Читать книгу The Life of John Marshall (Volume 2 of 4) - Beveridge Albert Jeremiah - Страница 3

Lace Congress up straitly within the enumerated powers. (Jefferson.)

Construe the constitution liberally in advancement of the common good. (Hamilton.)

To organize government, to retrieve the national character, to establish a system of revenue, to create public credit, were among the duties imposed upon them. (Marshall.)

I trust in that Providence which has saved us in six troubles, yea, in seven, to rescue us again. (Washington.)

The Constitution's narrow escape from defeat in the State Conventions did not end the struggle against the National principle that pervaded it.95 The Anti-Nationalists put forth all their strength to send to the State Legislatures and to the National House and Senate as many antagonists of the National idea as possible.96 "Exertions will be made to engage two thirds of the legislatures in the task of regularly undermining the government" was Madison's "hint" to Hamilton.97

Madison cautioned Washington to the same effect, suggesting that a still more ominous part of the plan was "to get a Congress appointed in the first instance that will commit suicide on their own Authority."98 Not yet had the timorous Madison personally felt the burly hand of the sovereign people so soon to fall upon him. Not yet had he undergone that familiar reversal of principles wrought in those politicians who keep an ear to the ground. But that change was swiftly approaching. Even then the vox populi was filling the political heavens with a clamor not to be denied by the ambitious. The sentiment of the people required only an organizer to become formidable and finally omnipotent.

Such an artisan of public opinion was soon to appear. Indeed, the master political potter was even then about to start for America where the clay for an Anti-Nationalist Party was almost kneaded for the moulder's hands. Jefferson was preparing to leave France; and not many months later the great politician landed on his native soil and among his fellow citizens, who, however, welcomed him none too ardently.99

No one knew just where Jefferson stood on the fundamental question of the hour when, with his two daughters, he arrived in Virginia in 1789. The brilliant Virginian had uttered both Nationalist and Anti-Nationalist sentiments. "I am not of the party of the Federalists," he protested, "but I am much farther from that of the Antifederalists." Indeed, declared Jefferson, "If I could not go to heaven but with a party, I would not go there at all."100

His first opinions of the Constitution were, as we have seen, unfavorable. But after he had learned that the new Government was to be a fact, Jefferson wrote Washington: "I have seen with infinite pleasure our new constitution accepted." Careful study had taught him, he said, "that circumstances may arise, and probably will arise, wherein all the resources of taxation will be necessary for the safety of the state." He saw probability of war which "requires every resource of taxation & credit." He thought that "the power of making war often prevents it."101

Thus Jefferson could be quoted on both sides and claimed by neither or by both. But, because of his absence in France and of the reports he had received from the then extreme Nationalist, Madison, he had not yet apprehended the people's animosity to National rule. Upon his arrival in Virginia, however, he discovered that "Antifederalism is not yet dead in this country."102 That much, indeed, was clear at first sight. The Legislature of Virginia, which met three months after her Convention had ratified the Constitution, was determined to undo that work, as Madison had foreseen.103

John Marshall

From a painting by E. F. Petticolas

That body was militantly against the new Government as it stood. "The conflict between the powers of the general and state governments was coeval with those governments," declares Marshall. "The old line of division was still as strongly marked as ever." The enemies of National power thought that "liberty could be endangered only by encroachments upon the states; and that it was the great duty of patriotism to restrain the powers of the general government within the narrowest possible limits." On the other hand, the Nationalists, says Marshall, "sincerely believed that the real danger which threatened the republic was to be looked for in the undue ascendency of the states."104

Patrick Henry was supreme in the House of Delegates. Washington was vastly concerned at the prospect. He feared that the enemies of Nationalism would control the State Legislature and that it would respond to New York's appeal for a new Federal Constitutional Convention. He was "particularly alarmed" that the General Assembly would elect Senators "entirely anti-Federal."105 His apprehension was justified. Hardly a week passed after the House convened until it passed resolutions, drawn by Henry,106 to answer Clinton's letter, to ask Congress to call a new Federal Convention, and to coöperate with other States in that business.

In vain did the Nationalist members strive to soften this resolution. An amendment which went so far as to request Congress to recommend to the several States "the ratification of a bill of rights" and of the twenty amendments proposed by the Virginia Convention, was defeated by a majority of 46 out of a total vote of 124.107 Swiftly and without mercy the triumphant opposition struck its next blow. Washington had urged Madison to stand for the Senate,108 and the Nationalists exerted themselves to elect him. Madison wrote cleverly in his own behalf.109 But he had no hope of success because it was "certain that a clear majority of the assembly are enemies to the Gov^ṭ."110 Madison was still the ultra-Nationalist, who, five years earlier, had wanted the National Government to have an absolute veto on every State law.111

Henry delivered "a tremendous philippic" against Madison as soon as his name was placed before the General Assembly.112 Madison was badly beaten, and Richard Henry Lee and William Grayson were chosen as the first Senators from Virginia under the new National Government.113 The defeated champion of the Constitution attributed Henry's attack and his own misfortune to his Nationalist principles: Henry's "enmity was levelled … ag^st the whole system; and the destruction of the whole system, I take to be the secret wish of his heart."114

In such fashion did Madison receive his first chastisement for his Nationalist views and labors. He required no further discipline of a kind so rough and humiliating; and he sought and secured election to the National House of Representatives,115 with opinions much subdued and his whole being made pliant for the wizard who so soon was to invoke his spell over that master mind.

Though Marshall was not in the Virginia Legislature at that session, it is certain that he worked with its members for Madison's election as Senator. But even Marshall's persuasiveness was unavailing. "Nothing," wrote Randolph to Madison, "is left undone which can tend to the subversion of the new government."116

Hard upon its defeat of Madison the Legislature adopted an ominous address to Congress. "The sooner … the [National] government is possessed of the confidence of the people … the longer its duration" – such was the language and spirit of Virginia's message to the lawmakers of the Nation, even before they had assembled.117 The desperate Nationalists sought to break the force of this blow. They proposed a substitute which even suggested that the widely demanded new Federal Convention should be called by Congress if that body thought best. But all to no purpose. Their solemn118 amendment was beaten by a majority of 22 out of a total vote of 122.119

Thus again was displayed that hostility to Nationalism which was to focus upon the newborn National Government every burning ray of discontent from the flames that sprang up all over the country during the constructive but riotous years that followed. Were the people taxed to pay obligations incurred in our War for Independence? – the National Government was to blame. Was an excise laid on whiskey, "the common drink of the nation"120– it was the National Government which thus wrung tribute from the universal thirst. Were those who owed debts compelled, at last, to pay them? – it was the National Government which armed the creditor with power to recover his own.

Why did we not aid French Republicans against the hordes of "despotism"? Because the National Government, with its accursed Neutrality, would not let us! And who but the National Government would dare make a treaty with British Monarchy, sacrificing American rights? Speculation and corruption, parade and ostentation, – everything that could, reasonably or unreasonably, be complained of, – were, avowed the Anti-Nationalists, the wretched but legitimate offspring of Nationalism. The remedy, of course, was to weaken the power of the Nation and strengthen that of the States. Such was the course pursued by the foes of Nationalism, that we shall trace during the first three administrations of the Government of the United States.

Thus, the events that took place between 1790 and 1800, supplemented and heated by the French Revolution, developed to their full stature those antagonistic theories of which John Marshall and Thomas Jefferson were to become the chief expounders. Those events also finished the preparation of these two men for the commanding stations they were to occupy. The radical politician and States' Rights leader on the one hand, and the conservative politician and Nationalist jurist on the other hand, were finally settled in their opinions during these developing years, at the end of which one of them was to occupy the highest executive office and the other the highest judicial office in the Government.

It was under such circumstances that the National Government, with Washington at its head, began its uncertain career. If the Legislature of Virginia had gone so far before the infant National establishment was under way, how far might not succeeding Legislatures go? No one knew. But it was plain to all that every act of the new Administration, even with Washington at the helm, would be watched with keen and jealous eyes; and that each Nationalist turn of the wheel would meet with prompt and stern resistance in the General Assembly of the greatest of American Commonwealths. Mutiny was already aboard.

John Marshall, therefore, determined again to seek election to the House of Delegates.

Immediately upon the organization of the National Government, Washington appointed Marshall to be United States Attorney for the District of Virginia. The young lawyer's friends had suggested his name to the President, intimating that he wished the place.121 Marshall, high in the esteem of every one, had been consulted as to appointments on the National bench,122 and Washington gladly named him for District Attorney. But when notified of his appointment, Marshall declined the honor.

A seat in the Virginia Legislature, was, however, quite another matter. Although his work as a legislator would interfere with his profession much more than would his duties as United States Attorney, he could be of practical service to the National Government in the General Assembly of the State where, it was plain, the first battle for Nationalism must be fought.

The Virginia Nationalists, much alarmed, urged him to make the race. The most popular man in Richmond, he was the only Nationalist who could be elected by that constituency; and, if chosen, would be the ablest supporter of the Administration in the Legislature. Although the people of Henrico County were more strongly against a powerful National Government than they had been when they sent Marshall to the Constitutional Convention the previous year, they nevertheless elected him; and in 1789 Marshall once more took his seat as a member of Virginia's law-making and law-marring body.

He was at once given his old place on the two principal standing committees;123 and on special committees to bring in various bills,124 among them one concerning descents, a difficult subject and of particular concern to Virginians at that time.125 As a member of the Committee of Privileges and Elections, he passed on a hotly contested election case.126 He was made a member of the important special committee to report upon the whole body of laws in force in Virginia, and helped to draw the committee's report, which is comprehensive and able.127 The following year he was appointed a member of the committee to revise the tangled laws of the Commonwealth.128

The irrepressible subject of paying taxes in something else than money soon came up. Marshall voted against a proposition to pay the taxes in hemp and tobacco, which was defeated by a majority of 37 out of a total vote of 139; and he voted for the resolution "that the taxes of the present year ought to be paid in specie only or in warrants equivalent thereto," which carried.129 He was added to the committee on a notable divorce case.130

Marshall was, of course, appointed on the special committee to bring in a bill giving statehood to the District of Kentucky.131 Thus he had to do with the creation of the second State to be admitted after the Constitution was adopted. A bill was passed authorizing a lottery to raise money to establish an academy in Marshall's home county, Fauquier.132 He voted with the majority against the perennial Baptist petition to democratize religion;133 and for the bill to sell lands for taxes.134

Marshall was appointed on the committee to bring in bills for proceeding against absent debtors;135 on another to amend the penal code;136 and he was made chairman of the special committee to examine the James River Company,137 of which he was a stockholder. Such are examples of his routine activities in the Legislature of 1789.

The Legislature instructed the Virginia Senators in Congress "to use their utmost endeavors to procure the admission of the citizens of the United States to hear the debates of their House, whenever they are sitting in their legislative capacity."138

An address glowing with love, confidence, and veneration was sent to Washington.139 Then Jefferson came to Richmond; and the Legislature appointed a committee to greet him with polite but coldly formal congratulations.140 No one then foresaw that a few short years would turn the reverence and affection for Washington into disrespect and hostility, and the indifference toward Jefferson into fiery enthusiasm.

The first skirmish in the engagement between the friends and foes of a stronger National Government soon came on. On November 30, 1789, the House ratified the first twelve amendments to the Constitution,141 which the new Congress had submitted to the States; but three days later it was proposed that the Legislature urge Congress to reconsider the amendments recommended by Virginia which Congress had not adopted.142 An attempt to make this resolution stronger was defeated by the deciding vote of the Speaker, Marshall voting against it.143

The Anti-Nationalist State Senate refused to concur in the House's ratification of the amendments proposed by Congress;144 and Marshall was one of the committee to hold a conference with the Senate committee on the subject.

After Congress had passed the laws necessary to set the National Government in motion, Madison had reluctantly offered his summary of the volume of amendments to the Constitution recommended by the States "in order," as he said, "to quiet that anxiety which prevails in the public mind."145 The debate is illuminating. The amendments, as agreed to, fell far short of the radical and extensive alterations which the States had asked and were understood to be palliatives to popular discontent.146

Randolph in Richmond wrote that the amendments were "much approved by the strong federalists … being considered as an anodyne to the discontented. Some others … expect to hear, … that a real amelioration of the Constitution was not so much intended, as a soporific draught to the restless. I believe, indeed," declared Randolph, "that nothing – nay, not even the abolishment of direct taxation – would satisfy those who are most clamorous."147

The amendments were used by many, who changed from advocates to opponents of broad National powers, as a pretext for reversed views and conduct; but such as were actually adopted were not a sufficient justification for their action.148

The great question, however, with which the First Congress had to deal, was the vexed and vital problem of finance. It was the heart of the whole constitutional movement.149 Without a solution of it the National Government was, at best, a doubtful experiment. The public debt was a chaos of variegated obligations, including the foreign and domestic debts contracted by the Confederation, the debts of the various States, the heavy accumulation of interest on all.150 Public and private credit, which had risen when the Constitution finally became an accomplished fact, was now declining with capital's frail timidity of the uncertain.

In his "First Report on the Public Credit," Hamilton showed the way out of this maddening jungle. Pay the foreign debt, said Hamilton, assume as a National obligation the debts of the States and fund them, together with those of the Confederation. All had been contracted for a common purpose in a common cause; all were "the price of liberty." Let the owners of certificates, both State and Continental, be paid in full with arrears of interest, without discrimination between original holders and those who had purchased from them. And let this be done by exchanging for the old certificates those of the new National Government bearing interest and transferable. These latter then would pass as specie;151 the country would be supplied with a great volume of sound money, so badly needed,152 and the debt be in the process of extinguishment.153

Hamilton's entire financial system was assailed with fury both in Congress and among the people. The funding plan, said its opponents, was a stock-jobbing scheme, the bank a speculator's contrivance, the National Assumption of State debts a dishonest trick. The whole was a plot designed to array the moneyed interests in support of the National Government.154 Assumption of State debts was a device to increase the National power and influence and to lessen still more the strength and importance of the States.155 The speculators, who had bought the depreciated certificates of the needy, would be enriched from the substance of the whole people.

Without avail had Hamilton answered every objection in advance; the careful explanations in Congress of his financial measures went for naught; the materials for popular agitation against the National Government were too precious to be neglected by its foes.156 "The first regular and systematic opposition to the principles on which the affairs of the union were administered," writes Marshall, "originated in the measures which were founded on it [the "First Report on the Public Credit"]."157

The Assumption of State debts was the strategic point of attack, especially for the Virginia politicians; and upon Assumption, therefore, they wisely concentrated their forces. Nor were they without plausible ground of opposition; for Virginia, having given as much to the common cause as any State and more than most of her sisters, and having suffered greatly, had by the sale of her public lands paid off more of her debt than had any of the rest of them.

It seemed, therefore, unjust to Virginians to put their State on a parity with those Commonwealths who had been less prompt. On the other hand, the certificates of debt, State and Continental, had accumulated in the North and East;158 and these sections were determined that the debt should be assumed by the Nation.159 So the debate in Congress was heated and prolonged, the decision doubtful. On various amendments, sometimes one side and sometimes the other prevailed, often by a single vote.160

At the same time the question of the permanent location of the National Capital arose.161 On these two subjects Congress was deadlocked. Both were disposed of finally by the famous deal between Jefferson and Hamilton, by which the latter agreed to get enough votes to establish the Capital on the Potomac and the former enough votes to pass the Assumption Bill.

Washington 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, Washington'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 pass Hamilton's financial measure; and not only secured the necessary votes to make Assumption a law, but wrote letters broadcast in support of it.

"Congress has been long embarrassed," 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 assuming 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 pass the bill for Assumption 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 Assumption had become a National law. A smashing resolution, drawn by Henry,169 was proposed, asserting that Assumption "is repugnant to the constitution 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 Assumption, 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 Assumption 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 asserting the law's unconstitutionality. 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 crushing 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 Constitution were reserved to the States. It also impeached the Assumption 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 unconstitutionality of Assumption was the main objection. The memorial declared that "during the whole discussion of the federal constitution 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 Constitution had been adopted. But where could anything be found in the Constitution "authorizing Congress to express terms or to assume the debts of the states?" Nowhere! Therefore, Congress had no such power.

"As the guardians, then, of the rights and interests of their constituents; as sentinels placed by them over the ministers of the Federal Government, to shield 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 constitutional 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 Constitution 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 analyzed 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 assumptions and … the enormous loans." Thus "the state governments will become only speculative commonwealths to be read for amusement, 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 unconstitutionality of the Assumption Act had now thundered in Jefferson's ears. He himself was instrumental in the enactment of this law and its unconstitutionality never occurred to him181 until Virginia spoke. But, faithful to the people's voice,182 Jefferson was already publicly opposing, through the timid but resourceful Madison183 and the fearless and aggressive184 Giles, the Nationalist statesmanship of Hamilton.185

Thus it came about that when Washington asked his Cabinet's opinion upon the bill to incorporate the Bank of the United States, Jefferson promptly expressed with all his power the constitutional 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 "unconstitutionality" was urged against it. "We hear, incessantly, from the old foes of the Constitution 'this is unconstitutional 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 Constitution. "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 Constitution, yet it was not "necessary," argued Jefferson; all powers expressly given could be exercised without the bank. It was only indispensable powers that the Constitution 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 constitutionality 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 Constitution and could not be. For instance, there are the "resulting powers," as over conquered territory. Nobody 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 Constitution must be interpreted. If Jefferson was right, Congress could act only in "a case of extreme necessity." Such a construction of the Constitution would prevent the National Government even from erecting lighthouses, piers, and other conveniences of commerce which could be carried on without them. These illustrations 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 Constitution 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 Constitution, 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 constitution 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 latitude of discretion in the selection and application of those means."190

So were stated the opposing principles of liberal and narrow interpretation of the Constitution, 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 masses.193 Such was the popular doctrine preached by the opponents of the National Government; but all economic objections centered in a common assault 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 Constitution 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 Constitution was adopted, the term "party" was used as an expression of reproach. The correspondence of the period teems with illustrations 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 parties194 almost as much as against foreign alliances.