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

Indeed, it is more than likely that most of this advance guard of the westward-marching American people never had heard of such treaties until the Government's puny attempt to enforce them. At any rate, the settlers fell afoul of all who stood in their way; and, in the falling, spared not their hand. Madison declared that there was "danger of our being speedily embroiled with the nations contiguous to the U. States, particularly the Spaniards, by the licentious & predatory spirit of some of our Western people. In several instances, gross outrages are said to have been already practiced."732 Jay, then Secretary of State, mournfully wrote to Jefferson in Paris, that "Indians have been murdered by our people in cold blood, and no satisfaction given; nor are they pleased with the avidity with which we seek to acquire their lands."

Expressing the common opinion of the wisest and best men of the country, who, with Madison, were horrified by the ruthless and unprovoked violence of the frontiersmen, Jay feared that "to pitch our tents through the wilderness in a great variety of places, far distant from each other," might "fill the wilderness with white savages … more formidable to us than the tawny ones which now inhabit it." No wonder those who were striving to found a civilized nation had "reason … to apprehend an Indian war."733

To correct this state of things and to bring home to these sons of individualism the law of nations and our treaties with other countries, Madison, in the autumn of 1784, brought in a bill which provided that Virginia should deliver up to foreign Governments such offenders as had come within the borders of the Commonwealth. The bill also provided for the trial and punishment by Virginia courts of any Virginia citizen who should commit certain crimes in "the territory of any Christian nation or Indian tribe in amity with the United States." The law is of general historic importance because it was among the first, if not indeed the very first, ever passed by any legislative body against filibustering.734

The feebleness of the National idea at this time; the grotesque notions of individual "rights"; the weakness or absence of the sense of civic duty; the general feeling that everybody should do as he pleased; the scorn for the principle that other nations and especially Indian tribes had any rights which the rough-and-ready settlers were bound to respect, are shown in the hot fight made against Madison's wise and moderate bill. Viewed as a matter of the welfare and safety of the frontiersmen themselves, Madison's measure was prudent and desirable; for, if either the Indians or the Spaniards had been goaded into striking back by formal war, the blows would have fallen first and heaviest on these very settlers.

Yet the bill was stoutly resisted. It was said that the measure, instead of carrying out international law, violated it because "such surrenders were unknown to the law of nations."735 And what became of Virginia's sacred Bill of Rights, if such a law as Madison proposed should be placed on the statute books, exclaimed the friends of the predatory backwoodsmen? Did not the Bill of Rights guarantee to every person "speedy trial by an impartial jury of twelve men of his vicinage," where he must "be confronted with the accusers and witnesses," said they?

But what did this Nationalist extradition bill do? It actually provided that men on Virginia soil should be delivered up for punishment to a foreign nation which knew not the divine right of trial by jury. As for trying men in Virginia courts and before Virginia juries for something they had done in the fastnesses of the far-away forests of the West and South, as Madison's bill required, how could the accused "call for evidence in his favor"? And was not this "sacred right" one of the foundation stones, quarried from Magna Charta, on which Virginia's "liberties" had been built?736 To be sure it was! Yet here was James Madison trying to blast it to fragments with his Nationalism!

So ran the arguments of those early American advocates of laissez-faire. Madison answered, as to the law of nations, by quoting Vattel, Grotius, and Puffendorf. As to the Bill of Rights, he pointed out that the individualist idealism by which the champions of the settlers interpreted this instrument "would amount to a license for every aggression, and would sacrifice the peace of the whole community to the impunity of the worst members of it."737 Such were the conservative opinions of James Madison three years before he helped to frame the National Constitution.

Madison saw, too, – shocking treason to "liberty," – "the necessity of a qualified interpretation of the bill of rights,"738 if we were to maintain the slightest pretense of a National Government of any kind. The debate lasted several days.739 With all the weight of argument, justice, and even common prudence on the side of the measure, it certainly would have failed had not Patrick Henry come to the rescue of it with all the strength of his influence and oratory.740

The bill was so mangled in committee that it was made useless and it was restored only by amendment. Yet such was the opposition to it that even with Henry's powerful aid this was done only by the dangerous margin of four votes out of a total of seventy-eight.741 The enemies of the bill mustered their strength overnight and, when the final vote came upon its passage the next morning, came so near defeating it that it passed by a majority of only one vote out of a total of eighty-seven.742

John Marshall, of course, voted for it. While there is no record that he took part in the debate, yet it is plain that the contest strengthened his fast-growing Nationalist views. The extravagance of those who saw in the Bill of Rights only a hazy "liberty" which hid evil-doers from the law, and which caused even the cautious Madison to favor a "qualified interpretation" of that instrument, made a lasting impression on Marshall's mind.

But Marshall's support was not wholly influenced by the prudence and Nationalism of the measure. He wished to protect the Indians from the frontiersmen. He believed, with Henry, in encouraging friendly relations with them, even by white and red amalgamation. He earnestly supported Henry's bill for subsidizing marriages of natives and whites743 and was disappointed by its defeat.

"We have rejected some bills," writes Marshall, "which in my conception would have been advantageous to the country. Among these, I rank the bill for encouraging intermarriages with the Indians. Our prejudices however, oppose themselves to our interests, and operate too powerfully for them."744

During the period between 1784 and 1787 when Marshall was out of the Legislature, the absolute need of a central Government that would enable the American people to act as a Nation became ever more urgent; but the dislike for such a Government also crystallized. The framing of the Constitution by the Federal Convention at Philadelphia in 1787 never could have been brought about by any abstract notions of National honor and National power, nor by any of those high and rational ideas of government which it has become traditional to ascribe as the only source and cause of our fundamental law.

The people at large were in no frame of mind for any kind of government that meant power, taxes, and the restrictions which accompany orderly society. The determination of commercial and financial interests to get some plan adopted under which business could be transacted, was the most effective force that brought about the historic Convention at Philadelphia in 1787. Indeed, when that body met it was authorized only to amend the Articles of Confederation and chiefly as concerned the National regulation of commerce.745

Virginia delayed acting upon the Constitution until most of the other States had ratified it. The Old Dominion, which had led in the Revolution, was one of the last Commonwealths to call her Convention to consider the "new plan" of a National Government. The opposition to the proposed fundamental law was, as we shall see, general and determined; and the foes of the Constitution, fiercely resisting its ratification, were striving to call a second general Convention to frame another scheme of government or merely to amend the Articles of Confederation.

To help to put Virginia in line for the Constitution, John Marshall, for the third time, sought election to the Legislature. His views about government had now developed maturely into a broad, well-defined Nationalism; and he did not need the spur of the wrathful words which Washington had been flinging as far as he could against the existing chaos and against everybody who opposed a strong National Government.

If Marshall had required such counsel and action from his old commander, both were at hand; for in all his volcanic life that Vesuvius of a man never poured forth such lava of appeal and denunciation as during the period of his retirement at Mount Vernon after the war was over and before the Constitution was adopted.746

But Marshall was as hot a Nationalist as Washington himself. He was calmer in temperament, more moderate in language and method, than his great leader; but he was just as determined, steady, and fearless. And so, when he was elected to the Legislature in the early fall of 1787, he had at heart and in mind but one great purpose. Army life, legislative experience, and general observation had modified his youthful democratic ideals, while strengthening and confirming that Nationalism taught him from childhood. Marshall himself afterwards described his state of mind at this period and the causes that produced it.

"When I recollect," said he, "the wild and enthusiastic notions with which my political opinions of that day were tinctured, I am disposed to ascribe my devotion to the Union and to a government competent to its preservation, at least as much to casual circumstances as to judgment. I had grown up at a time when the love of the Union, and the resistance to the claims of Great Britain were the inseparable inmates of the same bosom; when patriotism and a strong fellow-feeling with our suffering fellow-citizens of Boston were identical; when the maxim, 'United we stand, divided we fall,' was the maxim of every orthodox American.

"And I had imbibed these sentiments so thoroughly that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States, who were risking life and everything valuable in a common cause, believed by all to be most precious; and where I was confirmed in the habit of considering America as my country, and Congress as my government… My immediate entrance into the State Legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings [of the army]; and the general tendency of State politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized General Government."747

On the third day of the fall session of the Virginia Legislature of 1787, the debate began on the question of calling a State Convention to ratify the proposed National Constitution.748 On October 25 the debate came to a head and a resolution for calling a State Convention passed the House.749 The debate was over the question as to whether the proposed Convention should have authority either to ratify or reject the proposed scheme of government entirely; or to accept it upon the condition that it be altered and amended.

Francis Corbin, a youthful member from Middlesex, proposed a flat-footed resolution that the State Convention be called either to accept or reject the "new plan." He then opened the debate with a forthright speech for a Convention to ratify the new Constitution as it stood. Patrick Henry instantly was on his feet. He was for the Convention, he said: "No man was more truly federal than himself." But, under Corbin's resolution, the Convention could not propose amendments to the Constitution. There were "errors and defects" in that paper, said Henry. He proposed that Corbin's resolution should be changed so that the State Convention might propose amendments750 as a condition of ratification.

The debate waxed hot. George Nicholas, one of the ablest men in the country, warmly attacked Henry's idea. It would, declared Nicholas, "give the impression" that Virginia was not for the Constitution, whereas "there was, he believed, a decided majority in its favor." Henry's plan, said Nicholas, would throw cold water on the movement to ratify the Constitution in States that had not yet acted.

George Mason made a fervid and effective speech for Henry's resolution. This eminent, wealthy, and cultivated man had been a member of the Philadelphia Convention that had framed the Constitution; but he had refused to sign it. He was against it for the reasons which he afterwards gave at great length in the Virginia Convention of 1788.751 He had "deeply and maturely weighed every article of the new Constitution," avowed Mason, and if he had signed it, he "might have been justly regarded as a traitor to my country. I would have lost this hand before it should have marked my name to the new government."752

At this juncture, Marshall intervened with a compromise. The Constitutionalists were uncertain whether they could carry through Corbin's resolution. They feared that Henry's plan of proposing amendments to the Constitution might pass the House. The effect of such an Anti-Constitutional victory in Virginia, which was the largest and most populous State in the Union, would be a blow to the cause of the Constitution from which it surely could not recover. For the movement was making headway in various States for a second Federal Convention that should devise another system of government to take the place of the one which the first Federal Convention, after much quarreling and dissension, finally patched up in Philadelphia.753

So Marshall was against both Corbin's resolution and Henry's amendment to it; and also he was for the ideas of each of these gentlemen. It was plain, said Marshall, that Mr. Corbin's resolution was open to the criticism made by Mr. Henry. To be sure, the Virginia Convention should not be confined to a straight-out acceptance or rejection of the new Constitution; but, on the other hand, it would never do for the word to go out to the other States that Virginia in no event would accept the Constitution unless she could propose amendments to it. He agreed with Nicholas entirely on that point.

Marshall also pointed out that the people of Virginia ought not to be given to understand that their own Legislature was against the proposed Constitution before the people themselves had even elected a Convention to pass upon that instrument. The whole question ought to go to the people without prejudice; and so Marshall proposed a resolution of his own "that a Convention should be called and that the new Constitution should be laid before them for their free and ample discussion."754

Marshall's idea captured the House. It placated Henry, it pleased Mason; and, of course, it was more than acceptable to Corbin and Nicholas, with whom Marshall was working hand in glove, as, indeed, was the case with all the Constitutionalists. In fact, Marshall's tactics appeared to let every man have his own way and succeeded in getting the Convention definitely called. And it did let the contending factions have their own way for the time being; for, at that juncture, the friends of the new National Constitution had no doubt that they would be able to carry it through the State Convention unmarred by amendments, and its enemies were equally certain that they would be able to defeat or alter it.

Marshall's resolution, therefore, passed the House "unanimously."755 Other resolutions to carry Marshall's resolution into effect also passed without opposition, and it was "ordered that two hundred copies of these resolutions be printed and dispersed by members of the general assembly among their constituents; and that the Executive should send a copy of them to Congress and to the Legislature and Executive of the respective states."756 But the third month of the session was half spent before the Senate passed the bill.757 Not until January 8 of the following year did it become a law.758

In addition, however, to defining the privileges of the members and providing money for its expenses, the bill also authorized the Convention to send representatives "to any of the sister states or the conventions thereof which may be then met," in order to gather the views of the country "concerning the great and important change of government which hath been proposed by the federal convention."759 Thus the advocates of a second general Convention to amend the Articles of Confederation or frame another Constitution scored their point.

So ended the first skirmish of the historic battle soon to be fought out in Virginia, which would determine whether the American people should begin their career as a Nation. Just as John Marshall was among the first in the field with rifle, tomahawk, and scalping-knife, to fight for Independence, so, now, he was among those first in the field with arguments, influence, and political activities, fighting for Nationalism.

CHAPTER VII

LIFE OF THE PEOPLE: COMMUNITY ISOLATION

An infant people, spreading themselves through a wilderness occupied only by savages and wild beasts. (Marshall.)

Of the affairs of Georgia, I know as little as of those of Kamskatska. (James Madison, 1786.)

"Lean to the right," shouted the driver of a lumbering coach to his passengers; and all the jostled and bethumped travelers crowded to that side of the clumsy vehicle. "Left," roared the coachman a little later, and his fares threw themselves to the opposite side. The ruts and gullies, now on one side and now on the other, of the highway were so deep that only by acting as a shifting ballast could the voyagers maintain the stage's center of gravity and keep it from an upset.760

This passageway through the forest, called a "road," was the thoroughfare between Philadelphia and Baltimore and a part of the trunk line of communication which connected the little cities of that period. If the "road" became so bad that the coach could not be pulled through the sloughs of mud, a new way was opened in the forest; so that, in some places, there were a dozen of such cuttings all leading to the same spot and all full of stumps, rocks, and trees.761

The passengers often had to abandon this four-wheeled contraption altogether and walk in the mud; and were now and again called upon to put their shoulders to the wheels of the stage when the horses, unaided, were unable to rescue it.762 Sometimes the combined efforts of horses and men could not bring the conveyance out of the mire and it would have to be left all night in the bog until more help could be secured.763 Such was a main traveled road at the close of the Revolutionary War and for a long time after the Constitution was adopted.

The difficulty and danger of communication thus illustrated had a direct and vital bearing upon the politics and statesmanship of the times. The conditions of travel were an index to the state of the country which we are now to examine. Without such a survey we shall find ourselves floating aimlessly among the clouds of fancy instead of treading, with sure foothold, the solid ground of fact. At this point, more perhaps than at any other of our history, a definite, accurate, and comprehensive inventory of conditions is essential. For not only is this phase of American development more obscure than any other, but the want of light upon it has led to vague consideration and sometimes to erroneous conclusions.

We are about to witness the fierce and dramatic struggle from which emerged the feeble beginnings of a Nation that, even to-day, is still in the making; to behold the welter of plan and counterplot, of scheming and violence, of deal and trade, which finally resulted in the formal acceptance of the Constitution with a certainty that it would be modified, and, to some extent, mutilated, by later amendments. We are to listen to those "debates" which, alone, are supposed to have secured ratification, but which had no more, and indeed perhaps less effect than the familiar devices of "practical politics" in bringing about the adoption of our fundamental law.

Since the victory at Yorktown a serious alteration had taken place in the views of many who had fought hardest for Independence and popular government. These men were as strong as ever for the building of a separate and distinct National entity; but they no longer believed in the wisdom or virtue of democracy without extensive restrictions. They had come to think that, at the very best, the crude ore of popular judgment could be made to enrich sound counsels only when passed through many screens that would rid it of the crudities of passion, whimsicality, interest, ignorance, and dishonesty which, they believed, inhered in it. Such men esteemed less and less a people's government and valued more and more a good government. And the idea grew that this meant a government the principal purpose of which was to enforce order, facilitate business, and safeguard property.

During his early years in the Legislature, as has appeared, Marshall's opinions were changing. Washington, as we shall see, soon after peace was declared, lost much of his faith in the people; Madison arrived at the opinion that the majority were unequal to the weightier tasks of popular rule; and Marshall also finally came to entertain the melancholy fear that the people were not capable of self-government. Indeed, almost all of the foremost men of the period now under review were brought to doubt the good sense or sound heart of the multitude. The fires of Jefferson's faith still burned, and, indeed, burned more brightly; for that great reformer was in France and neither experienced nor witnessed any of those popular phenomena which fell like a drenching rain upon the enthusiasm of American statesmen at home for democratic government.

This revolution in the views of men like Washington, Madison, and Marshall was caused largely by the conduct of the masses, which, to such men, seemed to be selfish, violent, capricious, vindictive, and dangerous. The state of the country explains much of this popular attitude and disposition. The development of Marshall's public ideas cannot be entirely understood by considering merely his altered circumstances and business and social connections. More important is a review of the people, their environment and condition.

The extreme isolation of communities caused by want of roads and the difficulties and dangers of communication; the general ignorance of the masses; their childish credulity, and yet their quick and acute suspicion springing, largely, from isolation and lack of knowledge; their savage and narrow individualism, which resisted the establishment of a central authority and was antagonistic to any but the loosest local control; their envy and distrust of the prosperous and successful which their own economic condition strengthened, if, indeed, this circumstance did not create that sullen and dangerous state of mind – an understanding of all these elements of American life at that time is vital if we are to trace the development of Marshall's thinking and explore the origins of the questions that confronted our early statesmen.

The majority of the people everywhere were poor; most of them owed debts; and they were readily influenced against any man who favored payment, and against any plan of government that might compel it. Also, the redemption of State and Continental debts, which was a hard and ever-present problem, was abhorrent to them. Much of the scrip had passed into the hands of wealthy purchasers. Why, exclaimed the popular voice, should this expedient of war be recognized? Discharge of such public obligations meant very definite individual taxes. It was as easy to inflame a people so situated and inclined as it was hard to get accurate information to them or to induce them to accept any reasoning that made for personal inconvenience or for public burdens.

Marshall could not foresee the age of railway and telegraph and universal education. He had no vision of a period when speedy and accurate information would reach the great body of our population and the common hearthstone thus become the place of purest and soundest judgment. So it is impossible to comprehend or even apprehend his intellectual metamorphosis during this period unless we survey the physical, mental, and spiritual state of the country. How the people lived, their habits, the extent of their education, their tendency of thought, and, underlying all and vitally affecting all, the means or rather want of means of communication – a knowledge of these things is essential to an understanding of the times.764 The absence of roads and the condition of the few that did exist were thoroughly characteristic of the general situation and, indeed, important causes of it. It becomes indispensable, then, to visualize the highways of the period and to picture the elements that produced the thinking and acting of the larger part of the people. Many examples are necessary to bring all this, adequately and in just proportion, before the eye of the present.