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

598

This unbusinesslike balancing is characteristic of Marshall.

599

Jacquelin Ambler Marshall, Dec. 3, 1787. (Paxton, 99.)

600

Ib.

601

Call, i, 42.

602

Records of the Court of Appeals.

603

The estate had been sequestered during the Revolution.

604

Wertenbaker: V. U. S., 123-26. For history of these grants, see chap. IV, vol. II, of this work.

605

See infra, chap. VI.

606

Call, iv, 69-72.

607

Infra, vol. II, chap. IV.

608

Records Fauquier County (Va.), Deed Book, X, 29.

609

See supra.

610

See supra, 166, footnote 3.

611

Mrs. Carrington.

612

Mrs. Carrington to her sister Nancy; MS. The mother and sister of Mrs. Marshall were similarly afflicted. Mrs. Carrington frequently mentions this fact in her correspondence.

613

See vol. III of this work.

614

Richmond grew rapidly thereafter. The number of houses was trebled within a decade.

615

Schoepf, ii, 55-56.

616

Schoepf, ii, 55-56.

617

Ib.; and see Journals.

618

Ib., ii, 57.

619

Schoepf, 55-56.

620

Ib., 58.

621

Story, in Dillon, iii, 337. Marshall was a prime favorite of his old comrades all his life. (Ib.)

622

Journal, H.D. (Oct. Sess., 1782), 3-10.

623

The roads were so bad and few that traveling even on horseback was not only toilsome but dangerous. (See infra, chap. VII.)

624

Journal, H.D. (Oct. Sess., 1782), 4-8.

625

Journal, H.D. (Oct. Sess., 1782.), 9-10.

626

Ib., 10.

627

Ib., 13-15.

628

Ib., 15.

629

Ib., 22; Hening, xi, 111. The "ayes" and "noes" were taken on this bill and Marshall's vote is, of course, without any importance except that it was his first and that it was a little straw showing his kindly and tolerant disposition. Also the fact that the "ayes" and "noes" were called for – something that was very rarely done – shows the popular feeling against Englishmen.

630

Journal, H.D. (Oct. Sess., 1782), 27-28. Marshall voted in favor of bringing in a bill for strengthening the credit account; and against postponing the consideration of the militia bill. (Ib., 45.)

631

Ib., 23, 25, 27, 36, 42, 45.

632

Ib., 23.

633

Hening, xi, 173-75.

634

Journal, H.D., 36.

635

"It greatly behoves the Assembly to revise several of our laws, and to abolish all such as are contrary to the fundamental principles of justice; and by a strict adherence to the distinctions between Right and Wrong for the future, to restore that confidence and reverence … which has been so greatly impaired by a contrary conduct; and without which our laws can never be much more than a dead letter." (Mason to Henry, May 6,1783, as quoted in Henry, ii, 185.)

636

Writings: Hunt, ii, 397. This notable fact is worthy of repetition if we are to get an accurate view of the Virginia Legislature of that day. Yet that body contained many men of great ability.

637

Madison to Jefferson, July 3,1784; Writings: Hunt, ii, 62.

638

Madison to Washington, Dec. 14,1787; ib., v, 69-70.

639

Washington to Madison, Jan. 10, 1788; Writings: Ford, xi, 208.

640

Washington to Lafayette, April 28, 1788; ib., 254. Washington wrote bitterly of State antagonism. "One State passes a prohibitory law respecting some article, another State opens wide the avenue for its admission. One Assembly makes a system, another Assembly unmakes it." (Ib.)

641

Hening, xi, 299-306. This statement of Marshall's was grossly incorrect. This session of the Legislature passed several laws of the very greatest public consequence, such as the act to authorize Congress to pass retaliatory trade laws against Great Britain (ib., 313); an immigration and citizenship act (ib., 322-24); an act prohibiting British refugees from coming to Virginia; and a quarantine act (ib., 29-31). It was this session that passed the famous act to authorize Virginia's delegates in Congress to convey to the United States the Northwest Territory (ib., 326-28).

This remarkable oversight of Marshall is hard to account for. An explanation is that this was the year of his marriage; and the year also in which he became a resident of Richmond, started in the practice of the law there, and set up his own home. In addition to these absorbing things, his duty as a member of the Council of State took his attention. Also, of course, it was the year when peace with Great Britain was declared. Still, these things do not excuse Marshall's strange misstatement. Perhaps he underestimated the importance of the work done at this particular session.

642

Hening, xi, 387-88. This bill became a law at the spring session of the following year. The impracticable part enforcing attendance of members was dropped. The bill as passed imposes a penalty of fifty pounds on any sheriff or other officer for failure to return certificates of elections; a forfeit of two hundred pounds upon any sheriff interfering in any election or showing any partiality toward candidates.

643

Marshall to Powell, Dec. 9, 1783; Branch Historical Papers, i, 130-31.

644

An act allowing one half of the taxes to be paid in tobacco, hemp, flour, or deerskins, and suspending distress for taxes until January, 1784. (Hening, xi, 289.) The scarcity of specie was so great and the people so poor that the collection of taxes was extremely difficult. In 1782 the partial payment of taxes in commutables – tobacco, hemp, flour, or deerskins – was introduced. This occasioned such loss to the treasury that in May, 1783, the Commutable Acts were repealed; but within five months the Legislature reversed itself again and passed the Commutable Bill which so disgusted Marshall.

645

Marshall to Monroe, Dec. 12, 1783; MS., Draper Collection, Wisconsin Historical Society; also printed in Amer. Hist. Rev., iii, 673. This letter is not addressed, but it has been assumed that it was written to Thomas Jefferson. This is incorrect; it was written to James Monroe.

646

Journal, H.D. (Oct. Sess., 1782), 27. It is almost certain that his father and Jacquelin Ambler were pushing him. The Speaker and other prominent members of the House had been colleagues of Thomas Marshall in the House of Burgesses and Ambler was popular with everybody. Still, Marshall's personality must have had much to do with this notable advancement. His membership in the Council cannot be overestimated in considering his great conflict with the Virginia political "machine" after he became Chief Justice. See volume III of this work.

647

Journal of the Council of State, Nov. 20, 1782; MS., Va. St. Lib.

648

Pendleton to Madison, Nov. 25, 1782; quoted in Rives, i, 182.

649

Constitution of Virginia, 1776.

650

Dodd, in Amer. Hist. Rev., xii, 776.

651

Marshall participated in the appointment of General George Rogers Clark to the office of Surveyor of Officers' and Soldiers' lands. (Journal, Ex. Council, 1784, 57: MS., Va. St. Lib.)

652

Ib.

653

Binney, in Dillon, iii, 291-92. This story is repeated in almost all of the sketches of Marshall's life.

654

Marshall to Monroe, April 17, 1784; MS., N.Y. Pub. Lib.

655

His father, now in Kentucky, could no longer personally aid his son in his old home. Thus Marshall himself had to attend to his own political affairs.

656

Marshall did not try for the Legislature again until 1787 when he sought and secured election from Henrico. (See infra.)

657

Journal, H.D. (Spring Sess., 1784), 5. A Robert Marshall was also a member of the House during 1784 as one of the representatives for Isle of Wight County. He was not related in any way to John Marshall.

658

Ib.

659

Ib.

660

Story, in Dillon, iii, 335-36.

661

As an example of the number and nature of these soldier petitions see Journal, H.D. (Spring Sess., 1784), 7, 9, 11, 16, 18, 44.

662

See chap, VIII and footnote to p. 288.

663

Williamson was a Tory of the offensive type. He had committed hostile acts which embittered the people against him. (See Cal. Va. St. Prs., ii. And see Eckenrode: R. V., chap, xi, for full account of this and similar cases.)

664

The gentle pastime of tarring and feathering unpopular persons and riding them on sharp rails appears to have been quite common in all parts of the country, for a long time before the Revolution. Men even burned their political opponents at the stake. (See instances in Belcher, i, 40-45.) Savage, however, as were the atrocities committed upon the Loyalists by the patriots, even more brutal treatment was dealt out to the latter by British officers and soldiers during the Revolution. (See supra, chap. IV, footnote to p. 116.)

665

Journal, H.D. (Spring Sess., 1784), 19.

666

Journal, H.D. (Spring Sess., 1784), 23, 27.

667

Ib., 45. For thorough examination of this incident see Eckenrode: R. V., chap. xi.

668

Journal, H.D. (Spring Sess., 1784), 57.

669

Ib., 14.

670

Hening, xi, 390.

671

Journal, H.D., 70-71.

672

Madison to Jefferson, July 3, 1794; Writings: Hunt, ii, 56-57. The Constitution of 1776 never was satisfactory to the western part of Virginia, which was under-represented. Representation was by counties and not population. Also suffrage was limited to white freeholders; and this restriction was made more onerous by the fact that county representation was based on slave as well as free population. Also, the Constitution made possible the perpetuation of the Virginia political machine, previously mentioned, which afterward played a part of such vast importance in National affairs. Yet extreme liberals like the accomplished and patriotic Mason were against the Legislature turning itself into a convention to make a new one. (Mason to Henry, May 6, 1783; Henry, ii, 185.)

673

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 104.

674

Hening, xi, 510-18. This law shows the chief articles of commerce at that time and the kind of money which might be received as tolls. The scale of equivalents in pounds sterling vividly displays the confused currency situation of the period. The table names Spanish milled pieces of eight, English milled crowns, French silver crowns, johannes, half johannes, moidores, English guineas, French guineas, doubloons, Spanish pistoles, French milled pistoles, Arabian sequins; the weight of each kind of money except Spanish pieces of eight and English and French milled crowns being carefully set out; and "other gold coin (German excepted) by the pennyweight." If any of this money should be reduced in value by lessening its weight or increasing its alloy it should be received at "its reduced value only." (Ib.)

675

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 102. Madison gives a very full history and description of this legislation.

676

Marshall's Account Book contains entries of many of these payments.

677

Journal, H.D. (Nov. 1787), 27-127.

678

Journal, H.D. (Nov. 1787), 70.

679

Ib., 27.

680

Hening, xii, 464-67. The preamble of the act recites that it is passed because under the existing law "justice is greatly delayed by the tedious forms of proceedings, suitors are therefore obliged to waste much time and expense to the impoverishment of themselves and the state, and decrees when obtained are with difficulty carried into execution." (Ib.)

681

Ib., ix, 389-99.

682

Ib., xi, 342-44.

683

See Jefferson's letter to Mazzei, explaining the difference between law and equity and the necessity for courts of chancery as well as courts of law. This is one of the best examples of Jefferson's calm, clear, simple style when writing on non-political subjects. (Jefferson to Mazzei, Nov., 1785; Works: Ford, iv, 473-80.)

684

For the best contemporaneous description of Virginia legislation during this period see Madison's letters to Jefferson when the latter was in Paris. (Writings: Hunt, i and ii.)

685

For a thorough account of the religious struggle in Virginia from the beginning see Eckenrode: S. of C. and S. On the particular phase of this subject dealt with while Marshall was a member of the Virginia Legislature see ib., chap. v.

686

Mason to Henry, May 6, 1783, as quoted in Rowland, ii, 44.

687

Meade, i, footnote to 142. And see Atlantic Monthly, supra.

688

Eckenrode: S. of C. and S., 75. On this general subject see Meade, i, chaps. i and ii. "Infidelity became rife, in Virginia, perhaps, beyond any other portion of land. The Clergy, for the most part, were a laughing stock or objects of disgust." (Ib., 52.) Even several years later Bishop Meade says that "I was then taking part in the labours of the field, which in Virginia was emphatically servile labour." (Ib., 27.)

"One sees not only a smaller number of houses of worship [in Virginia] than in other provinces, but what there are in a ruinous or ruined condition, and the clergy for the most part dead or driven away and their places unfilled." (Schoepf, ii, 62-63.)

689

Henry, ii, 199-206.

690

Eckenrode: S. of C. and S., 77.

691

Journal, H.D. (2d Sess., 1784), 19.

692

Ib., 27.

693

Ib., 82.

694

Ib.

695

Ib.

696

Ib., 97. For the incorporation law see Hening, xi, 532-37; for marriage law see ib., 532-35. Madison describes this law to Jefferson and excuses his vote for it by saying that "the necessity of some sort of incorporation for the purpose of holding & managing the property of the Church could not well be denied, nor a more harmless modification of it now be obtained. A negative of the bill, too, would have doubled the eagerness and the pretexts for a much greater evil, a general Assessment, which, there is good ground to believe, was parried by this partial gratification of its warmest votaries." (Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 113.)

697

Story, in Dillon, iii, 338.

698

"Virginia certainly owed two millions sterling [$10,000,000] to Great Britain at the conclusion of the war. Some have conjectured the debt as high as three millions [$15,000,000]… These debts had become hereditary from father to son for many generations, so that the planters were a species of property annexed to certain mercantile houses in London… I think that state owed near as much as all the rest put together." Jefferson's explanation of these obligations is extremely partial to the debtors, of whom he was one. (Jefferson to Meusnier, Jan. 24, 1786; Works: Ford, v, 28.)

Most of Jefferson's earlier debts were contracted in the purchase of slaves. "I cannot decide to sell my lands… nor would I willingly sell the slaves as long as there remains any prospect of paying my debts with their labor." This will "enable me to put them ultimately on an easier footing, which I will do the moment they have paid the [my] debts… two thirds of which have been contracted by purchasing them." (Jefferson to Lewis, July 29, 1787; ib., 311.)

699

For Virginia legislation on this subject see Hening, ix, x, and xi, under index caption "British Debts."

700

Definitive Treaty of Peace, 1783, art. 4.

701

Journal, H.D. (1st Sess.), 1784, 41.

702

Ib., 54; 72-73. The Treaty required both.

703

Journal, H.D. (1st Sess., 1784), 74.

704

Ib., 74-75. Henry led the fight against repealing the anti-debt laws or, as he contended, against Great Britain's infraction of the Treaty.

705

Journal, H.D. (1st Sess., 1784), 25.

706

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 114.

707

See Madison's vivid description of this incident; ib., 116; also Henry, ii, 233.

708

Ib.

709

Marshall to Monroe, Dec. 2, 1784; MS., Monroe Papers, Lib. Cong.

710

Madison to Monroe, Dec. 24, 1785; Writings: Hunt, ii, 205.

"Being convinced myself that nothing can be now done that will not extremely dishonor us, and embarass Congṣ my wish is that the report may not be called for at all. In the course of the debates no pains were spared to disparage the Treaty by insinuations agṣṭ Congṣ, the Eastern States, and the negociators of the Treaty, particularly J. Adams. These insinuations & artifices explain perhaps one of the motives from which the augmention of the foederal powers & respectability has been opposed." (Madison to Monroe, Dec. 30, 1785; ib., 211.)

711

Curiously enough, it fell to Jefferson as Secretary of State to report upon, explain, and defend the measures of Virginia and other States which violated the Treaty of Peace. (See Jefferson to the British Minister, May 29, 1792; Works: Ford, vii, 3-99.) This masterful statement is one of the finest argumentative products of Jefferson's brilliant mind.

712

Journal, H.D. (1787), 51.

713

Ib., 52.

714

Ib. James Monroe was a member of the House at this session and voted against the first amendment and for the second. On the contrary, Patrick Henry voted for the first and against the second amendment. George Mason voted against both amendments. So did Daniel Boone, who was, with Thomas Marshall, then a member of the Virginia Legislature from the District of Kentucky. On the passage of the resolution, James Monroe and Patrick Henry again swerved around, the former voting for and the latter against it.

715

Journal, H.D. (1787), 52.

716

Journal, H.D. (1787), 79.

717

"If we are now to pay the debts due to the British merchants, what have we been fighting for all this while?" was the question the people "sometimes" asked, testifies George Mason. (Henry, ii, 187.) But the fact is that this question generally was asked by the people. Nothing explains the struggle over this subject except that the people found it a bitter hardship to pay the debts, as, indeed, was the case; and the idea of not paying them at all grew into a hope and then a policy.

718

Journal, H.D. (1787), 80.

719

Hening, xii, 528. Richard Henry Lee thought that both countries were to blame. (Lee to Henry, Feb. 14, 1785; quoted in Henry, iii, 279.)

720

For an excellent statement regarding payment of British debts, see letter of George Mason to Patrick Henry, May 6, 1783, as quoted in Henry, ii, 186-87. But Mason came to put it on the ground that Great Britain would renew the war if these debts were not paid.

721

Story, in Dillon, iii, 338.

722

Hening, x, chaps. ii and ix, 409-51.

723

For a general review of the state of the country see infra, chaps. VII and VIII.

724

Hening, xi, chap. xlii, 171.

725

Ib., chap. xxxi, 350.

726

Journal, H.D., 52.

727

In order to group subjects such as British debts, extradition, and so forth, it is, unfortunately, essential to bring widely separated dates under one head.

728

Journal, H.D. (1st Sess., 1784), 11-12.

729

Journal, H.D. (1st Sess., 1784), 37.

730

Ib., 81; also, Hening, xi, 388.

731

"The white people who inhabited the frontier, from the constant state of warfare in which they lived with the Indians, had imbibed much of their character; and learned to delight so highly in scenes of crafty, bloody, and desperate conflict, that they as often gave as they received the provocation to hostilities. Hunting, which was their occupation, became dull and tiresome, unless diversified occasionally by the more animated and piquant amusement of an Indian skirmish." (Wirt, 257.)

732

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 110-11.

733

Jay to Jefferson, Dec. 14, 1786; Jay: Johnston, iii, 224.

734

Hening, xi, 471; and Henry, ii, 217.

735

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii. 111.

736

Article VIII, Constitution of Virginia, 1776.

737

Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 111.

738

Ib.

739

Journal, H.D. (2d Sess., 1784), 34-41.

740

"The measure was warmly patronized by Mr. Henry." (Madison to Jefferson, Jan. 9, 1785; Writings: Hunt, ii, 111.) The reason of Henry's support of this extradition bill was not its Nationalist spirit, but his friendship for the Indians and his pet plan to insure peace between the white man and the red and to produce a better race of human beings; all of which Henry thought could be done by intermarriages between the whites and the Indians. He presented this scheme to the House at this same session and actually carried it by the "irresistible earnestness and eloquence" with which he supported it. (Wirt, 258.)

The bill provided that every white man who married an Indian woman should be paid ten pounds and five pounds more for each child born of such marriage; and that if any white woman marry an Indian they should be entitled to ten pounds with which the County Court should buy live stock for them; that once each year the Indian husband to this white woman should be entitled to three pounds with which the County Court should buy clothes for him; that every child born of this Indian man and white woman should be educated by the State between the age of ten and twenty-one years, etc., etc. (Ib.)