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.