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.)
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 visitorswanted 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 favoritecostume. 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. ThomasJefferson, 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 hastwice 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 atlength 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 "ColọR. 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 esqrof 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]
MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF STATE, 1784MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF STATE, 1784
MARSHALL'S SIGNATURE IN 1797MARSHALL'S SIGNATURE IN 1797
SIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D VIRGINIA REGIMENTSIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D VIRGINIA REGIMENT
Marshall's signature to the minutes of the Councilis 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 collisionwith 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]
FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROEFIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE(Facsimile)
When the Legislature convened, nine days againpassed 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 Paineto 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. Incidentslike 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 favoredthis 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 "PotowmackCompany" 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 thisbill 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'smonumental 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 havewe 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 camethe 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 GreatBritain 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 beprevented."[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 andwas "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 consideredit 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, andmeaning 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 crushingmajority 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 ofthe 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 impulseof 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 ofConfederation 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 forauthorizing 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 couldnot 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 ourpeople 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 andSouth, 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 oflaissez-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.