The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

A vote which gives us the first sight of Marshall's idea about changing a constitution was taken during this session. Augusta County had petitioned the Legislature to alter Virginia's fundamental law. The committee reported a resolution against it, "such a measure not being within the province of the House of Delegates to assume; but on the contrary, it is the express duty of the representatives of the people at all times, and on all occasions, to preserve the same [the Constitution] inviolable, until a majority of all the people shall direct a reform thereof."671

Marshall voted to amend this resolution by striking out the words quoted. Thus, as far as this vote indicates, we see him standing for the proposition that a form of government could be changed by convention, which was the easiest, and, indeed, at that time the only practicable, method of altering the constitution of the State. Madison also favored this plan, but did nothing because of Patrick Henry's violent opposition. The subject was debated for two days and the project of a convention with full powers to make a new Constitution was overwhelmingly defeated, although nearly all of the "young men of education & talents" were for it.672

A few of the bills that Marshall voted for or reported from committee are worthy of note, in addition to those which had to do with those serious questions of general and permanent historic consequence to the country presently to be considered. They are important in studying the development of Marshall's economic and governmental views.

In 1784, Washington brought vividly before the Virginia Legislature the necessity of improving the means of transportation.673 At the same time this subject was also taken up by the Legislature of Maryland. A law was passed by the Virginia Legislature for "opening and extending the navigation of the Potowmack river from tidewater to the highest place practicable on the north branch"; and Maryland took similar action. These identical laws authorized the forming of a corporation called the "Potowmack Company" with a quarter of a million dollars capital. It was given the power of eminent domain; was authorized to charge tolls "at all times forever hereafter"; and the property and profits were vested in the shareholders, "their heirs and assigns forever."674

John Marshall voted for this bill, which passed without opposition.675 He became a stockholder in the corporation and paid several assessments on his stock.676 Thus early did Marshall's ideas on the nature of a legislative franchise to a corporation acquire the vitality of property interest and personal experience.

Marshall was on the Committee for Courts of Justice during every session when he was a member of the House and worked upon several bills concerning the courts. On November 2, 1787, he was appointed upon a special committee to bring in a bill "to amend the act establishing the High Court of Chancery."677 Three weeks later he reported this bill to the House;678 and when the bill passed that body it was "ordered that Mr. Marshall do carry the bill to the Senate and desire their concurrence." The committee which drew this bill was made up from among the ablest men in the House: Henry, Mason, Nicholas, Matthews, Stuart, and Monroe being the other members,679 with Marshall who was chairman.

The act simplified and expedited proceedings in equity.680 The High Court of Chancery had been established by an act of the Virginia Legislature of 1777.681 This law was the work of Thomas Jefferson. It contained one of the reforms so dear to his heart during that period – the right of trial by jury to ascertain the facts in equity causes. But six years' experience proved that the reform was not practical. In 1783 the jury trial in equity was abolished, and the old method that prevailed in the courts of chancery before the Revolution was reinstated.682 With this exception the original act stood in Virginia as a model of Jeffersonian reforms in legal procedure; but under its provisions, insufferable delays had grown up which defeated the ends of justice.683 It was to remedy this practical defect of Jefferson's monumental law that Marshall brought in the bill of 1787.

But the great matters which came before the Legislature during this period, between the ending of the war and the adoption of the Constitution, were: The vexed question of the debts owed by Virginia planters to British subjects; the utter impotence of the so-called Federal Government and the difficulty of getting the States to give it any means or authority to discharge the National debts and uphold the National honor; and the religious controversy involving, at bottom, the question of equal rights for all sects.684

The religious warfare685 did not greatly appeal to Marshall, it would seem, although it was of the gravest importance. Bad as the state of religion was at the beginning of the Revolution, it was worse after that struggle had ended. "We are now to rank among the nations of the world," wrote Mason to Henry in 1783; "but whether our independence shall prove a blessing or a curse must depend upon our wisdom or folly, virtue or wickedness… The prospect is not promising… A depravity of manners and morals prevails among us, to the destruction of all confidence between man and man."686 The want of public worship "increases daily; nor have we left in our extensive State three churches that are decently supported," wrote Mrs. Carrington, the sister of John Marshall's wife, a few years later.687

Travelers through Virginia during this period note that church buildings of all denominations were poor and mean and that most of these were falling into ruins; while ministers barely managed to keep body and soul together by such scanty mites as the few pious happened to give them or by the miserable wages they earned from physical labor.688 These scattered and decaying little church houses, the preachers toiling with axe or hoe, formed, it appears, an accurate index of the religious indifference of the people.689

There were gross inequalities of religious privileges. Episcopal clergymen could perform marriage ceremonies anywhere, but ministers of the other denominations could do so only in the county where they lived. The property of the Episcopal Church came from the pockets of all the people; and the vestries could tax members of other churches as well as their own for the relief of the poor.690 It was a curious swirl of conflicting currents. Out of it came the proposition to levy an assessment on everybody for the support of religion; a bill to incorporate the Episcopal Church which took away its general powers of vestry taxation, but confirmed the title to the property already held; and the marriage law which gave ministers of all denominations equal authority.691

Although these propositions were debated at great length and with much spirit and many votes were taken at various stages of the contest, Marshall recorded his vote but twice. He did not vote on the resolution to incorporate the Episcopal Church;692 or to sell the glebe lands;693 nor did he vote on the marriage bill.694 He voted against Madison's motion to postpone consideration of the bill for a general assessment to support religion, which carried,695 thus killing the bill. When the bill to incorporate the Episcopal Church came to a final vote, Marshall voted "aye," as, indeed, did Madison.696

But if Marshall took only a languid interest in the religious struggle, he was keen-eyed and active on the other two vital matters – the payment of debts, both public and private, and the arming of the Federal Government with powers necessary to its existence. Throughout this whole period we see the rapid and solid growth of the idea of Nationality, the seeds of which had been planted in John Marshall's soul by the fingers of military necessity and danger. Here, too, may be found the beginning of those ideas of contract which developed throughout his life and hardened as they developed until finally they became as flint. And here also one detects the first signs of the change in what Marshall himself called "the wild and enthusiastic notions"697 with which, only a few years earlier, he had marched forth from the backwoods, to fight for independence and popular government.

Virginia planters owed an immense amount of money to British merchants. It had been the free-and-easy habit of Virginians to order whatever they wanted from England and pay for it in the produce of their fields, chiefly tobacco. The English merchants gave long credit and were always willing to extend it when the debt fell due. The Virginians, on their part, found the giving of new notes a convenient way of canceling old obligations and thus piled up mountains of debt which they found hard to remove. After the war was over, they had little means with which to discharge their long overdue accounts.698

During the Revolution stringent and radical laws were passed, preventing the recovery of these debts in the courts, sequestering the property and even forfeiting the estates owned by British subjects in Virginia; and a maze of acts, repealing and then reviving the statutes that prevented payment, were passed after the war had ended.699 The Treaty between the United States and Great Britain provided as one of the conditions of peace that all these legal impediments to the recovery of British debts should be removed.700 Failure to repeal the anti-debt legislation passed during the war was, of course, a plain infraction of this contract between the two countries; while the enactment of similar laws after the Treaty had become binding, openly and aggressively violated it.

Within two weeks after Marshall took his seat in the House in 1784, this sorely vexed question came up. A resolution was brought in "that so much of all and every act or acts of the Assembly, now in force in this commonwealth as prevents a due compliance with the stipulation contained in the definitive Treaty of Peace entered into between Great Britain and America ought to be repealed"; but a motion to put the question to agree with this resolution was defeated by a majority of twenty. John Marshall voted to put the question.701

Those resisting the effort to carry out the Treaty of Peace declared that Great Britain itself had not complied with it, because the British had not surrendered the American posts retained by them at the close of the war and had not returned or paid for the slaves carried away by the British forces.702 A fortnight after the first defeat of the movement against the anti-debt law, a resolution was laid before the House instructing Virginia's Representatives in Congress to request that body to protest to the British Government against this infraction of the Treaty and to secure reparation therefor, and stating that the Virginia Legislature would not cooperate "in the complete fulfillment of said treaty" until this was done. The intent of the resolution was that no British debts should be paid for a long time to come.

But the resolution did provide that, when this reparation was made, or when "Congress shall adjudge it indispensably necessary," the anti-debt laws "ought to be repealed and payment made to all [creditors] in such time and manner as shall consist with the exhausted situation of this Commonwealth"; and that "the further operation of all and every act or acts of the Assembly concerning escheats and forfeitures from British subjects ought to be prevented."703 An amendment was offered containing the idea that the debtors might deduct their losses from their debts, thus taking a little step toward payment. Another amendment to strengthen this was also proposed.

Had these amendments carried, the policy of an early payment of the British debts would have prevailed. Marshall voted for both as did Madison. The amendments, however, were overwhelmingly defeated.704 The situation and point of view of the British merchants to whom these debts were due and who, depending upon the faithful performance of the Treaty, had come to Virginia to collect the money owing them, is illustrated by a petition which George F. Norton presented to the House. He was a member of the mercantile firm of Norton and Sons, of London, from whom Virginians had made purchases on credit for a generation before the war. He declared that his firm had "been compelled to pay many debts due from the said company, but he has been unable to collect any due to them, in consequence of the laws prohibiting recovery of British debts, by which he has been reduced to the greatest extremes."705

After the summer adjournment the irrepressible conflict between keeping or breaking the National faith once more arose. Henry, who was the champion of the debtors, had been elected Governor and was "out of the way."706 Several British merchants had proposed to accept payments of their debts in installments. Ratifications of the Treaty had been exchanged. The friends of National honor and private good faith had gathered headway. Finally a bill passed the House repealing the anti-debt laws. The Senate and the House came to an agreement.

Here arose a situation which pictures the danger and difficulty of travel in that day. Before the bill had been sent back to the House, enrolled, examined, and signed by both presiding officers, several members went across the river to spend the night at the neighboring hamlet of Manchester. It was the day before adjournment and they expected to return the next morning. But that night the river froze707 and they could not get back. So this important measure fell through for the session.708

No "ayes" and "noes" were called for during this final battle, but Marshall probably took part in the debate and it is certain that he used the influence which his popularity among members gave him for the passage of this law.

"I wish with you," wrote Marshall to Monroe, in early December, "that our Assembly had never passed those resolutions respecting the British Debts which have been so much the subject of reprehension throughout the States. I wish it because it affords a pretext to the British to retain possession of the posts on the lakes but much more because I ever considered it as a measure tending to weaken the federal bands which in my conception are too weak already. We are about, tho reluctantly, to correct the error."

Marshall despondently summed up the work of the session: "We have as yet done nothing finally. Not a bill of public importance, in which an individual was not particularly interested, has passed."709

Marshall was not a candidate for the Legislature in 1785-86, but sought and secured election in 1787, when he was sent from Henrico County, where Richmond was situated. During this hiatus in Marshall's public life another effort was made to repeal the anti-debt laws, but so bitter was the resistance that nothing was accomplished. Madison was distressed.710 When Marshall again became a member of the General Assembly the question of the British debts was brought forward once more. This time the long-delayed bill was passed, though not until its foes had made their point about the runaway slaves and the unevacuated posts.711

A resolution was brought in that the anti-debt laws "ought to be repealed," but that any act for this purpose should be suspended until the other States had passed similar laws. An amendment was defeated for making the suspension until Great Britain complied with the Treaty. John Marshall voted against it, as did his father Thomas Marshall, who was now a member of the Virginia Legislature from the District of Kentucky.712 Another amendment to pay the British debts "in such time and manner as shall consist with the exhausted situation of this Commonwealth" met a similar fate, both Marshalls, father and son, voting against it.713 The resolution was then passed, the two Marshalls voting for it.714

Marshall was then appointed a member of the special committee to prepare and bring in a bill to carry out the resolution.715 In a few days this bill was laid before the House. Except the extension clause, this bill was probably drawn by Marshall. It was short and to the point. It repealed everything on the statute books repugnant to the Treaty of Peace. It specifically "directed and required" the courts to decide all cases "arising from or touching said treaty" "according to the tenor, true intent, and meaning of same" regardless of the repealed laws. But the operation of the law was suspended until Congress informed the Governor "that the other states in the Union have passed laws enabling British creditors to recover their debts agreeably to the terms of the treaty."716 The bill was emphasized by a brief preamble which stated that "it is agreed by the fourth article of the treaty of peace with Great Britain that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted."

The opponents of the bill tried to emasculate it by an amendment that the law should not go into effect until the Governor of Virginia made public proclamation "that Great Britain hath delivered up to the United States the posts therein now occupied by British troops" and was taking measures to return the runaway slaves or to pay for them. They succeeded. Whether from agitation outside the legislative hall717 or from the oratory of Patrick Henry, or from a greater power of the leaders in lobbying among their fellow members, a quick and radical transformation of sentiment took place. Probably all these causes joined to produce it. By a crushing majority of forty-nine the amendment was adopted and the bill denatured. Both John Marshall and his father voted against the amendment, as did George Mason, Benjamin Harrison, and James Monroe.718

Thus, in two weeks, a majority of thirty-three against this very scheme for breaking the force of the bill was changed to a majority of forty-nine in favor of it. The bill as amended passed the next day.719 Such were the instability of the Virginia Legislature at this period and the people's bitter opposition to the payment of the debts owed to British subjects.

The effect on Marshall's mind was very great. The popular readiness to escape, if not to repudiate, contracted obligations, together with the whimsical capriciousness of the General Assembly, created grave misgivings in his mind. His youthful sympathy with the people was beginning to disappear. Just as the roots of his Nationalist views run back to Valley Forge, so do the roots of his economic-political opinions penetrate to the room in the small frame building where sat the Legislature of Virginia in the first years that followed the close of the war.

But the mockery of government exhibited by the Federal establishment at this period of chaos impressed Marshall even more than the spirit of repudiation of debts and breaking of contracts which was back of the anti-debt legislation.720 The want of the National power during the Revolution, which Marshall had seen from the "lights … which glanced from the point of his sword,"721 he now saw through the tobacco smoke which filled the grimy room where the Legislature of Virginia passed laws and repealed them almost at the same time.722 The so-called Federal Government was worse than no government at all; it was a form and a name without life or power. It could not provide a shilling for the payment of the National debt nor even for its own support. It must humbly ask the States for every dollar needed to uphold the National honor, every penny necessary for the very existence of the masquerade "Government" itself. This money the States were slow and loath to give and doled it out in miserable pittances.

Even worse, there was as yet little conception of Nationality among the people – the spirit of unity was far weaker than when resistance to Great Britain compelled some kind of solidarity; the idea of cooperation was even less robust than it was when fear of French and Indian depredations forced the colonists to a sort of common action. Also, as we shall see, a general dislike if not hostility toward all government whether State or National was prevalent.723

As to the National Government, it would appear that, even before the war was over, the first impulse of the people was to stop entirely the feeble heart that, once in a while, trembled within its frail bosom: in 1782, for instance, Virginia's Legislature repealed the law passed in May of the preceding year authorizing Congress to levy a duty on imports to carry on the war, because "the permitting any power other than the general assembly of this commonwealth, to levy duties or taxes upon the citizens of this state within the same, is injurious to its sovereignty" and "may prove destructive of the rights and liberty of the people."724

A year later the Legislature was persuaded again to authorize Congress to levy this duty;725 but once more suspended the act until the other States had passed "laws" of the same kind and with a proviso which would practically have nullified the working of the statute, even if the latter ever did go into effect.726 At the time this misshapen dwarf of a Nationalist law was begotten by the Virginia Legislature, Marshall was a member of the Council of State; but the violent struggle required to get the Assembly to pass even so puny an act as this went on under his personal observation.

When Marshall entered the Legislature for the second time, the general subject of the debts of the Confederation arose. Congress thought that the money to pay the loans from foreign Governments by which the war had been carried on, might be secured more easily by a new mode of apportioning their quotas among the thirteen States. The Articles of Confederation provided that the States should pay on the basis of the value of lands. This worked badly, and Congress asked the States to alter the eighth Article of Confederation so as to make the States contribute to the general treasury on a basis of population. For fear that the States would not make this change, Congress also humbly petitioned the thirteen "sovereignties" to ascertain the quantity and value of land as well as the number of people in each State.

On May 19, 1784,727 after the usual debating, a strong set of Nationalist resolutions was laid before the Virginia House of Delegates. They agreed to the request of Congress to change the basis of apportioning the debt among the States; favored providing for the payment of a part of what each State owed Congress on the requisition of three years before; and even went so far as to admit that if the States did not act, Congress itself might be justified in proceeding. The last resolution proposed to give Congress the power to pass retaliatory trade laws.728 These resolutions were adopted with the exception of one providing for the two years' overdue payment of the Virginia share of the requisition of Congress made in 1781.

Marshall was appointed a member of a special committee to "prepare and bring in bills" to carry out the two resolutions for changing the basis of apportionment from land to population, and for authorizing Congress to pass retaliatory trade laws. George Mason and Patrick Henry also were members of this committee on which the enemies of the National idea had a good representation. Two weeks later the bills were reported.729 Three weeks afterwards the retaliatory trade bill was passed.730 But all the skill and ability of Madison, all the influence of Marshall with his fellow members, could not overcome the sentiment against paying the debts; and, as usual, the law was neutralized by a provision that it should be suspended until all the other States had enacted the same kind of legislation.

The second contest waged by the friends of the Nationalist idea in which Marshall took part was over the extradition bill which the Legislature enacted in the winter of 1784. The circumstances making such a law so necessary that the Virginia Legislature actually passed it, draw back for a moment the curtain and give us a view of the character of our frontiersmen. Daring, fearless, strong, and resourceful, they struck without the sanction of the law. The object immediately before their eyes, the purpose of the present, the impulse or passion of the moment – these made up the practical code which governed their actions.

Treaties of the American "Government" with the Governments of other countries were, to these wilderness subduers, vague and far-away engagements which surely never were meant to affect those on the outskirts of civilization; and most certainly could not reach the scattered dwellers in the depths of the distant forests, even if such international compacts were intended to include them. As for the Government's treaties or agreements of any kind with the Indian tribes, they, of course, amounted to nothing in the opinion of the frontiersmen. Who were the Indians, anyway, except a kind of wild animal very much in the frontiersman's way and to be exterminated like other savage beasts? Were not the Indians the natural foes of these white Lords of the earth?731