CHAPTER VI

IN THE LEGISLATURE AND COUNCIL OF STATE

The proceedings of the Assembly are, as usual, rapidly

degenerating with the progress of the session. (Madison.)

Our Assembly has been employed chiefly in rectifying the mistakes

of the last and committing new ones for emendation at the next.

(Washington.)

It is surprising that gentlemen cannot dismiss their private

animosities but will bring them in the Assembly. (Marshall.)

In 1783, a small wooden building stood among the two or three hundred

little frame houses[614] which, scattered irregularly from the river to

the top of the hill, made up the town of Richmond at the close of the

Revolution. It was used for "balls," public banquets, and other

functions which the merriment or inclination of the miniature Capital

required. But its chief use was to house the legislative majesty of

Virginia. In this building the General Assembly of the State held its

bi-yearly sessions. Here met the representatives of the people after

their slow and toilsome journey on horseback through the dense forests

and all but impassable roads from every county of the Commonwealth.[615]

The twenty years that had passed since Marshall's father entered the

House of Burgesses had brought changes in the appearance and deportment

of Virginia's legislative body corresponding to those in the government

of the newly established State. But few elegancies of velvet coat, fine

lace, silk stocking, and silver buckle were to be seen in the Virginia

Legislature of 1783. Later these were to reappear to some extent; but at

the close of the Revolution democracy was rampant, and manifested itself

in clothing and manners as well as in curious legislation and strange

civil convulsions.

The visitor at a session of the Old Dominion's lawmakers beheld a

variegated array--one member in homespun trousers thrust into high

boots; still another with the fringed Indian leggings and hunting-shirt

of the frontier. Some wore great-coats, some jackets, and, in general,

an ostentatious disregard of fashionable apparel prevailed, which

occasional silk knee-breeches and stockings emphasized.

The looker-on would have thought this gathering of Virginia lawmakers to

be anything but a deliberative body enacting statutes for the welfare of

over four hundred thousand people. An eye-witness records that movement,

talk, laughter went on continuously; these Solons were not quiet five

minutes at a time.[616] All debating was done by a very few men.[617]

The others "for most part ... without clear ... ideas, with little

education or knowledge ... merely ... give their votes."[618]

Adjoining the big room where this august assembly sat, was an anteroom;

and at the entrance between these two rooms stood a burly doorkeeper,

who added to the quiet and gravity of the proceedings by frequently

calling out in a loud voice the names of members whom constituents or

visitors wanted to see; and there was a constant running back and

forth. The anteroom itself was a scene of conversational tumult.

Horse-racing, runaway slaves, politics, and other picturesque matters

were the subjects discussed.[619] Outsiders stood in no awe of these

lawgivers of the people and voiced their contempt, ridicule, or dislike

quite as freely as their approval or admiration.[620]

Into this assembly came John Marshall in the fall of 1782. Undoubtedly

his father had much to do with his son's election as one of Fauquier

County's representatives. His predominant influence, which had made

Thomas Marshall Burgess, Sheriff, and Vestryman before the Revolution,

had been increased by his admirable war record; his mere suggestion that

his son should be sent to the House of Delegates would have been

weighty. And the embryo attorney wanted to go, not so much as a step in

his career, but because the Legislature met in the town where Mary

Ambler lived. In addition to his father's powerful support, his late

comrades, their terms of enlistment having expired, had returned to

their homes and were hotly enthusiastic for their captain.[621] He was

elected almost as a matter of course.

No one in that motley gathering called the House of Delegates was

dressed more negligently than this young soldier-lawyer and politician

from the backwoods of Fauquier County. He probably wore the short "round

about" jacket, which was his favorite costume. And among all that

free-and-easy crowd no one was less constrained, less formal or more

sociable and "hail-fellow, well-met" than this black-eyed,

laughter-loving representative from the up country.

But no one had a sounder judgment, a more engaging personality, or a

broader view of the drift of things than John Marshall. And notable men

were there for him to observe; vast forces moving for him to study.

Thomas Jefferson had again become a member of the House after his

vindication from threatened impeachment. Patrick Henry was a member,

too, and William Cabell, Richard Henry Lee, Benjamin Harrison, and other

men whose names have become historic. During Marshall's later years in

the Legislature, James Madison, George Mason, William Grayson, Edmund

Randolph, George Nicholas, and others of like stature became Marshall's

colleagues.

It took eighteen days to organize the House at the first session John

Marshall attended.[622] The distance that members had to come was so

great, traveling so hard and slow, that not until November 9 had enough

members arrived to make a quorum.[623] Thomas Jefferson and Patrick

Henry were two of the absent and several times were ordered to be taken

into the custody of the sergeant-at-arms.[624] The Journal for Friday,

November 8, gravely announces that "it was ordered that Mr. Thomas

Jefferson, one of the members for Albemarle county who was taken

into the custody of a special messenger by Mr. Speaker's warrant,

agreeable to an order of the 28th ult., be discharged out of custody;

it appearing to the House that he has good cause for his present

non-attendance."[625]

Marshall must have favorably impressed the Speaker; for he was

immediately appointed a member of the important Committee for Courts of

Justice;[626] and two days later a member of a special committee "To

form a plan of national defense against invasions"; to examine into the

state of public arms, accouterments, and ammunition, and to consult with

the Executive "on what assistance they may want from the Legislature for

carrying the plan into execution."[627] Two days afterwards Marshall was

appointed on a special committee to frame a bill to amend the ordinance

of Convention.[628]

His first vote was for a bill to permit John M'Lean, who, because of

illness, went to England before the outbreak of the war, and who had

returned, to remain in Virginia and live with his family.[629]

Marshall's next two votes before taking his place as a member of the

Council of State are of no moment except as indicating the bent of his

mind for honest business legislation and for a strong and efficient

militia.[630] During November, Marshall was appointed on several other

committees.[631] Of these, the most important was the select committee

to bring in a bill for the reorganization of the militia,[632] which

reported a comprehensive and well-drawn measure that became a law.[633]

He was also on the Standing Committee of Privileges and Elections.[634]

The Virginia Legislature, during these years, was not a body to inspire

respect.[635] Madison had a great contempt for it and spoke with disgust

of the "temper of the Legislature & the wayward course of its

proceedings."[636] Indeed, the entire government of the State was an

absurd medley of changing purposes and inefficiency. "Nothing," wrote

Madison to Jefferson, "can exceed the confusion which reigns throughout

our Revenue department.... This confusion indeed runs through all of our

public affairs, and must continue as long as the present mode of

legislating continues"; the method of drawing bills "must soon bring our

laws and our Legislature into contempt among all orders of

Citizens."[637]

Nor did Virginia's lawmakers improve for several years. Madison in 1787

advised Washington that "The proceedings of the Assembly are, as usual,

rapidly degenerating with the progress of the session."[638] And the

irritated soldier at Mount Vernon responded with characteristic heat

that "Our Assembly has been ... employed ... chiefly in rectifying some

of the mistakes of the last, and committing new ones for emendations at

the next."[639] Washington, writing to Lafayette of American affairs in

1788, said, with disgust, that "Virginia in the very last session ...

was about to pass some of the most extravagant and preposterous

edicts ... that ever stained the leaves of a legislative code."[640]

Popular as he was with the members of the Legislature, Marshall shared

Madison's opinion of their temper and conduct. Of the fall session of

the Assembly of 1783, he writes to Colonel Levin Powell: "This long

session has not produced a single bill of Public importance except that

for the readmission of Commutables.[641] ... It ought to be perfect as

it has twice passed the House. It fell the first time (after an

immensity of labor and debate) a sacrifice to the difference of opinion

subsisting in the House of Delegates and the Senate with respect to a

money bill. A bill for the regulation of elections and inforcing the

attendance of members is now on the Carpet and will probably

pass.[642]... It is surprising that Gentlemen of character cannot

dismiss their private animosities, but will bring them in the

Assembly."[643]

Early in the session Marshall in a letter to Monroe describes the

leading members and the work of the House.

"The Commutable bill,"[644] writes he, "has at length pass'd and with

it a suspension of the collections of taxes till the first of January

next.... Colo. Harry Lee of the Legionary corps" is to take the place of

"Col^o. R. H. Lee" whose "services are lost to the Assembly forever";

and Marshall does not know "whether the public will be injur'd by the

change." Since the passage of the "Commutable bill ... the attention of

the house has been so fix'd on the Citizen bill that they have scarcely

thought on any other subject.... Col. [George] Nicholas (politician not

fam'd for hitting a medium) introduced one admitting into this country

every species of Men except Natives who had borne arms against the

state.... Mr. Jones introduc'd by way of amendment, one totally new and

totally opposite to that which was the subject of deliberation. He spoke

with his usual sound sense and solid reason. Mr. Henry opposed him.

"The Speaker replied with some degree of acrimony and Henry retorted

with a good deal of tartness but with much temper; 'tis his peculiar

excellence when he altercates to appear to be drawn unwillingly into the

contest and to throw in the eyes of others the whole blame on his

adversary. His influence is immense."[645]

Marshall's strange power of personality which, in after years, was so

determining an influence on the destiny of the country, together with

the combined influence of his father and of the State Treasurer,

Jacquelin Ambler, Marshall's father-in-law, now secured for the youthful

legislator an unusual honor. Eleven days after the House of Delegates

had organized, Marshall was elected by joint ballot of the Senate and

the House a member of the Council of State,[646] commonly called the

Executive Council. The Journal of the Council for November 20, 1782,

records: "John Marshall esquire having been elected a Member of the

Privy Council or Council of State in the room of John Bannister esquire

who hath resigned and producing a Certificate from under the hand of

Jaq. Ambler esq^r of his having qualified according to law; he took his

seat at the board."[647]

Marshall had just turned his twenty-seventh year, and the Council of

State was supposed to be made up of men of riper years and experience.

Older men, and especially the judges of the courts, resented the

bestowal of this distinction upon so youthful a member serving his first

term. Edmund Pendleton, Judge of the High Court of Chancery and

President of the Court of Appeals, wrote to Madison that: "Young Mr.

Marshall is elected a Councillor.... He is clever, but I think too

young for that department, which he should rather have earned as a

retirement and reward, by ten or twelve years hard service in the

Assembly."[648]

The Council consisted of eight members elected by the Legislature either

from the delegates or from the people at large. It was the Governor's

official cabinet and a constitutional part of the executive power. The

Governor consulted the Council on all important matters coming before

him; and he appointed various important officers only upon its

advice.[649]

The Constitution of Virginia of 1776 was the basis upon which was built

one of the most perfect political machines ever constructed; and this

machine in later years came to be Marshall's great antagonist. As a

member of the Council of State, Marshall learned by actual experience

the possible workings of this mechanism, first run by Patrick Henry,

perfected by Thomas Jefferson, and finally developed to its ultimate

efficiency by Spencer Roane and Thomas Ritchie.[650] Thus Marshall took

part in the appointment of surveyors, justices of the peace, tobacco

inspectors, and other officers;[651] and passed on requisitions from

other States for the delivery of fugitive criminals.[652]

[Illustration: MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF

STATE, 1784]

[Illustration: MARSHALL'S SIGNATURE IN 1797]

[Illustration: SIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D

VIRGINIA REGIMENT]

Marshall's signature to the minutes of the Council is totally unlike

that of his more mature years, as, indeed, is the chirography of his

letters of that period. He signed the Council records in large and

dashing hand with flourishes--it is the handwriting of a confident,

care-free, rollicking young man with a tinge of the dare-devil in him.

These signatures are so strangely dissimilar to his later ones that they

deserve particular attention. They denote Marshall's sense of his own

importance and his certainty of his present position and future

prospects.

The criticisms from the judges--first expressed by Pendleton, before

whom Marshall was trying to practice law--of his membership of the

Executive Council continued. Because of these objections, Marshall

finally resigned and at once sought another election from his native

county to the House of Delegates. The accepted version of this incident

is that Marshall resigned from the Executive Council because the duties

of that position took too much time from his profession; and that,

without his request or desire, his old neighbors in Fauquier, from

"their natural pride in connecting his rising name with their county,

spontaneously elected him to the Legislature."[653]

Thus does greatness, once achieved, throw upon a past career a glory

that dazzles the historian's eye; and the early steps of advancement are

seen and described as unasked and unwished honors paid by a discerning

public to modest and retiring merit. Thus, too, research and fact are

ever in collision with fancy and legend. The cherished story about

Marshall's resignation from the Council and "spontaneous" election to

the Legislature from his home county is a myth. The discontent of the

judges practically forced him out of the Council and he personally

sought another election from Fauquier County to the House of Delegates.

Marshall himself gives the true account of these important incidents.

"I am no longer a member of the Executive [Council]," Marshall informs

his friend James Monroe, "the opinion of the Judges with regard to a

Councillor's standing at the bar determined me to retire from the

Council board. Every person is now busied about the ensuing election."

Certainly Marshall was thus occupied; for he writes Monroe that "I had

made a small excursion into Fauquier to enquire into the probability of

my being chosen by the people, should I offer as a candidate at the next

election." Marshall tells the political news, in which he shows minute

information, and finally advises Monroe that "I have been maneuvering

amazingly to turn your warrants into cash if I succeed I shall think

myself a first rate speculator."[654]

Marshall's personal attention[655] to his candidacy bore fruit; and for

the second time he was chosen as Delegate from Fauquier, although he now

lived in Henrico County.[656]

[Illustration: FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE

(_Facsimile_)]

When the Legislature convened, nine days again passed before enough

members were in Richmond to make up a House.[657] Marshall was among the

tardy. On May 13, the sergeant-at-arms was ordered to take him and other

members into custody; and later in the day he and four others were

brought in by that officer and "admitted to their seats on paying

fees."[658]

He was at once appointed to his old place on the Committee for Courts of

Justice and upon the immensely important Standing Committee on

Propositions and Grievances, to which was referred the flood of

petitions of soldiers and officers, the shower of applications of

counties and towns for various laws and other matters of pressing local

and personal concern in every part of Virginia.[659] To the cases of his

old comrades in arms who applied to the Legislature for relief, Marshall

was particularly attentive.[660] He became the champion of the

Revolutionary veterans, most of whom were very poor men.[661]

Upon Washington's suggestion a bill was brought in for the relief of

Thomas Paine by vesting in him a moderate tract of public lands. Upon

the third reading it was "committed to a committee of the whole house"

and there debated. Marshall, who apparently led the fight for Paine,

"read in his place" several amendments. But notwithstanding Washington's

plea, the immense services of Paine to the American cause during the

Revolution, and the amendments which, obviously, met all objections, the

bill was defeated.[662]

Numerous things of human interest happened during this session which

show the character of the Legislature and the state of the people. An

Englishman named Williamson[663] had gone to Essex County a year before

by permission of the Governor, but in violation of the law against

British refugees. When he refused to leave, the people tarred and

feathered him and drove him out of the country in this condition.[664]

The Attorney-General began prosecutions against the leaders of the

mob; and the offending ones petitioned the Legislature to interfere.

The petition was referred to the Committee on Propositions and

Grievances[665] of which Marshall was a member. This committee reported

that the petition ought to be granted "and that all irregularities

committed by any citizen of this state on the person or properties

of refugees previous to the ratification of the definitive treaty

of peace ... should be indemnified by law and buried in utter

oblivion."[666] But when the bill came to a vote, it was defeated.[667]

It was reported to the House that a certain John Warden had insulted its

dignity by saying publicly that if the House had voted against paying

the British debts, some of its members had voted against paying for the

coats on their backs--a charge which was offensively true. The Committee

on Privileges and Elections was instructed to take this serious matter

up and order the offender before it. He admitted the indiscretion and

apologized for it. The committee read Warden's written acknowledgment

and apology before the House and thus he was purged of the contempt of

that sensitive body.[668]

A William Finnie, who had been deputy quartermaster in the military

service, had purchased, at the request of the Board of War, a large

quantity of boots for a corps of cavalry in active service and then on

the march. Although the seller of the boots knew that they were bought

for the public service, he sued Finnie and secured judgment against him,

which was on the point of being executed. Finnie petitioned the

Legislature that the debt be paid by the State. The Committee on

Propositions and Grievances took charge of this petition, reported the

facts to be as Finnie had stated them, and recommended that the debt

"ought to be paid him by the public and charged to the United

States."[669] But the House rejected the resolution. Incidents like

these, as well as the action of the Legislature and the conduct of the

people themselves, had their influence on the radical change which

occurred in Marshall's opinions and point of view during the decade

after the war.

Marshall was appointed on many special committees to prepare sundry

bills during this session. Among these was a committee to frame a bill

to compel payment by those counties that had failed to furnish their

part of the money for recruiting Virginia's quota of troops to serve in

the Continental army. This bill was passed.[670]

A vote which gives us the first sight of Marshall's idea about changing

a constitution was taken during this session. Augusta County had

petitioned the Legislature to alter Virginia's fundamental law. The

committee reported a resolution against it, "such a measure not being

within the province of the House of Delegates to assume; but on the

contrary, it is the express duty of the representatives of the people at

all times, and on all occasions, to preserve the same [the Constitution]

inviolable, until a majority of all the people shall direct a reform

thereof."[671]

Marshall voted to amend this resolution by striking out the words

quoted. Thus, as far as this vote indicates, we see him standing for the

proposition that a form of government could be changed by convention,

which was the easiest, and, indeed, at that time the only practicable,

method of altering the constitution of the State. Madison also favored

this plan, but did nothing because of Patrick Henry's violent

opposition. The subject was debated for two days and the project of a

convention with full powers to make a new Constitution was

overwhelmingly defeated, although nearly all of the "young men of

education & talents" were for it.[672]

A few of the bills that Marshall voted for or reported from committee

are worthy of note, in addition to those which had to do with those

serious questions of general and permanent historic consequence to the

country presently to be considered. They are important in studying the

development of Marshall's economic and governmental views.

In 1784, Washington brought vividly before the Virginia Legislature the

necessity of improving the means of transportation.[673] At the same

time this subject was also taken up by the Legislature of Maryland. A

law was passed by the Virginia Legislature for "opening and extending

the navigation of the Potowmack river from tidewater to the highest

place practicable on the north branch"; and Maryland took similar

action. These identical laws authorized the forming of a corporation

called the "Potowmack Company" with a quarter of a million dollars

capital. It was given the power of eminent domain; was authorized to

charge tolls "at all times forever hereafter"; and the property and

profits were vested in the shareholders, "their heirs and assigns

forever."[674]

John Marshall voted for this bill, which passed without opposition.[675]

He became a stockholder in the corporation and paid several assessments

on his stock.[676] Thus early did Marshall's ideas on the nature of a

legislative franchise to a corporation acquire the vitality of property

interest and personal experience.

Marshall was on the Committee for Courts of Justice during every session

when he was a member of the House and worked upon several bills

concerning the courts. On November 2, 1787, he was appointed upon a

special committee to bring in a bill "to amend the act establishing the

High Court of Chancery."[677] Three weeks later he reported this bill

to the House;[678] and when the bill passed that body it was "ordered

that Mr. Marshall do carry the bill to the Senate and desire their

concurrence." The committee which drew this bill was made up from among

the ablest men in the House: Henry, Mason, Nicholas, Matthews, Stuart,

and Monroe being the other members,[679] with Marshall who was chairman.

The act simplified and expedited proceedings in equity.[680] The High

Court of Chancery had been established by an act of the Virginia

Legislature of 1777.[681] This law was the work of Thomas Jefferson. It

contained one of the reforms so dear to his heart during that

period--the right of trial by jury to ascertain the facts in equity

causes. But six years' experience proved that the reform was not

practical. In 1783 the jury trial in equity was abolished, and the old

method that prevailed in the courts of chancery before the Revolution

was reinstated.[682] With this exception the original act stood in

Virginia as a model of Jeffersonian reforms in legal procedure; but

under its provisions, insufferable delays had grown up which defeated

the ends of justice.[683] It was to remedy this practical defect of

Jefferson's monumental law that Marshall brought in the bill of 1787.

But the great matters which came before the Legislature during this

period, between the ending of the war and the adoption of the

Constitution, were: The vexed question of the debts owed by Virginia

planters to British subjects; the utter impotence of the so-called

Federal Government and the difficulty of getting the States to give it

any means or authority to discharge the National debts and uphold the

National honor; and the religious controversy involving, at bottom, the

question of equal rights for all sects.[684]

The religious warfare[685] did not greatly appeal to Marshall, it would

seem, although it was of the gravest importance. Bad as the state of

religion was at the beginning of the Revolution, it was worse after that

struggle had ended. "We are now to rank among the nations of the world,"

wrote Mason to Henry in 1783; "but whether our independence shall prove

a blessing or a curse must depend upon our wisdom or folly, virtue or

wickedness.... The prospect is not promising.... A depravity of manners

and morals prevails among us, to the destruction of all confidence

between man and man."[686] The want of public worship "increases daily;

nor have we left in our extensive State three churches that are

decently supported," wrote Mrs. Carrington, the sister of John

Marshall's wife, a few years later.[687]

Travelers through Virginia during this period note that church buildings

of all denominations were poor and mean and that most of these were

falling into ruins; while ministers barely managed to keep body and soul

together by such scanty mites as the few pious happened to give them or

by the miserable wages they earned from physical labor.[688] These

scattered and decaying little church houses, the preachers toiling with

axe or hoe, formed, it appears, an accurate index of the religious

indifference of the people.[689]

There were gross inequalities of religious privileges. Episcopal

clergymen could perform marriage ceremonies anywhere, but ministers of

the other denominations could do so only in the county where they lived.

The property of the Episcopal Church came from the pockets of all the

people; and the vestries could tax members of other churches as well as

their own for the relief of the poor.[690] It was a curious swirl of

conflicting currents. Out of it came the proposition to levy an

assessment on everybody for the support of religion; a bill to

incorporate the Episcopal Church which took away its general powers of

vestry taxation, but confirmed the title to the property already held;

and the marriage law which gave ministers of all denominations equal

authority.[691]

Although these propositions were debated at great length and with much

spirit and many votes were taken at various stages of the contest,

Marshall recorded his vote but twice. He did not vote on the resolution

to incorporate the Episcopal Church;[692] or to sell the glebe

lands;[693] nor did he vote on the marriage bill.[694] He voted against

Madison's motion to postpone consideration of the bill for a general

assessment to support religion, which carried,[695] thus killing the

bill. When the bill to incorporate the Episcopal Church came to a final

vote, Marshall voted "aye," as, indeed, did Madison.[696]

But if Marshall took only a languid interest in the religious struggle,

he was keen-eyed and active on the other two vital matters--the payment

of debts, both public and private, and the arming of the Federal

Government with powers necessary to its existence. Throughout this whole

period we see the rapid and solid growth of the idea of Nationality, the

seeds of which had been planted in John Marshall's soul by the fingers

of military necessity and danger. Here, too, may be found the beginning

of those ideas of contract which developed throughout his life and

hardened as they developed until finally they became as flint. And here

also one detects the first signs of the change in what Marshall himself

called "the wild and enthusiastic notions"[697] with which, only a few

years earlier, he had marched forth from the backwoods, to fight for

independence and popular government.

Virginia planters owed an immense amount of money to British merchants.

It had been the free-and-easy habit of Virginians to order whatever they

wanted from England and pay for it in the produce of their fields,

chiefly tobacco. The English merchants gave long credit and were always

willing to extend it when the debt fell due. The Virginians, on their

part, found the giving of new notes a convenient way of canceling old

obligations and thus piled up mountains of debt which they found hard to

remove. After the war was over, they had little means with which to

discharge their long overdue accounts.[698]

During the Revolution stringent and radical laws were passed, preventing

the recovery of these debts in the courts, sequestering the property and

even forfeiting the estates owned by British subjects in Virginia; and a

maze of acts, repealing and then reviving the statutes that prevented

payment, were passed after the war had ended.[699] The Treaty between

the United States and Great Britain provided as one of the conditions of

peace that all these legal impediments to the recovery of British debts

should be removed.[700] Failure to repeal the anti-debt legislation

passed during the war was, of course, a plain infraction of this

contract between the two countries; while the enactment of similar laws

after the Treaty had become binding, openly and aggressively violated

it.

Within two weeks after Marshall took his seat in the House in 1784, this

sorely vexed question came up. A resolution was brought in "that so much

of all and every act or acts of the Assembly, now in force in this

commonwealth as prevents a due compliance with the stipulation contained

in the definitive Treaty of Peace entered into between Great Britain

and America ought to be repealed"; but a motion to put the question to

agree with this resolution was defeated by a majority of twenty. John

Marshall voted to put the question.[701]

Those resisting the effort to carry out the Treaty of Peace declared

that Great Britain itself had not complied with it, because the British

had not surrendered the American posts retained by them at the close of

the war and had not returned or paid for the slaves carried away by the

British forces.[702] A fortnight after the first defeat of the movement

against the anti-debt law, a resolution was laid before the House

instructing Virginia's Representatives in Congress to request that body

to protest to the British Government against this infraction of the

Treaty and to secure reparation therefor, and stating that the Virginia

Legislature would not cooperate "in the complete fulfillment of said

treaty" until this was done. The intent of the resolution was that no

British debts should be paid for a long time to come.

But the resolution did provide that, when this reparation was made, or

when "Congress shall adjudge it indispensably necessary," the anti-debt

laws "ought to be repealed and payment made to all [creditors] in such

time and manner as shall consist with the exhausted situation of this

Commonwealth"; and that "the further operation of all and every act or

acts of the Assembly concerning escheats and forfeitures from British

subjects ought to be prevented."[703] An amendment was offered

containing the idea that the debtors might deduct their losses from

their debts, thus taking a little step toward payment. Another amendment

to strengthen this was also proposed.

Had these amendments carried, the policy of an early payment of the

British debts would have prevailed. Marshall voted for both as did

Madison. The amendments, however, were overwhelmingly defeated.[704] The

situation and point of view of the British merchants to whom these debts

were due and who, depending upon the faithful performance of the Treaty,

had come to Virginia to collect the money owing them, is illustrated by

a petition which George F. Norton presented to the House. He was a

member of the mercantile firm of Norton and Sons, of London, from whom

Virginians had made purchases on credit for a generation before the war.

He declared that his firm had "been compelled to pay many debts due from

the said company, but he has been unable to collect any due to them, in

consequence of the laws prohibiting recovery of British debts, by which

he has been reduced to the greatest extremes."[705]

After the summer adjournment the irrepressible conflict between keeping

or breaking the National faith once more arose. Henry, who was the

champion of the debtors, had been elected Governor and was "_out of the

way_."[706] Several British merchants had proposed to accept payments of

their debts in installments. Ratifications of the Treaty had been

exchanged. The friends of National honor and private good faith had

gathered headway. Finally a bill passed the House repealing the

anti-debt laws. The Senate and the House came to an agreement.

Here arose a situation which pictures the danger and difficulty of

travel in that day. Before the bill had been sent back to the House,

enrolled, examined, and signed by both presiding officers, several

members went across the river to spend the night at the neighboring

hamlet of Manchester. It was the day before adjournment and they

expected to return the next morning. But that night the river froze[707]

and they could not get back. So this important measure fell through for

the session.[708]

No "ayes" and "noes" were called for during this final battle, but

Marshall probably took part in the debate and it is certain that he used

the influence which his popularity among members gave him for the

passage of this law.

"I wish with you," wrote Marshall to Monroe, in early December, "that

our Assembly had never passed those resolutions respecting the British

Debts which have been so much the subject of reprehension throughout the

States. I wish it because it affords a pretext to the British to retain

possession of the posts on the lakes but much more because I ever

considered it as a measure tending to weaken the federal bands which in

my conception are too weak already. We are about, tho reluctantly, to

correct the error."

Marshall despondently summed up the work of the session: "We have as yet

done nothing finally. Not a bill of public importance, in which an

individual was not particularly interested, has passed."[709]

Marshall was not a candidate for the Legislature in 1785-86, but sought

and secured election in 1787, when he was sent from Henrico County,

where Richmond was situated. During this hiatus in Marshall's public

life another effort was made to repeal the anti-debt laws, but so bitter

was the resistance that nothing was accomplished. Madison was

distressed.[710] When Marshall again became a member of the General

Assembly the question of the British debts was brought forward once

more. This time the long-delayed bill was passed, though not until its

foes had made their point about the runaway slaves and the unevacuated

posts.[711]

A resolution was brought in that the anti-debt laws "ought to be

repealed," but that any act for this purpose should be suspended until

the other States had passed similar laws. An amendment was defeated for

making the suspension until Great Britain complied with the Treaty. John

Marshall voted against it, as did his father Thomas Marshall, who was

now a member of the Virginia Legislature from the District of

Kentucky.[712] Another amendment to pay the British debts "in such time

and manner as shall consist with the exhausted situation of this

Commonwealth" met a similar fate, both Marshalls, father and son, voting

against it.[713] The resolution was then passed, the two Marshalls

voting for it.[714]

Marshall was then appointed a member of the special committee to prepare

and bring in a bill to carry out the resolution.[715] In a few days this

bill was laid before the House. Except the extension clause, this bill

was probably drawn by Marshall. It was short and to the point. It

repealed everything on the statute books repugnant to the Treaty of

Peace. It specifically "directed and required" the courts to decide all

cases "arising from or touching said treaty" "according to the tenor,

true intent, and meaning of same" regardless of the repealed laws. But

the operation of the law was suspended until Congress informed the

Governor "that the other states in the Union have passed laws enabling

British creditors to recover their debts agreeably to the terms of the

treaty."[716] The bill was emphasized by a brief preamble which stated

that "it is agreed by the fourth article of the treaty of peace with

Great Britain that creditors on either side shall meet with no lawful

impediment to the recovery of the full value in sterling money, of all

bona fide debts heretofore contracted."

The opponents of the bill tried to emasculate it by an amendment that

the law should not go into effect until the Governor of Virginia made

public proclamation "that Great Britain hath delivered up to the United

States the posts therein now occupied by British troops" and was taking

measures to return the runaway slaves or to pay for them. They

succeeded. Whether from agitation outside the legislative hall[717] or

from the oratory of Patrick Henry, or from a greater power of the

leaders in lobbying among their fellow members, a quick and radical

transformation of sentiment took place. Probably all these causes joined

to produce it. By a crushing majority of forty-nine the amendment was

adopted and the bill denatured. Both John Marshall and his father voted

against the amendment, as did George Mason, Benjamin Harrison, and James

Monroe.[718]

Thus, in two weeks, a majority of thirty-three against this very scheme

for breaking the force of the bill was changed to a majority of

forty-nine in favor of it. The bill as amended passed the next day.[719]

Such were the instability of the Virginia Legislature at this period and

the people's bitter opposition to the payment of the debts owed to

British subjects.

The effect on Marshall's mind was very great. The popular readiness to

escape, if not to repudiate, contracted obligations, together with the

whimsical capriciousness of the General Assembly, created grave

misgivings in his mind. His youthful sympathy with the people was

beginning to disappear. Just as the roots of his Nationalist views run

back to Valley Forge, so do the roots of his economic-political opinions

penetrate to the room in the small frame building where sat the

Legislature of Virginia in the first years that followed the close of

the war.

But the mockery of government exhibited by the Federal establishment at

this period of chaos impressed Marshall even more than the spirit of

repudiation of debts and breaking of contracts which was back of the

anti-debt legislation.[720] The want of the National power during the

Revolution, which Marshall had seen from the "lights ... which glanced

from the point of his sword,"[721] he now saw through the tobacco smoke

which filled the grimy room where the Legislature of Virginia passed

laws and repealed them almost at the same time.[722] The so-called

Federal Government was worse than no government at all; it was a form

and a name without life or power. It could not provide a shilling for

the payment of the National debt nor even for its own support. It must

humbly ask the States for every dollar needed to uphold the National

honor, every penny necessary for the very existence of the masquerade

"Government" itself. This money the States were slow and loath to give

and doled it out in miserable pittances.

Even worse, there was as yet little conception of Nationality among the

people--the spirit of unity was far weaker than when resistance to Great

Britain compelled some kind of solidarity; the idea of cooperation was

even less robust than it was when fear of French and Indian depredations

forced the colonists to a sort of common action. Also, as we shall see,

a general dislike if not hostility toward all government whether State

or National was prevalent.[723]

As to the National Government, it would appear that, even before the war

was over, the first impulse of the people was to stop entirely the

feeble heart that, once in a while, trembled within its frail bosom: in

1782, for instance, Virginia's Legislature repealed the law passed in

May of the preceding year authorizing Congress to levy a duty on imports

to carry on the war, because "the permitting any power other than the

general assembly of this commonwealth, to levy duties or taxes upon the

citizens of this state within the same, is injurious to its sovereignty"

and "may prove destructive of the rights and liberty of the

people."[724]

A year later the Legislature was persuaded again to authorize Congress

to levy this duty;[725] but once more suspended the act until the other

States had passed "laws" of the same kind and with a proviso which would

practically have nullified the working of the statute, even if the

latter ever did go into effect.[726] At the time this misshapen dwarf of

a Nationalist law was begotten by the Virginia Legislature, Marshall was

a member of the Council of State; but the violent struggle required to

get the Assembly to pass even so puny an act as this went on under his

personal observation.

When Marshall entered the Legislature for the second time, the general

subject of the debts of the Confederation arose. Congress thought that

the money to pay the loans from foreign Governments by which the war had

been carried on, might be secured more easily by a new mode of

apportioning their quotas among the thirteen States. The Articles of

Confederation provided that the States should pay on the basis of the

value of lands. This worked badly, and Congress asked the States to

alter the eighth Article of Confederation so as to make the States

contribute to the general treasury on a basis of population. For fear

that the States would not make this change, Congress also humbly

petitioned the thirteen "sovereignties" to ascertain the quantity and

value of land as well as the number of people in each State.

On May 19, 1784,[727] after the usual debating, a strong set of

Nationalist resolutions was laid before the Virginia House of Delegates.

They agreed to the request of Congress to change the basis of

apportioning the debt among the States; favored providing for the

payment of a part of what each State owed Congress on the requisition of

three years before; and even went so far as to admit that if the States

did not act, Congress itself might be justified in proceeding. The last

resolution proposed to give Congress the power to pass retaliatory trade

laws.[728] These resolutions were adopted with the exception of one

providing for the two years' overdue payment of the Virginia share of

the requisition of Congress made in 1781.

Marshall was appointed a member of a special committee to "prepare and

bring in bills" to carry out the two resolutions for changing the basis

of apportionment from land to population, and for authorizing Congress

to pass retaliatory trade laws. George Mason and Patrick Henry also were

members of this committee on which the enemies of the National idea had

a good representation. Two weeks later the bills were reported.[729]

Three weeks afterwards the retaliatory trade bill was passed.[730] But

all the skill and ability of Madison, all the influence of Marshall with

his fellow members, could not overcome the sentiment against paying the

debts; and, as usual, the law was neutralized by a provision that it

should be suspended until all the other States had enacted the same kind

of legislation.

The second contest waged by the friends of the Nationalist idea in which

Marshall took part was over the extradition bill which the Legislature

enacted in the winter of 1784. The circumstances making such a law so

necessary that the Virginia Legislature actually passed it, draw back

for a moment the curtain and give us a view of the character of our

frontiersmen. Daring, fearless, strong, and resourceful, they struck

without the sanction of the law. The object immediately before their

eyes, the purpose of the present, the impulse or passion of the

moment--these made up the practical code which governed their actions.

Treaties of the American "Government" with the Governments of other

countries were, to these wilderness subduers, vague and far-away

engagements which surely never were meant to affect those on the

outskirts of civilization; and most certainly could not reach the

scattered dwellers in the depths of the distant forests, even if such

international compacts were intended to include them. As for the

Government's treaties or agreements of any kind with the Indian tribes,

they, of course, amounted to nothing in the opinion of the frontiersmen.

Who were the Indians, anyway, except a kind of wild animal very much in

the frontiersman's way and to be exterminated like other savage beasts?

Were not the Indians the natural foes of these white Lords of the

earth?[731]

Indeed, it is more than likely that most of this advance guard of the

westward-marching American people never had heard of such treaties until

the Government's puny attempt to enforce them. At any rate, the settlers

fell afoul of all who stood in their way; and, in the falling, spared

not their hand. Madison declared that there was "danger of our being

speedily embroiled with the nations contiguous to the U. States,

particularly the Spaniards, by the licentious & predatory spirit of some

of our Western people. In several instances, gross outrages are said to

have been already practiced."[732] Jay, then Secretary of State,

mournfully wrote to Jefferson in Paris, that "Indians have been murdered

by our people in cold blood, and no satisfaction given; nor are they

pleased with the avidity with which we seek to acquire their lands."

Expressing the common opinion of the wisest and best men of the country,

who, with Madison, were horrified by the ruthless and unprovoked

violence of the frontiersmen, Jay feared that "to pitch our tents

through the wilderness in a great variety of places, far distant from

each other," might "fill the wilderness with white savages ... more

formidable to us than the tawny ones which now inhabit it." No wonder

those who were striving to found a civilized nation had "reason ... to

apprehend an Indian war."[733]

To correct this state of things and to bring home to these sons of

individualism the law of nations and our treaties with other countries,

Madison, in the autumn of 1784, brought in a bill which provided that

Virginia should deliver up to foreign Governments such offenders as had

come within the borders of the Commonwealth. The bill also provided for

the trial and punishment by Virginia courts of any Virginia citizen who

should commit certain crimes in "the territory of any Christian nation

or Indian tribe in amity with the United States." The law is of general

historic importance because it was among the first, if not indeed the

very first, ever passed by any legislative body against

filibustering.[734]

The feebleness of the National idea at this time; the grotesque notions

of individual "rights"; the weakness or absence of the sense of civic

duty; the general feeling that everybody should do as he pleased; the

scorn for the principle that other nations and especially Indian tribes

had any rights which the rough-and-ready settlers were bound to respect,

are shown in the hot fight made against Madison's wise and moderate

bill. Viewed as a matter of the welfare and safety of the frontiersmen

themselves, Madison's measure was prudent and desirable; for, if either

the Indians or the Spaniards had been goaded into striking back by

formal war, the blows would have fallen first and heaviest on these very

settlers.

Yet the bill was stoutly resisted. It was said that the measure, instead

of carrying out international law, violated it because "such surrenders

were unknown to the law of nations."[735] And what became of Virginia's

sacred Bill of Rights, if such a law as Madison proposed should be

placed on the statute books, exclaimed the friends of the predatory

backwoodsmen? Did not the Bill of Rights guarantee to every person

"speedy trial by an impartial jury of twelve men of his vicinage," where

he must "be confronted with the accusers and witnesses," said they?

But what did this Nationalist extradition bill do? It actually provided

that men on Virginia soil should be delivered up for punishment to a

foreign nation which knew not the divine right of trial by jury. As for

trying men in Virginia courts and before Virginia juries for something

they had done in the fastnesses of the far-away forests of the West and

South, as Madison's bill required, how could the accused "call for

evidence in his favor"? And was not this "sacred right" one of the

foundation stones, quarried from Magna Charta, on which Virginia's

"liberties" had been built?[736] To be sure it was! Yet here was James

Madison trying to blast it to fragments with his Nationalism!

So ran the arguments of those early American advocates of

_laissez-faire_. Madison answered, as to the law of nations, by quoting

Vattel, Grotius, and Puffendorf. As to the Bill of Rights, he pointed

out that the individualist idealism by which the champions of the

settlers interpreted this instrument "would amount to a license for

every aggression, and would sacrifice the peace of the whole community

to the impunity of the worst members of it."[737] Such were the

conservative opinions of James Madison three years before he helped to

frame the National Constitution.

Madison saw, too,--shocking treason to "liberty,"--"the necessity of a

qualified interpretation of the bill of rights,"[738] if we were to

maintain the slightest pretense of a National Government of any kind.

The debate lasted several days.[739] With all the weight of argument,

justice, and even common prudence on the side of the measure, it

certainly would have failed had not Patrick Henry come to the rescue of

it with all the strength of his influence and oratory.[740]

The bill was so mangled in committee that it was made useless and it was

restored only by amendment. Yet such was the opposition to it that even

with Henry's powerful aid this was done only by the dangerous margin of

four votes out of a total of seventy-eight.[741] The enemies of the bill

mustered their strength overnight and, when the final vote came upon its

passage the next morning, came so near defeating it that it passed by a

majority of only one vote out of a total of eighty-seven.[742]

John Marshall, of course, voted for it. While there is no record that he

took part in the debate, yet it is plain that the contest strengthened

his fast-growing Nationalist views. The extravagance of those who saw in

the Bill of Rights only a hazy "liberty" which hid evil-doers from the

law, and which caused even the cautious Madison to favor a "qualified

interpretation" of that instrument, made a lasting impression on

Marshall's mind.

But Marshall's support was not wholly influenced by the prudence and

Nationalism of the measure. He wished to protect the Indians from the

frontiersmen. He believed, with Henry, in encouraging friendly relations

with them, even by white and red amalgamation. He earnestly supported

Henry's bill for subsidizing marriages of natives and whites[743] and

was disappointed by its defeat.

"We have rejected some bills," writes Marshall, "which in my conception

would have been advantageous to the country. Among these, I rank the

bill for encouraging intermarriages with the Indians. Our prejudices

however, oppose themselves to our interests, and operate too powerfully

for them."[744]

During the period between 1784 and 1787 when Marshall was out of the

Legislature, the absolute need of a central Government that would enable

the American people to act as a Nation became ever more urgent; but the

dislike for such a Government also crystallized. The framing of the

Constitution by the Federal Convention at Philadelphia in 1787 never

could have been brought about by any abstract notions of National honor

and National power, nor by any of those high and rational ideas of

government which it has become traditional to ascribe as the only

source and cause of our fundamental law.

The people at large were in no frame of mind for any kind of government

that meant power, taxes, and the restrictions which accompany orderly

society. The determination of commercial and financial interests to get

some plan adopted under which business could be transacted, was the most

effective force that brought about the historic Convention at

Philadelphia in 1787. Indeed, when that body met it was authorized only

to amend the Articles of Confederation and chiefly as concerned the

National regulation of commerce.[745]

Virginia delayed acting upon the Constitution until most of the other

States had ratified it. The Old Dominion, which had led in the

Revolution, was one of the last Commonwealths to call her Convention to

consider the "new plan" of a National Government. The opposition to the

proposed fundamental law was, as we shall see, general and determined;

and the foes of the Constitution, fiercely resisting its ratification,

were striving to call a second general Convention to frame another

scheme of government or merely to amend the Articles of Confederation.

To help to put Virginia in line for the Constitution, John Marshall, for

the third time, sought election to the Legislature. His views about

government had now developed maturely into a broad, well-defined

Nationalism; and he did not need the spur of the wrathful words which

Washington had been flinging as far as he could against the existing

chaos and against everybody who opposed a strong National Government.

If Marshall had required such counsel and action from his old commander,

both were at hand; for in all his volcanic life that Vesuvius of a man

never poured forth such lava of appeal and denunciation as during the

period of his retirement at Mount Vernon after the war was over and

before the Constitution was adopted.[746]

But Marshall was as hot a Nationalist as Washington himself. He was

calmer in temperament, more moderate in language and method, than his

great leader; but he was just as determined, steady, and fearless. And

so, when he was elected to the Legislature in the early fall of 1787, he

had at heart and in mind but one great purpose. Army life, legislative

experience, and general observation had modified his youthful democratic

ideals, while strengthening and confirming that Nationalism taught him

from childhood. Marshall himself afterwards described his state of mind

at this period and the causes that produced it.

"When I recollect," said he, "the wild and enthusiastic notions with

which my political opinions of that day were tinctured, I am disposed to

ascribe my devotion to the Union and to a government competent to its

preservation, at least as much to casual circumstances as to judgment.

I had grown up at a time when the love of the Union, and the resistance

to the claims of Great Britain were the inseparable inmates of the same

bosom; when patriotism and a strong fellow-feeling with our suffering

fellow-citizens of Boston were identical; when the maxim, 'United we

stand, divided we fall,' was the maxim of every orthodox American.

"And I had imbibed these sentiments so thoroughly that they constituted

a part of my being. I carried them with me into the army, where I found

myself associated with brave men from different States, who were risking

life and everything valuable in a common cause, believed by all to be

most precious; and where I was confirmed in the habit of considering

America as my country, and Congress as my government.... My immediate

entrance into the State Legislature opened to my view the causes which

had been chiefly instrumental in augmenting those sufferings [of the

army]; and the general tendency of State politics convinced me that no

safe and permanent remedy could be found but in a more efficient and

better organized General Government."[747]

On the third day of the fall session of the Virginia Legislature of

1787, the debate began on the question of calling a State Convention to

ratify the proposed National Constitution.[748] On October 25 the debate

came to a head and a resolution for calling a State Convention passed

the House.[749] The debate was over the question as to whether the

proposed Convention should have authority either to ratify or reject the

proposed scheme of government entirely; or to accept it upon the

condition that it be altered and amended.

Francis Corbin, a youthful member from Middlesex, proposed a flat-footed

resolution that the State Convention be called either to accept or

reject the "new plan." He then opened the debate with a forthright

speech for a Convention to ratify the new Constitution as it stood.

Patrick Henry instantly was on his feet. He was for the Convention, he

said: "No man was more truly federal than himself." But, under Corbin's

resolution, the Convention could not propose amendments to the

Constitution. There were "errors and defects" in that paper, said Henry.

He proposed that Corbin's resolution should be changed so that the State

Convention might propose amendments[750] as a condition of ratification.

The debate waxed hot. George Nicholas, one of the ablest men in the

country, warmly attacked Henry's idea. It would, declared Nicholas,

"give the impression" that Virginia was not for the Constitution,

whereas "there was, he believed, a decided majority in its favor."

Henry's plan, said Nicholas, would throw cold water on the movement to

ratify the Constitution in States that had not yet acted.

George Mason made a fervid and effective speech for Henry's resolution.

This eminent, wealthy, and cultivated man had been a member of the

Philadelphia Convention that had framed the Constitution; but he had

refused to sign it. He was against it for the reasons which he

afterwards gave at great length in the Virginia Convention of 1788.[751]

He had "deeply and maturely weighed every article of the new

Constitution," avowed Mason, and if he had signed it, he "might have

been justly regarded as a traitor to my country. I would have lost this

hand before it should have marked my name to the new government."[752]

At this juncture, Marshall intervened with a compromise. The

Constitutionalists were uncertain whether they could carry through

Corbin's resolution. They feared that Henry's plan of proposing

amendments to the Constitution might pass the House. The effect of such

an Anti-Constitutional victory in Virginia, which was the largest and

most populous State in the Union, would be a blow to the cause of the

Constitution from which it surely could not recover. For the movement

was making headway in various States for a second Federal Convention

that should devise another system of government to take the place of the

one which the first Federal Convention, after much quarreling and

dissension, finally patched up in Philadelphia.[753]

So Marshall was against both Corbin's resolution and Henry's amendment

to it; and also he was for the ideas of each of these gentlemen. It was

plain, said Marshall, that Mr. Corbin's resolution was open to the

criticism made by Mr. Henry. To be sure, the Virginia Convention should

not be confined to a straight-out acceptance or rejection of the new

Constitution; but, on the other hand, it would never do for the word to

go out to the other States that Virginia in no event would accept the

Constitution unless she could propose amendments to it. He agreed with

Nicholas entirely on that point.

Marshall also pointed out that the people of Virginia ought not to be

given to understand that their own Legislature was against the proposed

Constitution before the people themselves had even elected a Convention

to pass upon that instrument. The whole question ought to go to the

people without prejudice; and so Marshall proposed a resolution of his

own "that a Convention should be called and that the new Constitution

should be laid before them for their free and ample discussion."[754]

Marshall's idea captured the House. It placated Henry, it pleased Mason;

and, of course, it was more than acceptable to Corbin and Nicholas, with

whom Marshall was working hand in glove, as, indeed, was the case with

all the Constitutionalists. In fact, Marshall's tactics appeared to let

every man have his own way and succeeded in getting the Convention

definitely called. And it did let the contending factions have their own

way for the time being; for, at that juncture, the friends of the new

National Constitution had no doubt that they would be able to carry it

through the State Convention unmarred by amendments, and its enemies

were equally certain that they would be able to defeat or alter it.

Marshall's resolution, therefore, passed the House "unanimously."[755]

Other resolutions to carry Marshall's resolution into effect also passed

without opposition, and it was "ordered that two hundred copies of these

resolutions be printed and dispersed by members of the general assembly

among their constituents; and that the Executive should send a copy of

them to Congress and to the Legislature and Executive of the respective

states."[756] But the third month of the session was half spent before

the Senate passed the bill.[757] Not until January 8 of the following

year did it become a law.[758]

In addition, however, to defining the privileges of the members and

providing money for its expenses, the bill also authorized the

Convention to send representatives "to any of the sister states or the

conventions thereof which may be then met," in order to gather the views

of the country "concerning the great and important change of government

which hath been proposed by the federal convention."[759] Thus the

advocates of a second general Convention to amend the Articles of

Confederation or frame another Constitution scored their point.

So ended the first skirmish of the historic battle soon to be fought out

in Virginia, which would determine whether the American people should

begin their career as a Nation. Just as John Marshall was among the

first in the field with rifle, tomahawk, and scalping-knife, to fight

for Independence, so, now, he was among those first in the field with

arguments, influence, and political activities, fighting for

Nationalism.

FOOTNOTES:

[614] Richmond grew rapidly thereafter. The number of houses was trebled

within a decade.

[615] Schoepf, ii, 55-56.

[616] Schoepf, ii, 55-56.

[617] _Ib._; and see Journals.

[618] _Ib._, ii, 57.

[619] Schoepf, 55-56.

[620] _Ib._, 58.

[621] Story, in Dillon, iii, 337. Marshall was a prime favorite of his

old comrades all his life. (_Ib._)

[622] Journal, H.D. (Oct. Sess., 1782), 3-10.

[623] The roads were so bad and few that traveling even on horseback was

not only toilsome but dangerous. (See _infra_, chap. VII.)

[624] Journal, H.D. (Oct. Sess., 1782), 4-8.

[625] Journal, H.D. (Oct. Sess., 1782.), 9-10.

[626] _Ib._, 10.

[627] _Ib._, 13-15.

[628] _Ib._, 15.

[629] _Ib._, 22; Hening, xi, 111. The "ayes" and "noes" were taken on

this bill and Marshall's vote is, of course, without any importance

except that it was his first and that it was a little straw showing his

kindly and tolerant disposition. Also the fact that the "ayes" and

"noes" were called for--something that was very rarely done--shows the

popular feeling against Englishmen.

[630] Journal, H.D. (Oct. Sess., 1782), 27-28. Marshall voted in favor

of bringing in a bill for strengthening the credit account; and against

postponing the consideration of the militia bill. (_Ib._, 45.)

[631] _Ib._, 23, 25, 27, 36, 42, 45.

[632] _Ib._, 23.

[633] Hening, xi, 173-75.

[634] Journal, H.D., 36.

[635] "It greatly behoves the Assembly to revise several of our laws,

and to abolish all such as are contrary to the fundamental principles of

justice; and by a strict adherence to the distinctions between Right and

Wrong for the future, to restore that confidence and reverence ... which

has been so greatly impaired by a contrary conduct; and without which

our laws can never be much more than a dead letter." (Mason to Henry,

May 6,1783, as quoted in Henry, ii, 185.)

[636] _Writings_: Hunt, ii, 397. This notable fact is worthy of

repetition if we are to get an accurate view of the Virginia Legislature

of that day. Yet that body contained many men of great ability.

[637] Madison to Jefferson, July 3,1784; _Writings_: Hunt, ii, 62.

[638] Madison to Washington, Dec. 14,1787; _ib._, v, 69-70.

[639] Washington to Madison, Jan. 10, 1788; _Writings_: Ford, xi, 208.

[640] Washington to Lafayette, April 28, 1788; _ib._, 254. Washington

wrote bitterly of State antagonism. "One State passes a prohibitory law

respecting some article, another State opens wide the avenue for its

admission. One Assembly makes a system, another Assembly unmakes it."

(_Ib._)

[641] Hening, xi, 299-306. This statement of Marshall's was grossly

incorrect. This session of the Legislature passed several laws of the

very greatest public consequence, such as the act to authorize Congress

to pass retaliatory trade laws against Great Britain (_ib._, 313); an

immigration and citizenship act (_ib._, 322-24); an act prohibiting

British refugees from coming to Virginia; and a quarantine act (_ib._,

29-31). It was this session that passed the famous act to authorize

Virginia's delegates in Congress to convey to the United States the

Northwest Territory (_ib._, 326-28).

This remarkable oversight of Marshall is hard to account for. An

explanation is that this was the year of his marriage; and the year also

in which he became a resident of Richmond, started in the practice of

the law there, and set up his own home. In addition to these absorbing

things, his duty as a member of the Council of State took his attention.

Also, of course, it was the year when peace with Great Britain was

declared. Still, these things do not excuse Marshall's strange

misstatement. Perhaps he underestimated the importance of the work done

at this particular session.

[642] Hening, xi, 387-88. This bill became a law at the spring session

of the following year. The impracticable part enforcing attendance of

members was dropped. The bill as passed imposes a penalty of fifty

pounds on any sheriff or other officer for failure to return

certificates of elections; a forfeit of two hundred pounds upon any

sheriff interfering in any election or showing any partiality toward

candidates.

[643] Marshall to Powell, Dec. 9, 1783; _Branch Historical Papers_, i,

130-31.

[644] An act allowing one half of the taxes to be paid in tobacco, hemp,

flour, or deerskins, and suspending distress for taxes until January,

1784. (Hening, xi, 289.) The scarcity of specie was so great and the

people so poor that the collection of taxes was extremely difficult. In

1782 the partial payment of taxes in commutables--tobacco, hemp, flour,

or deerskins--was introduced. This occasioned such loss to the treasury

that in May, 1783, the Commutable Acts were repealed; but within five

months the Legislature reversed itself again and passed the Commutable

Bill which so disgusted Marshall.

[645] Marshall to Monroe, Dec. 12, 1783; MS., Draper Collection,

Wisconsin Historical Society; also printed in _Amer. Hist. Rev._, iii,

673. This letter is not addressed, but it has been assumed that it was

written to Thomas Jefferson. This is incorrect; it was written to James

Monroe.

[646] Journal, H.D. (Oct. Sess., 1782), 27. It is almost certain that

his father and Jacquelin Ambler were pushing him. The Speaker and other

prominent members of the House had been colleagues of Thomas Marshall in

the House of Burgesses and Ambler was popular with everybody. Still,

Marshall's personality must have had much to do with this notable

advancement. His membership in the Council cannot be overestimated in

considering his great conflict with the Virginia political "machine"

after he became Chief Justice. See volume III of this work.

[647] Journal of the Council of State, Nov. 20, 1782; MS., Va. St. Lib.

[648] Pendleton to Madison, Nov. 25, 1782; quoted in Rives, i, 182.

[649] Constitution of Virginia, 1776.

[650] Dodd, in _Amer. Hist. Rev._, xii, 776.

[651] Marshall participated in the appointment of General George Rogers

Clark to the office of Surveyor of Officers' and Soldiers' lands.

(Journal, Ex. Council, 1784, 57: MS., Va. St. Lib.)

[652] _Ib._

[653] Binney, in Dillon, iii, 291-92. This story is repeated in almost

all of the sketches of Marshall's life.

[654] Marshall to Monroe, April 17, 1784; MS., N.Y. Pub. Lib.

[655] His father, now in Kentucky, could no longer personally aid his

son in his old home. Thus Marshall himself had to attend to his own

political affairs.

[656] Marshall did not try for the Legislature again until 1787 when he

sought and secured election from Henrico. (See _infra._)

[657] Journal, H.D. (Spring Sess., 1784), 5. A Robert Marshall was also

a member of the House during 1784 as one of the representatives for Isle

of Wight County. He was not related in any way to John Marshall.

[658] _Ib._

[659] _Ib._

[660] Story, in Dillon, iii, 335-36.

[661] As an example of the number and nature of these soldier petitions

see Journal, H.D. (Spring Sess., 1784), 7, 9, 11, 16, 18, 44.

[662] See chap, VIII and footnote to p. 288.

[663] Williamson was a Tory of the offensive type. He had committed

hostile acts which embittered the people against him. (See _Cal. Va. St.

Prs._, ii. And see Eckenrode: _R. V._, chap, xi, for full account of

this and similar cases.)

[664] The gentle pastime of tarring and feathering unpopular persons and

riding them on sharp rails appears to have been quite common in all

parts of the country, for a long time before the Revolution. Men even

burned their political opponents at the stake. (See instances in

Belcher, i, 40-45.) Savage, however, as were the atrocities committed

upon the Loyalists by the patriots, even more brutal treatment was dealt

out to the latter by British officers and soldiers during the

Revolution. (See _supra_, chap. IV, footnote to p. 116.)

[665] Journal, H.D. (Spring Sess., 1784), 19.

[666] Journal, H.D. (Spring Sess., 1784), 23, 27.

[667] _Ib._, 45. For thorough examination of this incident see

Eckenrode: _R. V._, chap. xi.

[668] Journal, H.D. (Spring Sess., 1784), 57.

[669] _Ib._, 14.

[670] Hening, xi, 390.

[671] Journal, H.D., 70-71.

[672] Madison to Jefferson, July 3, 1794; _Writings_: Hunt, ii, 56-57.

The Constitution of 1776 never was satisfactory to the western part of

Virginia, which was under-represented. Representation was by counties

and not population. Also suffrage was limited to white freeholders; and

this restriction was made more onerous by the fact that county

representation was based on slave as well as free population. Also, the

Constitution made possible the perpetuation of the Virginia political

machine, previously mentioned, which afterward played a part of such

vast importance in National affairs. Yet extreme liberals like the

accomplished and patriotic Mason were against the Legislature turning

itself into a convention to make a new one. (Mason to Henry, May 6,

1783; Henry, ii, 185.)

[673] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 104.

[674] Hening, xi, 510-18. This law shows the chief articles of commerce

at that time and the kind of money which might be received as tolls. The

scale of equivalents in pounds sterling vividly displays the confused

currency situation of the period. The table names Spanish milled pieces

of eight, English milled crowns, French silver crowns, johannes, half

johannes, moidores, English guineas, French guineas, doubloons, Spanish

pistoles, French milled pistoles, Arabian sequins; the weight of each

kind of money except Spanish pieces of eight and English and French

milled crowns being carefully set out; and "other gold coin (German

excepted) by the pennyweight." If any of this money should be reduced in

value by lessening its weight or increasing its alloy it should be

received at "its reduced value only." (_Ib._)

[675] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 102.

Madison gives a very full history and description of this legislation.

[676] Marshall's Account Book contains entries of many of these

payments.

[677] Journal, H.D. (Nov. 1787), 27-127.

[678] Journal, H.D. (Nov. 1787), 70.

[679] _Ib._, 27.

[680] Hening, xii, 464-67. The preamble of the act recites that it is

passed because under the existing law "justice is greatly delayed by the

tedious forms of proceedings, suitors are therefore obliged to waste

much time and expense to the impoverishment of themselves and the state,

and decrees when obtained are with difficulty carried into execution."

(_Ib._)

[681] _Ib._, ix, 389-99.

[682] _Ib._, xi, 342-44.

[683] See Jefferson's letter to Mazzei, explaining the difference

between law and equity and the necessity for courts of chancery as well

as courts of law. This is one of the best examples of Jefferson's calm,

clear, simple style when writing on non-political subjects. (Jefferson

to Mazzei, Nov., 1785; _Works_: Ford, iv, 473-80.)

[684] For the best contemporaneous description of Virginia legislation

during this period see Madison's letters to Jefferson when the latter

was in Paris. (_Writings_: Hunt, i and ii.)

[685] For a thorough account of the religious struggle in Virginia from

the beginning see Eckenrode: _S. of C. and S._ On the particular phase

of this subject dealt with while Marshall was a member of the Virginia

Legislature see _ib._, chap. v.

[686] Mason to Henry, May 6, 1783, as quoted in Rowland, ii, 44.

[687] Meade, i, footnote to 142. And see _Atlantic Monthly, supra_.

[688] Eckenrode:_ S. of C. and S._, 75. On this general subject see

Meade, i, chaps. i and ii. "Infidelity became rife, in Virginia,

perhaps, beyond any other portion of land. The Clergy, for the most

part, were a laughing stock or objects of disgust." (_Ib._, 52.) Even

several years later Bishop Meade says that "I was then taking part in

the labours of the field, which in Virginia was emphatically _servile

labour_." (_Ib._, 27.)

"One sees not only a smaller number of houses of worship [in Virginia]

than in other provinces, but what there are in a ruinous or ruined

condition, and the clergy for the most part dead or driven away and

their places unfilled." (Schoepf, ii, 62-63.)

[689] Henry, ii, 199-206.

[690] Eckenrode: _S. of C. and S._, 77.

[691] Journal, H.D. (2d Sess., 1784), 19.

[692] _Ib._, 27.

[693] _Ib._, 82.

[694] _Ib._

[695] _Ib._

[696] _Ib._, 97. For the incorporation law see Hening, xi, 532-37; for

marriage law see _ib._, 532-35. Madison describes this law to Jefferson

and excuses his vote for it by saying that "the necessity of some sort

of incorporation for the purpose of holding & managing the property of

the Church could not well be denied, nor a more harmless modification of

it now be obtained. A negative of the bill, too, would have doubled the

eagerness and the pretexts for a much greater evil, a general

Assessment, which, there is good ground to believe, was parried by this

partial gratification of its warmest votaries." (Madison to Jefferson,

Jan. 9, 1785; _Writings_: Hunt, ii, 113.)

[697] Story, in Dillon, iii, 338.

[698] "Virginia certainly owed two millions sterling [$10,000,000] to

Great Britain at the conclusion of the war. Some have conjectured the

debt as high as three millions [$15,000,000].... These debts had become

hereditary from father to son for many generations, so that the planters

were a species of property annexed to certain mercantile houses in

London.... I think that state owed near as much as all the rest put

together." Jefferson's explanation of these obligations is extremely

partial to the debtors, of whom he was one. (Jefferson to Meusnier, Jan.

24, 1786; _Works_: Ford, v, 28.)

Most of Jefferson's earlier debts were contracted in the purchase of

slaves. "I cannot decide to sell my lands.... nor would I willingly sell

the slaves as long as there remains any prospect of paying my debts with

their labor." This will "enable me to put them ultimately on an easier

footing, which I will do the moment they have paid the [my] debts,...

two thirds of which have been contracted by purchasing them." (Jefferson

to Lewis, July 29, 1787; _ib._, 311.)

[699] For Virginia legislation on this subject see Hening, ix, x, and

xi, under index caption "British Debts."

[700] Definitive Treaty of Peace, 1783, art. 4.

[701] Journal, H.D. (1st Sess.), 1784, 41.

[702] _Ib._, 54; 72-73. The Treaty required both.

[703] Journal, H.D. (1st Sess., 1784), 74.

[704] _Ib._, 74-75. Henry led the fight against repealing the anti-debt

laws or, as he contended, against Great Britain's infraction of the

Treaty.

[705] Journal, H.D. (1st Sess., 1784), 25.

[706] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 114.

[707] See Madison's vivid description of this incident; _ib._, 116; also

Henry, ii, 233.

[708] _Ib._

[709] Marshall to Monroe, Dec. 2, 1784; MS., Monroe Papers, Lib. Cong.

[710] Madison to Monroe, Dec. 24, 1785; _Writings_: Hunt, ii, 205.

"Being convinced myself that nothing can be now done that will not

extremely dishonor us, and embarass Cong^s my wish is that the report

may not be called for at all. In the course of the debates no pains were

spared to disparage the Treaty by insinuations ag^{st} Cong^s, the

Eastern States, and the negociators of the Treaty, particularly J.

Adams. These insinuations & artifices explain perhaps one of the motives

from which the augmention of the foederal powers & respectability has

been opposed." (Madison to Monroe, Dec. 30, 1785; _ib._, 211.)

[711] Curiously enough, it fell to Jefferson as Secretary of State to

report upon, explain, and defend the measures of Virginia and other

States which violated the Treaty of Peace. (See Jefferson to the British

Minister, May 29, 1792; _Works_: Ford, vii, 3-99.) This masterful

statement is one of the finest argumentative products of Jefferson's

brilliant mind.

[712] Journal, H.D. (1787), 51.

[713] _Ib._, 52.

[714] _Ib._ James Monroe was a member of the House at this session and

voted against the first amendment and for the second. On the contrary,

Patrick Henry voted for the first and against the second amendment.

George Mason voted against both amendments. So did Daniel Boone, who

was, with Thomas Marshall, then a member of the Virginia Legislature

from the District of Kentucky. On the passage of the resolution, James

Monroe and Patrick Henry again swerved around, the former voting for and

the latter against it.

[715] Journal, H.D. (1787), 52.

[716] Journal, H.D. (1787), 79.

[717] "If we are now to pay the debts due to the British merchants, what

have we been fighting for all this while?" was the question the people

"sometimes" asked, testifies George Mason. (Henry, ii, 187.) But the

fact is that this question generally was asked by the people. Nothing

explains the struggle over this subject except that the people found it

a bitter hardship to pay the debts, as, indeed, was the case; and the

idea of not paying them at all grew into a hope and then a policy.

[718] Journal, H.D. (1787), 80.

[719] Hening, xii, 528. Richard Henry Lee thought that both countries

were to blame. (Lee to Henry, Feb. 14, 1785; quoted in Henry, iii, 279.)

[720] For an excellent statement regarding payment of British debts, see

letter of George Mason to Patrick Henry, May 6, 1783, as quoted in

Henry, ii, 186-87. But Mason came to put it on the ground that Great

Britain would renew the war if these debts were not paid.

[721] Story, in Dillon, iii, 338.

[722] Hening, x, chaps. ii and ix, 409-51.

[723] For a general review of the state of the country see _infra_,

chaps. VII and VIII.

[724] Hening, xi, chap. xlii, 171.

[725] _Ib._, chap. xxxi, 350.

[726] Journal, H.D., 52.

[727] In order to group subjects such as British debts, extradition, and

so forth, it is, unfortunately, essential to bring widely separated

dates under one head.

[728] Journal, H.D. (1st Sess., 1784), 11-12.

[729] Journal, H.D. (1st Sess., 1784), 37.

[730] _Ib._, 81; also, Hening, xi, 388.

[731] "The white people who inhabited the frontier, from the constant

state of warfare in which they lived with the Indians, had imbibed much

of their character; and learned to delight so highly in scenes of

crafty, bloody, and desperate conflict, that they as often gave as they

received the provocation to hostilities. Hunting, which was their

occupation, became dull and tiresome, unless diversified occasionally by

the more animated and piquant amusement of an Indian skirmish." (Wirt,

257.)

[732] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 110-11.

[733] Jay to Jefferson, Dec. 14, 1786; _Jay_: Johnston, iii, 224.

[734] Hening, xi, 471; and Henry, ii, 217.

[735] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii. 111.

[736] Article VIII, Constitution of Virginia, 1776.

[737] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 111.

[738] _Ib._

[739] Journal, H.D. (2d Sess., 1784), 34-41.

[740] "The measure was warmly patronized by Mr. Henry." (Madison to

Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 111.) The reason of

Henry's support of this extradition bill was not its Nationalist spirit,

but his friendship for the Indians and his pet plan to insure peace

between the white man and the red and to produce a better race of human

beings; all of which Henry thought could be done by intermarriages

between the whites and the Indians. He presented this scheme to the

House at this same session and actually carried it by the "irresistible

earnestness and eloquence" with which he supported it. (Wirt, 258.)

The bill provided that every white man who married an Indian woman

should be paid ten pounds and five pounds more for each child born of

such marriage; and that if any white woman marry an Indian they should

be entitled to ten pounds with which the County Court should buy live

stock for them; that once each year the Indian husband to this white

woman should be entitled to three pounds with which the County Court

should buy clothes for him; that every child born of this Indian man and

white woman should be educated by the State between the age of ten and

twenty-one years, etc., etc. (_Ib._)

This amazing bill actually passed the House on its first and second

reading and there seems to be no doubt that it would have become a law

had not Henry at that time been elected Governor, which took him "_out

of the way_," to use Madison's curt phrase. John Marshall favored this

bill.

[741] Journal, H.D. (2d Sess., 1784), 41.

[742] _Ib._

[743] See note 5, p. 239, _ante_.

[744] Marshall to Monroe, Dec., 1784; MS. Monroe Papers, Lib. Cong.;

also partly quoted in Henry, ii, 219.

[745] See _infra_, chap. IX.

[746] One of the curious popular errors concerning our public men is

that which pictures Washington as a calm person. On the contrary, he was

hot-tempered and, at times, violent in speech and action. It was with

the greatest difficulty that he trained himself to an appearance of

calmness and reserve.

[747] Story, in Dillon, iii, 338, 343.

[748] Journal, H.D. (Oct. Sess., 1787), 7.

[749] _Ib._, 11, 15.

[750] _Pennsylvania Packet_, Nov. 10, 1787: Pa. Hist. Soc.

[751] _Infra_, chaps. XI and XII.

[752] _Pennsylvania Packet_, Nov. 10, 1787; also see in Rowland, ii,

176.

[753] _Infra_, chaps. IX, XII; and also Washington to Lafayette, Feb. 7,

1788; _Writings_: Ford, xi, 220.

[754] _Pennsylvania Packet_, Nov. 10, 1787; Pa. Hist. Soc.

[755] Journal, H.D. (Oct. Sess., 1787), 15.

[756] _Ib._

[757] _Ib._, 95.

[758] _Ib._ (Dec., 1787), 143, 177.

[759] Hening, xii, 462-63.

The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788 · 第 6 / 12 章