CHAPTER XII

THE STRATEGY OF VICTORY

Washington's influence carried this government [Virginia's

ratification of the Constitution]. (Monroe to Jefferson, July 12,

1788.)

If I shall be in the minority, I shall have those painful

sensations which arise from a conviction of _being overpowered in

a good cause_. Yet I will be a peaceable citizen. (Henry, in his

last debate.)

Now came the real tug-of-war. The debate on the Judiciary was the

climax of the fight. And here John Marshall was given the place of

chief combatant. The opposition felt that again they might influence

one or two delegates by mere debate, and they prepared to attack

with all their might. "Tomorrow the Judiciary comes on when we

[Anti-Constitutionalists] shall exert our whole force. It is expected we

shall get two Votes if the point is conducted in an able & masterly

manner," Grayson advised the opposition headquarters in New York.[1298]

The Judiciary was, indeed, the weakest part of the Constitutionalists'

battle line. The large amount of the British debts; the feeling, which

Virginia's legislation against the payment of them had fostered, that

the day would be far distant and perhaps would never come when those

debts would have to be paid; the provision of the Constitution

concerning the making of treaties, which were to be the supreme law of

the land; the certainty that the Treaty of Peace would be covered by the

new fundamental law; the fear that another treaty would be negotiated

governing the British obligations more specifically, if the

Constitution were adopted; the fact that such a treaty and all other

National laws would be enforced by National Courts--all these and many

other germane considerations, such as land grants and confused titles,

were focused on the fears of the planters.

The creditor class were equally anxious and alarmed. "If the new

Constitution should not be adopted or something similar, we are of the

opinion that such is the interest and influence of Debtors in our State

that every thing ... will be at Risk" was the opinion of the legal

representatives in Virginia of the Collins mercantile house.[1299]

Great quantities of land granted under the Royal Government by Great

Britain, but which the State had confiscated, had been bought and

settled by thousands of men whose families now lived upon this land; and

these settlers felt that, in some way, their titles would be in danger

if they were dragged before a National Court.[1300]

The Constitutionalists did not underestimate their peril, and at no

point during the three weeks' debate did they prepare for battle with

greater care. They returned to their original tactics and delivered the

first blow. Pendleton, of course, was the ideal man to lead the

Constitutionalist attack. And never in his whole life did that

extraordinary man make a more convincing argument.[1301] Mason tried his

best to answer Pendleton, although he admitted that the Judiciary "lies

out of my line." Still he was clear, in his own mind, that the National

Judiciary was "so constructed as to destroy the dearest rights of the

community," and thought it would "destroy the state governments,

whatever may have been the intention."

While Mason spoke with uncertainty, it was in this brief speech that

this eminent Virginian uncovered the hidden thought and purpose of many

of the Constitutionalists; and uttered an unconscious prophecy which it

was the destiny of John Marshall to realize. "There are," said Mason,

"many gentlemen in the United States who think it right that we should

have one great, national, consolidated government, and that it was

better to bring it about slowly and imperceptibly rather than all at

once. This is no reflection on any man, for I mean none. To those who

think that one national, consolidated government is best for America,

this extensive judicial authority will be agreeable"; and he further

declared, "I know from my own knowledge many worthy gentlemen" of this

opinion. Madison demanded of Mason "an unequivocal explanation." Mason

exonerated Madison, personally, and admitted that "neither did I ever

hear any of the delegates from this state advocate it." Thus did the

extreme courtesy of the Virginia debate cause the opposition to yield

one of its most effective weapons.[1302]

But Mason made the most out of the Constitution's proposed Judiciary

establishment. Take it at its best, said he: "Even suppose the poor man

should be able to obtain judgment in the inferior court, for the

greatest injury, what justice can he get on appeal? Can he go four or

five hundred miles? Can he stand the expense attending it?"[1303] As to

the jurisdiction of National Courts in controversies between citizens of

different States, "Can we not trust our state courts with a decision of

these?" asked Mason. "What!" cried he, "carry me a thousand miles from

home--from my family and business--to where, perhaps, it will be

impossible for me to prove that I paid" the money sued for.

"Is not a jury excluded absolutely?" by the Constitution, asked Mason.

And even if a jury be possible in National Courts, still, under the

Constitution, where is there any right to challenge jurors? "If I be

tried in the Federal Court for a crime which may effect my life, have I

a right of challenging or excepting to the jury?" This omission was a

serious and immediate peril to great numbers of Virginians, said he. "I

dread the ruin that will be wrought on thirty thousand of our people

[deriving their titles through Fairfax] with respect to disputed lands.

I am personally endangered as an inhabitant of the Northern Neck." Under

the Constitution "the people of that part will be obliged ... to pay the

quit rent of their lands." This was to Mason, "a most serious

alarm...."

"Lord Fairfax's title was clear and undisputed," he continued. The State

had "taxed his lands as private property"; but "after his death"

Virginia, in 1782, "sequestered the quit rents due at his death, in the

hands of his debtors. The following year" they were restored to his

executor. Then came the Treaty of Peace providing against "further

confiscation"; but, "after this, an act of Assembly passed, confiscating

his [Fairfax's] whole property."

So, concluded Mason, "as Lord Fairfax's title was indisputably good, and

as treaties [under the Constitution] are to be the supreme law of the

land, will not his representatives be able to recover all in the federal

court? How will gentlemen like to pay an additional tax on lands in the

Northern Neck?" Yet that was what they would be compelled to do if the

Constitution were adopted. Thus they would be "doubly taxed." "Were I

going to my grave, I would appeal to Heaven that I think it [this]

true," fervently avowed the snowy-haired Mason.

Thus Mason made one of the cleverest appeals of the whole debate to the

personal and pecuniary interests of a considerable number of the people

and to several members of the Convention. In this artful and somewhat

demagogic argument he called attention to the lands involved in other

extensive land grants. As we have seen, John Marshall was then

personally interested in the Fairfax title,[1304] and he was soon to

possess it; in after years, it was to develop one of the great legal

contests of history; and the court over which Marshall was to preside

was to settle it definitively.

Although not a lawyer,[1305] Madison now made an argument which was one

of the distinguished intellectual performances of the Convention. But he

did not comprehend the sweep of the National Judiciary's power. "It is

not in the power of individuals," said Madison, "to call any state into

court." It may be that this statement influenced John Marshall, who soon

followed, to repeat it.[1306]

But it was Henry who gave the subject of the Judiciary that thrill,

anticipation of which filled every seat on the floor and packed the

galleries. "Mournful," to Henry, were the recollections which the debate

already had produced. "The purse is gone; the sword is gone," and now

the scales of Justice are to be given away. Even the trial by jury is to

be abandoned. Henry spoke long and effectively; and, extravagant as most

of his statements were, his penetrating mind was sometimes more nearly

right in its forecast than even that of Madison.

As he closed, the daring of the Patrick Henry of 1765 and 1775 displayed

itself. "Shall Americans give up that [jury trial] which nothing could

induce the English people to relinquish?" he exclaimed. "The idea is

abhorrent to my mind. There was a time when we should have spurned at

it.... Old as I am, it is probable I may yet have the appellation of

_rebel_.... As this government [Constitution] stands, I despise and

abhor it," cried the unrivaled orator of the people.[1307]

Up now rose John Marshall, whom the Constitutionalist leaders had agreed

upon for the critical task of defending the Judiciary article. Marshall,

as we have seen, had begun the practice of law in Richmond only five

years before; and during much of this period his time and attention had

been taken by his duties as a delegate in the Legislature. Yet his

intellectual strength, the power of his personality, his likableness,

and all the qualities of his mind and character had so impressed every

one that, by common consent, he was the man for the hour and the work at

hand. And Marshall had carefully prepared his speech.[1308]

The Judiciary provided by the Constitution was, said Marshall "a great

improvement on that system from which we are now departing. Here [in the

Constitution] are tribunals appointed for _the decision of

controversies_ which were before either not at all, or improperly,

provided for. That many benefits will result from this to the members of

the collective society, every one confesses." The National Judiciary

deserved the support of all unless it was "defectively organized and so

constructed as to injure, instead of accommodate, the convenience of the

people."

After the "fair and able" discussion by its supporters, Marshall

supposed that its opponents "would be convinced of the impropriety of

some of their objections. But," he lamented, "they still continue the

same opposition." And what was their complaint? This: That National

Courts would not be as fair and impartial as State Courts.

But why not? asked Marshall. Was it because of their tenure of office or

the method of choosing them? "What is it that makes us trust our [State]

judges? Their independence in office and manner of appointment."[1309]

But, under the Constitution, are not National judges "chosen with as

much wisdom as the judges of the state governments? Are they not

equally, if not more independent? If so," will they not be equally fair

and impartial? "If there be as much wisdom and knowledge in the United

States as in a particular state," will they "not be equally exercised in

the selection of [National] judges?" Such were the questions which

Marshall poured upon the Anti-Constitutionalists.

The kernel of the objection to National Courts was, declared Marshall,

"a belief that there will not be a fair trial had in those courts." But

it was plain, he argued, that "we are as secure there as anywhere else.

What mischief results from some causes being tried there [in the

National Courts]?" Independent judges "wisely appointed ... will never

countenance an unfair trial." Assuming this to be true "what are the

subjects of the jurisdiction" of National Courts? To Mason's objection

that Congress could create any number of inferior courts it might deem

necessary, Marshall replied that he had supposed that those who feared

Congress would say that "no inferior courts" would be established, "but

that we should be dragged to the centre of the Union." On the contrary,

the greater the number of these inferior courts, the less danger "of

being dragged to the centre of the United States."

Mason's point, that the jurisdiction of National Courts would extend to

all cases, was absurd, argued Marshall. For "has the government of the

United States power to make laws on every subject?... laws affecting the

mode of transferring property, or contracts, or claims, between citizens

of the same state? Can" Congress "go beyond the delegated powers?"

Certainly not. Here Marshall stated the doctrine which, fifteen years

later, he was to announce from the Supreme Bench:--

"If," he asserted, "they [Congress] were to make a law not warranted by

any of the powers enumerated, it would be considered by the [National]

judges as an infringement of the Constitution which they are to guard.

They would not consider such a law as coming under their jurisdiction.

_They would declare it void_.... To what quarter will you look for

protection from an infringement of the Constitution, if you will not

give the power to the judiciary? There is no other body that can afford

such a protection."

The National Courts would not supplant the State tribunals. The

Constitution did not "exclude state courts" from those cases which they

now possess. "They have concurrent jurisdiction with the Federal courts

in those cases in which the latter have cognizance," expounded the

nascent jurist. "Are not controversies respecting lands claimed under

the grants of different states the only controversies between citizens

of the same state which the Federal Judiciary can take [exclusive]

cognizance of?"

The work of the National Courts would make the State Courts more

efficient because it would relieve them of a mass of business of which

they were not able to dispose. "Does not every gentleman know that the

causes in our [State] courts are more numerous than they can decide?"

asked Marshall. "Look at the dockets," he exclaimed. "You will find them

crowded with suits which the life of man will not see determined.[1310]

If some of these suits be carried to other courts, will it be wrong?

They will still have business enough."

How vain and fanciful, argued Marshall, the contention that National

judges would screen "officers of the [National] government from merited

punishment." Does anybody really believe that "the Federal sheriff will

go into a poor man's house and beat him or abuse his family and the

Federal court will protect him," as Mason and Henry had said would be

the case? Even if a law should be passed authorizing "such great insults

to the people ... it would be void," declared Marshall. Thus he stated

for the second time the doctrine which he was, from the Supreme Bench,

to put beyond controversy.

Why, asked Marshall, "discriminate [in the Constitution] between ...

chancery, admiralty and the common law" as the Anti-Constitutionalists

insisted upon doing? "Why not leave it to Congress? They ... would not

wantonly infringe your rights." If they did, they would "render

themselves hateful to the people at large." Therefore, "something may be

left to the legislature [Congress] freely chosen by ourselves from among

ourselves, who are to share the burdens imposed upon the community and

who can be changed at our pleasure. Where power may be trusted and there

is no motive to abuse it, it ... is as well to leave it undetermined as

to fix it in the Constitution."

These sentences had prophecy in them. Indeed, they were to be repeated

almost without change by the same man that now uttered them in debate,

when he should ascend to the ultimate place of official interpretation

of our fundamental law. While Hamilton's immortal state papers

profoundly impressed Marshall, as we shall see, they were not, as many

have supposed, the source of his convictions. In the Virginia

Constitutional Convention of 1788 Marshall stated in debate the elements

of most of his immortal Nationalist opinions.

But there was one exception. As to "disputes between _a state and the

citizens of another state_," Marshall hoped "that no gentleman will

think that a state will be called at the bar of a Federal court.... It

is not rational to suppose that the Sovereign power should be dragged

before a court. The intent is to enable states to recover claims of

individuals residing in other states." If there were partiality in

this--"if an individual cannot ... obtain judgment against a state,

though he may be sued by a state"--it was a difficulty which could "not

be avoided"; let the claimant apply to the State Legislature for relief.

The objection to suits in the National Courts between citizens of

different States went "too far," contended Marshall. Such actions "may

not in general be absolutely necessary," but surely in some such cases

"the citizen ... ought to be able to recur to this [National] tribunal."

What harm could it do? "Will he get more than justice there? What has he

to get? Justice! Shall we object to this because the citizen of another

state can obtain justice without applying to our state courts?" Indeed,

"it may be necessary" in causes affected by "the laws and regulations of

commerce" and "in cases of debt and some other controversies."... "In

claims for land it is not necessary--but it is not dangerous."

These suits between citizens of different States "will be instituted in

the state where the defendant resides, and nowhere else," expounded the

youthful interpreter of the Constitution; and the case "will be

determined by the laws of the state where the contract was made.

According to those laws, and those only, can it be decided." That was no

"novelty," but "a principle" long recognized in the jurisprudence of

Virginia. "The laws which governed the contract at its formation, govern

it in its decision." National Courts, in such controversies, would

"preserve the peace of the Union," because if courts of different States

should not give justice between citizens of those States, the result

would be "disputes between the states." Also the jurisdiction of

National Courts in "controversies between a state and a foreign

state ... will be the means of preventing disputes with foreign

nations"; for since "the previous consent of the parties is

necessary ... each party will acquiesce."

As to "the exclusion of trial by jury, in this case," Marshall asked,

"Does the word _court_ only mean the judges? Does not the determination

of the jury necessarily lead to the judgment of the court? Is there

anything" in the Constitution "which gives the [National] judges

exclusive jurisdiction of matters of fact? What is the object of a jury

trial? To inform the court of the facts." If "a court has cognizance of

facts," it certainly "can make inquiry by a jury," dryly observed

Marshall.

He ridiculed Mason's and Henry's statement that juries, in the ten miles

square which was to be the seat of the National Government, would be

"mere tools of parties with which he would not trust his person or

property." "What!" exclaimed Marshall, "Will no one stay there but the

tools and officers of the government?... Will there not be independent

merchants and respectable gentlemen of fortune ... worthy farmers and

mechanics" in the National Capital just as there were in Richmond? And

"will the officers of the government become improper to be on a jury?

What is it to the government whether this man or that man succeeds? It

is all one thing."

As to jury trial not being guaranteed by the National Constitution in

civil cases, neither did Virginia's Constitution, said Marshall, "direct

trials by jury"; and the provision was "merely recommendatory"

concerning jury trials in the Bill of Rights, which, as everybody knew,

was no part of the State Constitution. "Have you a jury trial when a

judgment is obtained on a replevin bond or by default?" Or "when a

motion is made by the Commonwealth against an individual ... or by one

joint obligor against another, to recover sums paid as security." Of

course not! "Yet they are all civil cases.... The Legislature of

Virginia does not give a trial by jury where it is not necessary, but

gives it wherever it is thought expedient." And Congress would do the

same, he reassured the Convention.

Mason's objection, that the right to challenge jurors was not guaranteed

in the Constitution, was trivial, said Marshall. Did Virginia's

Constitution make such a guaranty? Did the British Constitution do so by

any express provision? Was jury challenge secured by Magna Charta? Or by

the Bill of Rights?[1311] Every Virginian knew that they were not. "This

privilege is founded in their [English people's] laws," Marshall

reminded the Convention. So why insert it in the American Constitution?

Thus the inhabitants of the Northern Neck or anybody else were not in

danger on that score. Neither were they placed in jeopardy in any other

way by the Constitution. Here Marshall made a curious argument. Mason,

he said, had "acknowledged that there was no complete title[1312] [in

Fairfax].... Was he [Mason] not satisfied that the right of the legal

representatives of the proprietor [to collect quitrents] did not exist

at the time he mentioned [the date of the Treaty of Peace]? If so, it

cannot exist now," declared Marshall. "I trust those who come from that

quarter [the Northern Neck] will not be intimidated on this account in

voting on this question" he pleaded; for let them remember that there

was "a law passed in 1782 [sequestration of quitrents] which secured

this."

Let the "many poor men" who Mason had said might "be harassed by the

representatives of Lord Fairfax" rest assured on that point; for "if he

[Fairfax] has no right," they could not be disturbed. "If he has this

right [to collect quitrents] and comes to Virginia, what laws will his

claims be determined by?" By Virginia's laws. "By what tribunals will

they be determined? By our state courts."[1313] So the "poor man" who

was "unjustly prosecuted" would "be abundantly protected and satisfied

by the temper of his neighbors."[1314]

The truth was, said Marshall, that justice would be done in all cases by

both National and State Courts. Laws would not be "tyrannically

executed" as the opposition feared; the "independency of your judges"

would prevent that. "If," he argued, "a law be exercised tyrannically in

Virginia, to whom can you trust? To your Judiciary! What security have

you for justice? Their independence! Will it not be so in the Federal

court?"

Like other objections to the power of Congress and the conduct of

National Courts, the criticism that men might be punished for their

political opinions was, declared Marshall, groundless and absurd; for,

"the good opinion of the people at large must be consulted by their

representatives--otherwise mischiefs would be produced which would shake

the government to its foundations." Of course, then, he contended,

neither Congress nor the courts would abuse their power. The charge that

"unjust claims will be made, and the defendant had better pay them than

go to the Supreme Court" was unthinkable. Would anybody incur great

expense to oppress another? "What will he gain by an unjust demand?

Does a claim establish a right? He must bring his witnesses to prove his

claim"; otherwise "the expenses must fall on him." Will he take the

chances that the injured man will not appear and defend the unjust suit?

"Those who know human nature, black as it is," sarcastically observed

Marshall, "must know that mankind are too attached to their own interest

to run such a risk."

"The Federal Government," exclaimed Marshall, "has no other motive, and

has every reason for doing right which the members of our state

legislature have. Will a man on the eastern shore be sent to be tried in

Kentucky, or a man from Kentucky be brought to the eastern shore to have

his trial? A government, by doing this, would destroy itself."[1315]

This, in effect, was John Marshall's exposition of the second section of

article three of the Constitution. Although Grigsby, whose accuracy on

such details is not questioned, says that the speech was prepared,

Robertson's report would not indicate that such was the case. The

address is wanting in that close-knit continuity of reasoning and in

that neatness of thought and expression which were Marshall's peculiar

excellence. Like his first debate in the Convention, his speech on the

Judiciary is disjointed. A subject is half treated in one part of his

remarks and resumed in another.[1316] But he makes his principal points

with clearness and power. His argument is based on the independence of

the courts as the best guaranty against unjust decisions; the

responsibility of Congress to the people as the strongest safeguard

against oppressive laws; and the similarity of Virginia's Constitution

and Courts to the National Constitution and Courts as proof of the

security, fairness, and justice of the National Judiciary.

Marshall's effort really closed the case for the Constitution on the

Judiciary. That night Madison wrote to Hamilton that "a great effort is

making" against the Judiciary. "The retrospection to cases antecedent to

the Constitution, such as British debts and an apprehended revival of

Fairfax--Indiana, Vandalia, &c., claims are also brought into view in

all the terrific colours which imagination can give them.... Delay & an

adjournment will be tried if the adverse party find their numbers

inferior.... At present it is calculated that we still retain a majority

of 3 or 4; and if we can weather the storm ag^{st}" the Judiciary, "I

shall hold the danger to be pretty well over. There is nevertheless a

very disagreeable uncertainty in the case; and the more so as there is a

possibility that our present strength may be miscalculated."[1317]

Marshall's speech alarmed the opposition, and Grayson used all his

learning, wit, and cleverness in an attempt to break its force. Randolph

replied. Thus the second week closed. Neither side was certain of the

exact number of votes it had, though every member was observed with the

politician's anxiety and care.[1318] The Constitutionalists had the

greater confidence. Madison wrote his father that "The calculations on

different sides do not accord;... I think however, the friends of the

Constitution are most confident of superiority.... It is not probable

that many proselytes will be made on either side."[1319]

On Sunday Madison made his weekly report to Hamilton: "The Judiciary

Department has been on the anvil for several days; and I presume will

still be a further subject of disquisition. The attacks on it have

apparently made less impression than was feared. But they may be

secretly felt by particular interests that would not make the

acknowledgment, and w^d chuse to ground their vote ag^{st} the

Constitution on other motives."[1320]

The Anti-Constitutionalists were becoming desperate. If they could not

amend the Constitution as a condition of ratifying it, their game now

was either an adjournment or a delay until the Legislature, scheduled to

meet on the following Monday and known to be, in the main, opposed to

the Constitution, should afford them relief.

If these expedients should fail, there was open talk of secession.[1321]

The Constitutionalists arranged for the utmost dispatch and planned to

"withhold, by a studied fairness in every step on the side of the

Constitution, every pretext for rash experiments." They hoped to avoid

previous amendment by proposing "to preface the ratification with some

plain & general matters that cannot effect the validity of the"

Constitution. They felt that "these expedients are rendered prudent by

the nice balance of members, and the scruples entertained by some who

are in general well affected." But whether these devices "will secure us

a majority," wrote Madison, "I dare not positively to declare."

So small was their expected majority likely to be, that the

Constitutionalists felt that "ordinary casualties ... may vary the

result." They were exceedingly alarmed over the coming to town of the

members of the Legislature who "as individuals ... may have some

influence and as coming immediately from the people at large they can

give any colour they please to the popular sentiments at this moment,

and may in that mode throw a bias on the representatives of the people

in Convention."[1322]

From the adjournment on Saturday until the Convention again assembled on

the following Monday, June 23, the opposition decided that something

more must be done to counteract Marshall's exposition of the Judiciary

article. For this purpose their leader and strongest men took the floor.

The shorthand reporter was not present on this day, but the printer of

the debates took notes.[1323]

Nothing so well shows the esteem in which Marshall's ability was held as

Patrick Henry's compliment to his young associate. "I have," said

Henry, "the highest veneration and respect for the honorable gentleman,

and I have experienced his candor on all occasions"; but "in this

instance" Henry felt that Marshall was mistaken. "It is not on that

paper before you we have to rely.... It is on those who may be appointed

under it. It will be an empire of men, and not of laws."

Marshall interrupted Henry to explain that the latter had not clearly

understood him as to the trial by jury. Henry responded that "the

gentleman's candor, sir, as I informed you before, I have the highest

opinion of, and am happy to find he has so far explained what he meant;

but, sir, has he mended the matter?" Then Henry enlarged upon what he

thought was the Constitution's sacrifice of rights of trial by jury.

What would become of this, that, and the other? What would be the end of

this contract and that? And "what is to become of the _purchases of the

Indians_?--those unhappy nations who ... by being made drunk, have given

a thousand, nay I might say, ten thousand acres, for the trifling sum of

sixpence!" And what of those who owed the British debts?--they will "be

ruined by being dragged into Federal courts and the liberty and

happiness of our citizens gone, never again to be recovered."[1324]

The Constitutionalists had anticipated that Henry would touch on his

hobby, the Indians; and they were ready with an answer far more

effective on the votes of the members than any argument, however

weighty. Hardly had Henry closed when a giant old man got upon his

feet. For more than thirty years this bluff and ancient veteran had been

a soldier. Since 1755 he had been one of the boldest and ablest of

Virginia's famous Indian fighters and often had commanded the Virginia

rangers that defended the frontier from the savages. His utter

fearlessness and tremendous physical strength had made him the terror of

the red man, and his name was a household word throughout Virginia as a

bulwark against the savages. Throughout the Revolution he had borne

himself as a hero. So when Colonel Adam Stephen spoke, his words were

sword-thrusts.[1325]

Henry, growled Stephen, "means to frighten us by his bugbears of

hobgoblins, his sale of lands to pay taxes, Indian purchases and other

horrors that I think I know as much about as he does." Colonel Stephen

then described the Indian country, the Indian tribes, and Indian trade.

He also knew "of several rich mines of gold and silver in the western

country" which would pay the taxes Henry was so worried about. "If the

gentleman [Henry] does not like this government, let him go and live

among the Indians. I know of several nations that live very happily; and

I can furnish him with a vocabulary of their language."[1326]

Nothing can be plainer than that this personal assault on Henry was

prearranged; for George Nicholas followed it up with what came near

being an open insult. Answering Henry's insinuation about Indian lands

being fraudulently purchased, Nicholas retorted, looking directly at

Henry, "there are gentlemen who have come by large possessions that it

is not easy to account for." This was taken as a reflection on some of

Henry's land speculations. The latter felt the sting; for "here Mr.

Henry interfered and hoped the honorable gentleman meant nothing

personal." Nicholas snapped back, "I mean what I say, sir."

The extremes to which the opposition went in lobbying with members and

the nature of their conversation are shown by an acid sentence of

Nicholas in this speech. He referred to "an observation I have heard out

of doors; which was that, because the New England men wore black

stockings and plush breeches, there can be no union with them."

Henry was instantly on his feet when Nicholas finished. He thought the

Convention floor "an improper place" to make "personal insinuations, or

to wound my private reputation.... As to land matters, I can tell how I

came by what I have ... I hold what I hold in right, and in a just

manner." Henry was most courteous and dignified in this discussion,

disclaiming any intention to offend any one. Nicholas responded that he

"meant no personality ... nor ... any resentment." But, said he, "If

such conduct meets the contempt of that gentleman [Henry] I can only

assure him it meets with an equal degree of contempt from me."

Here the President of the Convention interfered and "hoped the

gentlemen would not be personal; that they would proceed to investigate

the subject calmly, and in a peaceable manner." Thereupon Nicholas

admitted that he had not referred to Henry when he first spoke, but to

"those who had taken up large tracts of land in the western country";

Nicholas had not, however, explained this before because he felt that

Henry had said some things that one gentleman ought not to say to

another. Thus ended the second of the only two instances in Virginia's

long and masterful debate which approached a personal quarrel or

displayed even the smallest discourtesy.[1327]

The debate now drew swiftly to a close. Excitement ran high. The

Anti-Constitutionalists, tense and desperate, threatened forcible

opposition to the proposed National Government if it should be

established. Mason "dreaded popular resistance" to the Constitution and

was "emphatic" in his fears of "_the dreadful effects_ ... should the

people resist." Gentlemen should pause before deciding "a question which

involved such awful consequences." This so aroused Lee that he could "no

longer suppress" his "utterance." Much as he liked and admired Mason,

Lee asked him "if he has not pursued the very means to bring into action

the horrors which he deprecates?"

"Such speeches within these walls, from a character so venerable and

estimable," declared Lee, "easily progress into overt acts, among the

less thinking and the vicious." Lee implored that the "God of heaven

avert from my country the dreadful curse!" But, he thundered, "if the

madness of some and the vice of others" should arouse popular resistance

to the Constitution, the friends of that instrument "will meet the

afflicting call"; and he plainly intimated that any uprising of the

people against the proposed National Government would be met with

arms.[1328] The guns of Sumter were being forged.

On the night of June 23, the Constitutionalists decided to deliver their

final assault. They knew that it must be a decisive one. The time had

arrived for the meeting of the Legislature which was hostile to the

Constitution;[1329] and if the friends of the proposed new Government

were to win at all, they must win quickly. A careful poll had shown them

that straight-out ratification without amendment of some kind was

impossible. So they followed the plan of the Massachusetts

Constitutionalists and determined to offer amendments themselves--but

amendments merely by way of recommendation and subsequent to

ratification, instead of previous amendments as a condition of

ratification. The venerable Wythe was chosen to carry out the programme.

On Tuesday morning, June 24, Pendleton called to the chair Thomas

Mathews, one of the best parliamentarians in the Convention, a stanch

Constitutionalist, a veteran of the Revolution, and a popular man.

Instantly Mathews recognized Wythe; for Henry was ready with his

amendments, and, had an Anti-Constitutionalist been in the chair, would

have been able to offer them before Wythe could move for ratification.

Wythe, pale and fatigued, was so agitated that at first he could not

speak plainly.[1330] After reviewing the whole subject, he said that to

insist on previous amendments might dissolve the Union, whereas all

necessary amendments could easily be had after ratification. Wythe then

moved the Constitutionalists' resolution for ratification.

In a towering rage, Henry rose for what, outside of the courtroom, was

the last great speech of his life.[1331] He felt that he had been

unjustly forestalled and that the battle against the Constitution was

failing because of the stern and unfair tactics of his foes.[1332] The

Constitutionalists admitted, said Henry, that the Constitution was

"capitally defective"; yet they proposed to ratify it without first

remedying its conceded faults. This was so absurd that he was "sure the

gentleman [Wythe] meant nothing but to amuse the committee. I know his

candor," said Henry. "His proposal is an idea dreadful to me.... The

great body of yeomanry are in decided opposition" to the Constitution.

Henry declared that of his own personal knowledge "nine tenths of the

people" in "nineteen counties adjacent to each other" were against the

proposed new National Government. The Constitutionalists' plan of

"subsequent amendments will not do for men of this cast." And how do the

people feel even in the States that had ratified it? Look at

Pennsylvania! Only ten thousand out of seventy thousand of her people

were represented in the Pennsylvania Convention.

If the Constitution was ratified without previous amendments, Henry

declared that he would "have nothing to do with it." He offered the Bill

of Rights and amendments which he himself had drawn, proposing to refer

them to the other States "for their consideration, previous to its

[Constitution's] ratification."[1333] Henry then turned upon the

Constitutionalists their own point by declaring that it was their plan

of ratification without previous amendments which would endanger the

Union.[1334] Randolph followed briefly and Dawson at great length.

Madison for the Constitutionalists, and Grayson for the opposition,

exerted themselves to the utmost. Nature aided Henry when he closed the

day in an appeal such as only the supremely gifted can make.

[Illustration: PATRICK HENRY]

"I see," cried Henry, in rapt exaltation, "the awful immensity of the

dangers with which it [the Constitution] is pregnant. I see it. I feel

it. I see beings of a higher order anxious concerning our decision. When

I see beyond the horizon that bounds human eyes, and look at the

final consummation of all human things, and see those intelligent beings

which inhabit the ethereal mansions reviewing the political decisions

and revolutions which, in the progress of time, will happen in America,

and the consequent happiness or misery of mankind, I am led to believe

that much of the account, on one side or the other, will depend on what

we now decide. Our own happiness alone is not affected by the event. All

nations are interested in the determination. We have it in our power to

secure the happiness of one half of the human race. Its adoption may

involve the misery of the other hemisphere."[1335]

In the midst of this trance-like spell which the master conjurer had

thrown over his hearers, a terrible storm suddenly arose. Darkness fell

upon the full light of day. Lightnings flashed and crashing thunders

shook the Convention hall. With the inspiration of genius this unrivaled

actor made the tempest seem a part of his own denunciation. The scene

became insupportable. Members rushed from their seats.[1336] As Henry

closed, the tempest died away.

The spectators returned, the members recovered their composure, and the

session was resumed.[1337] Nicholas coldly moved that the question be

put at nine o'clock on the following morning. Clay and Ronald opposed,

the latter declaring that without such amendments "as will secure the

happiness of the people" he would "though much against his inclination

vote against this Constitution."

Anxious and prolonged were the conferences of the Constitutionalist

managers that night. The Legislature had convened. It was now or never

for the friends of the Constitution. The delay of a single day might

lose them the contest. That night and the next morning they brought to

bear every ounce of their strength. The Convention met for its final

session on the historic 25th of June, with the Constitutionalists in

gravest apprehension. They were not sure that Henry would not carry out

his threat to leave the hall; and they pictured to themselves the

dreaded spectacle of that popular leader walking out at the head of the

enraged opposition.[1338]

Into the hands of the burly Nicholas the Constitutionalists wisely gave

command. The moment the Convention was called to order, the chair

recognized Nicholas, who acted instantly with his characteristically icy

and merciless decision. "The friends of the Constitution," said

Nicholas, "wish to take up no more time, the matter being now fully

discussed. They are convinced that further time will answer no end but

to serve the cause of those who wish to destroy the Constitution. We

wish it to be ratified and such amendments as may be thought necessary

to be subsequently considered by a committee in order to be recommended

to Congress." Where, he defiantly asked, did the opposition get

authority to say that the Constitutionalists would not insist upon

amendments after they had secured ratification of the Constitution? They

really wished for Wythe's amendments;[1339] and would "agree to any

others which" would "not destroy the spirit of the Constitution."

Nicholas moved the reading of Wythe's resolution in order that a vote

might be taken upon it.[1340]

Tyler moved the reading of Henry's proposed amendments and Bill of

Bights. Benjamin Harrison protested against the Constitutionalists'

plan. He was for previous amendment, and thought Wythe's "measure of

adoption to be unwarrantable, precipitate, and dangerously impolitic."

Madison reassured those who were fearful that the Constitutionalists, if

they won on ratification, would not further urge the amendments Wythe

had offered; the Constitutionalists then closed, as they had begun, with

admirable strategy.

James Innes was Attorney-General. His duties had kept him frequently

from the Convention. He was well educated, extremely popular, and had

been one of the most gifted and gallant officers that Virginia had sent

to the front during the Revolution. Physically he was a colossus, the

largest man in that State of giants. Such was the popular and imposing

champion which the Constitutionalists had so well chosen to utter their

parting word.[1341] And Innes did his utmost in the hardest of

situations; for if he took too much time, he would endanger his own

cause; if he did not make a deep impression, he would fail in the

purpose for which he was put forward.[1342]

Men who heard Innes testify that "he spoke like one inspired."[1343] For

the opposition the learned and accomplished Tyler closed the general

debate. It was time wasted on both sides. But that nothing might be left

undone, the Constitutionalists now brought into action a rough,

forthright member from the Valley. Zachariah Johnson spoke for "those

who live in large, remote, back counties." He dwelt, he said, "among the

poor people." The most that he could claim for himself was "to be of the

middle rank." He had "a numerous offspring" and he was willing to trust

their future to the Constitution.[1344]

Henry could not restrain himself; but he would better not have spoken,

for he admitted defeat. The anxious Constitutionalists must have

breathed a sigh of relief when Henry said that he would not leave the

hall. Though "_overpowered in a good cause_, yet I will be a peaceable

citizen." All he would try to do would be "to remove the defects of that

system [the Constitution] in a constitutional way." And so, declared the

scarred veteran as he yielded his sword to the victors, he would

"patiently wait in expectation of seeing that government changed, so as

to be compatible with the safety, liberty, and happiness, of the

people."

Wythe's resolution of ratification now came to a vote. No more carefully

worded paper for the purposes it was intended to accomplish ever was

laid before a deliberative body. It reassured those who feared the

Constitution, in language which went far to grant most of their demands;

and while the resolve called for ratification, yet, "in order to relieve

the apprehensions of those who may be solicitous for amendments," it

provided that all necessary amendments be _recommended_ to Congress.

Thus did the Constitutionalists, who had exhausted all the resources of

management, debate, and personal persuasion, now find it necessary to

resort to the most delicate tact.

The opposition moved to substitute for the ratification resolution one

of their own, which declared "that previous to the ratification ... a

declaration of rights ... together with amendments ... should be

referred by this Convention to the other states ... for their

consideration." On this, the first test vote of the struggle, the

Constitutionalists won by the slender majority of 8 out of a total of

168. On the main question which followed, the Anti-Constitutionalists

lost but one vote and the Constitution escaped defeat by a majority of

only 10.

To secure ratification, eight members of the Convention voted against

the wishes of their constituents,[1345] and two ignored their

instructions.[1346] Grayson openly but respectfully stated on the floor

that the vote was the result of Washington's influence. "I think," said

he, "that, were it not for one great character in America, so many men

would not be for this government."[1347] Followers of their old

commander as the members from the Valley were, the fear of the Indians

had quite as much to do with getting their support for a stronger

National Government as had the weight of Washington's influence.[1348]

Randolph "humbly supplicated one parting word" before the last vote was

taken. It was a word of excuse and self-justification. His vote, he

said, would be "ascribed by malice to motives unknown to his breast." He

would "ask the mercy of God for every other act of his life," but for

this he requested only Heaven's justice. He still objected to the

Constitution, but the ratification of it by eight States had now

"reduced our deliberations to the single question of _Union_ or no

_Union_."[1349] So closed the greatest debate ever held over the

Constitution and one of the ablest parliamentary contests of history.

A committee was appointed to report "a form of ratification pursuant to

the first resolution"; and another was selected "to prepare and report

such amendments as by them shall be deemed necessary."[1350] Marshall

was chosen as a member of both these important committees.

The lengths to which the Constitutionalists were driven in order to

secure ratification are measured by the amendments they were forced to

bring in. These numbered twenty, in addition to a Bill of Rights, which

also had twenty articles. The ten amendments afterwards made to the

Constitution were hardly a shadow of those recommended by the Virginia

Convention of 1788.

That body actually proposed that National excise or direct tax laws

should not operate in any State, in case the State itself should collect

its quota under State laws and through State officials; that two thirds

of both houses of Congress, present, should be necessary to pass

navigation laws or laws regulating commerce; that no army or regular

troops should be "raised or kept up in time of peace" without the

consent of two thirds of both houses, present; that the power of

Congress over the seat of the National Government should be confined to

police and administrative regulation. The Judiciary amendment would have

imprisoned the Supreme Court within limits so narrow as to render that

tribunal almost powerless and would have absolutely prevented the

establishment of inferior National Courts, except those of

Admiralty.[1351] Yet only on such terms could ratification be secured

even by the small and uncertain majority that finally voted for it.

On June 25, Clinton's suppressed letter to Randolph was laid before the

House of Delegates which had just convened.[1352] Mason was so furious

that he drew up resolutions for an investigation of Randolph's

conduct.[1353] But the deed was done, anger was unavailing, and the

resolutions never were offered.[1354]

So frail was the Constitutionalist strength that if the news of the New

Hampshire ratification had not reached Virginia, it is more than

probable that Jefferson's advice would have been followed and that the

Old Dominion would have held back until all the amendments desired by

the opposition had been made a part of the fundamental law;[1355] and

the Constitution would have been a far different and infinitely weaker

instrument than it is.

Burning with wrath, the Anti-Constitutionalists held a meeting on the

night of the day of the vote for ratification, to consider measures for

resisting the new National Government. The character of Patrick Henry

never shone with greater luster than when he took the chair at this

determined gathering of furious men. He had done his best against the

Constitution, said Henry, but he had done it in the "_proper place_";

the question was settled now and he advised his colleagues that "as true

and faithful republicans, they had all better go home!"[1356] Well might

Washington write that only "conciliatory conduct" got the Constitution

through;[1357] well might he declare that "it is nearly impossible for

anybody who has not been on the spot (from any description) to conceive

what the delicacy and danger of our situation have been."[1358]

And Marshall had been on the spot. Marshall had seen it all. Marshall

had been a part of it all. From the first careful election programme of

the Constitutionalists, the young Richmond lawyer had been in every

meeting where the plans of the managers were laid and the order of

battle arranged. No man in all the country knew better than he, the

hair's breadth by which the ordinance of our National Government escaped

strangulation at its very birth. No one in America better understood how

carefully and yet how boldly Nationalism must be advanced if it were to

grow stronger or even to survive.

It was plain to Marshall that the formal adoption of the Constitution

did not end the battle. That conflict, indeed, was only beginning. The

fight over ratification had been but the first phase of the struggle. We

are now to behold the next stages of that great contest, each as

dramatic as it was vital; and we shall observe how Marshall bore himself

on every field of this mighty civil strife, note his development and

mark his progress toward that supreme station for which events prepared

him. We are to witness his efforts to uphold the National Government,

not only with argument and political activity, but also with a

readiness to draw the sword and employ military force. We shall look

upon the mad scenes resulting in America from the terrific and bloody

convulsion in Europe and measure the lasting effect the French

Revolution produced upon the statesmen and people of the United States.

In short, we are to survey a strange swirl of forces, economic and

emotional, throwing to the surface now one "issue" and now another, all

of them centering in the sovereign question of Nationalism or States'

Rights.

FOOTNOTES:

[1298] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong.

[1299] Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787;

Collins MSS., Lib. Cong.

[1300] See Grigsby, i, 278-79, for an able and sympathetic account from

the point of view of the settler and debtor.

[1301] _Ib._, 280-84; Elliott, iii, 517-21.

[1302] Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the

popular feeling against a strong National Government that, if the

Anti-Constitutionalists had concentrated their attack upon this secret

purpose of the leading Constitutionalists to make it such by easy

stages, it is more than probable that the Constitution would have been

defeated.

[1303] Elliott, iii, 524.

[1304] His own and his father's lands in Fauquier County were derived

through the Fairfax title.

[1305] Grigsby, i, 290.

[1306] Elliott, iii, 530-39. For Marshall's repetition see _ib._,

551-62.

[1307] Elliott, iii, 539-46.

[1308] Grigsby, i, 297.

[1309] Virginia judges were, at this period, appointed by the General

Assembly. (Constitution, 1776.)

[1310] "There are upwards of 4,000 suits now entered on the docket in

the General Court; and the number is continually increasing. Where this

will end the Lord only knows--should an Act pass to extend the term of

the Courts sitting--it is thought that the number of Executors

[executions] that would issue ... would be too heavy for our government

to bear and that such a rapid transfer of Property would altogether stop

the movement of our Machine." (Logan and Story, to Stephen Collins,

Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.)

[1311] This form of argument by asking questions to which the answers

must needs be favorable to his contention was peculiarly characteristic

of Marshall.

[1312] The reporter makes Mason assert the reverse.

[1313] It is hard to see how Marshall arrived at this conclusion. But

for the fact that Marshall prepared this speech, one would think the

reporter erred.

[1314] See Marshall's argument in Hite _vs._ Fairfax, chap, V, _supra_;

and see vol. III of this work.

Randolph made the clearest statement of the whole debate on the Fairfax

question:--

"Lord Fairfax ... died during the war. In the year 1782, an act passed

sequestering all quitrents, then due, in the hands of the persons

holding the lands, until the right of descent should be known, and the

General Assembly should make final provision therein. This act directed

all quitrents, thereafter becoming due, to be paid into the public

treasury; so that, with respect to his descendants, this act confiscated

the quitrents. In the year 1783, an act passed restoring to the legal

representative of the proprietor the quitrents due to him at the time of

his death. But in the year 1785 another act passed, by which the

inhabitants of the Northern Neck are exonerated and discharged from

paying composition and quitrents to the commonwealth." But Randolph then

asserted that: "This last act has completely confiscated this property.

It is repugnant to no part of the treaty, with respect to the quitrents

confiscated by the act of 1782." So, continued he, "I ask the Convention

of the free people of Virginia if there can be honesty in rejecting the

government because justice is to be done by it? I beg the honourable

gentleman to lay the objection to his heart." (Elliott, iii, 574-75.)

[1315] Elliott, iii, 551-62.

[1316] In summarizing Marshall's speech, it is necessary to collect his

arguments on any given point, and present them consecutively. In

Robertson's (Elliott) report Marshall scatters his points in distracting

fashion.

[1317] Madison to Hamilton, June 20, 1788; Hamilton MSS., Lib. Cong.

[1318] The members of the Convention were carefully watched and each

side made, every night, a minute estimate of its votes.

[1319] Madison to his father, June 20, 1788; _Writings_: Hunt, v,

footnote to 216.

[1320] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

[1321] _Ib._

[1322] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

[1323] Elliott, iii, 576.

[1324] Elliott, iii, 577-80.

[1325] Grigsby, i, 300. See Washington's letters to Stephen during the

year of Marshall's birth, when Stephen, under Washington, was fighting

the French and Indians. (_Writings_: Ford, i, 227, 322, 332, 360; also

_Proceedings_, Council of War, Oct. 30, 1756; _ib._, 364-71; in which

Colonel Adam Stephen was presiding officer.)

[1326] Elliott, iii, 580.

[1327] Elliott, iii, 581-82.

[1328] Elliott, iii, 585-86.

[1329] "Virginia is the only instance among the ratifying states in

which the Politics of the Legislature are at variance with the sense of

the people, expressed by their Representatives in Convention." (Madison

to Washington, Nov. 5, 1788; _Writings_: Hunt, v, 302.)

[1330] Grigsby, i, 307.

[1331] The two amazing speeches which Henry made that day should be

taken together. While both were inspired by what happened on the floor,

yet they are in reality one. The reports give no idea of the tremendous

effect which those who heard Henry tell us these speeches had.

[1332] Grigsby, i, 307-08.

[1333] Henry's amendments were practically the same as those which the

Convention finally adopted as recommendations subsequent to ratification

instead of previous amendment on which ratification was conditioned.

[1334] Elliott, iii, 587-96.

[1335] Elliott, iii, 625. This extract is badly mangled. The reporter

confesses that he could take only a little of Henry's peroration.

Elliott's reprint of Robertson's reports gives scarcely a suggestion of

its dramatic appeal. We are indebted to Grigsby's patient work in

collecting from eye and ear witnesses first-hand accounts, for a

reasonably accurate description of the scene.

[1336] Grigsby, i, 316-17; also Wirt, 313; Henry, ii, 370-71; and

Conway, 113.

[1337] Grigsby, i, 316-17.

[1338] Grigsby, i, 317.

[1339] Very few of the Constitutionalists wanted any amendments; and

Madison sorrowfully offered in Congress the following year those that

were reluctantly adopted. See vol. II, chap. II, of this work.

[1340] Elliott, iii, 627.

[1341] Grigsby, i, 323-29.

[1342] _Ib._, 328.

[1343] _Ib._, 332.

[1344] Elliott, iii, 644-49.

[1345] Henry, ii, 377. "At least ten members voted, either in

disobedience of positive instructions of their constituents, or in

defiance of their well known opinions." (Grigsby, i, 41.)

[1346] Scott, 235-38.

[1347] Elliott, iii, 616. Madison frankly admitted that only the

prominence of the framers of the Constitution secured even a

consideration of it by many of its warmest friends, much less by the

people. "Had the Constitution been framed and recommended by an obscure

individual," wrote Madison, "instead of a body possessing public respect

and confidence, there cannot be a doubt, that, although it would have

stood in the identical words, it would have commanded little attention

from those who now admire its wisdom." (Madison to Randolph, Jan. 10,

1788; _Writings_: Hunt, v, 81.)

[1348] Grigsby, i, footnote to 110.

[1349] Elliott, iii, 652.

[1350] Elliott, iii. 653-63.

[1351] _Ib._, 659-61.

[1352] Clinton's letter was not read, however, because all the members

of the Legislature had gone to hear Henry's last great speech. (Conway,

112.)

[1353] Conway, 114; Henry, ii, 363.

[1354] For Mason's resolutions and a careful review of the incident, see

Rowland, ii, 274-80.

[1355] Henry, ii, 377.

[1356] _Southern Literary Messenger_, i, 332; also quoted in Rowland,

ii, 274.

[1357] Washington to Pinckney, June 28, 1788; _Writings_: Ford, xi, 285.

[1358] Washington to Jefferson, Aug. 31, 1788; _ib._, 321.

END OF VOLUME I

APPENDIX

I

WILL OF THOMAS MARSHALL, "CARPENTER"

In the Name of God Amen! I, Thomas Marshall of the County of

Westmoreland of Washington Parish, Carpenter, being very weak but of

perfect memory thanks be to God for it doth ordain this my last will and

testament in manner and form following, first I give and bequeath my

soul into the hands of my blessed Creator & Redeemer hoping through

meritts of my blessed Saviour to receive full pardon and remission of

all my sins and my body to the Earth to be decently bur-yed according to

the discretion of my Executrix which hereafter shall be named. Imps. I

make and ordain my well beloved wife Martha Marshall to be my full and

whole Executrix--Item, I will that my estate shall remain in the hands

of my wife as long as she remain single but in case she marrys then she

is to have her lawful part & the rest to be taken out of her hands

equally to be divided among my children--Item, I will that if my wife

marry, that David Brown Senr. and Jno. Brown to be guardians over my

children and to take the estate in their hands bringing it to

appraisement giving in good security to what it is valued and to pay

my children their dues as they shall come to age. Item--I will that

Elizabeth Rosser is to have a heifer delivered by my wife called

White-Belly to be delivered as soon as I am deceast--Item, I will that

my son William Marshall shall have my plantation as soon as he comes to

age to him and his heirs forever, but in case that my son William die

before he comes to age or die without issue then my plantation is to

fall to the next heir apparent at law.

THOMAS MARSHALL (Seal)

Test EDW: TAYLOR, JOHN HEARFORD,

JOHN TAYLOR.

{ At a Court held for the said County the

WESTMORLD: SS. { 31st day of May 1704.

The last will and testament of Thomas Marshall within written was proved

by the oaths of John Oxford and John Taylor two of the witnesses thereto

subscribed and a Probat thereof granted to Martha Marshall his relict

and Executrix therein named.

Test

IA: WESTCOMB Cler. Com. Ped.

Record aty: sexto die Juny:

1704. Pr.

_Eundm Clerum._

A Copy. Teste:

ALBERT STUART, Clerk.

By:

F. F. CHANDLER, Deputy Clerk.

[A Copy. Will of Thomas Marshall. Recorded in the Clerk's Office of

the Circuit Court of Westmoreland County, in Deed and Will Book no. 3

at page 232 _et seq._]

II

WILL OF JOHN MARSHALL "OF THE FOREST"

The last will and testament of John Marshall being very sick and

weak but of perfect mind and memory is as followeth.

First of all I give and recommend my soul to God that gave it and my

Body to the ground to be buried in a Christian like and Discent manner

at the Discretion of my Executors hereafter mentioned? Item I give and

bequeath unto my beloved daughter Sarah Lovell one negro girl named

Rachel now in possession of Robert Lovell. Item I give and bequeath unto

my beloved daughter Ann Smith one negro boy named Danniel now in

possession of Augustine Smith. Item I give and bequeath unto my beloved

daughter Lize Smith one negro boy named Will now in possession of John

Smith. Item I give and bequeath unto my well beloved wife Elizabeth

Marshall one negro fellow named Joe and one negro woman named Cate and

one negro woman named pen after Delivering the first child next born of

her Body unto my son John until which time she shall remain in the

possession of my wife Likewise I leave my Corn and meat to remain

unappraised for the use of my wife and children also I give and bequeath

unto my wife one Gray mair named beauty and side saddle also six hogs

also I leave her the use of my land During her widowhood, and afterwards

to fall to my son Thomas Marshall and his heirs forever. Item I leave my

Tobacco to pay my Debts and if any be over for the clothing of my small

children. Item I give and bequeath unto my well Beloved son Thomas

Marshall one negro woman named hanno and one negroe child named Jacob?

Item I give and bequeathe unto my well beloved son John Marshall one

negroe fellow named George and one negroe child named Nan. Item. I give

and bequeathe unto my beloved son Wm. Marshall one negro woman named

Sall and one negro boy named Hanable to remain in the possession of his

mother until he come to the age of twenty years. Item I give and

Bequeath unto my Beloved son Abraham Marshall one negro boy named Jim

and one negroe girl named bett to remain in the possession of his mother

until he come to the age of twenty years. Item I give and Bequeath unto

my Beloved daughter Mary Marshall one negro girl named Cate and negro

boy Gus to remain in possession of her mother until she come to the age

of Eighteen years or until marriage. Item, I give and Bequeath unto my

beloved Daughter Peggy Marshall one negro boy named Joshua and one negro

girl named Liz to remain in possession of her mother until she come to

the age of Eighteen or until marriage! Item. I leave my personal Estate

Except the legacies abovementioned to be equally Divided Between my wife

and six children last above mentioned. Item I constitute and appoint my

wife and my two sons Thos. Marshall and John Marshall Executors of this

my last will & testament In witness hereof I have hereunto set my hand

and fixed my seal this first day of April One thousand seven hundred and

fifty two.

JOHN MARSHALL (Seal)

Interlined before assigned.

BENJAMIN RALLINS }

WILLIAM HOUSTON }

AUGUSTINE SMITH }

{ At a Court held for the said County the

WESTMORLAND SCT. { 26th day of May 1752.

This Last will and testament of John Marshall decd. was presented into

Court by Eliza. his relict and Thomas Marshall two of his Executors

therein named who made oath thereto and being proved by the oaths of

Benja. Rallings and Augustine Smith two of the witnesses thereto is

admitted to record, and upon the motion of the said Eliza. & Thos. and

their performing what the Law in such cases require Certificate is

granted them for obtaining a probate thereof in due form.

Test

GEORGE LEE C. C. C. W.

Recorded the 22d. day of June 1752.

Per

G. L. C. C. W. C.

A Copy. Teste:

FRANK STUART, Clerk of the Circuit Court of Westmoreland County,

State of Virginia.

[A copy. John Marshall's Will. Recorded in the Clerk's Office of

Westmoreland County, State of Virginia, in Deeds and Wills, no. 11,

at page 419 _et seq._]

III

DEED OF WILLIAM MARSHALL TO JOHN MARSHALL "OF THE FOREST"

This indenture made the 23d day of October in ye first year of ye reign

of our sovereign Lord George ye 2d. by ye. grace of God of Great

Brittain France & Ireland King defendr. of ye faith &c. and in ye year

of our Lord God one thousand seven hundred & twenty seven, between

William Marshall of ye. County of King & Queen in ye. Colony of Virginia

planter of the one part & John Marshall of ye. County of Westmoreland

Virginia of the other part: WITNESSETH that ye sd. William Marshall for

and in consideration of ye. sum of five shillings sterling money of

England to him in hand paid before ye sealing & delivery hereof ye.

receipt whereof he doth hereby acknowledge & thereof & of every part

thereof doth hereby acquit & discharge ye. sd John Marshall his heirs

Exectrs & administrators by these presents, hath granted bargained &

sold & doth hereby grant bargain & sell John Marshall his heirs Exectrs

administrs & assigns all that tract or parsel of land (except ye parsel

of land wch was sold out of it to Michael Hulburt) scitute lying & being

in Westmoreland County in Washington parish on or near Appamattox Creek

& being part of a tract of land containing 1200 acres formerly granted

to Jno: Washington & Tho: Pope gents by Patent dated the 4th Septbr.

1661 & by them lost for want of seating & since granted to Collo.

Nicholas Spencer by Ordr. Genll. Court dated Septbr. ye 21st 1668 & by

ye said Spencer assign'd to ye. sd. Jno: Washington ye 9th of Octobr.

1669 which sd. two hundred acres was conveyed & sold to Thomas Marshall

by Francis Wright & afterwards acknowledged in Court by John Wright ye.

28th day of May 1707 which sd two hundred acres of land be ye. same more

or less and bounded as follows beginning at a black Oak standing in ye.

southermost line of ye sd. 1200 acres & being a corner tree of a line

that divideth this two hundred acres from One hundred acres of Michael

Halbarts extending along ye. sd southermost lines west two hundred poles

to a marked red Oak, thence north 160 poles to another marked red Oak

thence east 200 poles to a black Oak of ye sd. Halberts to ye place it

began, with all houses outhouses Orchards water water courses woods

under woods timbers & all other things thereunto belonging with the

revertion & revertions remainder & remainders rents issues & yearly

profits & every part & parcell thereof. To have and to hold ye. sd. land

& premises unto ye. sd John Marshall his heirs Executors Administrs &

assignes from ye. day of ye date thereof for & during & untill the full

end & term of six months from thence next ensuing fully to be compleat &

ended to ye. end that by virtue thereof & of the statutes for

transferring uses into possessions ye. sd John Marshall might be in

actual possession of ye premises & might be enabled to take and accept

of a grant release of the same to him ye. sd John Marshall his heires &

assignes forever. In Witness whereof the parties to these present

Indentures interchangeably have set----hands & seals ye. day & year

first above written.

WM MARSHALL (seal)

Signd. Seald & d'd in sight & presence of-- }

FRANCIS LACON, JANE LACON, THOMAS THOMPSON }

WESTMORLD. SS. } At a Court held for the sd. County the 27th

} day of March 1728.

William Marshall personally acknowledged this lease of land by him

passed to John Marshall to be his proper act and deed, which at the

instance of the sd. John Marshall is admitted to record.

Test

G. TURBERVILE, C.C.W.

Recorded the 29th day of March 1728.

Pr.

G. T. C. C. W.

A Copy. Teste:

FRANK STUART, Clerk of the Circuit Court of Westmoreland County,

State of Virginia.

[A copy. William Marshall to John Marshall. Deed. Recorded in the

Clerk's Office of Westmoreland County, State of Virginia, in Deeds

and Wills, no. 8-1, at page 276.]

IV

MEMORIAL OF THOMAS MARSHALL FOR MILITARY EMOLUMENTS

To the Honorable the Speaker and members of the house of

Delegates, the Memorial of Thomas Marshall humbly sheweth.

That your Memorialist in Aug^t 1775 was appointed Major to the first

minute Battalion raisd within this Commonwealth and early in October the

same year enterd into actual service in which he continued during the

following winter campaign. That while your memorialist commanded at the

Great Bridge he was appointed Major to the 3^d Virginia Continental

Regim^t he did not however retire from service but retaind his command

and continued at his post till the latter end of March 1776 when the

troops under his command were relieved by those of the continent rais'd

in this State, by which time the 3^d Virginia Regim^t was rais'd and

your Memorialist immediately called on to take command in it. That in

Aug^t 1776 he together with the regiment to which he belonged in

obedience to the orders they had rec^d began their march to New York,

where they join'd the Grand-Army. That your Memorialist continued in

hard and unremitting service from this time till the close of the

campaign of 1777. That in the latter end of November 1777 your

Memorialist was informed by an official letter from the then Governor,

of his haveing been appointed by the General Assembly of Virginia to the

command of the State regiment of Artillery;--a command he was only

induced to take by a preference he ever felt for Artillery Service. That

your Memorialist however retain'd his command and continued his service

in the Northern Army till the end of the Campaign when the Troops were

ordered into winter quarters. That your Memorialist then return'd to

Virginia and about the middle of January following took command of his

Regim^t of Artillery, which command he rataind till the 26th of February

1781 at which time, the term of enlistment of most of the soldiers of

the Regim^t having expired, they were discharged and your Memorialist

became a reduced officer. Your Memorialist conceived from the Laws

existing at the time he enter'd into the particular service of this

State and from the different acts respecting the State Troops which have

since passd the Legislature, that he should be intitled to every

emolument to which he would have had a just claim had he remaind in the

Continental Service. If however only particular discriptions of State

Officers are to receive such emoluments as Continental are intitled to,

your Memorialist humbly presumes to hope that his haveing made three of

the severest campaigns in the last war before he took command of the

State Regim^t of Artillery, his haveing rendered, as he trusts, some

services as commanding officer of that Regiment, his haveing remaind in

service till there was no longer a command for him, his having held

himself in readiness to return to service, had his regiment been

recruited, give him as fair a claim to military emoluments as any

officer who has been in the particular service of this State. Your

memorialist therefore humbly prays that your honorable house will take

his services into consideration and allow him those emoluments which may

be given to other State Officers whose services may not be superior to

his.

T. MARSHALL.

A true copy

H. R. MCILWAIN,

State Librarian.

June 20, 1916.

[Marshalls Pet^n Nov. 25th 1784 Referred to Propositions Props.

discharged and ref^d to whole on Bill for giving Commutation to

Officers of 1st and 2d State Regiments.]

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* * * * *

Transcriber's Notes:

1. Passages in italics are surrounded by _underscores_.

2. Obvious errors in spelling and punctuation have been corrected.

3. Footnotes have been renumbered and moved from the page end to the

end of their respective chapters.

4. Images have been moved from the middle of a paragraph to the closest

paragraph break.

5. Certain words use an oe ligature in the original.

6. Carat character (^) followed by a single letter or a set of letters

in curly brackets is indicative of subscript in the original book.