence of the murder should be adduced; the sufficiency of the evidence was submitted entirely to the judge. If Thomas Nash had committed a murder, the decision was that he should be surrendered to the British minister; but if he had not committed a murder, he was not to be surrendered. Had Thomas Nash been an impressed American, the homicide on board the Hermione would most certainly not have been a murder. The act of impressing an American is an act of lawless violence. The confinement on board the vessel is a continuation of the violence and an additional outrage. Death committed within the United States, in resisting such violence, is not murder, and the person giving the wound can not be treated as a murderer. Thomas Nash was only to be delivered up to justice on such evidence as, had the fact been committed within the United States, would be sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed as to exclude the case of an impressed American liberating himself by homicide.”

The full information concerning the facts of the case, disclosed by this speech, and the candor and calmness with which the whole subject was treated, produced a marked effect upon public opinion, and went far to silence the fierce denunciation which a misapprehension of those facts had occasioned.

A striking anecdote is related of the extraordinary effect produced by the speech of Mr. Marshall on this occasion, during its delivery. The able and accomplished Albert Gallatin, then a member of Congress, at first warmly advocated the resolutions of Mr. Livingston in an opening speech. When Mr. Marshall arose to reply it was at first Gallatin’s intention to answer him. He took his position near Marshall, while that gentleman was speaking, and busied himself in making notes of the argument. But it was observed that, as the speaker proceeded in his usual lucid order, Mr. Gallatin did not make very satisfactory progress, and at length, pushing aside his papers and pencil, he retired to the rear of the hall, where he walked up and down, keeping himself, however, within sight and hearing of the orator, by whom his attention was riveted. One of Gallatin’s friends, who knew that he was expected to reply, approached him and inquired why he had ceased to take notes, asking if he did not mean to speak. Mr. Gallatin answered, “I do not.” “Why not?” demanded his interlocutor. “ Because I cannot” was the reply. “If you can, I wish you would. There is absolutely no reply to make, for his speech is unanswerable.”

Mr. Marshall earned also, at this session of Congress, the proud distinction of placing the obligations of duty and right far above party feelings and the behests of party discipline. No measure of policy during the Adams administration, of which Marshall was a strong supporter, was more warmly associated with party feeling, and more vigorously defended by the party zeal of the President’s friends, than the Alien and Sedition laws, passed at a previous session of Congress when Mr. Marshall was not a member. It was now proposed to repeal the second section of the latter act, which formed the sedition feature of the law. Mr. Marshall honestly disapproved of it and voted for its repeal, while the names of all those with whom he generally consorted and acted are recorded on the opposite side. It has long since been generally conceded that these acts were gross blunders, the offspring of excited partisan feeling. Marshall’s cool judicial sense made him fully cognizant of their objectionable character, and he could not be driven by the party whip to support them. He was never afraid to do right, and did not pause to consider whether he would have to stand alone in his course or not. Mindful of the lesson taught in Holy Writ, he would “not follow a multitude to do evil.” He always preferred the right to the popular side, and acted like Henry Clay in the matter of the annexation of Texas, when that upright statesman said, while voting against an act approved by a large majority of his countrymen, but which he honestly condemned: “I would rather be right than be president;” a declaration which, by the way, probably cost Clay his election to the presidency.

Congress adjourned on the 14th of May, 1800, and Marshall, having been again invited by President Adams to a seat in the reorganized cabinet, accepted the post of secretary of state, and consequently resigned his place in Congress.

  1. Adams’s Works, vol. viii, p. 597.  Return to text.
  2. Washington’s Writings, vol. xi, p. 292.  Return to text.
  3. Paulding’s Life of Washington, vol. ii, p. 191.  Return to text.
  4. This is supposed to be a reference to Washington, then just appointed general-in-chief of the army to be raised for resisting the aggressions of France.  Return to text.
  5. Washington’s Writings, vol. xi, p. 424.  Return to text.
  6. Binney’s Eulogy on Marshall, p. 52.  Return to text.
  7. They were prepared by General Henry Lee, who, happening not to be in his place when the melancholy intelligence was received and first mentioned in the House, placed them in the hands of the member who moved them.  Return to text.
  8. Eulogy on Marshall, pp. 53–54. Return to text.